Preachers and Pirates

After Free Radio Berkeley was shut down in 1994, the FCC cracked down on microradio stations in earnest. But busting stations and taking operators to court was a full-time job -- at one time or another, nearly every state in the union has had at least one microradio station, and most major cities have two or three -- not to mention a headache and a public relations nightmare. "The FCC was scared they might eventually lose in front of a judge," says Alan Korn of the National Lawyers Guild's Center for Democratic Communications (CDC), which has worked with Free Radio Berkeley and other microradio stations. "It was an enforcement problem, too, as well as incredibly bad press. The FCC started to look stupid, shutting down all these little stations in areas where there clearly was a need for them."

So in 1999, while Free Radio Austin was fending off visits from the FCC's Enforcement Office, the commission's administrative branch was hammering out the details of licensing Low Power FM stations. Congress approved the LPFM regulations last December, despite loud protests from lobbyists with National Public Radio and the National Association of Broadcasters (NAB), who claimed that a host of new, low-watt stations would fill the air with static and interrupt existing broadcasts. Studies by the National Lawyers Guild, Media Access Project, and the FCC itself proved them wrong. Former FCC Chairman William Kennard, viewed by many microradio advocates as an ally, called the technical arguments "disingenuous," and the lobbying effort as a whole "resistance to new competition on the band." (For instance, the NAB gave members of Congress a CD that purported to demonstrate the kind of interference that existing radio stations might experience from microradio stations. But the FCC dismissed the CD as "misleading and simply wrong"; it was made, the agency said, by mixing radio signals from two stations and did not record actual interference at all. Not only could microradio stations not produce that degree of interference, the FCC said, any interference that did occur would manifest as hissing or noise, not speech.)

The Radio Preservation Act of 2000 opens up the airwaves to stations broadcasting at a maximum of 100 watts and operated by nonprofit groups, but microradio advocates say that such LPFM stations will bear little resemblance to microradio stations as they know them.

"It was a compromise to begin with," Korn says. "We got a lot more than we expected, but it still didn't go very far. Everywhere I go, there's incredible dissatisfaction with it."

Microradio advocates are concerned about the diversity of the stations that the FCC will approve; so far, almost half of the approved licenses have gone to churches. "Certainly nobody has a problem with churches or with churches having LPFM stations, but neither does this reflect the diversity that some people were hoping for," Korn says.

Another bone they have to pick with the FCC is the number of frequencies that will be opened up to LPFM stations. As originally passed last year, the Act permitted groups to apply for frequencies at third adjacency to existing stations. (This would mean, for example, if a station already existed at 90.5, the next available frequency would be at 91.1; 90.7 and 90.9 would be too close to the existing station.) In Austin, that would leave only two available frequencies -- as opposed to 16 available frequencies if the standard was the second adjacency.

In April, the LPFM Act was amended to push available frequencies back to the fourth adjacency. The CDC estimates that this eliminates 40 to 50% of frequencies otherwise available. In Austin, as in many other urban areas, it leaves no frequencies available at all.

All of this pales, though, next to an LPFM regulation that microradio advocates are calling unconstitutional: No one legally determined to have operated an unlicensed station is eligible to apply for a license. So far, Korn says, applications from 21 organizations have been rejected because one member or more had been involved in unlicensed broadcasting.

The CDC is urging former microradio operators who want to apply for LPFM licenses to check the "pirate box" on the form and submit it anyway. Somewhere in the inevitable rejection, a constitutional challenge to the "pirate rule" may be possible.

There is one big problem with that strategy, though: the FCC is accepting only electronic LPFM applications submitted through the Commission's Web site (that in itself a significant hurdle to applicants on the wrong side of the digital divide), and the Web site automatically rejects ineligible applications. Applicants who checked the pirate box and were rejected are left without proof that they ever applied.