Making Waves

Despite a cease-and-desist letter from the FCC, Free Radio Memphis remains on the air. But for how much longer?

by Jim Hanas

PHOTOS BY DANIEL BALL

riving east on Central, the station begins to come in on the far side of East Parkway. It crackles and pops at first and cuts out for seconds at a time. By Patterson, it comes in clearly. After that, there’s no telling what you might hear. It could be one of a number of shows devoted to animal rights, the straight-edge movement, anarchy, ecology, feminism, radical labor, queer culture, or educational reform. Or it could just be some music you’re unlikely to hear on a commercial station.
The station is 94.7 on the FM band, and, far from being commercial, it isn’t even legal.
In late May, Free Radio Memphis (FRM) hit the local airwaves from a makeshift studio powered by a 20-watt transmitter the size of a shoe box. The studio itself is in a house near the University of Memphis, and its broadcasts – from 7 a.m. to midnight daily – can be picked up within a three-mile radius.
FRM is operated by the Constructive Interference Collective (CIC), a group of 10 that share ownership of the station and decide by majority vote how it will be run. Primarily in their twenties and predominantly white – one of the CIC’s goals is to bring more ethnic diversity into the group – the Collective is made up of five men and five women, mostly students, and a few who have desk jobs.
After months of avoiding the press – a local TV crew showed up at the studio months ago – the CIC somewhat apprehensively agreed to meet at a restaurant near their studio.
“I think for a long time we’ve been nervous about our location,” says Amani*, who hosts an indie hip-hop show on Thursday nights. “But at a certain point we just gave up on that. We were approached a long time ago by people outside the collective and outside the station that found us with no help from us.”
Assembled around a long table, the members of the CIC look like a collection of punks, hipsters, hippies, and just plain folks.
“I think it’s one of our strengths, the diverse group of people we have,” says Jac, a 21-year-old woman who majors in elementary education. “We’ve all got our own talents and ideas, and we all use them.”
Since it operates as a collective in every sense of the word, it’s difficult to separate the CIC’s views from that of its individual members, but according to their mission statement, the group agrees that “the state of media today is one in which most of the power is held by a very small group of CEOs which head the corporate media conglomerates,” and that the work of the collective is to “offer alternative views and information which is being deliberately filtered out by the mainstream media.”
To that end, the FRM schedule reads like a laundry list of leftist causes, from Solidarity Forever, a show that analyzes the labor movement from the perspective of the International Workers of the World, to the feminist-oriented Grrrl Power Hour.
“What people are doing is real life,” says Eli, the scruffy 28-year-old host of Solidarity Forever. “They’re not getting on there and expressing something they think someone’s going to want to buy. They’re getting on there and expressing things that are very important to them in an everyday sort of way.”
Not that all of FRM’s programming is overtly political. A good part of the station’s schedule is dedicated to playing music overlooked by commercial radio, from hardcore punk to trip-hop.
FRM would be making a political statement, however, regardless of its programming. By merely being on the air, the CIC asserts that it has a right to be there. It’s illegal to operate a radio station without a license and FRM doesn’t have one. What’s more, it couldn’t even get one if it wanted to, since the Federal Communications Commission (FCC) stopped issuing licenses for stations with under 100 watts of power nearly two decades ago, at the urging of the Corporation for Public Broadcasting and National Public Radio.
After more than four months on the air, the CIC received a letter from the FCC’s Atlanta field office in mid-October at the rented house where FRM is based, informing them that their transmissions were illegal and requesting that they respond within 20 days, explaining the “circumstances leading up to your violative operation of the unlicensed transmitting equipment and what corrective action has, or is being taken to prevent recurrence.”
More than a month later, the station is still on the air and is one of a growing number of micro broadcasting operations across the country openly challenging the FCC’s authority to control the airwaves which, in theory if not in always practice, belong to the public.

140 years ago, the electromagnetic waves that make up radio transmissions were yet to be discovered. The Scottish physicist James Maxwell predicted their existence in 1864, and Heinrich Hertz produced them in a laboratory over two decades later.
It was Guglielmo Marconi, however, who finally made something useful of what must have seemed like a new element. In 1896, he obtained the first British patent for the wireless telegraph, the precursor of the radio, and five years later he successfully transmitted the Morse code for the letter “S” across the Atlantic Ocean. For taming the previously unknown natural resource – for discovering how to make steel out of the new ore – Marconi shared the Nobel prize for physics in 1909.
As with the discovery of any precious or useful metal, however, Marconi’s breakthrough led almost immediately to the question of ownership. It was still to be decided who could and could not use the new medium for their own advantage.
In the United States, regulation of the airwaves began in 1912, when the Commerce Department was granted limited powers to regulate radio. With the rise of broadcasting, however, the increasing number of stations began to strain the available frequencies, with the result that interference between stations became common and stations were sometimes obliged to work out time-sharing agreements.
The Federal Radio Commission (FRC) was formed in 1927 to resolve the chaos on the airwaves through licensing, thinning the herd of stations and assigning frequencies to those that remained in order to minimize interference. With the more comprehensive Communications Act of 1934 the FRC was replaced by the FCC. Beginning with the mission of the FRC, regulators have been instructed to assign licenses with an eye toward “public interest, convenience, and necessity” – the three cornerstone concepts of broadcast regulation for the past seven decades.
Today, unlicensed broadcasters contend that the FCC has sacrificed the public interest to the interest of the broadcasting industry as represented by the National Association of Broadcasters (NAB), and some have sought to challenge the Commission’s authority in court.
“Most free radio stations can prove they serve the public interest more so than commercial radio stations can,” says Larry Soley, a professor of communications at Marquette University who writes about pirate radio. “And that’s what embarrasses the FCC and the NAB.”
By providing local origination, community news, and public-service announcements, micro broadcasters often make the case that shutting them down would contradict the FCC’s public-interest standard. Free Radio Memphis, for example, taped and retransmitted interviews from a rally held by citizen activists at the Defense Depot; coverage that was unavailable anywhere else in the market.
The most important court challenge has been the ongoing procedural saga of the United States v. Stephen Paul Dunifer. Dunifer, who founded Free Radio Berkeley (FRB) in the San Francisco Bay Area in 1993, was fined $20,000 by the FCC that same year. With representation from attorneys affiliated with the National Lawyer’s Guild Committee on Democratic Communications, Dunifer contested the fine before the FCC.
Ultimately, the case ended up in district court with the FCC seeking an injunction to get FRB off the air. In addition to a permanent injunction, the Commission requested that a preliminary injunction be issued to force the station to shut down while the case was being decided. FRB’s attorneys responded by arguing that the FCC’s de facto ban on micro radio – which arises from the fact that broadcasters must be licensed but licenses aren’t even available for low-power stations – is unconstitutional. In early 1995, a judge denied the preliminary injunction, which allowed FRB to openly remain on the air for nearly two years while awaiting judgment on the Commission’s motion for a permanent injunction.
Most observers of the micro radio movement agree that the denial of the FCC’s request for a temporary injunction against Free Radio Berkeley is behind the current boom in unlicensed broadcasting. As Professor Soley explains, “A lot of people falsely interpreted the decision as saying that micro radio stations are legal.”
They’re not, but micro broadcasting is on the rise nonetheless. John Winston, assistant bureau chief for the FCC’s Compliance and Information Bureau, says complaints about unlicensed operators have “greatly increased” in some parts of the country, because, he says, “of those individuals who think they can circumvent the law.”
As the number of unlicensed stations has grown – regulators say they are aware of well over 100 – the FCC has become more vigilant in shutting them down. “We’ve always done it,” says Winston. “[But] the proliferation of them across the nation has caused us to be more alert for this. As our resources permit and as we receive complaints from the public and licensed broadcasters, we take swift and positive action, first through a non-punitive approach by sending them a letter.”
While Winston says that about 90 percent of unlicensed broadcasters go off the air after they’re made aware that what they’re doing is illegal, recent months have seen the Commission physically shutting down stations in Florida, Massachusetts, and New Jersey and winning affirmation of previous equipment seizures in Minneapolis and Tampa.
Another group that has become concerned about the recent surge in pirate radio is the National Association of Broadcasters (NAB). At an NAB convention in Las Vegas earlier this year, a panel was held on the topic of pirate radio that included Beverly Baker, chief of the FCC’s Compliance and Information Bureau, and Jack Goodman, vice president of policy counsel for the NAB. Baker detailed the measures the Commission is taking to shut down unlicensed broadcasters and asked that members of the NAB assist the FCC by reporting radio pirates, particularly those who are causing signal interference or taking advertisers away from licensed stations. Goodman, for his part, detailed the NAB’s involvement in the Free Radio Berkeley case – in which the organization filed a friend-of-the-court brief on behalf of the FCC – and assured those in attendance that the FCC would eventually prevail.
“They’ve been quite a favorite of the press, the notion that they’re small guys championing against big broadcasting,” Goodman said. “The fact is they’re crooks.”
Still, the crusade to stamp out pirate broadcasters is beginning to look like an uphill battle.
Two weeks ago, the judge in the Free Radio Berkeley case ruled against the FCC again, denying its motion for a permanent injunction against the station and asking the parties to brief the court on whether or not Dunifer’s claim that the FCC’s regulations are unconstitutional constitutes a defense in the case.
“We’d love to get a forum where we can have that trial,” says Luke Hiken, an attorney for Dunifer. “They [the FCC] will do anything rather than have a hearing on the merits … about why they serve the needs of the NAB and not the American people.”
The NAB issued a terse response to the court’s decision from its president, Edward O. Fritts. “We are extremely disappointed with yet another delay in a case that was argued 19 months ago,” Fritts says in his brief statement. “Pirate radio stations are illegal and should be put out of business.”
In accordance with the decision, the FCC’s response is expected this week.

Free Radio Memphis may not have gone off the air as a result of the FCC’s warning shot, but they have responded. Drawing heavily on material from the Free Radio Berkeley case – which is freely available on the Internet – the CIC’s response argues, in part, that “micro radio broadcasts are perfectly in line with responsible use of the airwaves,” that FRM’s broadcasts offer information not available elsewhere in the market, and that micro broadcasting is protected under the First Amendment.
When or if the FCC will act to shut down FRM is anyone’s guess.
“They don’t seem to know how to respond,” says Eli. “They’re doing different things for different people. I think part of the reason is they don’t know quite where they stand.”
While it’s likely that the letter from the FCC was triggered by a complaint from a local licensee, the station hasn’t caused much concern among the members of the Memphis Area Radio Stations (MARS).
“It’s come up in two meetings,” says Tony Yoken, president of MARS. “It’s a real low priority for the MARS members right now.” In contrast to radio groups in places like Milwaukee, which earlier this year complained to the FCC about the seven pirate stations in that city, there were some MARS members who still weren’t aware of the station as recently as last week. Furthermore, FRM doesn’t sell advertising, but is funded by dues paid by member of the CIC and fees paid by the other deejays on the station, which makes it unlikely that area stations would have any motive to pressure the FCC to act.
Still, the CIC is ready. Instructions are posted in the studio and by the front door detailing what to do if the FCC should come knocking on the door. Don’t let anyone in without a search warrant. Don’t answer any questions. They say they will fight any action by the Commission in court if it comes to that.
“I don’t want to go to court,” says Jac. “But I believe what we’re doing is right. I guess we’re just going to have to wait and see that.” n

* The names of the members of the CIC used in this story are all on-air names, not the real names of the individuals involved.

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