Pirate radio fights for right to sail in legal waters

Thursday, April 16, 1998

For years, Rodger Skinner thought about diving into the ever-deepening debate on legitimizing low-power radio broadcasting—many call it pirate radio—but the waters never seemed right.

As a Florida-based broadcast consultant, Skinner said he’s seen colleagues’ requests for low-power station licences fall upon deaf ears at the Federal Communications Commission, which shuts down almost a dozen illegal stations each month.

In addition, the National Association of Broadcasters, to which nearly 10,000 licensed radio stations belong, adamantly opposes opening the broadcast spectrum to more stations.

Despite FCC and NAB opposition, the pirate radio industry has multiplied from several dozen five years ago to as many as 1,000 today.

And the pirates are vocal.

Just this week, two unlicensed radio stations pledged to stave off FCC attempts to shut them down.

On Monday, the unlicensed Spanish-language station 104.5 FM in New Haven, Conn., announced it would continue broadcasting Top 40 Spanish contemporary music, news and public affairs. On Wednesday, Steal This Radio in New York City fired up a transmitter on Wall Street just hours after filing a lawsuit against the FCC.

Skinner said he thinks such battles mean the time has come to demand that the FCC open the airwaves to more diverse, albeit less powerful, voices. That’s why he’s petitioning the commission for low-power licenses.

“I normally don’t condone breaking the rules, but I view these pirate radio broadcasters as performing acts of civil disobedience much like those fighting for civil rights in the 1960s,” Skinner told freedomforum.org “There’s a law screaming out to be changed.”

The FCC currently forbids unlicensed radio stations and most broadcasting under 100 watts of power. Some campus stations and broadcasts under one watt do not typically require licenses. The commission last offered low-power licenses in 1978, withdrawing them after the NAB and the Corporation for Public Broadcasting claimed the signals drastically interfered with their members’ broadcasts.

But Skinner’s petition, known as FCC RM-9242, pushed the commission into seriously considering reinstating licenses for low-power broadcasters.

The FCC plans to accept comments on the petition through April 27.

Low-power broadcasters applaud the move, saying they have a First Amendment right to broadcast. They, too, say the FCC’s policies and regulations prevent all but the rich from entering the industry.

But the First Amendment argument is under serious debate especially since the U.S. Supreme Court has ruled in several instances that any right to the airwaves is a restricted one because of the limited broadcasting spectrum.

The risk of interference is why the NAB remains opposed to low-power broadcasting, legal or otherwise, said spokesman John Earnhardt.

Earnhardt said low-power broadcasts, even those with a range of one mile or less, pose problems for other broadcasters, police frequencies and air traffic control. The advent of digital technology, he told freedomforum.org, may yield even more concerns.

“We really don’t know what other interference it may cause,” Earnhardt said. “Up until that time we’re trying to keep the spectrum as clean as possible, which is obviously the FCC’s job.”

Earnhardt added that NAB’s current position on low-power broadcasting should be considered a “never say never” one. He said it’s one that demands prudence and patience as broadcasters and government officials learn what benefits and problems arise with new technology.

“But because of the unknown, we need to maintain the integrity of the broadcast spectrum for now,” he said.

Low-power broadcasters disagree with the interference arguments. They contend that technology today is sophisticated enough to allow the placement of more stations on the dial. They say, too, that emergency communications and air traffic control operate in frequencies much higher than those for radio.

The broadcasters also say the federal Telecommunications Act of 1996, which allows one company to own up to eight stations in a single market, destroys diversity. They note how 4,000 of the 11,000 radio stations have changed hands in the United States since 1996 and now are owned mostly by large companies.

Earnhardt said consolidation actually promotes diversity since owners of several stations in a single market almost always offers different programming at each one.

“Obviously that owner is not going to compete against himself, so diversity is actually increasing,” he said.

But FCC Chairman William Kennard said he, too, worries about diversity and wants to explore ways to create new broadcast outlets. While Kennard said the FCC would never condone illegal broadcasting, he said there could be room for licensed low-power, community-based radio stations.

And, thus, the FCC is interested in Skinner’s petition, which suggests creating three classes of low-power FM stations. These would include one- to 20-watt stations with 2.3-mile ranges, one- to 50-watt stations with 3.6-mile ranges and 50-watt to 3-kilowatt stations with 15-mile ranges. Station ownership would be limited to small businesses and individuals in the particular community.

But Skinner said he worries previous petition drives—specifically one last year asking for only a one-watt station license—have put the FCC focus on only one-watt stations. That, Skinner said, would be completely inadequate considering that many pirate stations operate at 50 watts or more.

“To give us anything less than that, [the FCC] would only shoot themselves in the foot,” he said. “It would only exasperate the problem, not make it go away.”

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