A position paper prepared by the National Lawyer's Guild Committee on Democratic Communications and the Stephen Dunifer Legal Defense Team. Presented by Luis Hiken to the National Association of Broadcasters, April 6, 1998, Las Vegas, Nevada1

1. Is a Media Regime Based on Private Profit Constitutional? What would Jefferson Have Said?

In his classic testimony before the House Judiciary Committee in, 1954, the late Alexander Meiklejohn said:

To find [the meaning of the First Amendment] we must dig down to the very foundations of the self-governing process. And what we shall there find is the fact that when men2 govern themselves, it is they - and no one else - who must pass judgement on public policies. And that means that in our popular discussions, unwise ideas must have a hearing as well as wise ones, dangerous ideas as well as safe, un-American as well as American. Just so far as, at any point, the citizens who are to decide the issues are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to those issues, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment is directed. 3

The first amendment had to be added to the Constitution before it could be ratified to insure that the United States would have a robust democracy. As Meiklejohn pointed out, a robust democracy requires broad channels of discussion and debate on all of society's issues and concerns. It requires a media system which is open to the widest possible range of views and in which all citizens can effectively express and communicate their ideals, thoughts and concerns, as well as receive and consider the thoughts, ideas and concerns of their fellow citizens.

The Communications Act of 1934 says that it is enacted "... so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges..."4

Does the present media system, in which broadcasting is the primary channel of communication, information and dialogue for our democracy, meet this Constitutional and Legislative mandate? Are there a broad spectrum of views and opinions available to the people of the United States. Do people hear about choices other than Clinton or Dole? Is the view that the economy is not so rosy for the one third of American children living below the poverty line up for discussion? Does anyone who thinks that the war on (some) drugs isn't such a hot idea have an audience? Is a media system which grants access to only a narrow range of views Constitutional? Is a media system where the price of a soapbox is millions and millions of dollars constitutional? Are recent developments, such as the Telecommunications Act of 1996, moving it closer or further away from complying with the dictates of the First Amendment?

Lets look at radio, the media sector most thoroughly affected by the recent Telecommunications Act. The Act relaxed ownership restrictions so that one company can own up to eight stations in a single market. In the twenty months since the law came into effect, 4,000 of the nation's 11,000 radio stations have changed hands, and there have been over 1,000 radio company mergers.5 Small chains have been acquired by middle-sized chains, and the middle-sized chains have been gobbled up by the few massive giant companies who have come to dominate the industry. This sort of consolidation permits the giant chains to reduce costs by down-sizing their editorial and sales staffs and running programming out of national headquarters. According to Advertising Age, by September 1997 in each of the fifty largest markets, three firms controlled over 50 percent of radio advertising revenue (and programming).6 In twenty-three of the top fifty, three companies controlled more than 80 percent of the ad revenues. CBS alone has 175 stations, mostly in the fifteen largest markets.7

As The Wall Street Journal puts it, these deals "have given a handful of companies a lock on the airwaves in the nation's big cities. Relative to television and other media, radio is inexpensive for both broadcasters and consumers.8 It is ideally suited for local control and community service. Yet radio has become nothing but a profit engine for a handful of firms so that they can convert radio broadcasting into the most efficient conduit possible for advertising. Across the nation, these giant chains use their market power to slash costs, providing the same handful of formats with barely a token nod to the communities in which the stations broadcast. On Wall Street, the corporate consolidation of radio may be praised as a smash success, but by any other standard this brave new world is an abject failure."9

2. Access to the Airwaves.

Since 1979, the Federal Communications Commission, by regulation has decreed that no radio station can be licensed at a broadcast power of less than 100 watts, and the FCC requires all potential licensees to conduct expensive engineering studies, which with associated legal and hardware expenses for a typical new station amounts to over $250,000.

It is as if a "Federal Newspaper Commission" in the name of efficiency, has said that, to conserve paper and ink, only newspapers of at least 1 million general circulation would be legal. All church newsletters, PTA bulletins, and community weeklies would be banned. The situation in broadcasting is quite analogous.

Whether valid or not at the time, the ban on low power radio today fails constitutional muster. In Federal Communications Commission v. League Of Women Voters of California, 468 U.S. 364, 380-381 (1984) the United States Supreme Court enunciated the test for restrictions on broadcasting.
"...[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern....But, as our cases attest, these restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest" [emphasis added].

The rationale, i.e., the "government interest," for the restriction put in place in 1979, was the enhancement and strengthening of public radio stations. This was done at a time when the Corporation for Public Broadcasting and the National Federation of Community Broadcasters wanted to "professionalize" public stations by driving out of existence a large number of small 10 watt, mostly college stations, and consolidating that energy and the money into a smaller number of more powerful stations. Today, public radio is fighting for its life, is underfunded, caters to an elite audience, and is being forced to drift into commercialization. It provides no real alternative and no access for the community. Whatever the case may have been in 1979, banning low power radio is no longer the least restrictive means of accomplishing a legitimate government interest.
The arbitrariness, and in fact the content relatedness of the ban on low power radio is made very clear by the FCC's current policies with respect to translators. The Commission will license a ten watt translator sitting on top of a mountain, retransmitting into a small town in a rural valley a signal from a 50,000 watt station in a city 50 to 100 miles away. Yet, it will not permit that small town to have this translator/transmitter send any local news, information or entertainment down to the same town over the same transmitter.

3. The Response of the Grass Roots.

Starting in 1989, with Mbanna Kantako, an unemployed black man living in a housing project in southern Illinois, the Microradio Movement has grown as an indigenous grass roots response to the terrible and unconstitutional vacuum on the airways. Spurred on by the efforts of Stephen Dunifer, an engineer and philosophical anarchist10, spurred on by the recognition of United States District Court Judge Claudia Wilken11 that the constitutional challenge to the present regulatory regime was a serious one meriting a very close look by the FCC and the courts, the Micro Radio movement has grown to the point that there are probably 1,000 stations on the air in the United States.
In Central California "Excellent Radio" broadcasts the local city council meeting every week.12 This non-licensed station replaced a service abandoned by a local commercial station in search of greater profits and more advertising revenue. In the Northwestern United States, Korean communities served in their own language by no commercial broadcasters have set up their own non-licensed Korean service.
The micro radio movement is international:
"In regard to the global dimension of this movement, Dunifer has twice visited Haiti, where he acted as a technical consultant to the network of Haitian micropower radio stations... presently beginning to flex their muscles with the support of the Lavalas (Cleansing Flood) party, whose logo is of people sitting equally around a table... Dunifer found support for his ideas in former President Aristide... and with his help Dunifer seeks to place a transmitter at the center of the Lavalas table."13

Several years ago, in the same week that Steven Dunifer received a Notice of Apparent Liability in the sum of $20,000 from the Federal Communications Commission, he received from United Nations Educational Scientific and Cultural Organization (UNESCO) an order for $5,000 worth of micro-radio transmitters for UNESCO's community development project in the Philippines.
Since Dunifer's Free Radio Berkeley went on the air in 1991, there have been five conferences of micro broadcasters, each larger than the last. Three days ago, several hundred micro broadcasters met in Philadelphia to consolidate their plans and continue growing the movement. As we meet today, several hundred more micro broadcasters are meeting here in Las Vegas with the same purpose.

4. What is the Appropriate Response by Federal Communications Commission, the National Association of Broadcasters, the Micro Radio Community

The FCC has released a Notice of Inquiry with respect to the question of whether it should open a formal rulemaking proceeding to review the ban on low power radio. FCC Chair William Kennard has conceded that micro-broadcasters have a point when they complain that it is hard for community broadcasters to get on the air. He has said that he thinks that micro-broadcasting has exploded in popularity in the last five years as a backlash against the consolidation of station ownership spurred by the 1966 federal communications law.14
The National Association of Broadcasters assembled this weekend has a historic opportunity to show the world that it too is committed to the Constitution and democracy, and to the sharing of the electronic spectrum between the commercial broadcast industry and democracy at the grass roots.
The Micro Radio community has come together to present here and in the rulemaking a simple, practical and democratic proposal for a low power radio regime. We in the Micro Radio community urge the National Association of Broadcasters to join in this inevitable and necessary democratization of the airwaves.

5. Proposal for Low Power FM Service.

We propose:

1. A micropower station may be established on any unused frequency within the FM broadcast band and extending down to 87.5.15 Second adjacent channel would the closest spacing allowed. A micro station shall fill out a simple registration form, and send one copy with an appropriate registration fee to the FCC, and a second copy to the voluntary body setup by the micropower broadcast community to oversee the micro power stations.16
   
2. Maximum power shall be 50 watts urban and 100 watts rural. In the event of interference due to power level17 a station shall have the option to reduce power to remedy the situation or else be shut down.
   
3. Equipment shall meet a basic technical criteria in respect to stability, filtering, modulation control, etc.
   
4. Only one station per organization. The organization must be based in the local community and not be a profit-making organization. Local origination of programming is encouraged as much as possible.
   
5. No commercial sponsorship shall be allowed.
   
6. There shall be no content requirements. Stations shall deal with "community standards" issues on an individual basis and in accordance with their own particular mission statements.
   
7. When television broadcast stations go digital, leaving Channel 6 free, it shall be allocated as an extension to the bottom of the FM band strictly for low power community FM service.18 Radio receivers manufactured or entering the country after that allocation must meet this band extension.
   
8. Registration shall be valid for four years.
   
9. Problems whether technical or otherwise shall be solved, if at all possible, at the community level first by technical assistance or voluntary mediation. The FCC shall be the court of last resort.
   
10. Micro broadcasting of special events (demonstrations, rallies, festivals, etc.) do not need to be registered but are encouraged to meet all technical specifications.19
    
11. Democracy will take a great leap forward in the United States.

Footnotes:

1. Thanks to Robert McChesney for his input.
   
2. We must forgive this great man, born in 1872, his use of the male pronoun.
   
3. This has been published in Meiklejohn's book, Political Freedom: The Constitutional Powers of the People, New York: Oxford University Press, 1965. Reissued in September 1997.
   
4. 47 U.S.C. Section 151 as amended to 8/96.
   
5. David Johnston, "U.S. Acts to Bar Chancellor Media's L.I. Radio Deal," The New York Times, November 7, 1997, p. C10.
   
6. Ira Teinowitz, "Westinghouse deal fuels consolidation in radio," Advertising Age, September 29, 1997, p. 61.
   
7. Timothy Aepel and William M. Bulkeley, "Westinghouse to Buy American Radio," The Wall Street Journal, September 22, 1997, p. A3
   
8. Eben Shapiro, "A Wave of Buyouts Has Radio Industry Beaming With Success," The Wall Street Journal, September 22, 1997, p. A3.
   
9. The Wall Street Journal, September 18, 1997, p. A1
   
10. Anarchism is a philosophical system emphasizing self-reliant, small unit organizations and grass roots activity. It is by no means synonymous with chaos.
    
11. U.S. v. Dunifer, No. C 94-03542, Memorandum Decision of January 30, 1995 (N.D. CA 1995)
    
12. The council, concerned about the "legality" of allowing a non-licensed station to broadcast its proceedings, was advised by its attorney that it would in fact violate California's "Brown Act" to refuse to let them so broadcast its meetings.
    
13. Ron Sakolsky, "The Rise of the Free Radio Movement" p. 78, in Sakolsky & Dunifer, "Seizing the Airwaves: A Free Radio Handbook," AK Press, 1998.
    
14. Los Angeles Times, Thursday March 5, 1998, page 1 "Defiant Pirates [sic] Ply the Radio Airwaves," by Mary Curtis.
    
15. When there is no TV on channel 6.
    
16. Such models of self-regulation already exist within the ham radio community and the commercial broadcast arena.
    
17. This would not include near field effects.
    
18. This would add 30 new channels since the TV channel is 6 Mhz wide and an FM broadcast channel is only 200 Khz wide.
    
19. One frequency could be set aside for this, in the San Francisco Bay Area, 87.9 serves this purpose.

Free Radio Berkeley [http://www.freeradio.org]
NLG [http://www.368Hayes.com/nlg.cdc.html]
[http://www.radio4all.org]
FCC [http://www.fcc.gov]

National Lawyer's Guild [Alan Korn] [aakorn@igc.apc.org]