National Association of Broadcasters

Micro Radio & the FCC

February 5, 1999

Guests: Peter Franck & Barbara Olshansky

Hosts: Steve Rendall & Janine Jackson

Steve Rendall (SR): Recent developments in the courts and at the FCC, that could affect the world of broadcasting profoundly, are being closely monitored by micro radio advocates this week. Launched on behalf of Steal This Radio, an unlicensed, low-power station in New York's Lower East Side, a suit titled Free speech vs. Janet Reno has reached an interesting stage. The suit pits micro broadcasters against FCC rules they feel unconstitutionally limit their free speech by prohibiting low-power broadcasts--even though those broadcasts do not disturb the signals of other licensed stations.

Joining us in the studio is Barbara Olshansky, Assistant Legal Director for the Center for Constitutional Rights. Barbara will give us the latest on the "Free Speech vs. Janet Reno" lawsuit. She is the counsel for the 'Free Speech' side in the case. Also joining the discussion by phone from San Francisco is Peter Franck. Peter is an entertainment attorney and a member of the Committee on Democratic Communications, or CDC, which is part of the National Lawyer's Guild. The CDC has been involved in the defense of micro broadcasters for ten years, challenging the constitutionality of the FCC's rules and trying to effect a change in rules that would allow low-power radio to be licensed in communities across the country. Peter Franck will fill us in on developments on that front.

Welcome to CounterSpin, Barbara.

Barbara Olshansky (BO): Thank You.

SR: And welcome back Peter.

Peter Franck (PF): Thank You.

SR: Peter, lets start with you. Could you briefly tell us what the CDC has been pushing for in the last several years, and then fill us in on the latest developments at the FCC.

PF: Well, the CDC has been challenging in court, on behalf of micro broadcasters, the ban on all cheap, low-power community radio as a violation of the First Amendment. We have argued to the court that the ban on low-power radio is like saying, anyone can speak from a soapbox in a park, but the soapbox has to be made of gold. The high-power requirement and the hurdles that you have to jump through to get a license make it impossible if you're not a big corporation--a multinational--to get a license. So we have defended micro broadcasters from the attempts by the FCC to shut them down in court, with some successes here and there. And we have tried to help micro broadcasters around the country find local lawyers.

In the last several months it's become apparent that the FCC, led by its chairman, William Kennard, was interested in another look at low-power broadcasting, and instituting a system of low-power radio. Last Thursday they [FCC] issued a document called a Notice of Proposed Rule Making (NPRM), which I have in front of me. It's sixty-four pages long, they talk about instituting some form of low-power radio. We have some problems with it, but it's important that they are considering it and that they are opening a period of public comment where people and groups and organizations can have some input as to what kind of low-power radio this country may be about to see.

SR: Well Peter, you seem both hopeful and cautious about this. Hopeful that they're at least considering low-power broadcasting, but tell me what worries you about the new proposals?

PF: What they are proposing is some thousand watt stations. Low-power radio has been radio from one to one-hundred watts. With one watt you could maybe get about a three mile radius. With one hundred watts you can cover a small city. They're proposing some thousand-watt stations and it's a very scarce spectrum, even under changes they are proposing. We think that thousand-watt stations are going to be just another fairly big, commercial station and will take up a lot of space. They say they are considering, but they are not sure they are going to do it, very low-power stations from one to ten watts. We think that would be appropriate in some situations.

I think the biggest issue facing the community is whether these stations are going to be commercial or non-commercial. We are involved in this because we think the commercially-based media system narrows the ideas, the music and the culture that gets presented because nobody wants to offend advertisers; programmers don't. This movement has been a movement of people who feel they have something to say, something to offer that's not on the commercial airwaves and we feel that the commission shouldn't institute just a lower tier of commercial systems that will sound like everything else does with in a very few years.

Janine Jackson (JJ): Peter Franck, I just want to follow up on that a little bit. From what we have heard from FCC commissioner Kennard, he seems to talk a lot about non-commercial interests and the public interests being weighed in there-- he says the right things. Is it your feeling that perhaps he just will not be able to get these things through, are these questions, these considerations you are bringing up, even on the table?

PF: Well they're very much on the table. He has talked about commercial broadcasting, allowing people to get training, allowing minorities and women to get entry in to the broadcast industry and to move up, although one of his, in the sense of, one of the Republican commissioners-- a lot of questions were raised about that. It is clear from what he has said and what is in this proposed rule making, that the commission is seeing a strong, small-business entrepreneurial component to this low-power radio system that they are talking about. And frankly if you're at the level of one thousand watts, then you have either got to be thinking about advertising or program underwriting a-la-NPR, which is not much different from advertising. You are projecting a more expensive kind of an operation.

SR: We want to bring Barbara Olshansky into the discussion now, she is the assistant legal director at the Center for Constitutional rights. Barbara, tell us what your suit, Free Speech vs. Janet Reno is about, and then tell us about the latest developments in the suit.

BO: We are sort of the newest wave in what Peter has been working on for a number of years. Our lawsuit is an affirmative lawsuit; rather than really waiting for a defense, we filed a First Amendment constitutional challenge against the FCC alleging that this ban on a certain part of the spectrum below one hundred watts is too broad a regulation of First Amendment rights. And that they could impose reasonable time, place and manner regulations and permit people to broadcast at low wattage and there would not be any interference. There is no reason why we are not enabling and permitting people to do this.

We are challenging that on First Amendment grounds and also challenging the way the FCC enforces its own regulations, because when they are going out in the field and agents are going to micro-radio stations they are seizing equipment and telling people to cease and desist from broadcasting. They are not following their own regulations, which require them to give notice and hold a hearing before they seize equipment and stop these stations, and so were sort of suing to stop that as well.

SR: Tell me who the plaintiffs are.

BO: The plaintiffs are Steal this Radio, which is a station that broadcasts from the Lower East Side (New York City), and a number of individual DJs that broadcast at that station, as well as a group of listeners from the Lower East Side community who are very invested and regularly listen to the station and all sorts of programming and want to assert their First Amendment Rights to hear things on a station that they are interested in or are of concern to them.

SR: Barbara, you've had a recent development in the case, can you tell us about that?

BO: Yes, this was a bit of a surprise ruling this week, we filled a motion for our individual plaintiffs or broadcasters to remain anonymous throughout the proceeding. Obviously because low-power broadcasting is still illegal under current FCC regulations all these people were concerned about being in a law suit and revealing their identity and being prosecuted, both for criminally and for civil penalties under the law, so we requested they be permitted to continue preceding with the case under their air names and this week, the judge said in light of the fact that they were pursuing a constitutional First Amendment claim against the government that they should be permitted to proceed that way. We think that's a great ruling, not only for our own case, but also for other individuals who want to bring civil rights claims and assert their rights against the government, it's an important precedent.

SR: Some of these people might be trying to apply for some of those licenses later too, and be penalized.

BO: Yes.

PF: That's actually an issue in the NPRM, there is some talk in it that they don't want to consider issuing licenses to people who have challenged the law and that is one of the things that we are really going to be fighting them about.

BO: I'm glad to hear that Peter.

PF: I think one thing that is very important is for people to know what they can do about this, is this the right time to get into this?

JJ: Absolutely, because we often hear out of the FCC, 'Well, we're are in a comment period'-- usually we hear it two weeks after it's over and then we're not also clear exactly what that means. If people are contacting the FCC now, how can they do that and what points are you asking people or advising people to make when they call or write?

PF: Okay, we're doing several things. One is that we're building a coalition of organizations that think this should be non-commercial and locally owned, called the Microradio Empowerment Coalition and people, especially organizations, who would like to join that, so we've got some muscle behind this because we're told that it is better for organizations and for people to come together, than for the FCC to get hundreds and hundreds of individual letters-but those are important too. People can go to our web page, which is www.nlgcdc.org, and see the founding statement, the founding principles of the Microradio Empowerment Coalition, and then send us an e-mail if they would like to join us.

The FCC has done a good thing, they've put up a web page of their own on low-power FM. The FCC's web page is: www.fcc.gov. And if you go down to the lower right, under "hot issues," the very first one is "low-power FM," if you click on that, it will give you information on how to file directly on their web page.

Finally, what we've done in the preliminary round of rule making and what we're going to do in this: The Committee on Democratic Communications is going to prepare a formal comment with all the formalities that the FCC seems to expect, outlining in detail our position in responding to some of the concerns of the FCC in this notice, and also answering some of the objections of the National Association of Broadcasters. We will put that up on our web page in about 30 days, the comment period is about 60 days, the initial comments are due April 11, and reply comments are due May 12, we'll put that up in about 30 days and we'll invite people sign onto it and to add their own comments.

SR: Barbara, you had something to add here.

BO: Yes, I wanted to advise people and let all those who are micro broadcasters, or who are interested in micro broadcasting, know that because the FCC has put down this proposed rule, does not mean that they've backed off their recent policy of zealously pursuing enforcement of the regulations. And we are still hearing weekly about people being advised by the FCC to cease broadcasting and being hit with a notice of "apparent liability." If people are in that situation and want to discuss strategies for legal response, they can call the Center (CCR), call me and we have a set of papers for people to respond to different prosecutions and to advise them on how to get a local lawyer as well.

SR: That's the Center for Constitutional Rights and the number for that would be?

BO: 212-614-6439

PF: This is one of those rare times when a government agency is really looking at different things and can be influenced by a strong outpouring of public opinion, and particularly can be influenced by individual e-mails to the commissioners and by organizations passing resolutions and getting those in. And I would really urge anybody who is involved with any organization to weigh in on this. It's a rare opportunity to really change what's available in the spectrum, and we're not going to have this opening for a long, long time.

SR: We've been speaking to Barbara Olshansky the Assistant Legal Director of the Center for Constitutional Rights, and Peter Franck, a San Francisco entertainment lawyer, and a member of the Committee for Democratic Communications of the National Lawyers Guild.

A brief program note on this segment: FAIR, the media-watch group that produces this show, is a founding member of the Microradio Empowerment Coalition. We support the establishment of low-power licenses for non-commercial, locally owned and programmed, community radio. For more information on micro broadcasting visit the Radio for All web page, that's at www.radio4all.org.