Free Radio Movement Scores a Victory

The Free Radio movement now has an unprecedented opportunity to win its struggle to open the airwaves to low powered, community radio broadcasts in the wake of a Federal Communications Commission (FCC) proposal issued February 3 to legalize forms of micro-radio broadcasting. Quick citizen action before an April 12 deadline is required to turn this opportunity to democratize the airwaves into reality.

The so-called Notice of Proposed Rule Making (NPRM) issued by the FCC is a series of questions seeking public comment on whether and how the FCC should legalize three new kinds of low power FM radio stations. Each new type of station would be more local and cheaper to set up than existing “full power” FM stations. According to the FCC, the new stations would “provide new opportunities for community-oriented radio broadcasting, foster opportunities for new radio broadcast ownership and promote additional diversity in radio voices and program services.”

The FCC is accepting answers to the questions posed in its NPRM from the public until April 12, and reply comments until May 12. Everyone interested in democratizing the airwaves is strongly encouraged to submit comments, or sign on in support of comments which will be submitted by the National Lawyer’s Guild’s Committee on Democratic Communications. The CDC, which was crucial in developing the Free Radio movement’s legal strategies which forced the FCC to take this action, is hoping that hundreds of community organizations, unions, churches, local governments, and others with an interest in democracy will join in their comments. (See end of this article for how to comment.)

The FCC’s Proposal to change the rules to permit low-power FM broadcasts comes in response to the establishment of hundreds of unlicensed, micro-powered, community FM radio stations across the country over the last 5 years, and the positive response these actions have received from the public. These stations broadcast in defiance of the FCC’s ban on affordable, community radio, which has effectively prevented non-corporate voices from being heard.

Since the inception of the FCC, but especially in the wake of the 1996 Telecommunications Act, FCC regulations have guaranteed corporate domination of the airwaves. Although the FCC is theoretically charged with regulating the radio spectrum “in the public interest” by balancing “diversity of voices” against the limited space on the radio spectrum, the FCC has mostly regulated “in the corporate interest.” The FCC has favored corporations by licensing a few centralized, high powered and very expensive to build and operate stations in each area, while prohibiting low power radio transmitters, which are cheap to build and can only be heard in a local area, serving local listeners.

The last five years of electronic civil disobedience by Free Radio stations has demonstrated how cheaply and easily normal citizens can take to the airwaves, while also avoiding the danger of radio interference. The FCC has consistently resisted licensing lower power stations, arguing that they would interfere with large stations and airplanes. In the field, however, low power stations haven’t interfered.

More importantly, the Free Radio movement has demonstrated the bankruptcy of FCC policies which restrict free speech and make the FM radio dial a vast wasteland of corporate formats, increasingly devoid of local programming and passion. People in communities across the land where unlicensed stations conducted broadcasts got a taste of what radio communication could provide: spontaneity, diversity, relevance, local information, non-corporate viewpoints, and creativity rarely heard on commercial or large, bureaucratic public stations.

People across America have welcomed the fresh voices on “illegal”, unlicensed Free Radio stations and have wondered why the FCC couldn’t permit the cheap, democratizing technology that low power radio represents. The FCC claims it received over 13,000 inquiries last year from people interested in starting a low power radio station.

The FCC’s proposal and questions is a mixed bag, at best. While the NPRM contains many ideas popular amongst Free Radio activists (see below) and while it does not rule out permitting the kind of cheap, non-commercial radio licenses such activists have sought, it is likely that “public” comments from rich broadcasting corporations and powerful interest groups like the National Association of Broadcasters will convince the FCC to drop some of the best ideas contained in the proposal. The NPRM is meant to defuse the mass electronic civil disobedience of the last several years. It may be that ideas from the Free Radio movement were only included so that the FCC could later argue that they considered these ideas. In any case, once the FCC issues final new rules, the crackdown against any remaining unlicensed stations will surely intensify.

Nonetheless, that the FCC is now even considering revising its ban on low powered radio is unquestionably a major victory for the Free Radio movement. A rag tag, informal national network of artists, attorneys, dreamers, technical wizards and radicals numbering in the hundreds has forced the micro radio agenda to the national stage, and it looks likely that at least some new low power FM stations will be licensed as a result. Licensing new low power stations which are locally oriented is an important contribution to the struggle against corporate control of the airwaves and ultimately, corporate control of the American mind.

Citizen action during the comment period (before April 12) is crucial to getting the most out of this opportunity.

What It Says

The Notice of Proposed Rulemaking (NPRM) is a long and complex document that asks hundreds of questions about how a Low Power FM (LPFM) license system should work. Public comment is sought about every point.

First, the FCC states that it is inclined to create two new types of licenses, a 500-1000 watt (LP1000) service that could be heard about 8.8 miles from its antenna, and a 50-100 watt (LP100) service that could be heard about 3.5 miles from its antenna. The NPRM requests comment, but does not advocate, a 1-10 watt “micro-powered” service that could be heard 1-2 miles from its antenna, and no provision is made for stations broadcasting from 11-49 watts or from 101-499 watts. The NPRM proposes a simplified application process for all of the new types of stations based on distance between stations, which would avoid the need for expensive engineering studies, but which would require the same spacing between stations operating at 50 watts as those operating at 100 watts, thereby possibly eliminating opportunities for more stations.

The so-called LP100 stations would be most similar to the community radio stations operated over the last 5 years by the Free Radio movement. Free Radio Berkeley, for example, usually broadcast with either a 40 or a 60 watt transmitter.

LP1000 stations, by contrast, are much more similar to “full power” FM stations than they are to the cheap, strictly local radio service provided by smaller stations. These higher powered stations would also eat up considerably more geographical territory than would an LP100 station.

Reading between the lines, it appears that the FCC intends LP1000 stations to provide opportunities for small business persons to set up stations, while LP100 stations, probably too small to be commercially viable, would be set aside for non-commercial operation.

Unfortunately, many portions of the NPRM make it clear that LP1000 stations will be given distinct advantages in the inevitable competition between LP1000 and LP100 stations for limited space on the radio dial. For instance, the Notice favors rules under which LP1000 stations would be considered a “primary” service that could not be bumped if a high power station decided to increase its signal strength. In contrast, the FCC believes that LP100 stations should be a considered a “secondary” service, subject to being put off the air if a higher power station wanted to increase their service area. For example, scores of “secondary” status low power TV stations are being forced off the air as “primary” TV stations go to digital signals.

The CDC is expected to submit comments favoring licensing for LP100 stations, but not LP1000 stations, and making LP100 stations “primary”, because LP100 licensing without LP1000 would promote more localism, and would permit far more new voices access to the airwaves. For example, in a study conducted by the FCC, only 87 new LP1000 stations could be licensed (assuming the most permissive technical standards) in 20 of the largest US cities, while 324 LP100 stations could be licensed in those same 20 cities.

Another key question posed by the Notice, therefore, is whether either LP1000 or LP100, or both, “should be restricted to non-commercial applicants” or open to both commercial and non-commercial applicants. The NPRM indicates that the channels between 88 and 92 FM would probably be reserved for non-commercial LPFM stations. These channels are already reserved for non-commercial full powered stations. The CDC is expected to comment that all new LPFM should be non-commercial only.

A related issue is how the FCC would define “non-commercial” and how difficult it would be for small, poor community organizations to establish that they were non-commercial to the FCC’s satisfaction. Current FCC requirements are strict and require a corporation, rather than the easier to establish unincorporated association. The CDC is expected to favor less formal requirements to establish a “non-commercial” entity.


How LPFM Would Operate

The FCC proposes imposing what it calls “strict local and cross-ownership restrictions” on LPFM to ensure that the new radio service would permit new voices and increased diversity on the radio dial. First, the FCC proposes that no owner of a high power FM or AM station be permitted to apply for an LPFM license. The NPRM also proposes to prohibit any person or entity from owning more than one LPFM station in a single market.

The proposed rules are not so strict with regard to owning multiple LPFM stations on a national basis. The NPRM supports permitting an individual or entity to own multiple stations in different markets, citing benefits of “national efficiencies”, and seeks comments on whether one owner should be permitted to own 5 or 10 stations nationally. Crucially, the FCC does not propose any requirement that a station owner live or have a presence in the community where it owns an LPFM.

The FCC also proposes that there be no minimum requirement for locally produced programming on LPFM stations. This could mean that a private owner or a nationally oriented non-profit entity like an evangelical church could own 10 LPFM stations across the country, none of them where the owner or church was located, and program all of them from a central location.

All of these provisions could significantly threaten LPFM’s ability to foster new voices, viewpoints and diversity on the airwaves. The CDC and other commentors are likely to oppose any multiple ownership and seek a requirement of at least some local programming, perhaps as high as 80 percent. (Local programming would mean material played by local DJ, and could include recorded music, interviews, etc.)


Technical Issues

The NPRM proposes permitting LPFM stations to broadcast on channels which would not be available to higher power stations, so-called third adjacent and second adjacent channels, which could vastly increase the number of LPFM stations which could be established if the FCC changes the rules.

The FCC rules developed decades ago to avoid radio interference which restrict how closely two stations can be on the radio dial. Under current rules, if a station is at 104.1, another station within a certain geographical distance cannot be on the same channel (so-called co-channel), 104.3 (first adjacent channel), 104.5 (second adjacent) or even 104.7 (third adjacent).

Massive technological advances both in broadcast and receiver technology have made the old FCC rules obsolete. For example Free Radio Berkeley broadcast on 104.1 FM, which was second adjacent to KFOG on 104.5, without any noticeable interference more than a few feet from the antenna. The FCC bases its proposal on the small power of LPFM stations and thus their lower potential to cause interference.

In a study conducted by the FCC, 2 to 10 times as many LPFM stations could be licensed if they were not required to protect second adjacent channels. (10 vs. 43 in Jacksonville, Florida, 4 vs. 17 in Houston, 1 vs. 8 in Philadelphia, 0 vs. 6 in San Diego and 1 vs. 18 in Kansas City, KS.) Almost no new stations in major urban areas would be permitted if LPFM stations were required to protect the third adjacent channel.

Despite the FCC’s seeming willingness to bend rules which apply to full power FM stations to permit LPFM stations more access to the airwaves, the NPRM repeatedly asks for comment about whether the rules can be bent in view of the transition to digital radio. In late 1998, USA Digital Radio Partners LP (owned by huge corporate interests) submitted a petition for rule making which suggests adopting their brand of in-band-on-channel (IBOC) digital radio technology. IBOC would allow stations to simultaneously broadcast digital and analog (normal) radio signals on the same frequency during the transition from analog to digital, permitting listeners with new or old radios to hear the signals. Corporate interests are certain to argue that the FCC cannot license LPFM radio service because it would interfere with the multi-billion dollar transition to digital. Free Radio commentors like the CDC are expected to argue that IBOC and LPFM can co-exist and that in any case, diversity on the airwaves and the ability to have alternative viewpoints discussed is vitally important to a democratic society and cannot be sacrificed to a new technological toy like IBOC.


Mutually Exclusive Licenses

A critical issue raised by the NPRM is how the FCC would resolve conflicting applications, i.e. when two individuals or entities applied for a license on the same frequency in the same area. These are called “mutually exclusive” applications. If the FCC licenses both commercial and non-commercial LPFM stations, the NPRM indicates that federal law will require the FCC to conduct an auction, giving the frequency to the highest bidder where two persons apply for the same frequency for commercial uses.

In resolving mutually exclusive applications between two non-commercial applicants (applications will be virtually free), the FCC requests comments about which of three models it should use: (1) lottery; (2) point system; and (3) first come, first served.

In a lottery system, a license would be awarded at random, perhaps with extra chances awarded to increase ethnic diversity or based on other factors. In a point system, applicants would receive points for various characteristics (ethnic diversity, local control, affiliation with an accredited school, etc.) and the applicant with the most points would be awarded the license. In a first come, first served system, the first person to get an application on file would receive the license.

his is a very important issue. Hundreds or thousands of mutually exclusive applications for LPFM stations can be expected, especially in urban areas. Religious broadcasters may often compete with community groups for access to LPFM.

In another rulemaking proceeding regarding high power non-commercial licenses, the FCC indicates that where there was a mutually exclusive application involving a commercial vs. a non-commercial applicant (on the FM band above 92 MHz) the FCC could either automatically favor the non-commercial license or perhaps decide the issue with a lottery or point system. If the non-commercial applicant lost in a lottery or point system, then an auction would be conducted for the commercial spot.

Some activists have suggested resolving the mutual exclusivity problem by setting up regional associations which would “register” rather than license stations. The association would negotiate compromises in the case of competing applications by working out sharing arrangements. For example, two stations could share a frequency by broadcasting at different times of day, by raising or lowering power at different times of day, or by even sharing a single transmitter and studio. The FCC would set up rules requiring all those interested in LPFM broadcasting to set up an association which would work out competing interests and monitor LPFM radio. The FCC would not issue licenses as such and would cede control to the association as long as there was no interference.

Others have proposed that each radio market should have at least one “public access” radio station where various members of the community could produce programs. Finally, some others favor expanding the radio spectrum down to 75 Mhz (by eliminating broadcasts on TV channel 6) to open up more opportunities for LPFM broadcasts and avoid or decrease mutually exclusivity problems.

The NPRM also seeks comment on how long a license should run, and on whether the licenses should be renewable or non-renewable. Having short (5-8 year) license periods which were not renewable might permit others to take their turn at the microphone and might help to solve mutual exclusivity problems, since an applicant denied a license could reapply in a few years.


What You Can Do

Anyone can submit comments to the FCC about the NPRM on or before April 12, 1999. The more people who submit comments, the better. See the sidebar to this article for a list of subjects on which to comment.

The FCC requests that people file their comments by computer if possible. This is also the easiest way to file. If you have access to the web, go to the fcc.gov site and select “comment” off the first screen you see. This will get you to the Electronic Comment Filing System where you can make your comment in only a few minutes. The number of the proceeding is MM Docket No. 99-25.

Alternatively, you can submit comments by e-mailing ecfs@fcc.gov with the message “get form ” to get a form and filing instructions. To submit comments by mail, write to Magalie Roman Salas, Office of the Secretary, TW-A306, FCC, 445 12th Street. S.W., Washington DC 20554. To file by mail you have to include 4 copies plus a disk with your comments, plus a cover letter with other info, so it might be better to file electronically if you possibly can.

For more information on the Notice of Proposed Rule Making or the Free Radio Movement, contact the following: Committee on Democratic Communications, 558 Capp Street, San Francisco, CA 94110 (415) 522-9814, www.nlgcdc.org. MicroRadio Empowerment Coalition, mec@tao.ca.


Suggested items for public comment

Following are suggested points persons filing comments with the FCC could make in their comments. While comments simply supporting the creation of low power FM licensing are important and necessary, it is crucial that the FCC select the best portions of its current proposal so that the legalization of community radio is more than a token gesture. The new radio service must be geared towards local, grassroots uses, and must be available even to tiny groups of people with a few hundred dollars. Most importantly, the new rules should be designed to permit the maximum number of new stations possible.

1. The FCC should only license non-commercial Low Power FM stations. Licenses should be granted to either non-profit corporations or unincorporated associations with bylaws meeting simple minimum standards.

2. The FCC should license stations between 10-100 watts, similar to LP100 stations discussed in the NPRM, but should not license 500-1000 watt (LP1000) stations.

3. LP100 stations should not be relegated to “secondary status” but should be licensed as a Primary Service. 4. No individual or entity should be permitted to own more than one LPFM station nationally or locally, and owners of high power FM or AM stations should not be permitted to own LPFM stations.

5. LPFM stations should not be required to provide 2nd or 3rd-adjacent protection to other stations.

6. LPFM stations should only be licensed to groups or individuals who reside in the community the station would serve. 7. At least 80 percent of the programming on LPFM stations should be locally originated, using live local DJ. (They could play music and interviews, etc., on their shows.)

8. The FCC should resolve mutually exclusive applications with a weighted lottery and should issue 5 year non-renewable licenses. 9. Owners of LPFM stations should not be permitted to sell or transfer their licenses. Otherwise, people will apply just to later “traffic” in licenses.

10. If the FCC decides to permit commercial LPFM stations, the FCC should give preference to a non-commercial applicant where a commercial and non-commercial applicant seek a license for the same channel in the same area.