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A Radio Revolution

Photo by Robert Scheer

Local Vocals: Activist lawyer Ed Frey, one of FRSC's founding members, shares the mic with deejay "Coral Reef" in the clandestine Santa Cruz studio.

Denied legal access to the airwaves, low-power radio stations defy the FCC for a voice amid the corporate media monopoly

By Michael Mechanic

It's 5:30 in the morning--too early to be engaging in civil disobedience, but the show must go on. It's still dark and the coffee shops aren't even open yet. I bring some records to the car and drive to local "pirate" station Free Radio Santa Cruz.

In recent months I've participated in a number of illegal broadcasts at FRSC, an unlicensed, low-power FM station operating at 96.3FM. The station itself is small and cluttered, with concrete floors and low ceilings. Near a small mixing board, a couple of microphones and some basic stereo equipment hang various fliers: a poster demanding justice for death row inmate Mumia Abdul Jamal, and notices to programmers, including one reminding them to refuse entrance to investigators from the Federal Communications Commission unless they can produce a warrant.

Apart from the hellish hours, an early-morning programmer might encounter a rat or two when people forget to take out the trash. If the feds happen to show up, there are some hefty civil fines to ponder. But every revolution has it drawbacks.

My show--music by obscure local bands rarely heard on legitimate stations--is hardly revolutionary. Nor, particularly, are the local activists who get on the microphone to rail about local, national and international politics, affirmative action, cops, demonstrations, and community issues.

The revolution is in the medium. Improved technology has brought the cost of broadcasting within the means of the average person. For less than $1,000, any person or group can establish a low-power radio station, albeit illegally. Throughout the San Francisco and Monterey bay areas, collectives that believe their views are not well-represented elsewhere have seized the chance to broadcast to their communities.

Read about the history of pirate radio.

For people traditionally shunned by commercial- and even public-radio hierarchies, access to the local airwaves is a powerful thing, a fact that has contributed to micro-radio's rapid proliferation since its inception in an Illinois public housing project a decade ago. In addition to 24-hour rebel stations run by collectives in Santa Cruz and Berkeley, there are unlicensed stations operating part-time or gearing up in Pacific Grove, Salinas, Watsonville, San Jose, San Francisco, Marin County, Arcata and Petaluma, to name a few.

"It was obvious to me there's so much censorship in the news media that there needs to be more alternative media out there," says Richard Edmondson, part of a small collective that took advantage of an unused frequency at 93.7FM to start San Francisco Liberation Radio in May of 1993. "When the corporate media cover both sides, the 'both sides' is Bill Clinton versus Bob Dole, and that leaves out a wide range of opinion. We just want to tell the truth that we don't feel is being told."

Wild West Chaos?

Free Radio Berkeley founder Stephen Dunifer, who has helped accelerate the micro-radio movement by offering low-cost transmitters and kits for sale, estimates that several hundred low-power stations, each operating at less than 100 watts, are broadcasting around the country.

Some stations, like one in Willow Glen, are "vanity stations"--consisting of sporadic broadcasts by private individuals. Others are dedicated to social and political causes, and broadcast regularly.

Stations that consider themselves part of the "free radio movement" include Radio Zapatista, a bilingual Salinas station that has broadcast at 106.7FM for about a year. Another bilingual station, Watsonville's Radio Watsón, goes out at 96.1FM on certain days. Free Radio Santa Cruz (96.3FM) and Free Radio Berkeley (104.1FM) operate 24-7. San Francisco has four illegal stations, including Liberation Radio and Radio Libre, which serves the city's Hispanic Mission District.

Prominent media critic Ben Bagdikian is the author of The Media Monopoly, a book documenting the degree to which ownership of broadcast facilities has fallen into relatively few hands. He attributes the popularity of free radio to a failure of licensed broadcasters to serve the public interest. "The appearance of these unlicensed stations is a sign that one of the basic premises of licensed broadcasting has been lost and the only real access to a broad range of social and political issues are the pirate stations, plus a few public stations," Bagdikian says. "But the major powers are the commercial stations, and they are giving no significant time to local issues."

The former Washington Post ombudsman adds that the FCC caters to big broadcasting interests, which wield heavy lobbying clout. During the 1980s, he points out, corporate broadcasters and major newspapers--most of which own or are owned by broadcast outfits--were instrumental in quashing the FCC's "Fairness Doctrine," which set forth guidelines on broadcast content.

In effect, corporate broadcasters want the government to protect their frequencies, yet they refuse to allow any public mandate. "The public has not been reminded [by the FCC] that they own the airwaves and the license-holders are supposed to be providing a public service," Bagdikian says.

The FCC, purporting to act in the public interest, is cracking down on unlicensed broadcasters whenever possible. Backed heartily by large broadcasting interests, FCC officials claim the "pirate" radio phenomenon will lead to interference between stations that could ultimately bring a Wild West-style chaos back to the electromagnetic spectrum.

Indeed, the Communications Act of 1934--which established the FCC and gave it power to allocate the spectrum in the public interest--followed a period of radio anarchy in the 1920s. It was commonplace back then for broadcasters to prey on their competitors, operating on the same frequency in order to spirit away listeners. Finally, the broadcasters themselves demanded that the government set forth some regulations.

A Return to Principles

But concerns that these low-power stations will again reduce the spectrum to chaos are spurious. By most accounts, the goal of the modern free-radio movement is not anarchy but a return to true democratic principles. Aside, perhaps, from a few fringe operators, those who set up unlicensed stations do everything possible to avoid interfering with FCC-approved stations. Broadcasters at FRSC, for instance, are instructed to shut down the station temporarily if they can confirm reports of interference. The station, in fact, upgraded its equipment and changed to a new frequency largely to avoid interference with neighboring KUSP.

Although many members of the outlaw collectives enjoy the spirit of defiance, most stations would prefer to broadcast legally. "The idea is to do this in a way where people act as good citizens," Dunifer says. "What we want from the FCC is a simple registration process, where you can find a spot on the dial and send in your technical specifications with a $25 to $50 check for processing. There can be a problem in urban areas because of crowding, but most of that is mismanagement of the airwaves."

The problem is that the FCC doesn't grant FM broadcasting licenses for less than 100 watts. The exceptions are "translator" stations, which rebroadcast the signals of larger stations into more remote areas. But translators are not permitted to do original programming. The FCC stopped licensing other low-power stations in 1978, under the premise that giving licenses only to higher-power broadcasters is a more technically efficient way to allocate the spectrum.

Under current FCC rules, unlicensed radio operators risk civil fines of up to $10,000 a day and possible criminal sanctions of up to $100,000 for broadcasting without a license. After locating a station and issuing a warning, FCC investigators can obtain a warrant and seize any equipment related to the broadcasts. Agents monitor the airwaves regularly, but are more likely to seek out unlicensed stations following complaints of interference.

Northern California FCC investigator David Doon paid a visit to Free Radio Santa Cruz last May after nearby public station KUSP complained about interference problems--which have since been mitigated. Doon says he issued a verbal warning to the "operator," an active member of the collective who goes by the name "Skidmark Bob." But Doon says the FCC has not visited the station since. Shutting down unlicensed stations is a small part of his job, but a "high priority," Doon says.

While the FCC argues that "pirate" radio broadcasts do "irreparable harm" to the public, station operators claim the public is on their side. SF Liberation Radio founder Edmondson says the reaction to his station has been overwhelmingly positive. The only opposition, he says, has come from the FCC and licensed broadcasters.

"There isn't really any opposition," agrees Tom Schreiner, a local resident and UC-Berkeley doctoral student who played a key role in organizing Free Radio Santa Cruz, Radio Zapatista and Radio Watsón, and is helping establish new unlicensed stations in San Jose and other cities around the Bay Area. "People believe deeply in their right to free speech."

Here Come the Cops

Schreiner and Dunifer have given the term "rebel radio" a ring of veracity, training and equipping others to set up several stations in Chiapas, Guatemala, Nicaragua and the Philippines. Dunifer helped set up radio stations in Haiti while the military regime was still in power. And when the government of El Salvador raided 11 community radio stations in December and seized their equipment, Dunifer was called upon to help them build new transmitters.

Dunifer began broadcasting at 88.1FM from his Berkeley apartment on April 11, 1993. FCC agents tuned in on his broadcasts and, in early May, followed the signal to his Berkeley apartment. They approached Dunifer, seeking to inspect his transmitter, but were refused. "They didn't have a warrant and they were told to hit the highway," Dunifer recalls.

The commission fined Dunifer $20,000 ($10,000 for each broadcast monitored by the FCC) and took him to federal court on Jan. 20, 1995, seeking a preliminary injunction to prevent him from broadcasting further. The defense, led by Dunifer's attorney, Luke Hiken, argued that the FCC's rule banning low-power broadcasting raises serious constitutional issues. Federal District Court Judge Claudia Wilken agreed. She denied the injunction and suggested that the FCC review its own regulatory scheme.

In August, the FCC issued an order defending its ban on low-power stations, stating in one section that "Permitting low-power facilities, as Mr. Dunifer recommends, would lead to a larger number of stations but less overall service. Simply put, full-power broadcast facilities are more spectrally efficient."

Lawyer David Silberman, who argued on behalf of the FCC, believes Wilken's decision encourages other lawbreakers. "The law prohibits broadcasting without a license. By giving carte blanche to Mr. Dunifer, [the ruling] gives carte blanche for others to break the law, and that's dangerous, it seems to me," he says.

Silberman says people can apply for a license along with a request that the FCC waive its rules banning low-power operations. "Nobody has ever applied to the commission for a license to broadcast for under 100 watts," he says. "If you did that, and the applicant was denied, then any arguments about the current scheme for licensing could be made to the Court of Appeals, and from there it can go to the Supreme Court. You cannot anoint yourself a licensee, because the law prohibits that, and for good reason."

If nobody has applied for the license and rule waiver, it's no surprise. The application process is daunting. In answer to a request to the FCC for a license application, potential applicants receive a 30-page Application Fee Filing Guide and a 45-page bulletin, which states that the minimum power for a non-commercial station is 100 watts and offers no suggestions about how a person wanting to operate at low power might proceed. Applicants for non-commercial stations in general must hire consultants to conduct engineering studies, pay large application fees and jump through all sorts of bureaucratic hoops. "It could take anywhere from several months to years, if it's litigated," Silberman admits.

Rebels Here to Stay

From the FCC'S statements in court, it seems clear that the commission does not want the courts to scrutinize the constitutionality of its regulatory process. Dunifer and FCC lawyers will face off again on March 8 in an Oakland Federal District Court. This time, the FCC is asking Judge Wilken to grant a permanent injunction barring Dunifer from the airwaves.

The National Association of Broadcasters--representing the major TV networks along with 1,000 TV stations and nearly 5,000 radio stations--has filed a brief on behalf of the FCC. Dunifer is backed by a brief filed by the National Lawyers Guild's Committee for Democratic Communications, the San Francisco-based Media Alliance, and the Women's International News Gathering Service.

Guild lawyer Peter Franck, who helped write the amicus brief in support of Dunifer, believes the case will eventually go to trial on its constitutional merits. "The micro-radio movement isn't a lawless thing. It's just a way to get on the air cheaply and without a lot of bureaucratic red tape," Franck says.

If Wilkens denies the FCC's injunction and orders a trial, in which constitutional issues could be addressed, Silberman says the FCC will probably appeal the case to the 9th Circuit Court of Appeals, which could either send the case back to District Court for trial or put it on their own lengthy docket--giving free radio another year to proliferate. If Judge Wilkens issues a permanent injunction, Hiken says, Dunifer, too, will appeal. Historically, the high courts have been extremely reluctant to ban individuals from publishing or broadcasting, a situation known as "prior restraint."

Regardless of the legal outcome, Dunifer believes rebel radio is here to stay. "Whether I would defy an injunction remains to be seen, but this movement is too strong and popular and I don't think an injunction is going to stop it," he says. "Once you give people a voice they've never had, they're not going to give it up."

"[The FCC] really can't win," Schreiner concurs. "This is a technology-driven movement. If the FCC declares these stations to be illegal, I'm sure these stations won't shut down. They'll stand up and fight. They won't allow themselves to be silenced."

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