Broadcasting, the Constitution and Democracy
by Louis Hiken, Alan Kom, Allen Hopper, Peter
excerpted from the book
War, Lies & Videotape
International Action Center, 2000
Media Regimes Based on Private Profit Constitutional?
In his classic testimony before the House Judiciary Committee
in 1954, the late Alexander Meiklejohn said: "To find the
meaning of the First Amendment we must dig down to the very foundations
of the self-governing process. And what we shall there find is
the fact that when men govern themselves, it is they-and no one
else-who must pass judgment on public policies. And that means
that in our popular discussions, unwise ideas must have a hearing
as well as wise ones, dangerous ideas as well as safe, un-American
as well as American. Just so far as, at any point, the citizens
who are to decide the issues are denied acquaintance with information
or opinion or doubt or disbelief or criticism which is relevant
to those issues, just so far the result must be ill-considered,
ill-balanced planning for the general good. It is that mutilation
of the thinking process of the community against which the First
Amendment is directed." ~
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 broadest 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 worldwide wire and radio communication service
with adequate facilities at reasonable charges.
Does the present media system, in which broadcasting is the
primary channel of communications, meet this Constitutional and
legislative mandate? Let's look at radio, the media sector most
thoroughly affected by the Telecommunications Act of 1996. 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. Small chains have been acquired by middle-sized
chains, and the middle-sized chains have been gobbled up by the
few massive companies which have come to dominate the industry.
This sort of consolidation permits the giant chains to reduce
costs by downsizing 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). 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.
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." 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.
Access to the Airwaves
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
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. ". . . [A]lthough the broadcasting
industry plainly operates under restraints not imposed upon other
media, the thrust of these restrictions has generally been to
secure the public's First Amendment interest in receiving a balanced
presentation of views on diverse matters of public concern ....
But, as our cases attest, these restrictions have been upheld
only when we were satisfied that the restriction is narrowly tailored
to further a substantial governmental interest. " [emphasis
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 ~s 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.
The Response of the Grass Roots
Starting in 1989, with M'banna 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, and by the recognition of United States District Court
Judge Claudia Wilkens 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 Microradio Movement has grown
to the point that there are probably 1,000 such stations on the
air in the United States.
In Southern California "Esscellent Radio" broadcasts
the local city council meeting every week. The council was concerned
about the "legality" of allowing a non-licensed station
to broadcast its proceedings, but it was advised by its attorney
that it would be violating the law by preventing the broadcast.
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
who were not served in their own language by commercial broadcasters
have set up their own non-licensed Korean service.
The micro radio movement is international. Steven Dunifer
was consulted by then president of Haiti Jean-Bertrand Aristide
on the feasibility of setting up low-power transmitters in Haiti.
ln fact, he has assisted Haiti several times and has taught local
community groups to assemble and operate their own community based
stations. Several years ago, during the same week that Steven
Dunifer received a Notice of Apparent Liability in the sum of
$20,000 from the Federal Communications Commission, he received
by fax from the United Nations Educational Scientific and Cultural
organization (UNESCO) an order for $5,000 worth of micro-radio
transmitters for their community development project in the Philippines.
Since Dunifer's Free Radio Berkeley went on the air in 1991,
there have been five conferences of micro broadcasters, each larger
than the last. In April, 1998, several hundred micro broadcasters
met in Philadelphia to consolidate their plans and continue growing
the movement. In May 1998, several hundred more micro broadcasters
met 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 rule-making 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 microbroadcasting has exploded
in popularity in the last few years as a backlash against the
consolidation of station ownership spurred by the 1966 federal
When the National Association of Broadcasters assembled on
April 6, 1998, they had a historic opportunity to show the world
that their organization was committed to the Constitution and
democracy, and to the sharing of the electronic spectrum between
the commercial broadcast industry and grass roots stations. The
Micro Radio community came forward at that meeting to present
a simple, practical and democratic proposal for a low power radio
regime. We in the Micro Radio community continue to urge the National
Association of Broadcasters to join in this inevitable and necessary
democratization of the airwaves.
Proposal for Low Power FM Service
a. A micropower station may be established on any unused frequency
within the FM broadcast band and extending down to 87.6.12 where
there is no TV on channel 6. A second adjacent channel would be
the closest spacing allowed. A micro station shall fill out a
simple registration form, sending one copy with an appropriate
registration fee to the FCC and a second copy to the voluntary
body set up by the micropower broadcast community to oversee the
micro power stations. Such modes of self-regulation already exist
within the ham radio community and the commercial broadcast arena.
b. Maximum power shall be 50 watts urban and 100 watts rural.
In the event of interference due to power level, a station shall
have the option to reduce power to remedy the situation or else
be shut down.
c. Equipment shall meet basic technical criteria with respect
to stability, filtering, modulation control, etc.
d. Only one station per organization. The organization must
be based in the local community and not be a profit-making organization.
Local origination of programming is encouraged as much as possible.
e. No commercial sponsorship shall be allowed.
f. There shall be no content requirements. Stations shall
deal with "community standards" issues on an individual
basis and in accordance with their own particular mission statements.
g. When television broadcast stations go digital, leaving
Channel 6 free, it shall be allocated as an extension to the bottom
of the FM band strictly for low power community FM service. This
would add thirty new channels, since TV channel 6 is 6 MHz wide
and an FM broadcast is only 200 kHz wide. Radio receivers manufactured
or entering the country after that allocation must meet this band
h. Registration shall be valid for four years.
i. Problems, whether technical or otherwise, shall be resolved,
if at all possible, at the community level, first by technical
assistance or voluntary mediation. The FCC shall be the court
of last resort.
j. Micro broadcasting of special events (demonstrations, rallies,
festivals, etc.) do not need to be registered but are encouraged
to meet all technical specifications. One frequency could be set
aside for this.
Lies & Videotape