FCC Cracks Down on Micro Radio

FCC TRIES TO SINK PIRATE OPERATIONS
By Matt Spangler, R&R Washington Bureau
full story published by Radio & Records (R&R) -- November 7, 1997

Cutlasses and cannonballs may have been the late 18th-century weapons of choice for combating pirates, but in today's world, at least on the broadcasting front, it's forfeitures and injunctions.

In August, the U.S. District Court for the Middle District of Florida, Tampa Division, upheld the FCC's constitutional right to seize the equipment of a pirate radio broadcaster in Lutz, FL, which the commission does using a proceeding called in rem. In September, the U.S. District Court in Minnesota upheld the right of the FCC to hold an appeal of the seizure of the equipment of "Beat Radio" in the federal court of appeals in Washington. Also last month, the commission, assisted by U.S. Marshals, seized the equipment of "Community Power Radio" in Sacramento, when residents complained that it was interfering with other nearby signals. Two weeks ago, the commission terminated the operations of two micropower broadcasting operations disrupting tower communications at Miami International Airport and West Palm Beach International Airport.

REASONS FOR THE CRACKDOWN
The recent crackdown on pirate radio is a bit of an anomaly. Magalie Salas, chief of the Compliance Division of the commission's Compliance and Information Bureau, which coordinates the seizure of equipment with U.S. Attorney's offices, told R&R that the FCC typically takes action (issuing forfeitures and/or seizing equipment) against only about 10 micropower broadcasters per year.

In June, the NAB put some wind in the commission's sails when its radio board began lobbying for more enforcement against pirate broadcasters. This came on the heels of a complaint filed with the FCC by the Milwaukee Area Radio Broadcasters Association citing a wellspring of pirate activity in that market, which led to the termination of seven micropower operations. After the shutdown of the Florida operations, NAB President Eddie Fritts praised the FCC, saying, "We are delighted that the federal authorities have stepped up enforcement against pirate radio stations."

Why is the nation's largest broadcasting association suddenly concerned about a problem that affects only a handful of commercial stations per year? NAB spokesman Dennis Wharton pointed out that these stations are usually disrupting the signals of licensed broadcasters. The problem addressed by the silencing of a pirate operation in New Jersey - for which Fritts also commended the FCC - may have also influenced the NAB to speak up.

Sal DeRogatis - who called himself "Sal Anthony" on-air - was broadcasting without a license at 104.7 MHz in Howell Township, NJ, according to Assistant U.S. Attorney General for New Jersey Michael Chagares, who worked with the FCC to nail DeRogatis. After receiving complaints from New Jersey Broadcasting that the pirate operation was interfering with WRDR-FM/Egg Harbor, NJ, the FCC issued several notices against DeRogatis, who told the commission he didn't need a license to operate. With the assistance of federal marshals, the FCC seized his equipment on September 4, about a month after he began his illegal transmission.

What made the DeRogatis case unusual was not only was he using the old call letters of licensed stations on his own broadcasts (Oldies WZVU-FM/Monmouth-Ocean, NJ and News/Talk WFHR-AM/Wausau-Stevens Point, WI) but he was advertising his station on a local billboard, calling it "Oldies 104.7" and selling spot advertising as well.

DESEGREGATING THE AIRWAVES
Pirate broadcaster Alan Freed told R&R that his Beat Radio will appeal its case. "It's basically the Rosa Parks of Radio," he said. "It was legal for the government back in the 1950s to say, 'You're Black, you sit in the back of the bus.' It didn't make it right morally or ethically."

His beef is with the FCC's decision in 1978 to set 100 watts as the minimum power an FM station can be legally licensed to broadcast at. Prior to that ruling, the class D license allowed micropower broadcasters to transmit at as low as 10 watts. "We certainly have no problem with being licensed," Freed said. "We'd prefer to be licensed - we'd like to play by the rules."

Freed blames extensive lobbying by National Public Radio - which, according to him, wanted to clean up the noncommercial band - for elimination of the class D license. Bob Ratcliffe, an attorney with the Mass Media Bureau, told R&R that he was not aware of any impact by the pubcaster upon the ruling, but that FCC engineers had indeed determined that licensing stations below 100 watts would not be an efficient use of spectrum.

Why break the rules to begin with? Freed says that Beat Radio was formed to fill what he felt was a void in the market: dance music. So, in June [Beat correction: July] 1996, the broadcasters set up shop on 97.7, which had previously been used as an FM translator station, broadcasting at 10 watts [Beat correction: 20 watts, and mono] at 100 feet. All was going well for about a month or so, until KNXR-FM/Rochester, MN, broadcasting at 97.5, filed a complaint with the FCC, alleging that Beat Radio was interfering with the station's coverage in the Minneapolis market. Because it was operating as such low power and height, and because of the hilly terrain surrounding Beat Radio, Freed said, "There was no way we were interfering with KNXR outside their service area."

KNXR GM Tom Jones told R&R that the letters he sent to the FCC from listeners voicing complaints about interference show otherwise. Furthermore, the commission had ordered the 97.7 translator off the air a month before Beat Radio began broadcasting for interfering with KNXR as well. [Beat note: the translator operated at 40 watts stereo at 800 feet]

Jones says that if Freed has an issue with the commission's licensing parameters, the proper channel to go through would be to file a petition for rulemaking, not interfere with licensed signals.

VIVA DUNIFER
Perhaps the most notorious pirate case in recent years is that of California's Stephen Dunifer and "Free Radio Berkeley." In December 1995, the FCC filed a motion in the U.S. District Court in San Francisco for summary judgment on a permanent injunction to shut down the operation. The following April, attorneys for Free Radio Berkeley and the commission appeared before the court in a hearing on the judgment.

To date, Judge Claudia Wilken has not ruled on the motion, but Free Radio Berkeley and representatives of the commission feel that she is sympathetic to the pirates' cause and will probably deny the motion. If so, the FCC will likely appeal the decision in the Ninth Circuit Court of Appeals, which can then either consider the case or return it to Wilken for a trial.

[Editor's Note: Judge Claudia Wilken ruled in favor of Free Radio Berekely on November 13th and also ruled that the FCC's regulatory structure is unconstitutional.Full information is available here.]

Meanwhile, it's pirate business as usual for Dunifer, who conducts workshops around the country that instruct people on how to set up their own inexpensive broadcast operations. He also sells micropower transmitter kits through his web site (www.freeradio.org), where he boldly flaunts his status as agitator. "As an instrument of global corporate neo-feudalism, [the FCC] seeks total social control and fealty," he says. "Promoting racism, sexism, class division, patriarchy, addiction, and violence, this media monopoly lives at the virtual address located on the corner of divide and conquer."

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