Pirate Radio Fights for Free Speech - by Jim Cullen FWD (long)

Tom Boland (wgcp@earthlink.net)
Tue, 14 Apr 1998 08:37:29 -0700 (PDT)

=46WD  2 Apr 1998  The Progressive Populist  COVER STORY


By Jim Cullen

A federal district court judge in San Francisco cracked open the door to
free speech on the radio this past November when she ordered the Federal
Communications Com-mission to explain why shutting down a Berkeley, Calif.,
low-power broadcaster would not violate the First Amendment.

But free speech was not what FCC agents had in mind a week later when they
led an armed task force in dawn raids against three "pirate radio"
microbroadcasters near Tampa, Fla. While FCC lawyers challenged the San
=46rancisco district court's authority to judge the constitutionality of
their rules, FCC agents across the country continue to force unlicensed
broadcasters to shut down or face fines and prison.

=46ederal authorities raised the stakes November 19 with the arrest of Arthu=
Kobres, who reportedly had been operating Lutz Community Radio, 96.7 on the
=46M dial, broadcasting what the Tampa Tribune described as "anti-government
material." Kobres, 53, was charged in a 14-count federal indictment with
operating a radio without a license. The FCC previously had confiscated his
equipment on March 7, 1996, but he managed to get back on the air the next

In February, after a two-day trial, Kobres was found guilty on all counts.
Each charge, representing a day the FCC determined he had broadcast
illegally, carries a possible two-year prison sentence plus fines. Kobres
remains free on $25,000 bond pending sentencing, which was set for May 13.
His attorney Lowell Becraft of Huntsville, Ala., told the Tribune the case
may be the first time an unlicensed radio operator has been prosecuted on
criminal charges.

According to the Tribune, Becraft said he will appeal the case and try to
get the law declared unconstitutional. He said Congress overstepped its
bounds when it allowed the FCC to regulate radio stations that don't
transmit signals across state lines. U.S. District Judge Henry Lee Adams
Jr. rejected that argument during the trial.

Kobres said after the verdict: "I don't think anybody understands the
Constitution. I think we're losing our country, and this is evidence of it.
And I think the American people are willing slaves.''

Other unlicensed operators who were shut down in the Tampa area raids
include Doug Brewer, who reportedly has operated a low-power station called
"The Party Pirate" for the past three years. A gang of 20 armed agents and
law officers reportedly broke down his door, then held him and his wife at
gunpoint while they seized his equipment and brought in a crane to destroy
his 150-foot antenna. Another microbroadcaster, Kelly Benjamin, 22, was
charged with possession of marijuana and drug
paraphernalia found during the raid on the unlicensed station "87X" in
Seminole Heights.

Radio pirates, whose unlicensed broadcasts feature everything from
community talk shows and city council meetings to punk rock and militia
rants, say the microbroadcasting movement is a response to the
concentration of radio stations in the hands of large corporations. In many
cases the corporations pipe in programming from New York or Los Angeles and
care little for community needs. Corporate control has tightened since
passage of the Telecommunications Act of 1996, which removed many of the
limits on corporate ownership.

In the past two years under the new rules, which allow corporations to own
as many as eight radio stations in each market, more than one-third of the
12,000 commercial radio stations in the United States have been sold.
Westinghouse/CBS consumed Infinity Broadcasting in a $4.9 billion merger
that brought together 83 stations in 15 of the nation's largest markets.
Then CBS bought another 98 stations. The Dallas investment firm of Hicks,
Muse, Tate & Furst Inc., which set up Capstar Broadcasting Partners in 1996
to take advantage of the new regulatory climate, has bought 407 stations
since passage of the bill -- most of them in small to mid-sized cities --
to make it the largest in number of stations and second only to
Westinghouse/CBS in ad revenue. The nation's top 10 radio groups boosted
their holdings from 652 stations to 1,134, USA Today reported. As prices
soared, the portion owned by minorities, already a scant 3.1 percent, fell
to 2.8 percent.

"Given the incredible concentration of media resources and broadcast
resources into a few hands, micropower broadcast is a way to give the
people a voice," said Stephen Dunifer of Berkeley, a self-styled anarchist
and community organizer who has operated Free Radio Berkeley with a
low-power transmitter since 1993.

=46ree Radio Berkeley broadcasts community news, talk and music 24 hours a
day. Its 90 volunteers generally are on the left of the political spectrum.
The station is unlicensed but its 30-watt broadcasts, whose signals reach
about 10 miles from the source, are not necessarily illegal after Federal
Judge Claudia Wilken in 1995 rejected the FCC's request for a preliminary
injunction. The FCC then asked for a permanent injunction and argued that
Judge Wilken could not consider the issue of whether the FCC rules are
unconstitutional. The government claimed that only higher federal courts
could consider the constitutional question.

This past November Judge Wilken rejected the FCC's request for a permanent
injunction. The judge found merit in Dunifer's claim of First Amendment
protection and ordered the feds to argue the case, which appears headed for
a trial. As for the government's claim that the district court lacks the
jurisdiction on constitutional questions, Judge Wilken noted that the FCC
took the opposite position in the 1994 case of Dougan vs. FCC. In that
case, an Arizona microbroadcaster had appealed an FCC fine for broadcasting
without a license to the 9th Circuit Court of Appeals, and the FCC had
argued that the appeals court had no jurisdiction over the case. The
appeals court agreed with the FCC and sent the case back to the district
court (which upheld the FCC).

The FCC notes that the Supreme Court in 1969 upheld the government's
authority to limit broadcast licenses. In Red Lion Broadcasting Co. vs. the
United States, the high court held, "Congress unquestionably has the power
to grant and deny licenses and to eliminate existing stations. No one has a
=46irst Amendment right to a license or to monopolize a radio frequency."

=46CC officials say microbroadcasters are a threat because their signals
interfere with law enforcement and air traffic broadcasts. They have said
the Florida pirates were shut down after complaints from air-traffic
controllers, although the Tampa Tribune also quoted the general manager of
five local stations who had complained to the FCC that the Party Pirate's
proximity to one of his stations was confusing his listeners. Dunifer also
notes that air traffic communicates at 118 to 135 megahertz, far from his
signal at 104.1 megahertz.

=46CC Chairman William E. Kennard has disputed complaints that the FCC's
policies are designed only to benefit "rich corporations." He has
reiterated that the commission will not condone illegal broadcasting, but
as a concession he has proposed licensing stations operating at 1 watt or
less, which would allow a signal to reach no more than a few square miles.
He is accepting comments on that proposal. (See box above.)

Before 1980, students and nonprofit groups could apply for Class D
licenses, which allowed them to broadcast up to 10 watts. Then, after the
Corporation for Public Broadcasting complained that the microbroadcasters
were cluttering the noncommercial band, the FCC ordered all stations of
less than 100 watts to stop broadcasting.

Mbana Kantako of Black Liberation Radio in Springfield, Illinois, coined
the term micro power broadcasting in the late 1980s and the movement
received a boost in the past few years with Dunifer's legal challenge. The
National Lawyers Guild's Committee on Democratic Communications, in a
"friend of the court" brief in Dunifer's case, pointed out that "FCC
regulations make it impossible for all but the very wealthy to even apply
for a broadcast license. ... This is the equivalent of saying anyone could
speak from a soap box in the park, but the box had to be made of gold."

Guild attorney Peter Franck commented, "In an era when Disney owns ABC, the
world's largest defense contractor owns NBC and CNN merges with Time, which
merges with Warner, and when 'public' broadcasting is told to get its money
from corporations, micro radio may be our last best hope for democracy on
the air ways." He added "Judge Wilken's decision is a courageous rejection
of the Government's attempt to use a legal Catch-22 to avoid facing the
fact that its ban on micro radio flies in the face of the Constitution."

Dunifer, 46, has been called the Johnny Appleseed of the microbroadcasting
movement. He started with a transmitter, sometimes powered with a car
battery tucked into a backpack when he literally went into the hills,
"going mobile," as he put it. But the station organizers had talked with
attorneys before they went on the air and they were looking forward to
confronting the FCC in court. "We felt we had a good constitutional basis
for challenging them," Dunifer said.

The station, which is marking its fifth anniversary this month, has been at
a fixed location for the past three years and it has attracted community
support. From his home, Dunifer also sells do-it-yourself transmitter kits
that can put a microbroadcaster on the air for under $2,000. He said demand
for the kits has been steady. In addition to hundreds of low-power stations
in the United States, he has sent transmitters to Chiapas and Haiti.

"Ultimately what we want to see is creation of a low-power, deregulated
community broadcast service," he said. "Our tactic is basically to get
enough stations on the air to force the FCC to acquiesce and work with us
to create a situation that's acceptable to everyone."

Dunifer acknowledged that the airwaves are crowded, particularly in
metropolitan areas, but he added, "We can find holes just about anywhere.
There are lots of places across the country where it's not a problem [to
find a vacant frequency]."

After the SWAT raids in Tampa, Dunifer said, "This certainly shows that the
=46CC has nothing but contempt for due process and the Bill of Rights. It is
clear that the FCC is carrying out its marching orders given to it earlier
this year by the National Association of Broadcasters who have begun a
search and destroy campaign against micropower broadcasting. "

The Radio Board of Directors of the National Association of Broadcasters on
January 12 commended the enforcement efforts of the FCC and Department of
Justice and urged the creation of a special task force within the Justice
Department. "We stand ready to support the government's effort to eliminate
unlicensed radio broadcast stations in the United States," the commercial
broadcasters stated.

Dunifer replied, "Both the FCC and NAB can kiss my Bill of Rights."

In a memo, "Liberating the Airwaves -- Events & Strategies," posted on his
web site (www.freeradio.org), Dunifer wrote: "Our strength rests in the
court of public opinion." To that end he helped organize a national teach
in during the week of February 16 under the banner of "Who Owns the

This month, Radio Mutiny, an unlicensed station in Philadelphia, plans to
sponsor an East Coast Micropower Broadcasting Gathering the weekend of
April 3, followed by a West Coast Gathering in Las Vegas on April 6-8 to
coincide with the National Association of Broadcasters' convention (which
features the induction of Rush Limbaugh into the Broadcasters' Hall of
=46ame). In addition to a clinic for the repair and tuning of transmitters,
the micropower convenors plan to confront the NAB and set up a micropower
station to be put on the air for the duration of the gathering and handed
over to the community when the pirates leave.

This summer, a coalition of more than 30 community-oriented radio stations,
both licensed and unlicensed, plan a Grassroots News and Media Conference &
Culture Jam, June 19-21, in Austin, Texas. (For information email
grassroots@tao.ca or write Tony Truong 4522 S. 2nd St Austin, TX 78745.)

Although there are thought to be about 1,000 microbroadcasters in the
United States, many are on-and-off operations. Some microbroadcasters who
are operating more or less in the open are Radio Free Allston, in
Massachusetts, which has the support of the Boston City Council; Excellent
Radio, which broadcasts City Council meetings live in the Central
California town of Grover Beach; and Kind Radio in San Marcos, Texas (see
the accompanying column by Juan Palomo).

The founder of Kind Radio, Joe Ptak, 39, got a taste for First Amendment
issues with the Hays County Guardian, an alternative newspaper in San
Marcos, which is approximately 30 miles from Austin. When the Southwest
Texas State University administration banned distribution of the newspaper
on campus in 1989, the Guardian took the university all the way to the
Supreme Court. In 1992 the court ruled that the Guardian was noncommercial,
since its advertising only covered production costs, and the prohibition
was illegal. The newspaper was awarded $5,000 damages and approximately
$200,000 in attorney fees.

About two years ago, Ptak heard about Free Radio Berkeley and decided the
Guardian should branch into radio. (The newspaper has devolved into a
one-page program guide for the radio station.) One week before they went on
the air in March 1997, Kind organizers sent a letter to the FCC telling of
their plans. A few weeks later, two field agents visited Kind, informed
them that they were in violation of FCC regulations and told them to stop
broadcasting, Ptak said.

"I told them I believed we had a bureaucratic conflict and that I
understood that they were advancing a legal principle that we should stop
broadcasting until a judge told us we could operate," Ptak said. "We were
going to operate under the legal premise that we were innocent until proven
guilty, and we were going to continue to broadcast until a judge told us to

Kind Radio has requested a permit with a waiver from the FCC's requirement
that stations broadcast at 100 watts to get a license, Ptak said. Its next
problem is that Capstar Broadcasting Partners, the broadcasting behemoth,
recently acquired the rights to broadcast at 105.9 FM, the frequency at
which Kind broadcasts. Capstar plans a 50,000-watt station based in Round
Rock, which is about 48 miles away. The station would serve the Austin
metro area and according to its license application the new station's
signal would reach to the San Marcos city limits, Ptak said.

"One of the major things we're focusing on is we believe the value of
political speech is of a higher order, and should receive more protection,
than commercial speech," Ptak said.

Of the two stations officially licensed to San Marcos, a city of 30,000
population, he noted the FM station actually broadcasts oldies music to the
Austin market, while the AM station rebroadcasts Spanish-language religious
broadcasts from the Rio Grande Valley. Kind offers community news and
information, such as interviews not only with local and county officials
but also with candidates from both major parties for state attorney
general, a race which was virtually ignored by licensed broadcasters before
the March 10 primary election.

Ptak said the programs reflect a broad spectrum of political participation.
"It's all individuals; there's no group affiliation or political agendas.
These are all just citizens representing their own ideas or interests or
talents. Our only restrictions are: no commercials, no pornography and no
slander." He added, "We established those after people pushed the limits."

Robert W. McChesney, a critic of the corporate media's effect on democracy,
and associate professor of journalism at the University of Wisconsin, said
the radio industry has seen a "total shakedown, with a handful of huge
chains dominating radio, since the Telecom Act."

Radio is perhaps the least expensive mass media to produce, and is best
suited to cover local community issues, but McChesney, author of Corporate
Media and the Threat to Democracy [Seven Stories Press, 1997], noted, "it
has become the most concentrated and formulaic medium in the country. It's
a tremendous irony, or even tragedy, and it makes the need for low-power
broadcasting even more striking."

He does not advocate an unlicensed radio free-for-all, which distances him
from some of the anarchist/libertarians in pirate radio. "If we got rid of
all licensing, the only thing for sure what happen is the big companies
would blow everyone else out of the water, so I'm not an anarchist in that

Good broadcasting also takes resources, McChesney said, and if American
people want a media system that is dedicated to democracy and not to
fattening the wallets of investment bankers, it should demand establishment
of a real public broadcasting service that does not rely on politicians and
corporations for funding. "I think there's a lot of popular support for
that. The problem is organizing, but I don't think that is because people
don't want it. I think it doesn't exist for a lot of other reasons, not the
least of which is the power of the commercial broadcasting lobbies." He
also would provide for more community radio and public access TV and
restrictions on advertising during news and kids' shows.

The good news is that the FCC and the NAB appear to be rethinking their
strategy and allowing the possibility of legitimizing microbroadcasting in
some form. "They think it might be counterproductive to turn these people
into martyrs," McChesney said. "I do know the FCC is talking about
establishing low-power stations. They're talking about 1-watt stations,
which is a joke, but the principle as I understand it is here to stay. I
think 50 or 100 watts is the way to go."

Ultimately, a reallocation of the airwaves may be needed. "Is it
politically possible in the United States in 1998? No," McChesney said. "Is
it something we have to do if we're serious about having a democracy? No
question about it. The fact that it's impossible doesn't stop you. It means
you just try to change the political culture until it becomes possible.

"One thing I know: I find very few people who think this is great, 'we love
what's going on.' They say this is a total ripoff -- it's outrageous. Even
political conservatives think it's a total ripoff. The problem is
communicating that and making it an issue, because it's an issue that's
resolutely avoided in the commercial media, which is where people normally
get their news."

How to democratize radio

The airwaves are a public trust and the general public should have a say in
how they are run. Write the Federal Communications Commission (see address
below) and ask commissioners to:

* Halt all FCC assaults on microbroadcasters until final outcome of the
=46ree Radio Berkeley case is known.

* Call for microbroadcasting demonstration zones in your area to help
develop rules for low power broadcasting.

* Re-establish the Fairness Doctrine to provide for alternative views on
all licensed broadcasting stations.

* Restore the licensing of community radio stations broadcasting at 100
watts or lower on available frequencies.

* Allow public access to a portion of the bandwidth given to digital
television broadcasters.

* Encourage the FCC and Congress to reserve a significant portion of the
analog television spectrum (which has to be returned to the government by
current broadcasters once the digital transition is completed in the next
decade or so) for low-power radio and television services. (The audio
spread for channels 2-6 is just below the FM band.) While this is a
long-term proposition it may represent one of the most exciting
opportunities for increasing the diversity of broadcasting voices and
programming at a very low cost.

Ask Congress to:

* Limit corporations to no more than one AM and one FM station in each
metropolitan area, require each station to provide local news and public
affairs programming and provide for community oversight over stations owned
by out-of-town corporations.

* Finance noncommercial public broadcasting with a tax on commercial
broadcast advertising. The late Fred Friendly, the broadcast news pioneer
who helped create the Corporation for Public Broadcasting after being run
off from CBS, proposed such a tax to relieve chronic revenue problems. A
broadcast tax of 2% would raise nearly $1 billion from an industry that
otherwise pays nothing for the right to profit off public airwaves. Not
only would the tax pay for public radio and TV, eliminating the need for
pesky pledge drives; it also could pay for public funding of state and
federal politican campaigns (see Editorial, page 2). If we raised the tax
to 10 percent we also could pay for other domestic programs and/or provide
for middle-class tax relief.

* Develop the Internet as an unregulated broadcast medium.

You can get political advocacy groups and labor unions interested in media
democracy issues. It might not be the most important issue for most groups,
but, as media critic Robert W. McChesney says, it is one of the issues we
must deal with if we are to have a democratic society.

- Jim Cullen

=46or more information, contact:

=46ederal Communications Commission, 1919 M Street N.W., Washington DC 20554=
William Kennard, Chairman, email
wkennard@fcc.gov. Also Commissioners Susan Ness, email sness@fcc.gov;
Harold Furchtgott-Roth, email hfurchtg@fcc.gov;
Michael Powell, email mpowell@fcc.gov; Gloria Tristani, email
gtristan@fcc.gov. For general information, phone toll-free
1-888-225-5322); web: http://www.fcc.gov .

Address your members of Congress c/o Senate, Washington, D.C., 20510 or
House of Representatives, Washington, D.C.
20515. Phone 202-224-3121, 1-800-522-6721 or 1-800-504-0031. Email
addresses are available at

Stephen Dunifer, Free Radio Berkeley, phone 415-644-3779; email:
frbspd@crl.com; web: www.freeradio.org . His new book,
Seizing the Airwaves, written with Ron Sakolsky, recently was published by
the AK Press (call toll-free 888-4AK-PRES for
information). Among other things, the book is a primer for budding

Joe Ptak, Kind Radio, c/o Media Design, 216 N. Guadalupe St., San Marcos,
TX 78666; phone 512-754-0274; email
chris@mediadesign.net; web: http://www.mediadesign.net .

Radio Mutiny, 4116 Chester Ave. Box 238, Philadelphia, PA 19104; phone
215-382-4992; email wppr@svaha.com.

Peter Franck, Counsel for the National Lawyers Guild, phone
415-415-995-5055; email pfranck@hbmvr.com; web:

Louis Hiken, Counsel for Stephen Dunifer, phone 415-575-3220' email:
hiken@igc.org: web www.368Hayes.com

=46airness and Accuracy in Reporting (FAIR), 130 W. 25th St., NYC, 10001;
phone 212-633-6700; email fair@fair.org; web:

Americans for Radio Diversity web site: http://www.radiodiversity.com .

=46or more pirate radio web sites, see http://www.eden.com/~reporter/links

Copyright =A9 1998 The Progressive Populist


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