Article by Todd Matthews

Alternative press and alternative radio are often lumped together. Do you have an idea for an indie magazine or radio station? Great. Find a printing press or an open radio dial, and go for it.

But that's a little naive, especially as it relates to alternative radio.

+ + photo courtesy De Kwok + +

The Federal Communications Commission (FCC) has kept a tight lid on what alternative radio enthusiasts call Low-Power FM (LPFM) radio stations—even going so far as to do away with these stations in the late-1970s. What has followed is a long-brewing feud between "pirate" radio broadcasters and the FCC. That feud came to a decided crossroads last month when the U.S. Court of Appeals for the D.C. Circuit overturned as unconstitutional the part of the Radio Preservation Act that prohibited all former unlicensed broadcasters from applying for low-power radio stations. The litigation, brought by Greg Ruggerio, an acknowledged former pirate affiliated with "micro-broadcasting" stations in New York City, according to court documents, is being viewed by many LPFM supporters as both validation and victory of sorts. "Preventing a former unlicensed broadcaster from applying for a non-commercial 10 watt or 100 watt FM station makes no sense," says Alan Korn, a member of the National Lawyers Guild (NLG) Center on Democratic Communications. "[Especially] when the same unlicensed broadcaster is permitted to apply for and own 10,000 watt full-power commercial AM and FM station, even after committing far worse crimes."

Understanding the importance of this decision requires a brief understanding of the history of radio.

When the FCC began licensing FM radio stations in the 1940s, it licensed both high-power stations and low-power, educational stations operating with a maximum of ten watts of power. In 1978, however, the Commission concluded that low–power stations were impeding expansion of more efficient high-power operations. As such, the Commission stopped licensing low-power stations and required most existing stations to upgrade to at least 100 watts.

Enter pirate radio.

Individual pirates began operating unlicensed low-power stations that broadcast local news, music, and commentary. In the late 1990s, after Congress amended the Telecommunications Act to eliminate restrictions on the number of radio stations any one person or entity could own, ownership of licensed radio stations became increasingly concentrated, leading to a marked decline in serious local radio news reporting.

Consequently, the number of pirate radio stations boomed.

The FCC cracked down on pirates, ordering those individuals to cease broadcasting and taking legal action against those who refused.

In January 2000, the FCC changed course, and issued an order authorizing two new classes of low-power stations: 100-watt stations, reaching a radius of roughly 3.5 miles, and 10-watt stations, reaching a radius of less than 2 miles. The order encouraged local ownership of low-power stations, limited the number of such stations any single entity could own, required the stations to operate on a noncommercial, educational basis, and prohibited existing media entities from holding interests in them.

However, one caveat remained: the FCC provided that it would only accept low-power applications from individuals who certified (under penalty of perjury) that if they had operated illegally in the past, they ceased all such operations either within twenty-four hours of being directed to do so or within ten days of publication of the Low-Power Proposal.

A further blow to LPFM came one year later, when Congress passed the Radio Broadcasting Preservation Act (RBPA) of 2000. The RBPA directed the FCC to deny licenses to all applicants who ever "engaged in any manner in the unlicensed operation of any station in violation" of the Communications Act. This qualification eliminated the distinction the FCC had drawn between those earnest broadcast pirates who voluntarily ceased broadcasting within a specified period and those who refused. According to Korn at the NLG Center on Democratic Communications, "It's clear that in enacting this ridiculous legislation, Congress was attempting to punish the hundreds of micro-broadcasters who engaged in legitimate civil disobedience in order to challenge the FCC's prior unconstitutional ban on LPFM broadcasts."

FM radio, some people argue, is loaded with channels. Why battle over low-power radio?

Ask Korn and the NLG, and the question is, 'why not battle over low–power radio?' Korn and his organization filed an amicus brief in Texas arguing this same portion of the RBPA was unconstitutional, on almost identical grounds as Ruggerio. According to the NLG, the potential uses of LPFM are numerous, and limited only by the ingenuity of LPFM applicants: providing local radio service to small cities, large and small towns, and neighborhoods; distributing information to union members at a large plant or discussing controversial issues; presenting music and culture not heard on "top 40" or NPR broadcasting in languages not heard on full power stations; and providing noncommercial and inexpensive stations, with signals best suited for narrow casting to neighborhoods or small cities.

The full impact of last month's Court of Appeals decision will surely play itself out. Will we see a crush of micro-broadcasters applying for licenses? Will we see the LPFM airwaves handed back to individuals? Korn and the NLG are optimistic. "The greatest impact of this decision will be on the twenty-one applicants who applied for an LPFM license," says Korn. "Our greatest concern is to assist the FCC in getting as many legitimate applicants on the air as quickly as possible, so that members of Congress can see how important this LPFM service is to constituents in their communities."

This article originally appeared in The Tablet