Investor's Business Daily
January 5, 1999
Free The Airwaves
by Scott G. Bullock
What do a North Dakota farmer, a Berkeley political radical and a Connecticut gospel radio-station owner have in common? They're all considered outlaws in the Federal Communications Commission's misguided campaign to get rid of low-power radio.
Roy Neset's Tioga, N.D., farm isn't quite in the middle of nowhere, but it's close. Neset wanted to listen to talk radio while cultivating his fields on his tractor. But the only radio station in the area plays country music and refused to change its programming.
So Neset bought a low-power radio transmitter, got written permission from a Colorado station to carry its signal and began transmitting that station via satellite. Neset's station extends only about five miles in each direction, most of which consists of his farm. His station is also listened to by a handful of people in the area.
When the local radio station manager learned of Neset's broadcasts, he complained to the FCC's field office in Minneapolis. The FCC sent an agent to Tioga on at least two occasions to monitor the station. On learning that Neset was broadcasting on 88.3 FM without a license, the FCC convinced the U.S. Attorney in North Dakota to file a lawsuit.
During a hearing, the FCC admitted that Neset wasn't interfering with any existing station. In fact, no FM stations broadcast in the area. But the agency stuck with its argument that it's illegal to broadcast without a license.
So why doesn't Neset simply get a license from the FCC? He can't.
The FCC allowed small broadcasters to acquire Class D licenses until '80. That gave them the right to broadcast at 10 watts. But the Corporation for Public Broadcasting, among others, convinced the FCC that 10-watt stations would clutter the lower end of the radio spectrum that might otherwise carry National Public Radio.
The result? The FCC stopped issuing Class D licenses, and small stations were squeezed off the air. This regime left pockets of unused parts of the airwaves - too small for full-power stations, but perfect for small ones.
But listeners' growing displeasure with homogeneous radio, along with affordable transmission gear, has led to an upswing in microradio stations - and FCC crackdowns.
It's estimated that as many as 1,000 ''pirate'' stations are on the air today. The FCC took more than 100 actions against micro- broadcasters in '98 alone.
Although people often associate low-power broadcasting with the political left, microradio has received support from free-market economists and libertarians for decades.
Economists such as Thomas Hazlett and Nobel Laureate Ronald Coase argue that orderly allocation of the broadcast spectrum would be much better served by recognizing private property rights in the spectrum. Any interference with those rights, they say, should be treated as a tort. The current FCC system of licensing, regulation and control would be unnecessary.
Other economists have undermined the FCC's rationale for banning microradio - the supposed ''scarcity'' of broadcast frequencies. Scarcity of valuable goods is a universal fact and can't serve as justification for regulating one activity and not another.
But the explosion of new communications technologies in the past 30 years shows the obsolescence of the scarcity doctrine.
Creating a system for the limited regulation of microradio could fulfill the FCC's interest in regulating the spectrum without trampling on the First Amendment.
The FCC could create a similar system of licensing micro-broadcasters, assigning frequencies and monitoring technical and safety requirements that exist for full-power broadcasters.
Better still, instead of licensing, the government could merely set up rules for microradio broadcasters that would bar interference with existing stations.
The one thing the FCC may not do, though, is completely ban microradio. Such a prohibition sweeps far beyond what's necessary or justified and is not ''narrowly tailored'' as required under the First Amendment.
Until the legal issues are resolved, the FCC should take a ''do no harm'' approach. If the agency can show that an unlicensed station is interfering, then it can take action. But until the FCC permits micro-broadcasting, it should allow farmer Neset and hundreds like him to exercise their free speech rights on the airwaves.
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Scott G. Bullock is an attorney at the Washington-based Institute for Justice, which represents Roy Neset in his prosecution by the FCC.
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