From the Spring 2000 issue of The News Media & The Law, page 14.
Low-power radio stations continue to generate controversy. While those “pirate” broadcasters who have gone to court to argue their right to broadcast have been turned away, the Federal Communications Commission has developed plans to license microbroadcasters. But a bill passed by the House of Representatives in April and sent to the Senate would delay the FCC’s plans and require more testing before such stations could legally hit the airwaves.
Congress seeks to delay FCC move to license low-power stations
The FCC established guidelines in 1999 for a new service of Low Power FM Radio (LPFM) channels. The service would consist of 100-watt stations to cover a radius of approximately 3.5 miles, and 10-watt stations covering a distance of between one to two miles and servicing communities and educational institutions.
The stations would be available to noncommercial government or private educational organizations, associations or entities, and government or nonprofit entities providing local public safety or transportation services. Individuals with a past conviction for illegally operating a broadcast station would not be allowed to obtain a license.
Yet, Congress has taken action to stop or slow these efforts. Much of the opposition is due to concerns expressed by the National Association of Broadcasters (NAB), which argues that the reduced channel separation will greatly increase signal interference. The FCC claims little to no interference with existing channels should occur, but the NAB has not been satisfied with the FCC’s reports. Its own report included a CD with a demonstration of the interference levels that it claimed would be found adequate under the FCC’s testing regime. The FCC countered that the NAB CD does not portray actual interference that would be experienced because it artificially mixed two previously recorded radio signals.
“We believe the FCC rushed to judgment on important issues in its haste to push through an ill-advised low power FM service. We further believe that the LPFM rules adopted by the FCC fail to protect the integrity of the radio broadcast spectrum,” the NAB said in a March 27 press release.
“This action is certainly going to cause substantial interference on the FM dial for millions of radio listeners, and we should not be in the business of destroying the FM band,” said House Speaker Dennis Hastert (R-Ill.) to the NAB’s state leadership conference earlier this year. “We can say no to this misguided action by the FCC, and we will.”
National Public Radio has also expressed concern that LPFM signals would interfere with frequencies used by translators and radio reading services for the visually impaired.
Opposition to the FCC’s action led to the Radio Broadcasting Preservation Act of 2000, which passed the House of Representatives on April 13. The act requires the FCC to revise its LPFM regulations to improve signal separation and to conduct more testing on interference.
Yet, FCC Chairman William Kennard stands firm that any doubts about the service can only be outweighed by the benefits.
‘”Why, amidst all this opportunity for broadcasters, have you chosen to muster your considerable resources to deny churches and schools and community-based organizations just a little piece of the broadcast pie,” asked Kennard in a speech to the NAB. “What this is about is fear of new entrants in the market. It’s no different from the battles to kill low power TV, cable TV, satellite radio and satellite television.” (H. R. 3439)
Microbroadcasters lose constitutional challenge to licensing scheme
The Federal Communications Commission currently issues broadcast licenses on the FM band only to high-wattage stations that have large geographical reaches. The stations and transmission equipment are expensive to run and even more expensive to start.
For years, individuals and groups who have wanted to broadcast to a smaller audience have taken to the airwaves with illegal, usually low-powered transmitters that often cover just a neighborhood. The number of what are often called “pirate radio stations” has increased dramatically in recent years, as supporters argue that the FCC’s elimination of most public affairs programming requirements and low levels of meaningful minority ownership have eliminated the diversity of voices on the airwaves.
The FCC and licensed broadcasters have argued that such stations often interfere with licensed signals, and even with other broadcast signals, such as those used by emergency services or air traffic control. As a result, the FCC has repeatedly launched much-publicized raids on microbroadcasters, confiscating equipment and fining the operators if they ignore orders to cease operation. More than 500 broadcasters have reportedly been shut down in the United States and Puerto Rico since 1997. (See NM&L, Summer 1998; Fall 1998)
In 1995, a group of 10 people started a pirate station in New York City, calling it “Steal This Radio.” The group broadcasted weekly from an apartment in Manhattan, utilizing the building’s plumbing pipes as antennas. It grew to become a collective of 60 members broadcasting seven nights a week, covering housing issues and airing local news and music that it said was being ignored by the mainstream media. The station received no commercial advertising or sponsorship and was entirely supported by contributions from its members. Those who worked on the station received no pay.
An FCC field agent tracked the station down, and it was ordered to close in March 1998. The broadcasters formed a coalition they called Free Speech, and on April 15, 1998, announced that they would defy the government order and sue the FCC over what they termed an unconstitutional licensing scheme.
In the suit, brought in federal court in New York City, the broadcasters argued that the radio broadcasting system is a public forum of unlimited character in which they have a First Amendment right to broadcast. The current licensing scheme “burdens substantially more speech, including core political speech, than necessary to serve the government’s interest” in regulating the airwaves, they argued.
The suit was dismissed in March 1999 by federal District Judge Michael Mukasey, who noted that the broadcast spectrum is not a government-created “forum” for speech, much less a “public forum.” Even if it is viewed as a “nonpublic forum,” the regulations are constitutionally sound because they do not restrict speech based on content or viewpoint. The court also found that a government order to shut down does not create an actual injury that gives one the standing to sue, and that other claims brought by the broadcasters should be appealed to the FCC itself, not the courts. The court also enjoined Free Speech from continuing its broadcasts. The broadcasters appealed.
In October 1999, the U.S. Court of Appeals in New York City (2nd Cir.) affirmed the lower court’s ruling.
The court affirmed that “public forum” analysis was unnecessary, because the airwaves were never meant to be a forum for speech by anyone who wanted to speak there.
The injunction was properly granted to the government because it showed there was irreparable harm simply by establishing that plaintiffs were broadcasting without a license,” the court held. “Such unlicensed broadcasting threatens the FCC’s orderly allocation of scarce resources and the clear communication of current and future licensees.” (Free Speech v. Reno)