Free Radio Memphis Contacted by the FCC

Date: Mon, 27 Oct 1997 15:34:32 -0600
From: "Dennis B. Henke"<>

Hey, we just wanted to let you know that FRM 94.7 FM, on the air since May 1997, has been notified by the FCC, via a certified letter, that we are broadcasting illegally. Our response was a detailed letter and the decision to continue broadcasting. We mailed our response off today, October 27th, exactly 20 days after getting the FCC letter. More info available upon request. Liberate the Air Waves!!

The FCC Letter

From: "Dennis B. Henke" <>

The FCC Letter:

Dear Mr. Henke

As a result of an investigation by an agent from the FCC Atlanta Office, it has been determined that you have operated radio transmitting equipment in violation of the Communications Act of 1934, as amended. In particular, on Sept.24, 1997, your broadcast type operations on 94.7 MHz from you home was located and monitored identifying as "Radio Free Memphis".

Under Section 301 of the Communications Act of 1934, as amended, and the Commission's Rules and Regulations, radio transmitting apparatus, (other than certain low powered devices operated in accordance with Part 15 of the Commission's Rules and Regulations), may be operated only upon issuance by this commission of a station license covering such apparatus.

Unlicensed operation may subject the oerator to serious penalties provided for in the Comm. Act. Because unlicensed operation creates a definite danger of interference to important radio communications services and may subject the operator to the penalties provided for in the communications Act, the importance of complying strictly witht the legal requirements mentioned above is emphasized.

It is requested that within twenty (20) days of receipt of this letter you submit a written explanation concerning circumstances leading up to your violative operation of the unlicensed transmitting equipment and what corrective action has, or is being taken to prevent recurrence. A written response is being required in accordance with Section 301 of the Com of 1934, as amended, which grants the FCC authority to maintain control over all channels of radio transmission The Privacy Act of 1974, PL 93-579, Dec.31, 1974, 5 usc 552a(e)(3) requires that we advise you that the Commission's staff will use all relevant material information before it, including the information disclosed in your reply to determine what, if any, enforcement action is required to ensure current and future rule compliance. Any false statement made knowingly and willfully in reply to this notice is punishable by fine or imrisonment under Title 18, United States Code.


End Letter

Note: I will try to email my reply letter later tonight (10/27/1997) or tomorrow.

Free Radio Memphis' Response

Date sent: Thu, 30 Oct 1997 10:24:13 CST6CDT
From: "Dennis B. Henke" <>

Federal Communications Commission
Compliance & Information Bureau
Kroger Center-Gwinnett
3575 Koger Blvd.
Ste. 320 Duluth, GA 30136-4958

October 27, 1997

Dear Mr. Broce,

I am writing in response to a letter which I received via certified mail on Friday, October 17, 1997. Let me begin by saying that I would like to cooperate with the FCC to the fullest extent possible. However, as I understand the current licensing procedure, it omits the possibility of broadcasting below 100 watts. According to US v. Stephen Paul Dunifer, the DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HIS ANSWER TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF:

...the FCC is indeed enforcing a complete and absolute ban of all micro radio broadcasts--that is, all original FM broadcasts of less than 100 watts capable of reaching a listening audience. Federal law prohibits anyone from broad casting without a license, and FCC refuses to grant anyone a license unless they are capable of broadcasting with a minimum of 100 watts."

As you know, the broadcast you monitored was well below the required 100 watts, approximately 20 watts. Some would argue that at such low power a license should not even be required. Such micro radio broadcasts are perfectly in line with responsible use of the public airwaves and perfectly in line with the mission of the FCC which specifies the use of minimum power. In fact it might be said that micro radio broadcasters set a better example in their use of the public's airwaves than the megawatt broadcasters which are currently "regulated" by the FCC. To again quote from the above source:

"The FCC is statutorily required to regulate the airwaves in the public interest, and to " study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest." 47 U.S.C. 303(g). 47 U.S.C. 1 57(a)provides that, "It shall be the policy of the United States to encourage the provision of new technologies and services to the public." 47 U.S.C. 324 provides that, "In all circumstances, except in case of radio communications or signals relating to vessels in distress, all radio stations, including those owned and operated by the United States, shall use the minimum amount of power necessary to carry out the communication desired." Micro radio provides a perfect opportunity for the FCC to fulfill these statutory mandates. Instead, the FCC is enforcing an irrational ban of micro radio. The government asserts repeatedly its interest in "regulating the airwaves," but nowhere explains to this Court how this ban serves the public interest, or why it has chosen to prohibit micro radio altogether."

Let me suggest further that to not allow for microradio broadcasting is in violation of the FCC mission. Not only is it a violation of the FCC mission it is clearly a form of discrimination. The airwaves are a public resource which should be available to all, not just the elite few who have the hundreds of thousands of dollars, if not millions, which are required by the established process. According to FCC chairman Reed Hundt, in his address on the NAB Radio Show in New Orleans, LA dated September 8, 1995, the FCC has struggled for 61 years with: "the statutory public interest standard. But there have always been just three basic ways to implement it: Do nothing--on the theory that it doesn't really matter how broadcasters use he spectrum. Do nothing-- on the theory that competition will generate public interestdeliverables like educational television for children or educational PSAs on radio. Or impose specific, concrete and meaningful duties on users of the public property of the airwaves. Too often the FCC has elected the first option, by adopting vague requirements that have no real-world effect on the programming of broadcasters ...For the FCC, this has been sort of a reverse Cal Ripken record: we've showed up every day and not done our job. With respect to radio, until 1981 the Commission tried, at least to a degree, option three. It imposed a number of duties on radio licensees. These were frustratingly inexact and, in the view of many, did not generate positive results for listeners. These Commission rules were in great need of rewriting. Instead, in 1981 the FCC abandoned option three with respect to radio. It launched a large scale experiment in option number two. The Commission removed virtually all substantive public-interest requirements for radio licensees while implementing a policy of very vigorous competition in an extremely deconcentrated industry.... it is far from clear that vigorous competition has led to a better performance by radio in terms of informing adults, increasing participation in the political process, or educating children."

The broadcasts of Free Radio Memphis, which you monitored, serve a specific need within our community which is not being met by any other broadcaster in Memphis. These broadcasts offer information which are not only absent from other Memphis radio broadcasts, but television as well. The free flow of information is not a privilege, but a vital necessity if citizens are to participate in the democratic processes available to them. Indeed, information is perhaps the most critical element in a vibrant and functioning democratic society. As a part of this information distribution it could be easily proven that Free Radio Memphis is itself a democratic community institution. As such it provides a space for the many voices and ideas which were ignored before, primarily due to the poverty of those involved.

I would like to point out that such broadcasting clearly falls within speech protected not only by the First Amendment, but also the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. According to the Dunifer's MEMORANDUM OF POINTS AND AUTHORITIES:

" The government seems to be asserting that the doctrine of spectrum scarcity provides to FCC regulations absolute immunity from First Amendment challenge. This interpretation of the Supreme Court's First Amendment analysis in this area is incorrect... the FCC's regulations must meet the "public interest, convenience and necessity" standard. This criterion is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power," and the "public interest to be serv ed under the Communications Act is...the interest of the listening public in the larger and more effective use of radio." NBC, supra, 319 U.S. at 216. O[The] public interest standard necessarily inv ites reference to First Amendment principles, and, in particular, to the First Amendment goal of achieving the widest possible dissemination of information from diverse and antagonistic sources. NCC supra, 436 U.S. 775, 795.... While the decisions cited by theFCC indicate that the broadcast spectrum is subject to a different First Amendment standard than other media, the Supreme Court in these cases repeatedly emphasized its concern with broadening and diversifying the sources of information available to the public. None of these decisions permitted the type of across-the-board prohibition of a new means of community -based communication that is at issue in the present case."

To conclude, the arguments given by the FCC, not only in the letter

to myself, but in the recent court cases in Berkeley, CA are generally very weak. One such argument, mentioned in the letter to myself, is that the signals of microradio broadcasters interferes with licensed stations. If the broadcasts of Free Radio Memphis is representative of other microradio broadcasts I would suggest that the above "interference" argument is completely false. If the FCC is going to violate its own mission, the United States First Amendment, and the Universal Declaration of Human Rights then it needs a completely different set of arguments, of which, it apparently has none.