Stateside With Rosalea: Chairman Powell

"On December 11th at approximately 11 o'clock, a.m., I was in the studio at Berkeley Liberation Radio. I was doing security because we had had a break-in and someone had stolen the two CD players out of the studio. At 11 o'clock I hear (knocks loudly) something like that on the downstairs door.

"Then, five minutes later... cos I thought it was someone working downstairs, cos there's a bunch of other studio complexes in the area. And at that time - five minutes later - I hear like a herd of cattle coming up the stairs. A herd of cattle, y'know, or horses or bulls, running, charging. Then, all of a sudden, I heard this other (loud knocking) 'Open up! FCC!' They say, 'We have a search warrant.' They said, 'Open the door, or else we're going to break it down.'

"First thing I got when I opened it, I got three - not one, not two, but I got three - .38 calibre specials staring me dead smack in the face. Yanked out, slammed up against the wall, pockets gone through, and then they... There was two FCC officers, ten to fifteen United States marshals. Now, after they ran me... There was one Oakland police officer there also, at the time. After the local OPD officer ran a warrant check on me, and found out I was clear of warrants and didn't have anything hanging over my head, they let me go. About ten of them came in. About ten. And then there was about ten, about fifteen more outside in a black unmarked police car."

:::::::: The above comments (edited for brevity) were made at a recent meeting called to discuss the confiscation of Berkeley Liberation Radio's equipment by officers of the Federal Communications Commission, who were supported by armed US marshals and one local police officer. Broadcasting from the automated playout suite at the time, was tape seven of a recording of events at an anti-war march held in San Francisco on October 6th, 2002.

Although they used a little-known legal tactic, the FCC officers were no doubt acting correctly by getting an arrest warrant for the equipment, including the antenna used to broadcast BLR's programmes, because the station doesn't have a licence. It's a low-power station that doesn't have an allocation of the spectrum - it's in an urban area where the airwaves are already taken up, mostly by Clear Channel stations. That company pretty much dominates the radio market nationwide.

The founder of BLR's earlier incarnation - Free Radio Berkeley - was one of the guiding lights in forcing the commission to start allocating low-power licences. In 1990, Stephen Dunifer had gone on air against the Gulf War, passing on information freely available in Europe, but not being covered by the media in the U.S. He was slapped with an injunction. A judge ordered the FCC to reconsider its rules in light of the First Amendment (freedom of speech) and in light of new technology, but later upheld the injunction.

That ruling however, marked the beginning of low-power FM licences (a move not welcomed by all micro radio operators, because a grey area had suddenly been made black and white). The licences are highly sought after. According to another speaker at the meeting - Peter Franck, from the National Lawyers Guild - in the past six months, 21 new community stations have gone on the air, along with 6 cities, 13 schools, and 24 right-wing churches. In the pipeline - i.e. their licences are already approved by the FCC - are 89 community stations, 23 schools, and a couple of hundred conservative churches. Behind those are 3,000 pending low-power licence applications.

I've never listened to Berkeley Liberation Radio, and I suspect I'd probably find many of its programmes tiresome even if I was able to get its signal. However, the question of who does or does not have access to the airwaves is an extremely pertinent one here in the U.S. just now (as I will explain later). Not only that, but the force which the FCC officers felt compelled to surround themselves with on this raid to confiscate BLR's equipment is nothing short of astonishing.

The US Marshals Service is that part of the Department of Justice which, among other things, executes (federal) court orders and arrest warrants. It also maintains custody of, manages, and sells property seized from criminals, but to send 15 of them to seize the tiny amount of equipment that's needed in this day and age to broadcast a radio signal suggests some fundamental lack of understanding about what support the FCC officers needed.

Was it the lack of licence or the content of Berkeley Liberation Radio's programmes that was at the heart of that FCC raid?

The chairman of the Federal Communications Commission is Michael K. Powell, son of the U.S. Secretary of State. He was a Clinton appointee to the commission in 1997, was the FCC representative on the President's Council on Y2K Conversion, and served as the FCC's defence commissioner, supervising national security emergency preparations. Earlier in his career he worked in the antitrust division of the Department of Justice, advising on policy development, criminal and civil inquiries, and mergers. He was appointed Chairman of the FCC by newly sworn-in President Bush in January 2001. All this is according to information at TheStandard.com (an archive of 'The Industry Standard', a tech sector magazine whose bubble burst in the dotcom meltdown).

The FCC is in the news for reasons other than that raid. (And after I'd written the first draft of this column it was very loudly in the news for yet another reason - a new Supreme Court opinion announced on 27 January. But I shall stick to this second axe I was already grinding.)

In June 2002, the FCC formed a cross-bureau and multi-disciplinary taskforce to look at spectrum allocation, and the public comment period closed July 8. (Yes, one month later.) The Spectrum Policy Task Force report was released on 15 November, and initially had an early December deadline for public comment on the report. Following pressure from such august bodies as the Institute of Electrical and Electronics Engineers, the public comment period was extended to January 27, and a reply is due on February 28. Only under pressure did the commission agree to have one lone public hearing, in Richmond, Virginia.

Now bite me if I'm not a daft old biddy, but I do believe that back in February of 1985 the government of a nation of 3.5 million people appointed a royal commission of inquiry into broadcasting and related telecommunications in its fair land. The report was to be given in writing no later than the 30th day of June 1986, but the time period was later extended until September 1986. That's, uh, 19 months. The final report was 518 pages long. (It didn't include the submissions, but I'm sure that if the technology and the internet had been available at the time, they would have been on-line the way the FCC ones are. I recommend you read Wayne Longman's, submitted 27/1/03 - it's a hoot!)

The 1985 royal commission, besides visiting industry participants both in New Zealand and overseas, invited submissions and got 282. Of those, 117 organisations and individuals indicated that they wished to speak to their submissions at a public hearing. Accordingly, public hearings were arranged in four major cities and at two marae, and the commission apologised for the inconvenience caused to submissioners in other locations by their having to travel - at most, given New Zealand's size, a couple of hundred miles. In all, the commission sat at hearings for 71 days over a period of seven months, and the transcript of the oral evidence ran to 9,765 pages.

Here in the United States - population 286 million, nearly 3,000 miles from coast to coast - interested parties filed "over 200 comments", states the 73-page report, and the task force held "numerous" information meetings as well as four public workshops, in which approximately 75 panelists and outside moderators participated. At least one, at Columbia University, was carried live on television and the radio... I managed to hear a bit on the bus to work.

The idea of an individual consumer actually speaking to the Commissioners is so novel that in the 26 January edition of the 'LA Times', staff writer Jube Shiver Jnr put it this way:

"All five FCC commissioners say their doors are open to anyone -- including individual consumers who have no connection to the issues beyond watching TV, reading the newspaper or dialing a phone. Yet the commissioners acknowledge that they rarely get requests for meetings from individuals not part of an organization.... By contrast, industry lobbyists are such a common sight in the FCC's Washington headquarters that one of them, veteran Washington communications lawyer Richard E. Wiley, is called the sixth FCC commissioner."

Chairman Powell does understand the importance of this review to ordinary consumers. The speech notes prepared for his address to a telecommunications seminar at the University of Colorado at Boulder on October 30, 2002, include the following remarks:

"Spectrum policy reform is a crucial initiative. Effective spectrum policy is essential to traditional spectrum-based services, such as mobile phones and Direct Broadcast Satellite. However, the rewards of sound spectrum policies go far beyond traditional stakeholders - they are integral parts of the long term success of FCC initiatives in broadband, competition policy, media regulation, and homeland security. Ultimately, like all of our focus areas, spectrum policy must strive to maximize the unique benefits offered by spectrum-based services and devices to the American people."

So what's the hurry, and why were the American people given so little say?

macropower: http://www.fcc.gov/sptf micropower: http://www.freeradio.org superpower: http://http://www.supremecourtus.gov/opinions/02pdf/01-653.pdf (The 27 January slap on the hand that the FCC was given by the U.S. Supreme Court for claiming back bandwidth won at auction but not paid for when the buyer - NextWave - went bankrupt.)

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