San Francisco Liberation Radio Launches Legal Challenge to FCC Raid

As many readers know, the FCC and other law enforcement personnel entered the San Francisco Liberation Radio (SFLR) studio with a warrant last October, seizing the broadcasting equipment and effectively shutting down the station after over 10 years of unlicensed broadcasting. The raid occurred without warning several months after the FCC delivered legal documents threatening the building owners with up to $17,000 in fines for not allowing them to “inspect” the studio and for broadcasting without a license.

CONTENT OF LEGAL CHALLENGE
The suit requests that the federal court injunction resulting in the warrant and raid be overturned, and that the seized equipment be returned. The constitutionality of the raid is being challenged on the grounds that SFLR was not allowed adequate due process in the injunction hearing. If successful, it will be much more difficult and costly for the FCC to shut down unlicensed microradio stations.

LACK OF DUE PROCESS IN THE RAID
After a July “courtesy call”, in which FCC officials were denied entry to the studio and legal papers were served, SFLR lawyer Peter Franck submitted a lengthy response to the FCC’s Notice of Illegal Broadcasting. The response challenged the FCC to explain how the station’s broadcasting violated the public interest (the FCC is required to see that the public interest is served by radio, not just dole out licenses). Franck asserts that SFLR serves a local, community function otherwise not served by the corporate/NPR-dominated radio spectrum. He also asserted that removing the station from the airwaves harms the public interest.

An explanation was also requested for the FCC’s denial of SFLR’s latest license application. The station had not been notified at all about this denial; Franck found out about the status (two years after submission) from a posting on the FCC web site. The stated reason is that the applicant is in violation of the “Radio Broadcasting Preservation Act of 2000 (RBPA)”, without specifying how the Act was violated. Franck requested to be notified of any further actions to be taken. It appears that the FCC did an “end-run” around this legal communication – going directly to a judge for an injunction without replying to the issues presented by SFLR.

In the current challenge, the lawyers will argue that the injunction should be overturned for lack of due process. If the FCC had informed SFLR lawyers of intent to obtain the injunction, SFLR would have been represented at the injunction hearing to argue its side of the case. SFLR hopes to be the first micro broadcaster to obtain legal standing to mount a substantial legal challenge to established FCC procedures.

LACK OF DUE PROCESS IN LPFM LICENSING: RULES UNDER FIRE
SFLR is a pioneer in the micro radio movement, having submitted its first of two license applications in 1999. The application was part of the movement to pressure the FCC to recognize the legitimacy of LPFM radio. In 2000, then-FCC commissioner Kennard bowed to mounting public pressure by instituting the “Radio Broadcasting Preservation Act of 2000”, signed into office by President Clinton during his last month in office.

Most people involved in micro broadcasting consider the process a sham, doing more to exclude rather than include micro broadcasters in the tiny percent of unused spectrum. Despite FCC denials, the process appears to be highly politicized. Many licenses issued (most in remote rural areas) have been to Christian and educational institutions, broadcasters deemed much less likely to challenge the status quo from the left. Most importantly, the number of dial spaces available to be licensed is very minimal, while the process moves forward at a snail’s pace.

Franck questions two provisions that result in exclusion rather than inclusion of activist-oriented broadcasters. The first, known as the “bad pirate” rule, prohibits the FCC from considering license applications from persons or organizations who have previously engaged in civil disobedience broadcasting. This rule was ruled unconstitutional in a lower court two years ago but appears to still be in effect.

The second, known as the “three band-space rule” was authorized by Congress soon after RBPA was announced. This industry giveaway requires that three spaces on the dial be left unused between existing stations so that one station does not interfere with another. For example, SFLR was broadcasting on 93.7FM. A corporate rock station broadcasts on 93.3 and Pacifica’s KPFA broadcasts on 94.1. Thus, 93.5, 93.7 and 93.9 cannot legally be used. Micro broadcasters take it upon themselves to broadcast from these unused frequencies, with virtually no interference noted from third-adjacent channels.

The National Association of Broadcasters (NAB), corporate media’s lobbying arm, and NPR – furious over the FCC's capitulation to micro broadcasters - lobbied Congress vigorously for this legislation shortly after RBPA was instituted. One of the NAB's monopolistic functions is lobbying to limit competition for member stations and their advertisers. In economic terms, the “three band-space rule” creates artificial scarcity, limiting competition and thus increasing market share for existing broadcasters by artificially reducing supply. It eliminated by more than half the number of stations that can be licensed and virtually prohibited licensing in major and mid-sized cities.

The law mandated submission of a technical study, as LPFM advocates insist that interference is virtually non-existent and the law is based on phony science. A report by the Mitre Corporation that the FCC finally made public late last year in the face of media activist pressure (completed in 2001, but “sat on” by the FCC) concludes that third-adjacent channel protection is not necessary to prevent interference. It concludes that interference is almost non-existent, and that larger stations are more likely than LPFM stations to cause interference. The NAB immediately issued a statement questioning the accuracy of the study, and the FCC is expected to meet with Congress in the near future to discuss the situation.

Though the FCC has still not elaborated, one or both of these controversial rules were probably used to reject the latest SFLR license application. No disclosure requirements or appeal processes exist for rejected applicants. In his unanswered communication to the FCC, Franck asserted that no action be taken against SFLR until these issues are adequately resolved.

PUBLIC PRESSURE NEEDED: MANY REASONS TO DEFEND SFLR
During its last 18 months of radio broadcasting, SFLR increased its challenge to the powerful radio establishment. Broadcasting to central San Francisco on a 100-watt transmitter high above the Castro neighborhood, the station offered a unique mix of programming. The 5-night per week news shows and other political broadcasts included critical voices to entrenched political policies such as the war against Iraq, the Bush election “victory”, the U.S. Patriot Act, genetically-modified foods and corporate globalization, health care and the AIDs establishment, and the corrupt FCC deregulation legislation.

Locally, the station was yanked off the air during a contentious mayoral race otherwise virtually uncovered by radio (excepting KPOO 89.5FM). Broadcasts were unanimously in favor of insurgent Green Party Candidate Matt Gonzalez. Vital information was broadcast in opposition to the draconian homeless proposals and other pro-gentrification policies of entrenched Democrat Gavin Newsome, the eventual victor. Airtime was given not only to established liberal and progressive voices, but also to more radical viewpoints such as socialism and anarchism.

A wide range of music and other arts were broadcast, with local artists generously spotlighted. The programming chipped away at the 10-radio company, 5-record company oligopoly said to control 80-100% of music played on corporate radio, while filling a local void. The current multi-million dollar price tag for licensed stations presents severe barriers to entry, with Clear Channel Communications upping its total number of stations from 40 to over 1,200 since the passage of the 1996 Telecommunications Act. Volunteer broadcasters with no production or music budget demonstrated that good radio can happen on a shoe-string budget.

STREET HEAT NEEDED
Activist legal cases are generally most effective when heavy public pressure is applied. The courts have virtually rubber-stamped the injunction process and Congress seldom opposes FCC policy. Micro activists hope that SFLR can be the first micro broadcaster to obtain significant legal standing in court. Free Radio Berkeley was denied legal standing several years back after a raid, on the grounds that they had not applied for a license. Successful litigation may pave the way for broader challenges to the FCC policies and authority.

SFLR is currently broadcasting on the internet at liberationradio.net. This is an interim strategy to keep the issues alive, station members organized, and to communicate directly to listeners and supporters. Future radio broadcasting is an active goal for many in the station collective.

SFLR has received positive press coverage and an outpouring of community support. Before the raid, the city government passed a resolution stating that SFLR is a community asset and urged the FCC not to interfere with its broadcasting. A decent amount of money has been raised from community-based supporters through benefits and direct donations, and the legal team is donating a substantial amount of services. The current internet broadcasting equipment has also been donated to replace seized equipment. Organizing and other support must continue throughout the legal actions - however long it might take - if a significant victory is to be expected.

PACK THE COURTROOM
A hearing is scheduled for March 5 at 2PM in San Francisco federal courthouse at 450 Golden Gate, in the Illson room. The hearing date for the actual case will be set, possibly as early as April. Fill the court room to let the judge know that micro radio activists intend to be involved from beginning to end, and expect a fair and balance decision. Details should continue to be available at liberationradio.net and on the San Francisco Bay Independent Media Center web site (indybay.org).