BROADCASTING, THE CONSTITUTION AND DEMOCRACY

A position paper prepared by the National Lawyer's Guild Committee on
Democratic Communications and the Stephen Dunifer Legal Defense Team.
Presented by Louis Hiken to the National Association of Broadcasters, April
6, 1998, Las Vegas, Nevada [1]

     1. Is a Media Regime Based on Private Profit Constitutional? What
     would Jefferson Have Said?

In his classic testimony before the House Judiciary Committee in, 1954, the
late Alexander Meiklejohn said:

     To find [the meaning of the First Amendment] we must dig down to the
     very foundations of the self-governing process. And what we shall
     there find is the fact that when men [2] govern themselves, it is they
     - and no one else - who must pass judgement on public policies. And
     that means that in our popular discussions, unwise ideas must have a
     hearing as well as wise ones, dangerous ideas as well as safe,
     un-American as well as American. Just so far as, at any point, the
     citizens who are to decide the issues are denied acquaintance with
     information or opinion or doubt or disbelief or criticism which is
     relevant to those issues, just so far the result must be
     ill-considered, ill-balanced planning for the general good. It is that
     mutilation of the thinking process of the community against which the
     First Amendment is directed. [3]

The first amendment had to be added to the Constitution before it could be
ratified to insure that the United States would have a robust democracy. As
Meiklejohn pointed out, a robust democracy requires broad channels of
discussion and debate on all of society's issues and concerns. It requires
a media system which is open to the widest possible range of views and in
which all citizens can effectively express and communicate their ideals,
thoughts and concerns, as well as receive and consider the thoughts, ideas
and concerns of their fellow citizens.

The Communications Act of 1934 says that it is enacted "… so as to make
available, so far as possible, to all the people of the United States,
without discrimination on the basis of race, color, religion, national
origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and
radio communication service with adequate facilities at reasonable
charges..." [4]

Does the present media system, in which broadcasting is the primary channel
of communication, information and dialogue for our democracy, meet this
Constitutional and Legislative mandate? Are there a broad spectrum of views
and opinions available to the people of the United States. Do people hear
about choices other than Clinton or Dole? Is the view that the economy is
not so rosy for the one third of American children living below the poverty
line up for discussion? Does anyone who thinks that the war on (some) drugs
isn't such a hot idea have an audience? Is a media system which grants
access to only a narrow range of views Constitutional? Is a media system
where the price of a soapbox is millions and millions of dollars
constitutional? Are recent developments, such as the Telecommunications Act
of 1996, moving it closer or further away from complying with the dictates
of the First Amendment?

Lets look at radio, the media sector most thoroughly affected by the recent
Telecommunications Act. The Act relaxed ownership restrictions so that one
company can own up to eight stations in a single market. In the twenty
months since the law came into effect, 4,000 of the nation's 11,000 radio
stations have changed hands, and there have been over 1,000 radio company
mergers.[5] Small chains have been acquired by middle-sized chains, and the
middle-sized chains have been gobbled up by the few massive giant companies
who have come to dominate the industry. This sort of consolidation permits
the giant chains to reduce costs by down-sizing their editorial and sales
staffs and running programming out of national headquarters. According to
Advertising Age, by September 1997 in each of the fifty largest markets,
three firms controlled over 50 percent of radio advertising revenue (and
programming). [6] In twenty-three of the top fifty, three companies
controlled more than 80 percent of the ad revenues. CBS alone has 175
stations, mostly in the fifteen largest markets. [7]

As The Wall Street Journal puts it, these deals "have given a handful of
companies a lock on the airwaves in the nation's big cities." [8] Relative
to television and other media, radio is inexpensive for both broadcasters
and consumers. It is ideally suited for local control and community
service. Yet radio has become nothing but a profit engine for a handful of
firms so that they can convert radio broadcasting into the most efficient
conduit possible for advertising. Across the nation, these giant chains use
their market power to slash costs, providing the same handful of formats
with barely a token nod to the communities in which the stations broadcast.
On Wall Street, the corporate consolidation of radio may be praised as a
smash success, but by any other standard this brave new world is an abject
failure." [9]

     2. Access to the Airwaves.

Since 1979, the Federal Communications Commission, by regulation has
decreed that no radio station can be licensed at a broadcast power of less
than 100 watts, and the FCC requires all potential licensees to conduct
expensive engineering studies, which with associated legal and hardware
expenses for a typical new station amounts to over $250,000.

It is as if a "Federal Newspaper Commission" in the name of efficiency, has
said that, to conserve paper and ink, only newspapers of at least 1 million
general circulation would be legal. All church newsletters, PTA bulletins,
and community weeklies would be banned. The situation in broadcasting is
quite analogous.

Whether valid or not at the time, the ban on low power radio today fails
constitutional muster. In Federal Communications Commission v. League Of
Women Voters of California, 468 U.S. 364, 380-381 (1984) the United States
Supreme Court enunciated the test for restrictions on broadcasting. "...

     [A]lthough the broadcasting industry plainly operates under restraints
     not imposed upon other media, the thrust of these restrictions has
     generally been to secure the public's First Amendment interest in
     receiving a balanced presentation of views on diverse matters of
     public concern....But, as our cases attest, these restrictions have
     been upheld only when we were satisfied that the restriction is
     narrowly tailored to further a substantial governmental interest"
     [emphasis added].

The rationale, i.e., the "government interest," for the restriction put in
place in 1979, was the enhancement and strengthening of public radio
stations. This was done at a time when the Corporation for Public
Broadcasting and the National Federation of Community Broadcasters wanted
to "professionalize" public stations by driving out of existence a large
number of small 10 watt, mostly college stations, and consolidating that
energy and the money into a smaller number of more powerful stations.
Today, public radio is fighting for its life, is underfunded, caters to an
elite audience, and is being forced to drift into commercialization. It
provides no real alternative and no access for the community. Whatever the
case may have been in 1979, banning low power radio is no longer the least
restrictive means of accomplishing a legitimate government interest.

The arbitrariness, and in fact the content relatedness of the ban on low
power radio is made very clear by the FCC's current policies with respect
to translators. The Commission will license a ten watt translator sitting
on top of a mountain, retransmitting into a small town in a rural valley a
signal from a 50,000 watt station in a city 50 to 100 miles away. Yet, it
will not permit that small town to have this translator/transmitter send
any local news, information or entertainment down to the same town over the
same transmitter.

     3. The Response of the Grass Roots.

Starting in 1989, with Mbanna Kantako, an unemployed black man living in a
housing project in southern Illinois, the Microradio Movement has grown as
an indigenous grass roots response to the terrible and unconstitutional
vacuum on the airways. Spurred on by the efforts of Stephen Dunifer, an
engineer and philosophical anarchist [10], spurred on by the recognition of
United States District Court Judge Claudia Wilken [11] that the
constitutional challenge to the present regulatory regime was a serious one
meriting a very close look by the FCC and the courts, the Micro Radio
movement has grown to the point that there are probably 1,000 stations on
the air in the United States.

In Central California "Excellent Radio" broadcasts the local city council
meeting every week. [12] This non-licensed station replaced a service
abandoned by a local commercial station in search of greater profits and
more advertising revenue. In the Northwestern United States, Korean
communities served in their own language by no commercial broadcasters have
set up their own non-licensed Korean service.

The micro radio movement is international:

     "In regard to the global dimension of this movement, Dunifer has twice
     visited Haiti, where he acted as a technical consultant to the network
     of Haitian micropower radio stations… presently beginning to flex
     their muscles with the support of the Lavalas (Cleansing Flood) party,
     whose logo is of people sitting equally around a table… Dunifer found
     support for his ideas in former President Aristide… and with his help
     Dunifer seeks to place a transmitter at the center of the Lavalas
     table." [13]

Several years ago, in the same week that Stephen Dunifer received a Notice
of Apparent Liability in the sum of $20,000 from the Federal Communications
Commission, he received from United Nations Educational Scientific and
Cultural Organization (UNESCO) an order for $5,000 worth of micro-radio
transmitters for UNESCO's community development project in the Philippines.

Since Dunifer's Free Radio Berkeley went on the air in 1993, there have
been five conferences of micro broadcasters, each larger than the last.
Three days ago, several hundred micro broadcasters met in Philadelphia to
consolidate their plans and continue growing the movement. As we meet
today, several hundred more micro broadcasters are meeting here in Las
Vegas with the same purpose.

     4. What is the Appropriate Response by Federal Communications
     Commission, the National Association of Broadcasters, the Micro Radio
     Community

The FCC has released a Notice of Inquiry with respect to the question of
whether it should open a formal rulemaking proceeding to review the ban on
low power radio. FCC Chair William Kennard has conceded that
micro-broadcasters have a point when they complain that it is hard for
community broadcasters to get on the air. He has said that he thinks that
micro-broadcasting has exploded in popularity in the last five years as a
backlash against the consolidation of station ownership spurred by the 1996
federal communications law. [14]

The National Association of Broadcasters assembled this weekend has a
historic opportunity to show the world that it too is committed to the
Constitution and democracy, and to the sharing of the electronic spectrum
between the commercial broadcast industry and democracy at the grass roots.

The Micro Radio community has come together to present here and in the
rulemaking a simple, practical and democratic proposal for a low power
radio regime. We in the Micro Radio community urge the National Association
of Broadcasters to join in this inevitable and necessary democratization of
the airwaves.

     5. Proposal for Low Power FM Service. We propose:

     1. A micropower station may be established on any unused frequency
     within the FM broadcast band and extending down to 87.5. [15] Second
     adjacent channel would the closest spacing allowed. A micro station
     shall fill out a simple registration form, and send one copy with an
     appropriate registration fee to the FCC, and a second copy to the
     voluntary body setup by the micropower broadcast community to oversee
     the micro power stations. [16]

     2. Maximum power shall be 50 watts urban and 100 watts rural. In the
     event of interference due to power level [17] a station shall have the
     option to reduce power to remedy the situation or else be shut down.

     3. Equipment shall meet a basic technical criteria in respect to
     stability, filtering, modulation control, etc.

     4. Only one station per organization. The organization must be based
     in the local community and not be a profit-making organization. Local
     origination of programming is encouraged as much as possible.

     5. No commercial sponsorship shall be allowed.

     6. There shall be no content requirements. Stations shall deal with
     "community standards" issues on an individual basis and in accordance
     with their own particular mission statements.

     7. When television broadcast stations go digital, leaving Channel 6
     free, it shall be allocated as an extension to the bottom of the FM
     band strictly for low power community FM service. [18] Radio receivers
     manufactured or entering the country after that allocation must meet
     this band extension.

     8. Registration shall be valid for four years.

     9. Problems whether technical or otherwise shall be solved, if at all
     possible, at the community level first by technical assistance or
     voluntary mediation. The FCC shall be the court of last resort.

     10. Micro broadcasting of special events (demonstrations, rallies,
     festivals, etc.) do not need to be registered but are encouraged to
     meet all technical specifications. [19]

     11. Democracy will take a great leap forward in the United States.

                            _________________________

     [1] Thanks to Robert McChesney for his input.

     [2] We must forgive this great man, born in 1872, his use of the male
     pronoun.

     [3] This has been published in Meiklejohn's book, Political Freedom:
     The Constitutional Powers of the People, New York: Oxford University
     Press, 1965. Reissued in September 1997.

     [4] 47 U.S.C. Section 151 as amended to 8/96.

     [5] David Johnston, "U.S. Acts to Bar Chancellor Media's L.I. Radio
     Deal," The New York Times, November 7, 1997, p. C10.

     [6] Ira Teinowitz, "Westinghouse deal fuels consolidation in radio,"
     Advertising Age, September 29, 1997, p. 61.

     [7] Timothy Aepel and William M. Bulkeley, "Westinghouse to Buy
     American Radio," The Wall Street Journal, September 22, 1997, p. A3

     [8] Eben Shapiro, "A Wave of Buyouts Has Radio Industry Beaming With
     Success," The Wall Street Journal, September 22, 1997, p. A3.

     [9] The Wall Street Journal, September 18, 1997, p. A1

     [10] Anarchism is a philosophical system emphasizing self-reliant,
     small unit organizations and grass roots activity. It is by no means
     synonymous with chaos.

     [11] U.S. v. Dunifer, No. C 94-03542, Memorandum Decision of January
     30, 1995 (N.D. CA 1995)

     [12] The council, concerned about the "legality" of allowing a
     non-licensed station to broadcast its proceedings. It was advised by
     its attorney that it would be in fact violating law to refuse to let
     them so broadcast.

     [13] Ron Sakolsky, "The Rise of the Free Radio Movement" p. 78, in
     Sakolsky & Dunifer, "Seizing the Airwaves: A Free Radio Handbook," AK
     Press, 1998.

     [14] Los Angeles Times, Thursday March 5, 1998, page 1 "Defiant
     Pirates [sic] Ply the Radio Airwaves," by Mary Curtis.

     [15] When there is no TV on channel 6.

     [16] Such models of self-regulation already exist within the ham radio
     community and the commercial broadcast arena.

     [17] This would not include near field effects.

     [18] This would add 30 new channels since the TV channel is 6 Mhz wide
     and an FM broadcast channel is only 200 Khz wide.

     [19] One frequency could be set aside for this, in the San Francisco
     Bay Area, 87.9 serves this purpose.