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]

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

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]

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. "...

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.

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:

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.

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.