What do a North Dakota farmer, a Berkeley political radical and aConnecticut gospel radio-station owner have in common? They're allconsidered outlaws in the Federal Communications Commission's misguidedcampaign to get rid of low-power radio.Roy Neset's Tioga, N.D., farm isn't quite in the middle of nowhere, butit's close. Neset wanted to listen to talk radio while cultivating hisfields on his tractor. But the only radio station in the area playscountry music and refused to change its programming.
So Neset bought a low-power radio transmitter, got written permissionfrom a Colorado station to carry its signal and began transmitting thatstation via satellite. Neset's station extends only about five miles ineach direction, most of which consists of his farm. His station is alsolistened to by a handful of people in the area.
When the local radio station manager learned of Neset's broadcasts, hecomplained to the FCC's field office in Minneapolis. The FCC sent anagent to Tioga on at least two occasions to monitor the station. Onlearning that Neset was broadcasting on 88.3 FM without a license, theFCC convinced the U.S. Attorney in North Dakota to file a lawsuit.
During a hearing, the FCC admitted that Neset wasn't interfering withany existing station. In fact, no FM stations broadcast in the area. But the agency stuck with its argument that it's illegal to broadcastwithout 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 theCorporation for Public Broadcasting, among others, convinced the FCCthat 10-watt stations would clutter the lower end of the radio spectrumthat might otherwise carry National Public Radio.
The result? The FCC stopped issuing Class D licenses, and small stationswere squeezed off the air. This regime left pockets of unused parts ofthe airwaves - too small for full-power stations, but perfect for smallones.
But listeners' growing displeasure with homogeneous radio, along withaffordable transmission gear, has led to an upswing in microradiostations - and FCC crackdowns.
It's estimated that as many as 1,000 ''pirate'' stations are on the airtoday. The FCC took more than 100 actions against micro- broadcasters in'98 alone.
Although people often associate low-power broadcasting with thepolitical left, microradio has received support from free-marketeconomists and libertarians for decades.
Economists such as Thomas Hazlett and Nobel Laureate Ronald Coase arguethat orderly allocation of the broadcast spectrum would be much betterserved by recognizing private property rights in the spectrum. Anyinterference with those rights, they say, should be treated as a tort.The current FCC system of licensing, regulation and control would beunnecessary.
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 asjustification for regulating one activity and not another.
But the explosion of new communications technologies in the past 30years shows the obsolescence of the scarcity doctrine.
Creating a system for the limited regulation of microradio could fulfillthe FCC's interest in regulating the spectrum without trampling on theFirst Amendment.
The FCC could create a similar system of licensing micro-broadcasters,assigning frequencies and monitoring technical and safety requirementsthat exist for full-power broadcasters.
Better still, instead of licensing, the government could merely set uprules for microradio broadcasters that would bar interference withexisting 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 andis not ''narrowly tailored'' as required under the First Amendment.
Until the legal issues are resolved, the FCC should take a ''do noharm'' approach. If the agency can show that an unlicensed station isinterfering, then it can take action. But until the FCC permitsmicro-broadcasting, it should allow farmer Neset and hundreds like himto exercise their free speech rights on the airwaves.
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Scott G. Bullock is an attorney at the Washington-based Institute forJustice, which represents Roy Neset in his prosecution by the FCC.