KIND Radio, San Marcos versus the FCC

7/17/98

Last April, operators of 5 microstations :

LEANDER, TEXAS. Keith Perry
CLEVELAND, OHIO. Jerry Szoka
SAN MARCOS, TEXAS. Joseph Frank Ptak
OROVILLE, WASHINGTON. Mark A. Rabenold
CHEWELAH, WASHINGTON. Lewis B. Arnold

received summonses to appear in Washington, DC for an "order to show cause" as to why the FCC should not issue an injunction against them. Each of the operators was facing a fine of $11, 000.

KIND Radio in San Marcos, Texas which operates out of Joe Ptak's home attempted to gain a change of venue for the hearing to Texas. Joe's request was supported by 110 others from San Marcos, including the Mayor, who wanted to testify on KIND's behalf before the FCC. KIND's request for a change of venue was denied. Joe, who doesn't have much money, did not make the trip to Washington for this hearing which appears to be rather a pro-forma form of harassment, rather than a legal proceeding actually aiming at a just inquiry.

Subsequent to Joe's non-appearance in Washington, press reports of a cease and desist order by the FCC against KIND began to appear. Folks at KIND, however, were never contacted by the FCC. Below are two letters from San Marcos: one from Joe Ptak, and the other from San Marcos resident Dave Lederer.

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Sent Friday, July 17, 1998 to the FCC from Joe Ptak, Micro Kind Radio

Dear Folks,
I am requesting that you investigate my case and tell me why I have had to answer questions from journalists and interested parties about a FCC Order against me, which I have not received.  It is quite unsettling to sit here writing this letter to y'all wondering why the FCC has not sent
me any notification of this decision and what would happen to me if I did not have people out there keeping track of what y'all are trying to do to me.

I request that you stay any Order filed against me by your Administrative Law Judge Richard Sipple in Docket No (  ).  because of the failure of this judge to act in a manner consistent with justice and
fair play.  I feel that as a private citizen and part of a non-corporate press organization we have been treated very shabbily and that your agency has become servile to corporate interests and incapable of fairly treating an individual interested in understanding and complying with your rules and regulations -   as is evidenced in the growing list of enforcement actions against micro-broadcasters struggling to reconcile FCC contradictions.

 Furthermore, I am disappointed that a federal agency, which is attempting to bring the full force of their enforcement power down on me, will not grant me the same respect and assistance with which you treat corporations.

 From the very beginning of the Hays County Guardian's (Guardian) operation of micro (u)Kind  Radio San Marcos (uKind) the intention of the Guardian remains to receive whatever licensing and registration was required for 30 watt transmission of non-commercial press public access
political speech on the public's FM airwaves which have been stolen from us to sell advertising in the Austin market.  After reviewing Texas law, we registered uKind with the Texas Capitol Press Service satisfying state registration requirements.

 Shortly after operation began, San Marcos Planning and Zoning Inspectors cited me for operating a radio broadcast facility in a residential zone without a permit.  After a jury trial, I was found not
guilty and did not require City permitting.

 To this day, we still have not received a response from the FCC telling us what forms to use and what rules to follow in applying for a FCC license or waiver to do what we're doing.  During the time we have been waiting for a response from y'all, other than threats,  uKind has provided San Marcos citizens conveniently with emergency information regarding floods, tornadoes, lightening strikes,
drought conditions, bomb threats, and other hazardous conditions which were not available from any other source.

 There have been 5 elections held during the time uKind has operated and during that time we have held live on-air interviews with a  US Senator, US Congressman, former Texas Supreme Court Justice, former Texas Attorney General, former Texas State District Judge, Texas Railroad
Commissioner, Hays County Judge, Mayor of San Marcos, San Marcos City Councilmen and San Marcos Consolidated School District Board Trustees as well as candidates for all of these as well as other political races.

 This spring, for the first time in the history of San Marcos, the races for Mayor and two City Council positions were all thrown into a run-off election.  On the very day, May 19*, that I was supposed to be in Washington D.C. for pre-hearing conference that I could not afford to
attend (financially or journalistically), I hosted a 7:00-10:00 PM "Meet the Candidates Forum"  on uKind.  Four of the six candidates, including the incumbent Mayor appeared on this show held just 11 days before the run-off.

 Because of the tremendous public interest generated during the campaign, the National Association of  Colored People (NAACP)  and Nosotros La Gente (We the People) co-sponsored a Lincoln-Douglas style debate held on Memorial Day and they asked uKind to rebroadcast the
debate the next day.

 Despite the fact that the debate lasted almost 3 hours it was played twice, in its entirety without commentary, the next morning and evening.  As a result of all of the radio coverage, voter turnout was higher in the run-off that in the general election, and was the highest vote total in over 20 years.

 Needless to say, as is evidenced by the attached letters from David Leder, the San Marcos licensed station didn't interview any of the candidates or cover any of the debates despite candidate requests.
 I was encouraged, at first, by your decision to offer me an opportunity to show cause why a cease and desist order should not be filed against me and the Guardian for the operation of uKind and present evidence including letters from the FCC stating that what we were doing was not under the jurisdiction of the FCC.

 The first thing we did was tried to explain to the FCC the organizational and ideological structure of the Guardian and uKind Radio.  Over 100 people, including the Mayor of San Marcos Billy Moore,
have sent letters to the FCC stating that they have evidence to be considered in your action against me and most have requested party status and/or a change of venue so that they, as individual citizens
could participate in this complex matter.

 We felt that in such a forum we would be able to address falsehoods and inaccuracies in what the Compliance and Information Bureau was stating and be allowed to set the record straight on who owns, controls and operates uKind as well as work with FCC personnel in an alternative
dispute resolution process which would allow for the processing in a timely and efficient manner whatever type of licensing requirements and forms would be required

What I have realized is that the FCC has obstructed the administration of justice, by refusing to obey laws already established in our Constitution by refusing to follow due process of law and by ignoring
lawful challenges to their authority and has presumed authority in all cases whatsoever. Furthermore, the FCC has used procedural maneuvers to obstruct the administration of justice for the sole purpose of draining our resources and fatiguing us into submission. The strict time guidelines clearly are evidence of the servile position of the FCC, in that no one but a corporation could afford to hire and maintain on call, the specialized type of lawyers needed to respond to FCC mandates under these conditions.

I do not own or control  uKind nor any of the people who participate in the transmissions, which emanate from the station.  The impact of any FCC action against me may serve in stopping me from broadcasting and result in the transmitter being moved from my house.

But without a fair hearing over all of the issues involved in the micro-broadcasting revolution and particulars of our case with the possibility of settlement upon a satisfactory regulatory mechanism which provides for non-commercial press public access political speech low power FM broadcasting, this will be just one of thousands of  similar actions the FCC will have to engage in to protect corporate rights to excessive profits over citizens rights to inform themselves.

Micro Kind regards,
Joe Ptak
 

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June 26, 1998
David Leder        San Marcos, TX

To:
Federal Communications Commission
Attention William Kennard
1919  M Street
Washington D.C.  20554

Chairman Kennard,

 My name is David Leder and I live in San Marcos, Texas.  We have a highly unfortunate situation in our little town.  What I am talking about is the total lack of community service provided to us by the FCC licensed radio stations in San Marcos.  First the stations are not in the city, second they
do not broadcast news in the public interest or broadcast urgently needed political information, such as allowing candidates access to the airwaves or having debates.  The problem here is that Austin is the big market, but San Marcos is so close to Austin that there seems to little interest in serving
the local market when a much larger market is easily reached through high power broadcasting signals.  I donít usually listen to either of the stations very much, but recently I started a new job where I am forced to listen to Oldies 103.5 FM San Marcos, Austin, or as their slogan goes Austin
ís Good Time Oldies Station.  Due to this experience I have completely reaffirmed my assertion that 103.5 FM does not do any broadcasting in the public interest of the citizens of San Marcos, Texas.  The AM station simply rebroadcasts the signal of another radio station with the same owner.

 I have had some experience dealing with the FM station (Oldies 103.5 FM). I recently ran for mayor in San Marcos and subsequently requested air time for all the candidates (including myself) in all the races for public office in the city of San Marcos and the SMICSD elections.  My request was declined only after a follow up call to my initial fax in which I requested a written response.  I was then told over the phone that my request could not be granted because that it was on too short of a notice.  I requested that this response be sent to me in writing, this request was also denied.  My hunch was that If I had not called there would have been no response to my request.  This hunch was confirmed when I sent a second certified letter requesting the same access to air time for the remaining six candidates left in the runoff races (of which I was not one), which received no response.  I wrote a second letter after being declined the first time because the need was still there, and since the time frame was set at 28 days this was the maximum frame of time allowable for notification of my request.  Therefore I sent a second letter out a few days after the initial election.  There was absolutely no response to this letter from Oldies 103.5 FM.  After the election was over I sent a third letter to Oldies 103.5 FM expressing my severe disappointment with their total lack of commitment or even interest in the community of their FCC license.  Again there was no response to my letter.  I have included copies of all my letters that were sent to Oldies 103.5 FM.

 My question to you:  Is it standard procedure for the FCC to allow companies who lease the citizens airwaves (and then make money by using this public resource) to not broadcast information in the public interest?  If this is the case, why does the FCC bother to assign licenses to specific
cities?  If this is not the case is there a review process to take the license away from a station that does not broadcast in the public interest of its community of license?

 I have a great deal of concern about this issue because communities all around the country are losing their voice to huge corporations that cater to the large market cities.  My other great concern is the recent shut down of Radio Free Berkeley, a station that broadcast information in the public
interest of the greatest importance, such as news and politics.  In fact San Marcosí own micro radio station (Micro Kind Radio) the only source of immediate public emergency broadcasting, local news, local politics, and interactive media outlet to the community is under investigation by the FCC.
Does the FCC intend to squelch anybody broadcasting real information to the public, while allowing monopolistic corporations to control the citizens' airwaves?  Your immediate response to my questions is respectfully requested by my self and the following interested parties.
 

 Highly concerned tax payer,

David Leder