Also responding to the proposals were The National Association of Broadcasters (NAB), the lobbying organization for the corporate media, and National Public Radio. These entities oppose any legalization of micro-power broadcasting. They put forth a variety of justifications for their opposition, which we have answered in our reply comments below. Basically, they now have control of the public airwaves, and want to keep it that way.

If you would like to add you name in support of our proposal, please follow the instructions at the bottom of the page. In order to make the deadline, all sign-ons should be in by 9 PM Pacific time, Monday, July 20.  But the sooner the better. Thanks for your support of freedom of speech and democracy on the airwaves.

In the Matter of )
Micro station Radio Broadcast Service )       RM No. 9208, 9242, 9246
Petition for Rulemaking   )

Introduction

I.  Interference
II. Digital Radio

III. Non-Commercial Microradio Will Not Lead to Many of the Problems Cited by the
      Opposition
  A. Economic Fragmentation
  B. Licensing, Transferability, and other Administrative Burdens
  C. Local/Regional Voluntary Coordination

IV.   Public Service
V.        Emergency Services
VI.    Alternative Life Stylists, Hobbyists, and Other Problems
VII.   Rosa Parks-- the “Pirate”?
VIII.  Alternatives for the NAB?
IX.    Modification of our Previous Proposal
X.     Moratorium and Amnesty

Introduction.

The Committee on Democratic Communications of the National Lawyers Guild submits the following reply comments on behalf of both itself and the organizations and individuals noted at the conclusion.

First, we note that, as far as we can tell, full-power broadcasters are the only ones who submitted comments in this proceeding in opposition to microradio. Their comments are obviously self-serving and seek solely to maintain the exclusivity of their government protected monopoly on public property.  In fact we are pleasantly surprised by the number of licensed broadcasters who have filed comments supporting microradio, clearly demonstrating that even among licensed broadcasters there is a significant divergence of opinion.

We also note that the comments supporting microradio represent both geographic and social diversity. They not only come from throughout the U.S., but from a broad range of social viewpoints: city councils, school districts, high schools, emergency response planners, broadcast engineers, churches, and, of course, a wide range of citizens who are simply frustrated with the increasingly cramped offerings of current radio service.

We will respond to a number of the significant issues raised by those in opposition to microradio.

I. Interference

The opposition raises the specter of interference. However, a number of independent commenters who have experience in broadcast engineering state that large numbers of microstations could be placed on the air without causing interference. There are and have been, in fact, for the last few years many unlicensed microstations operating throughout the United States which have caused no interference. We do not support any broadcasting whether micro- or full-power) that causes interference to licensed full-power stations, translators, aviation, or other users of the spectrum. We are convinced that hundreds, if not thousands, of microstations could operate without any interference at all-- convinced because many of them are already operating and many others were until shut down by recent FCC action.

II. Digital Radio

The opposition believes that microbroadcasting will impede the advent of digital radio in the U.S.  The FCC has not yet decided exactly how it will go about implementing digital radio.  We believe that the IBOC system, which is mentioned prominently by the opposition, would be a serious mistake. Nearly the entire industrialized world, including Europe, Australia, and our neighbor, Canada are moving all of their broadcast radio to the L Band and implementing the Eureka 147 system. The L Band offers far superior engineering advantages over the current radio spectrum. If the United States opts for the IBOC plan, we will forever be stuck with a system that is not only inferior in quality, but incompatible with the rest of the world. We find it particularly ironic that the opposition, who repeatedly cite their concern over maintaining high engineering standards in radio, would support the inferior technical option for implementing digital radio.  We assume this is simply because it is in their short-term financial interest to do so, thereby dooming the US  to an inferior, incompatible service for the foreseeable future.

Even if the U.S. should implement the IBOC system, it is not clear that microradio would cause significant interference.  While there may be some situations in which microstations would have to reduce their power to prevent interference with IBOC signals, we believe that IBOC and microbroadcasting could comfortably co-exist.

However, we wish to point out that digital radio utilizes less spectrum than analog radio and is much less vulnerable to interference. Therefore we request that the FCC plan now for giving microradio a full share of the spectrum once digital radio is fully implemented and analog radio is discontinued. At that point, there can certainly be no excuse for not turning over a significant portion of the digital radio spectrum to locally owned and locally programmed microradio stations. In fact, we hereby request that the FCC set aside a significant portion of the digital spectrum, on the order of 20%, for community based micropower broadcast stations.

III. Non-Commercial Microradio Will Not Lead to Many of the Problems Cited by the
      Opposition

Many of the potential problems cited by the opposition would only arise if microradio is allowed to be commercial.  We initially called for totally non-commercial microradio and we stand by that position.  Many issues will automatically become moot if the service is exclusively non-commercial.  In particular, any requirement in the 1997 Budget Act that frequencies be auctioned to the highest bidder would be inapplicable.

  A. Economic Fragmentation

Many of the opposition comments cite the danger of economic fragmentation caused by microradio.  In particular they state that small, independent stations, especially those in small and medium markets, will suffer if microradio is allowed. They note that if our concern is with  preserving local ownership and local service,  licensing microradio will be counterproductive.  We are sympathetic to the concerns expressed by a number of small, independent station owners concerning their economic viability.

However, if the new microstations are completely non-commercial (which to us means prohibiting the type of “underwriting” that public radio uses) then there will be no competition at all for advertising dollars, and the threat of economic fragmentation disappears. If “competition” from non-commercial microstations leads to loss of audience for commercial broadcasters it will be because, as the microradio movement has been asserting, commercial radio is not meeting the needs of communities and audiences.  The commercial system must not be protected by the FCC from the consequences of their failure to meet audience needs.

  B. Licensing, Transferability, and other Administrative Burdens

Once again, if the profit motive is eliminated, then only those who sincerely wish to communicate for the sake of ideas and culture will be interested in microradio. There will not be a flood of license applications with expensive legal representation, transferability will be less of an issue, and other administrative issues will, in general, be greatly reduced.

As pointed out by the Zillah School District (Washington State), if microstations are non-commercial, then licensing can be done without high-bidder auctions (under the 1997 Budget Act).  High -bidder auctions are likely to ruin the very concept of microbroadcasting by inevitably leading to bottom-line based programming, rather than diverse, experimental, and innovative ideas.

We believe that licenses should not be transferable.  If a licensee decides to cease operating then that spectrum will simply become free. Again, this will guarantee that licensees will be those who sincerely wish to communicate, rather than speculators.

  C.  Local/Regional Voluntary Coordination

The opposition often states that implementation of microradio would lead to undue administrative burdens on the FCC. We do not think this is necessary. In our initial comments we requested that local/regional voluntary microbroadcaster associations be allowed to handle most administrative issues, with the FCC only stepping in as a last resort. A number of comments supporting microradio made similar observations about the success of  local, voluntary “frequency coordination” organizations in amateur radio and other similar services. In addition, the New Jersey Broadcasters Association notes that the FCC has allowed state broadcasters associations to take over some of the FCC’s duties, such as station inspections. We believe that the assistance of local/regional voluntary micropower organizations could be utilized to significantly reduce any additional administrative burden on the FCC.

In addition, we believe the such local coordination will likely be far more successful if the microradio service is entirely non-commercial. With an entirely non-commercial service, there will be far less competition for available spectrum; negotiated time-sharing and other such arrangements will be much more feasible.

IV.  Public Service

Many of the broadcaster opposition comments state that current full-power broadcasters provide adequate public service. Some even state that recent consolidation has led to improvements in public service.  This is ludicrous. The comments by those supporting microradio come from every part of the United States, and over and over they tell the same depressing story: a decrease in local public service, elimination of news and public affairs programming, elimination of locally oriented programming, and an intensified focus on bottom-line considerations over all else. One of the authors of this reply (Philip Tymon) teaches broadcasting at a state university.  He has occasion to talk to many people in broadcast management, sales, programming, etc. and they all repeat the same story--  distant corporate management demands ever increasing sales and profits to pay for mergers and buyouts and satisfy stockholders. Nothing else matters-- public service and local programming are never a consideration.  Since the deregulation of radio in 1981, there has been a huge drop in local public service programming. The consolidation following the Telecommunications Act of  1996 has even further accelerated this drop. The press has been full of reports of diminished public service, some of which we cited in our initial comments. We note that groups of listeners from places as diverse as Maryland, Florida, Kansas, and Colorado have explicitly noted the need for local, community oriented stations.

V.   Emergency Services

Many of the opposition comments from broadcasters question whether microradio will be able to participate in the use of radio for emergency purposes, or Emergency Alert Service (EAS). However, we note that a number of independent experts in EAS, from quite varied parts of the United States, strongly welcome the advent of microradio as an additional outlet for emergency broadcasts. One of them even states that currently licensed broadcasters have often not been fully cooperative with EAS.

The whole point of microbroadcasting is to provide very local service, of which emergency broadcasts are certainly a prime example. We believe that microbroadcasters will be happy to cooperate in a reasonable EAS system that integrates their operations.

VI.  Alternative Life Stylists, Hobbyists, and Other Problems

Between 1556 and 1695 the British government licensed printing presses. Only a few very loyal and trusted companies were given the legal right to print. After this extremely restrictive licensing scheme was ended, the British imposed a Stamp Tax on printing. This ensured that only the wealthy could afford to print. It was this very tax which is referred to in the Declaration of Independence as “taxation without representation” and is cited as one of the principal causes of the American Revolution.

The First Amendment was authored by a group of men who were quite aware of their recent history. If anything, the First Amendment was intended to prevent licensing of the media and schemes to restrict speech rights to the wealthy. The underlying goal of the First Amendment is to prevent the creation of an “establishment” media-- one which owes its existence and privileges to the government and is, therefore, unlikely to ever allow communications which seriously threaten the “status quo”.  Yet the FCC has fallen into this very trap. While the technology of broadcasting does require, unfortunately, some sort of regulatory scheme, the purpose of that scheme is not to produce a “safe” medium of communications.

Yet the comments of the NAB, the State Associations of Broadcasters, and the other opposition are breathtakingly devoid of any analysis or even awareness of basic First Amendment values. A group of New Mexico broadcasters express the fear that “militiamen, religious fanatics, drug culturists, alternative life stylists and various assorted crackpots...” will dominate the new LPFM service. What if they do? The last time we checked, the First Amendment belonged to everybody. It’s called “free speech”. (And which drug are they talking about- tobacco, alcohol, or viagra?)

The State Associations praise “professionals” and warn against “hobbyists”. We see nothing in the First Amendment to apply it solely to “professionals”. If anything, the First Amendment is more rigorously applied to those who wish purely to communicate ideas and culture rather than those who are communicating primarily for profit. A long series of Supreme Court cases have established that “commercial” speech has far less protection than non-commercial speech. The vast majority of commercial full-power stations have clearly become little more than a vehicle by which to deliver audiences to advertisers. Programming is safe, bland, and geared toward the lowest common denominator. Neither the First Amendment nor the Communications Act were passed to “protect” such programming from those who would use the medium to sincerely and passionately advocate ideas and artistic expression. If the FCC buys this notion of a safe and establishment media, then it is clearly an agency that has been “captured” by the very industry it is intended to regulate.

VII. Rosa Parks- The “Pirate”?

In 1955 when Rosa Parks decided to sit in a bus seat reserved for “WHITES ONLY” she was breaking the law. She was “pirating” a seat that did not legally belong to her. She was right and the law was wrong. And she didn't need to nicely ask permission before violating an immoral and unconstitutional law. That is the essence of civil disobedience.
Maybe we should also mention that every signer of the Declaration of Independence was breaking the law-- a law punishable by death.

A number of the broadcasters who have opposed microradio have done so on the grounds that it will reward “pirates”. This is equivalent to saying that we should not have compelled integration of public facilities because it would “reward” lawbreakers like Rosa Parks. Or maybe we should not have honored George Washington because it “rewards” traitors to the King?

This broadcasters’ response is the arrogance of state-protected monopolists.

VIII. Alternatives for the NAB?

A number of the broadcaster comments suggest that microbroadcasters use alternatives such as the internet, amateur radio, and the telephone. We suggest, quite seriously, that the vast majority of current full-power broadcasters are the ones who are wasting the spectrum.  The most optimal use of radio is geographic localism-- reaching people in a neighborhood or town who share common concerns and needs. Yet it is exactly that localism that current broadcasters have been rapidly abandoning. The vast majority of current radio broadcasting has almost no uniquely local content (other than the advertising).  Much broadcast fare is made up of syndicated, automated, or satellite transmitted programming. Much of the rest consists of highly restricted and formatted music programming which is nearly identical throughout the US. All of this generic national programming is wasting precious local broadcast spectrum. It could all be broadcast directly via satellite to listeners’ radios, thereby eliminating the middleman. Or it could be delivered via the internet, cable radio, or possibly other means.

We suggest that the FCC initiate a rulemaking to consider whether all broadcasters who not originate at least 75% unique local programming should be moved to alternative media, leaving the current broadcast spectrum open to those who pledge to provide truly local service.

IX.  Modification of Our Previous Proposal

Our previous proposal suggested a power limit of 100 watts rural and 50 watts urban. However, many microbroadcasters have informed us that there are numerous situations in which 100 watts urban would be necessary to provide adequate service. Therefore we wish to modify our proposal to allow for a maximum of 100 watts, no matter the location. Of course, that would assume that no demonstrable interference is caused to full-power facilities.

X.  Moratorium and Amnesty

We agree with the basic thrust of the comments by Nicolaus and Judith Leggett and Don Schellhardt requesting a moratorium on prosecutions of microbroadcasters and amnesty for microbroadcasters who have been prosecuted. Unlicensed microbroadcasters are not acting for venal or criminal purposes, but rather to affirm and establish their constitutional rights through civil disobedience.  In fact, had they not taken a firm stance to assert their basic rights this rulemaking would not be taking place.

In order to make the deadline, all sign-ons should be in by 9 PM Pacific time, Monday, July 20.  But the sooner the better. Thanks for your support of freedom of speech and democracy on the airwaves.