FCC Goes After Radio Pirates With a Vengeance
by Jim Nesbitt, Newhouse News Service
The Times-Picayune
Sunday, July 12, 1998

TAMPA, FLA.--When the Federal Communications Commission came calling to shut down two local pirate radio stations late last year, the pirates say they got hit with a heavy dose of law enforcement muscle - choppers, submachine guns, flak jackets and other equipment and tactics usually seen in the takedown of killers or major drug desperados.

Doug Brewer, a lifelong radio enthusiast and local celebrity on Tampa's biker bar circuit, said his neighborhood was cordoned off and he was handcuffed in a chair for two hours as agents carted off thousands of dollars' worth of electronic equipment, only some of it used to broadcast music shows on The Party Pirate, a low-power FM station beamed out of his house.

Lonnie Kobres, a marine electronics technician who is married to a middle school science teacher, said a similar raid at his house validated his Christian patriot political view of a tyrannical
government at war with its own people, the substance of the satellite programs he rebroadcast from his home-based, low-power FM pirate station, dubbed Lutz Community Radio.

It is overkill, say the two radio pirates - an oversized hammer swung at the growing number of microbroadcasting gnats buzzing around the FM band these days, an unmistakable message of intimidation aimed at a grass-roots movement electronically exercising its First Amendment
freedom and protesting the consolidation and bland programming of commercial and public radio.

"I'm not a militia guy, and we never broadcast anything political on this station, just music," said Brewer, 43, a barrel-bodied, bearded and long-haired  man who also holds a concealed weapons permit. "Why in the hell would you consider me such a threat? They were treating me like a
drug cartel guy or a hit man."

It is just prudent law enforcement, said Larry Cooper, chief of the U.S. Marshal's Service in Tampa, the federal agency charged with carrying out the FCC raids. Police in Florida tend to be careful - the state is on the front line of the nation's drug war where narcotrafficantes and anti-government zealots can outgun the average beat cop.

"Obviously, they're going to claim we had an army out there," he said. "We didn't. We don't have the manpower."

Richard Lee, the FCC's enforcement chief, said, "We are not thugs, and we try to be as professional as possible."

Intimidation or prudence, the FCC raids, along with several federal court rulings late last month, have had a chilling effect on the microbroadcasting movement, forcing stations across the country to shut
down or shift their programs to the Internet, as Brewer is doing with The Party Pirate.

Estimates of the number of people experimenting with unlicensed, low-power FM broadcasts vary. The FCC puts the number of pirate stations at no more than 112, based on a field estimate made last month, with more than 200 stations shut down in a crackdown that started last year and continues.

Other observers of the microbroadcast scene, such as Jesse Walker, a fellow at the Competitive Research Institute, a Washington, D.C., libertarian think tank, say the microbroadcasting universe was about 1,000 stations before the raids and lawsuits started. Walker predicts the movement will blossom again in the face of commercial and public broadcasting that is increasingly centralized and removed from the local programming that once made radio uniquely intimate.

"It's the little guys getting together," Walker said. "There's all these barriers to keep people off the air, to keep community groups and civic organizations off the air, to keep innovators and start-ups off the air. The microbroadcast movement is a response to that."

Thanks to the plummeting price of technology - for less than $1,500 Brewer can ship you a 100-watt package that can cover 25 to 30 miles - microbroadcasters have sprung up across the country.

The programming is everything commercial radio isn't, decidedly uncanned and wildly eclectic, from stations broadcasting Haitian music in Miami to a tenants' rights group focusing on the issues swirling through a Decatur, Ill., public housing project. You can hear a gay nightclub in Cleveland beaming out its mix of dance music, and a wheat farmer in North Dakota who got tired of the programming from his town's only commercial station and started sending a satellite feed of right-wing talk shows into his fields so he could listen as he plowed.

"I don't have time to run a radio station; I'm a farmer. I just want to have something worthwhile to listen to as I work," said Roy Neset, 50, who was shut down by the FCC. "I didn't know what I was getting into when I started this, but now Big Brother is really flexing his muscle."

In several instances, a pirate station has stepped into the void created by the consolidation of commercial radio, most notably in San Marcos, Texas. The town had one AM station and one FM station; when both were sold, they stopped covering local events.

KIND Radio, started by Tejano hippies who advocate the legalization of commercial hemp, stepped into the gap, rapidly becoming an electronic town hall, Walker said. Ironically, San Marcos police officers trying to start a union recently appeared on KIND to state their case. In Boston and New Haven, Conn., pirate stations that cover local government meetings have won praise from local

Microbroadcasting enthusiasts are fond of comparing their guerrilla radio movement to the Internet revolution. Both feature readily accessible technology that enables everyday folk to create electronic
communities that bypass corporations and institutions, they say. It is free speech in an unfettered and chaotic form, and that scares the powers that be, they say.

One key difference between radio and the Internet: the Communications Act of 1934. That law gives the federal government, via the FCC, the right to regulate the broadcast spectrum, deciding who gets a license and what they have to do to get one.

"The pirate radio broadcasters have it wrong," said Dennis Wharton of the National Association of Broadcasters, the powerful Washington lobbying outfit for commercial television and radio broadcasters. "It's not about free speech and the First Amendment. The potential for absolute anarchy exists if you don't have a licensing system. . . . We live by the rule of law in this society. You can't drive a car without a license, you can't go fishing without a license. We don't think it's too
much to ask to get a license to broadcast."

Happy to do so, say microbroadcasters such as Neset and Brewer. One problem: The FCC doesn't have a license for low-power stations like theirs and isn't likely to grant a waiver. The rules favor the rich and the corporate, not the pirate who wants to become legitimate, they say.

Other microbroadcasters say new technology makes the FCC and NAB arguments about safety and spectrum scarcity obsolete. In the face of these developments, the agency's prohibition on low-powered stations is an unlawful shackle on First Amendment freedoms, said Scott Bullock, an
attorney with the Institute for Justice, a Washington, D.C., libertarian public interest law firm representing Neset.

"The First Amendment requires that regulations that promote legitimate government goals must be narrowly tailored to meet those goals and objectives," Bullock said. "And the FCC's regulation is far too sweeping, too broad. It can't sweep so broadly that it eliminates Mr. Neset's First Amendment rights."

But two federal judges, in California and in North Dakota, have sidestepped this constitutional challenge, ruling that Neset and another radio pirate, Stephen Dunifer, co-founder of Free Radio Berkeley and often called the Johnny Appleseed of the microbroadcasting movement, lack the legal standing to make these arguments because they failed to apply for an FCC license. The twin rulings shut down Dunifer's and Neset's broadcasts, although Free Radio Berkeley is sending out
programming on the Internet.

Brewer, who has applied for an FCC waiver, hopes to sidestep the technicality of these two court rulings and get this constitutional challenge before a jury.

Beyond the constitutional challenges to FCC authority is a larger societal question about the impact of the consolidation of the radio broadcasting industry. Since the Telecommunications Act of 1996
liberalized ownership rules for radio stations, there has been a frenetic buying and selling spree among the nation's 12,000 stations, particularly in the Top 50 markets, creating new radio monoliths such as Capstar Broadcasting Partners and Jacor Communications.

In the nation's Top 50 radio markets, half the stations are part of a broadcasting chain, according to numbers compiled by Radio Business Report, an authoritative Alexandria, Va., trade publication.

This trend has taken radio out of the mom-and-pop operation, ushering in a new era of corporate ownership, cost-cutting and centralized programming. And that has meant the death of local news coverage, public service programs and other locally generated shows, said Robert McChesney, an associate professor of journalism at the University of Wisconsin.

"The electronic medium that should be the most decentralized and the most open to local access and local ownership is becoming the most centralized and has the least access of any medium," McChesney said.

Consolidation has accelerated a trend toward canned programming and tight formatting that allows little deviation from a predetermined pitch toward a station's target audience. With the notable exception of nationally syndicated shock jocks such as Don Imus and Howard Stern, creativity, originality and freedom are out, cookie-cutter is in, say industry critics, making the country-and-western station in Dallas sound identical to the one in Butte, Montana.

While most of the microbroadcasters caught in the FCC net face only civil charges and the loss of their equipment, the stakes are far higher for Kobres, who was convicted of criminal charges in federal court in February of illegal broadcasting. He faces a potential 28-year prison sentence and $3.5 million in fines at a hearing this month.

Federal officials took sterner measures with Kobres, 54, because he decided to resume broadcasting after a raid on his home in April 1997. But the trim, mild-mannered electronics technician sees a darker purpose, one rooted in a desire to silence the airing of his Christian
patriot political philosophy.

"I looked out my window and there were police cars as far as I could see," Kobres said. "And this is America? My home wasn't an armed compound. This wasn't a David Koresh thing. So why all the men and guns and helicopters? This is what happens when your country's totally bankrupt and it all exists on fraud."

For Brewer, it's a matter of programming, not politics.

"Don't look at me because people are listening to my station instead of yours," he said. "Look at your programming. It sucks."