June 5, 1997
A hardy band of micro-broadcasters fires a damaging broadside at the FCC
By Sam Weller
Who in their right mind would risk facing two years behind bars and upwards of $100,000 in fines to spin a few dance discs? Ask Minneapolis native Alan Freed, whose unlicensed dance station, Beat Radio 97.7-FM, was unceremoniously yanked off the air by several imposing gents from the Federal Communication Commission last November.
After 104 days of broadcasting from an undisclosed high-rise in downtown Minneapolis, Freed (no relation to the fifties DJ of the same name who claimed to have invented the term "rock 'n' roll") answered a knock on his door last November 1 and walked straight into the arms of the G-men. Suits from the FCC, supported by a tag-team of U.S. Marshals, entered the apartment clutching a court order to shut Beat Radio down. Within seconds, the station's baby transmitter, which belched out a whopping twenty watts of power (by contrast, Chicago's WLS-AM pumps out 50,000 watts), was confiscated. The FCC was none too happy that Freed and his cohorts had hit the airwaves with an unlicensed station, in direct violation of Federal law.
But skip the legalese: FCC regulations dictate that no broadcast licenses shall be granted to stations operating under 100 watts. Translated, baby broadcasters have no chance of getting on the air. Making matters worse for would-be micro station magnates, The Telecommunications Act of 1996 tore away many of the legal barriers that regulated the radio industry, increasing the number of stations a company may own in one market from four to eight and doing away altogether with limits on the number of stations the broadcast conglomerates can own nationwide. Proponents of the act said it would promote competition among broadcasters. Ultimately, it was assumed, the listener would benefit. Wrong-o, Daddy-o.
Since the Telecom law was passed in February, 1996, the market has witnessed a mess of mergers and consolidations. Prices for stations, not surprisingly, have skyrocketed. Higher-powered stations cost big bucks. The cost of a license application can easily exceed $10,000 and just entertaining the idea of buying a full-fledged FM station -- you're talking in the ballpark of $25 million. Don't believe it? Go ask Westinghouse how much it paid for WXRT. So much for small entrepreneurs.
So Freed and company decided to skip the whole license fiasco and broadcast sans authorization. Using equipment that cost around $6,000, 97.7 Beat Radio took to the air. Broadcasting ninety hours per week during evenings and weekends, the station quickly became the talk of the Twin Cities. Local media, print and television championed Beat Radio's cause (you can follow the station's defense efforts at www.beatworld.com). It was an irresistible modern-day David v. Goliath story.
"We didn't think we we're doing anything wrong," says Freed. We weren't on the air spouting hate. We were basically doing what you'd hear anywhere else up and down the dial. And that's not to say that we could be tagged with the dreaded 'commercial' label, but we had a professional sound with good production, we knew what we were doing and we weren't duplicating other programming in the city." And it showed. During its short lifespan, Beat Radio's listening audience continued to balloon with each broadcast. Freed has a heap of paper and cyber-mail supporting his efforts; his legal battle has been chiefly sustained by donations. The one thing that remains unclear, however, is what numbers the station was actually pulling in. The good folks at Arbitron (the company that keeps track of radio ratings) don't release figures for pirate stations. Freed is modest when it comes to his station's popularity, but he does say that word of mouth around the Twin Cities was good. "If you go around Minneapolis and ask, you're bound to find people who know about Beat Radio and want to know what's happening with the legal battle." Meanwhile, Freed's case awaits a Federal court hearing to determine whether or not the Beat will go on. Freed vows, however, to hit the airwaves again even if the ruling goes against him.
There's still a need for dance radio in the Twin Cities, he contends. It didn't exist prior to Beat Radio's first day of transmission July 21, 1996, and it doesn't exist now that the plug has been pulled. At the crux of this government-against-little-guy yarn is the right to free speech. Amendment Numero Uno. The FCC vehemently stands by its position that "pirate broadcasters," those operating outside of the commission's regulations, don't have the right to say squat. According to the government, you can't so much as break wind over unlicensed airwaves just like you can't drive on a freeway without packing the legal laminate that says you're licensed to do so. End of discussion.
But don't tell that to Freed. The mere mention of the word "pirate" seems to ruffle his good-natured feathers. "'Pirate' is a pejorative term," he says. "It connotes bad and evil and wrong. It implies raping and pillaging. We weren't doing any of that." Instead, Freed and others responsible for the recent proliferation of unlicensed stations across the country -- the best guess pegs the number at about 100 -- prefer the term "micro-broadcasters."
Whatever you choose to call them, these people are breaking the law. But Freed calls the law arcane and outdated. "I don't want to sit here and paint the whole agency with this big, bad brush that says 'you're all bad and you're all screwed up.' It's really not like that. But the FCC has not kept up with current advances in technology in the marketplace. They're like many bureaucracies in that they're behind the times and in many respects they don't have a clue. The short of the matter is the FCC has abdicated its role as protector of the people's interests and that's what government is supposed to be. It's supposed to be representative of the people and looking out for the people's interests and the FCC has not been doing that."
When contacted for comment, FCC spokesperson David Fisk opted to fax a bunch of curly pages that outlined the rules and regulations on low-power broadcasting, adding that everything the commission has to say about "pirate radio" operators is covered in the rule book. The FCC's stance is that there's a big difference between protected free speech and a supposed constitutional right to broadcast. Indeed, the Supreme Court has ruled repeatedly on the subject, concluding that no right to broadcast exists.
"Hey, we would love to play by the rules," asserts Freed. "We'd love a license. We can't get one. We're not out to make a point. We have no ideology. We were simply trying to provide a service that wasn't being provided in Minneapolis. And that's not to say we simply wanted to be a blasting jukebox. We believe in radio as more than that. Before the equipment was taken, we were in the process of instituting news and public-service stuff. This isn't to say that we were going to read really dull-sounding public service announcements or talk about people's lost dogs, but the intent was to be more than just a jukebox. That's not what radio should be."
The FCC calls Freed's brand of radio irresponsible and dangerous. The commission's printed material on unlicensed radio operations refers to unauthorized broadcasting as a "serious matter. DON'T DO IT!" it warns in big bad bold type face. To an extent, Freed concurs with his nemesis, expressing concern over irresponsible broadcasters. For example: a bunch of yahoos who throw a piecemeal station together could inadvertently start broadcasting at a frequency higher than 107.9 on the FM dial. This could cause big problems, as the transmission could interfere with air traffic. "None of us would want to see planes falling out of the sky," Freed says.
But many operators still broadcast in direct defiance of the law. Undeniably, the avant-courier of the micro-broadcasting movement is Stephen Dunifer, chief operator and founding father of California's Free Radio Berkeley. Dunifer, 44, wears the classic hippie persona like a set of well-worn love beads. The long-haired, Grizzly Adams-bearded broadcaster serves as the semi-reluctant captain of Berkeley's unlicensed radio vessel.
Dunifer attained near-mythic status among his outlaw broadcasting brethren when his unlicensed and unlawful forty-watt station made its way to the forefront of a national legal battle. In April of 1993, Dunifer started broadcasting from the back of his van (which, by the way, is the recommended way to avoid getting busted because the FCC has more trouble tracking mobile transmissions). Yet, even while on the move, he was soon nailed by one of the FCC's tracking units. Unlike most micro-broadcasters, however, Dunifer was not caught with his pants draped around his ankles. He and his attorneys had carefully prepared a free-speech case prior to his operation's exposure. They then turned the tables on the FCC by asking a Federal court to review licensing procedures for broadcasters pumping out fewer than 100 watts. As a result, Free Radio Berkeley continues to broadcast under court protection as the case makes its way through the intestines of our constipated legal system.
Boom! Free Radio Berkeley's case was the shot heard 'round the world of micro-broadcasting. In the wake of the court review, new unlicensed operations around the country have started flipping the bird at the FCC. Just about anybody who had anything to say, a mind for transmitting and the 'nads to do it set up shop. Before Dunifer's widely publicized case, pirate radio was more a romantic notion than a reality. Really -- who hasn't, at one time or another, thought about broadcasting from their basement or bedroom and creating radio that doesn't suck.
But even with this mini-explosion, Dunifer claims no knowledge of any Chicago-area pirates. "We're aware of some people in Chicago with plans, but nothing is solid yet," he says. Freed offers that the already over-saturated Chicago airwaves aren't nearly as pirate-hungry as the barren Minneapolis radio landscape. But most likely, given time, someone in Chicago will have one or more micro-stations up and running.
That's because Dunifer's actions against the FCC have launched a micro-radio revolution. Still, he modestly laughs off the suggestion that he's the leader of the pirate pack. "I'm aware that we've got a responsibility because our station has gotten a lot of attention for what it's doing," he says, taking a break from the 'round-the-clock operation. "But there are a lot of other people out there doing some really good work. Because we're the only ones involved in a major Federal court thing, I guess that's a part of it as well."
Unlike Freed, Dunifer isn't so quick to dismiss the FCC as simply, and somewhat innocently, ignorant. "The FCC's regulatory structure essentially allows only the rich to have a voice," Dunifer says in his mellow California tones. "The FCC is only protecting the profits of the National Association of Broadcasters. I mean, it's real clear." Money talks.
By crying foul about this alleged violation of his First Amendment rights, Dunifer has handcuffed the FCC using the very Constitution the agency claims to uphold. But Dunifer also warns would-be micro-broadcasters that they might not get off so easy with Uncle Sam. "A person who does their own little vanity station stands a much greater chance of being shut down because they're not really based in the community per se," he says. "Whereas if you have a community voice and a lot of people are taking advantage of that and using it as a part of their community, it's going to be a lot harder for the FCC to deal with it. If they take these people to court, like they did with us, they're going to be flooded with hundreds of affidavits from people saying, 'This is a very viable thing.' Just as the people doing the broadcasting have First Amendment rights, so too does the entire listening audience."
In defense of the micro-broadcasters' allegations that the commission has imposed unconstitutional restrictions, the FCC cites Part 15 of its own rule book. Under Part 15, micro-broadcasters are entitled to transmit on FM frequencies -- as long as their equipment is limited to an effective service range of thirty-five to 100 feet.
"That's great if you want to use a Mr. Microphone around the house," says Freed, "or if you want to listen to ESPN over your Walkman while you're mowing the lawn. Even then, the signal will experience interference from larger operations."
Freed, Dunifer and other unlicensed radio operators around the country call Part 15 of the FCC's rule book a joke. The FCC calls it necessary. "There are substantially more individuals who want to broadcast than there are frequencies to allocate," says the rulebook. "It is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish."
"Taken at face value," says Freed, "this is correct. No doubt, there's a limitation with regard to who can run a radio station. There's not enough [spectrum] to have one for every person. And I don't think anybody in their right mind would claim that is possible. But what we're saying -- and I think Stephen Dunifer and many others would agree -- is that access to the airwaves is being unduly restricted. When there's usable spectrum for a signal, Goddamnit, use it. This still doesn't mean that everyone can get on the air, but let's maximize the use of the resource we have."
While Freed says the issue centers on his right to freely operate a business, Dunifer looks at it as more of a political boxing match over the right to free speech. "This is what it's all about really, the restoration of true grassroots community radio and community democracy," Dunifer says.
Where this battle, led by Dunifer and Freed, will ultimately wind up is unclear. But Freed and many other micro-broadcasters would like to see it culminate in a restructuring of FCC regulations. "Eventually, the commission is going to have to respond to this," Freed predicts with a sinister giggle. "There are only two things certain in life: death and the FCC having to recognize micro-broadcasters."
And you can bet your $600, low-power-non-drifting PLL transmitter that the commission would rather see broadcasters like Freed and Dunifer dead before changing its ways.
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