Shutting Down Speech: The FCC vs. Micro-Radio Stations

Washington, D.C.—North Dakota farmer Roy Neset would like to be riding his tractor listening to talk radio this Wednesday, May 12, but instead, the Federal Communications Commission will haul him into federal court.  In an “Alice in Wonderland” scenario that only the federal government could bring into reality, the FCC is prosecuting Neset for broadcasting without a license—a license the FCC will not issue.  According to the FCC, Neset is not a farmer, but rather a “pirate,” operating an unlicensed “micro-radio” station.  Despite the fact that only Neset and a handful of neighbors can pick up his weak, 30-watt signal, and the fact that his radio station does not interfere with any other broadcast signal in his region, the FCC refuses to license micro-radio stations like Neset’s or any signal less than 100 watts.   Nonetheless, once it learns of a broadcast, the FCC aggressively prosecutes these “pirate” radio stations for broadcasting without the government’s blessing.

The oral argument in Neset’s case will take place at the U.S. Court of Appeals for the Eighth Circuit at 9 a.m. Wednesday, May 12, 1999, at the Federal Building, 316 North Robert Street in St. Paul, Minnesota.

“Mr. Neset and hundreds of others like him have become outlaws at the hands of the FCC and its misguided and unconstitutional prohibition of low-power radio,” said Scott Bullock, an attorney for the Washington, D.C.-based Institute for Justice, which defends First Amendment freedoms as part of its mission.  “The current regulatory regime places micro-broadcasters like Mr. Neset between the quintessential rock and a hard place: federal law prohibits anyone from broadcasting without a license and the FCC refuses to grant anyone a license to operate a station under 100 watts.”

So why shouldn’t Mr. Neset and others like him just obtain a license from the FCC?  The answer: they can’t.  Up until 1980, the FCC had allowed small broadcasters to acquire Class D licenses, giving them the right to broadcast at 10 watts.  However, the Corporation for Public Broadcasting among others convinced the FCC that low-watt stations would clutter the lower end of the radio spectrum that might otherwise carry public radio.  So the FCC stopped issuing Class D licenses, and small stations were squeezed off the airwaves.

But this regime also left pockets of unused parts of the airwaves, too small for full power stations, but perfect for small broadcasters.  As a result, micro-radio—low-powered, unlicensed radio stations—has been on the upswing in recent years, and so too has FCC enforcement.  It is estimated that there could be as many as 1,000 pirate stations on the air.  And the FCC has taken more than 100 actions against micro-broadcasters in 1998 alone.

The move toward micro-radio has also been boosted by reasonably priced transmission equipment that has recently become available.  Moreover, many people are unhappy with radio today, with its trend toward mergers and homogenization.  All of this has contributed to people taking to the airwaves.

Mr. Neset is part of a growing, nation-wide movement of individuals establishing small, “micro-radio” stations.  Micro-radio stations run the gamut from Mr. Neset’s remote talk radio show, to Spanish-language shows in Cleveland and Miami, to a Christian Rock station in Connecticut.  Micro-radio has also become a home for non-mainstream political commentary such as Stephen Dunifer’s pioneering station in Berkeley, where he (until the FCC shut him down) broadcast left-leaning political commentary.

Mr. Neset’s Tioga, North Dakota, farm is located in the upper northwest corner of the state.  There is one radio station in the area, an AM country station to which Neset had in the past complained, asking for a little variety in its programming.   Ultimately, preferring to listen to his favorite talk radio while cultivating his fields in his tractor, Neset obtained a low-power radio transmitter, received written permission from a station in Colorado, and began to rebroadcast the show on his own.  Neset’s station reaches only about five miles in each direction, most of which consists of his large farm.  A handful of people in the area make up the entire listening audience.  But when the AM station manager learned about Neset’s broadcasts, he complained to the FCC.  The FCC then convinced the U.S. Attorney in North Dakota to file a lawsuit against Neset.

During a preliminary hearing, the FCC admitted that Neset was not interfering with any existing station—no FM stations exist in the area—but stuck with its argument that it is illegal to broadcast without a license and Neset did not have a license.

Although the FCC is considering changing its policy toward micro-radio, it still aggressively enforces its prohibition; even in instances, like Mr. Neset’s case, where it is unquestionable that his station does not interfere with any other station.

“Until the legal issues are resolved or new policies formulated, the FCC at a minimum should take a ‘do no harm’ approach,” said Bullock.  “If the agency documents that an unlicensed station is interfering, then it can go after them.  But until the FCC legalizes micro-broadcasting, it should allow farmer Neset and hundreds like him to exercise their free speech rights on the airwaves.”

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (202) 955-1300 or in the evening/weekend at (301) 972-2424.]