Microbroadcasters take to court, airwaves as FCC low-power licensing plan evolves

From the Fall 2001 issue of The News Media & The Law, page 42.

By Greg Reed

Anthony Gray shuffled through mainstream radio, starting as a disc jockey, working his way to a programming director for a major New York City station and eventually becoming a broadcast consultant.

But when the Federal Communications Commission recently reopened the airwaves to low-power FM radio stations, Gray left the beaten path to help students in a small Louisiana town learn how to wield the tools of radio broadcasting.

With the help of M&M Community Development, a national outreach organization for minority media, Gray organized KCJM-LP, the first low-power station to legally broadcast in the United States since 1978. KCJM went on the air at 107.9 FM on June 21, 2001.

“Low-power radio has been a benefit to the public because it is some means of allowing those who would otherwise not have access a voice on the broadcast spectrum,” Gray said. “The stations I am working with are educational instruments to instruct high school and college students about basic, day-to-day operations of a broadcast station.”

The $30,000 to $40,000 construction costs for getting KCJM on the air pales in comparison to the money — often more than $1 million — required to start up a traditional, high-power station, Gray said. For this reason, advocates of low-power FM radio, or LPFM, struggled for years to encourage the FCC to rethink its 20-year-old ban on microradio.

The FCC policy, implemented in January 2000, is just now resulting in operable community stations. Although only a few stations are legally on the air, hundreds more are under construction and numerous LPFM advocacy groups are helping applicants move through preliminary phases to realize their broadcasting dreams.

But with legal challenges lingering in court and a few apparent attempts by national organizations to circumvent regulations designed to give LPFM a local focus, several hurdles remain for this “new class” of community broadcasters.

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The dark horse in federal court

After the FCC opened the broadcast spectrum for LPFM in January 2000, Congress responded with some modifications in the waning minutes of the 106th Congress. The Radio Broadcasting Preservation Act of 2000, attached as a rider to an appropriations bill, required the FCC to enforce long-standing channel protections and disqualify anyone previously engaged in unlicensed broadcasting from applying for a permit in the future.

Although the changes left room for hundreds of potential stations, it effectively excluded hundreds of microbroadcasters.

New York attorney Robert Perry, who worked with LPFM activists for nearly four years to get such stations on the air, was now suing the FCC to challenge the disqualifications that continue keeping certain activists off the air.

On behalf of Greg Ruggiero, a former unlicensed broadcaster who helped found Steal This Radio in Manhattan in the mid-1990s, Perry told a panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) in September that the government violated his client’s First Amendment rights by automatically disqualifying all former unlicensed broadcasters from obtaining LPFM licenses.

“The legitimate government interest is to ensure the selection of truthful and reliable broadcasters,” Perry said. “In the past, the FCC took the position that to serve the public interest you need not disqualify any applicant automatically. It is clear the government cannot act to suppress or penalize a particular viewpoint, but here, they sought to punish low-power advocates who engaged in civil disobedience.”

Lawyers for the FCC declined to comment, although in court documents they say the Supreme Court established that broadcasters do not have a First Amendment right to broadcast without a license.

The case, N.A.B. v. FCC, once included the National Association of Broadcasters, a lobbying group for the nation’s largest broadcasters that opposed many of the proposals for low-power radio. It had been consolidated with Ruggiero’s lawsuit.

But the NAB withdrew after Congress restored the original spectrum protections.

The appellate court has not reached a decision in the case.

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Arm in arm

For years, Ruggiero and other low-power radio activists defied the FCC by taking to the airwaves without licenses. It was a calculated act of civil disobedience, they say, meant to challenge government restrictions favoring big-budget radio companies at the expense of local broadcasters.

“We thought it was right to challenge these rules that put media disproportionately in the hands of the wealthy,” said “Pete Tri Dish,” a longtime LPFM advocate from Philadelphia who declines to reveal his real name and reverts to his on-air moniker when talking about low-power radio. “We thought our speech was political, and therefore protected.”

“Dish” was operating Radio Mutiny in Philadelphia around the same time Steal This Radio broadcast daily from Manhattan’s Lower East Side.

Although he is no longer on the air with Radio Mutiny, Dish is still every bit the believer in LPFM’s strength as a community institution as he was in the past. The low-power activist now works as coordinator of Prometheus Radio Project, an organization in Philadelphia that formed to help the FCC shape LPFM licensing.

According to Dish, Prometheus Radio Project stays busy providing workshops on starting LPFM stations and monitoring the FCC as it distributes the new licenses.

“We were there to help create the service, and now we are here to work with it,” Dish said.

Consumed by similar efforts to get LPFM stations underway, staff members at the Low Power Radio Coalition worked diligently for the past three years to paint an accurate picture in Washington about why activists felt LPFM service was necessary.

“We spent an enormous amount of time raising awareness in the public about what was going on, and taking information from the public to the FCC,” said Michael Bracy, the coalition’s executive director.

“The focus now is on trying to make sure the stations have the resources they need to succeed,” Bracy said. “The only way you are going to see low-power radio grow is if the first group of stations succeed by providing beneficial programming for their communities.”

Along with groups like Prometheus and the Microradio Implementation Project, the Low Power Radio Coalition worries about big business preventing community activists from obtaining LPFM licenses.

“We are focused on taking a look at new stations to see if they do benefit their communities,” Bracy said. “The FCC put a lot of safeguards in their plan to ensure local ownership, but some groups are trying to circumvent the rules.”

FCC mandates allow for organizations to obtain numerous low-power radio licenses if they have distinct local chapters. But some national organizations that want LPFM stations appear to be listing board members that either do not exist or do not know they’ve been listed as applicants, said Andrea Cano, director of the Microradio Implementation Project.

According to Cano, she and other advocates of LPFM are afraid of businesses undermining the integrity of the LPFM licensing plan, which she said provides a unique opportunity for local groups to broadcast news, commentary and educational materials often absent from traditional radio programming.

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Untangling the litigious web that remains

While many LPFM advocates are now lining up for FCC licenses, Greg Ruggiero is not the only determined microbroadcsater remaining in court to challenge past and present FCC policies that criminalized some LPFM broadcasters.

Although the U.S. Court of Appeals in Cincinnati (6th Cir.) affirmed in June a district court’s decision to permanently bar Cleveland nightclub owner Jerry Szoka from making unauthorized radio transmissions, Szoka fights on.

“Szoka believes he is fighting a noble battle in favor of microradio broadcasting in general and his community of listeners in particular,” wrote Circuit Judge Danny Boggs in the 10-page ruling. “That may be the case, but it is not for this court to pass judgment on. This case concerns the sole question of whether the district court acted properly in issuing an injunction to prevent Szoka from broadcasting without a license. Our analysis must begin and end on that question, even though Szoka wants it to go further.”

Even though the circuit court voiced some sympathy for the efforts of illicit broadcasters, Boggs concluded that the allegations raised by Szoka in his appeal needed to be decided in Washington, D.C., “since the Communications Act gives exclusive jurisdiction for review of FCC cease and desist orders to the D.C. Circuit.”

On Sept. 13, attorneys for Szoka and the FCC appeared before a three-judge appellate panel in Washington, D.C., about the constitutionality of the FCC ban on low-power radio.

FCC attorney Rodger Citron said in court that Szoka should have either applied for a license or sought to change the FCC’s rules instead of knowingly violating the law by going on the air without a license.

Hans Bader, Szoka’s attorney, said any efforts by his client to apply for a license would have resulted in an FCC refusal, since the agency enforced its 1978 prohibition on low-power FM stations. Szoka contends the former FCC ban was unconstitutional.

“[Szoka] did not apply for a license because the FCC placed a ban on micro broadcasts,” Bader said in court. “But the microbroadcast ban is overbroad.”

During the time it took for courts to process Szoka’s appeal, the FCC changed its absolute ban on LPFM to allow for some stations. (U.S. v. Szoka) But unless the appeal is successful, Szoka’s station, Grid Radio, and many others may never be able to return to the airwaves, since they are included in the FCC prohibitions against licensing former pirates. (Grid Radio v. FCC)

Many representatives of the broadcast industry are content with that, as they say there just is not enough room on the FM spectrum for radio stations.

“When you squeeze in too many stations in the [FM] spectrum, you get interference,” said Dennis Wharton, spokesman for the National Association of Broadcasters, an industry group in Washington, D.C. “It’s not a First Amendment issue, it’s an issue of spectral integrity.”

But Anthony Gray said he’s more interested in embracing the opportunities that were created by putting broadcasting capabilities into the hands of community groups around the country.

“The Telecommunications Reform Act of 1996 pushed out the majority of small and medium size broadcasters,” he said. “It made it impossible to access broadcast licenses for those without means of accessing huge amounts of capital.”

By working with student broadcasters and the new FCC plan for putting community groups on the air, Gray said he’s helping to build a new style of radio broadcasters.