FCC Turns Off Radio Pirates

by Jim Hanas

In These Times magazine, February 8, 1998

At first it crackles, pops and cuts out for seconds at a time. As you near the University of Memphis, it comes in clearly. You might hear a show devoted to animal rights, the straightedge movement, anarchy, ecology, feminism, radical labor, queer culture, educational reform or some music unlike anything else on the FM dial. It's Free Radio Memphis, and, far from being commercial, it isn't even legal.

It's against the law to broadcast without a license, and Free Radio Memphis doesn't have one. Powered by a 20-watt transmitter the size of a shoe box, it isn't even eligible for a license, since the Federal Communications Commission (FCC) stopped issuing them to stations under 100 watts nearly 20 years ago. The station, which has been on the air since May, is part of a growing movement of micro-power broadcasters that is challenging FCC authority to regulate the airwaves as industry consolidation places ownership of licensed stations in fewer, wealthier hands. At least several hundred unlicensed stations have popped up nationwide in the past five years.

Free Radio Memphis received a warning to stop broadcasting from the FCC in October. Instructions are posted inside the studio on what to do if the FCC ever comes around: Don't let anyone in without a search warrant. Don't answer any questions.

Free Radio Memphis has good reason to be worried. The FCC is cracking down on "pirate radio" with increased vigilance. On November 19, U.S. Marshals and FCC agents raided Doug Brewer's home in Tampa, Fla., seizing

the equipment he used to operate an unlicensed station. Brewer says he was detained at gunpoint for more than 12 hours during the raid, which was the culmination of a well-publicized, two year conflict between Brewer and the FCC. The commission has also shut down broadcasters in Massachusetts, Minnesota and New Jersey.

Nonetheless, the micro-power boom continues, inspired by an ongoing court battle between the FCC and Free Radio Berkeley, an unlicensed Bay-area station founded by Stephen Dunifer in 1993. During the station's first year on the air, Dunifer was fined $20,000 by the FCC. He contested the fine with help from the National Lawyers Guild, arguing that the FCC's regulations violate the First Amendment and the commission's mandate to regulate the airwaves in the "public interest." In 1995, District Court Judge Claudia Wilken denied the FCC's motion for a preliminary injunction, allowing Free.

Radio Berkeley to remain on the air for nearly two years while a motion for a permanent injunction was argued.

The National Association of Broadcasters (NAB) has shown a special interest in the case. The NAB filed an amicus brief on behalf of the FCC, and the association's board of directors passed a resolution last June to urge the FCC to ensure that " 'pirate' radio broadcast operations are terminated promptly," and that violators "are prosecuted to the fullest extent of the law." According to the NAB, low-watt broadcasters harm licensed stations by interfering with their signals and courting their advertisers.

On November 12, Wilken rejected the FCC's motion for a summary judgment and asked for further briefing on whether or not Dunifer's constitutional claims constitute a defense in the case. The FCC's arguments have been largely procedural. The commission claims that Dunifer's challenge is "unripe for judicial review" since he never sought a license, and, furthermore, that the court does not have the authority to excuse Dunifer for broadcasting without a license. A decision in the case was expected as early as late January.

"The FCC will do anything rather than have a hearing on why they serve the needs of the NAB and not the American people," says Luke Hiken, an attorney for Dunifer. "If you look at the overlapping control of the FCC and the NAB, it's like the Pentagon and the defense industry."

Jim Hanas writes about media in Memphis, Tenn.

Media Control and Propaganda