The following is the full text of a letter from James Maxwell, lawyer for rfb regarding a US Attorney in Burlington notifying rfb that the FCC seeks to shut the station down:
January 14, 2004
David V. Kirby, Esq.
Heather E. Ross, Esq.
U.S. Attorney’s Office
Federal Bldg
11 Elmwood Avenue
PO Box 570
Burlington, VT 05402-0570
Re: radio free brattleboro
Dear David and Heather:
I have had an opportunity to meet with some of radio free brattleboro’s constituents. I have brought to the station’s attention your phone call and letter of Thursday the 8th of January. I have advised rfb (they prefer the name and initials uncapitalized) that your involvement, at the request of the Federal Communications Commission, means that the FCC is considering action, and possibly sanctions, against the station if it does not shut down its local broadcasting to the citizens and visitors who are within it’s broadcast range. But:
[T]he people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. . . . It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.
Red Lion Broadcasting Co. v. F.C.C., 395 U.S.367, 390 (1969).
radio free brattleboro
rfb is an all-volunteer, nonprofit, state and federally tax exempt organization, locally based, noncommercial, access-to-all, community radio station that utilizes only 10 watts of power to cover an area with a radius of perhaps 2 miles from its broadcast location, all within the confines of the town of Brattleboro, Vermont.
10-Watt LPFM Radio
There are no licenses available from the FCC for 10-watt stations. In 1999 the Federal Communications Commission announced that it would accept license applications for 100-watt stations and only after its 100-watt applications were processed would it offer licenses for 10-watt stations. In the Matter of Low Power Radio Service, MM Docket No. 99-25, Sept. 28, 2000 (available at the FCC website). In authorizing a low power fm service (LPFM), the FCC declared that its intention was to "provide opportunities for new voices to be heard and [LPFM service] will ensure that we fulfill our statutory obligation to authorize facilities in a manner that best serves the public interest." First Low Power Report and Order, 15 F.C.C.R. 2206 (2000). Thus, the FCC recognized its public trust in providing access for diverse broadcasting. But having staked out the ground, it has failed to follow through. It is now 3 years and some months since the creation of LPFM service and, on information and belief, there have been some 100-watt licenses issued, many applications are languishing, however, and there is no licensing available for 10-watt stations whatsoever. The only window of opportunity for any Vermont LPFM applicant was the five day period from June 11, 2001 until June 15, 2001, and that window of opportunity was for 100-watters only. FCC Public Notice, "Low Power FM Filing Window," DA 01-904, Apr. 10, 2001 (available at the FCC website). It appears that the FCC has abandoned its LPFM 10 watt licensing program.
In the absence of any existing licensing mechanism from the FCC granting authority to operate, rfb has been pro-active and has undertaken to enlist local support—that is, it has gone to the people themselves for the authority to broadcast.
rfb Goes To The People For Authority To Operate
To put this matter into a procedural focus. The FCC sent by certified mail a so-called "Notice of Unlicensed Radio Operation," to rfb in June of 2003. In that notice the FCC demanded that rfb "respond with proof of your license or authority to operate." (My italics. If you do not have a copy of that notice in your file, I will be happy to provide you with one.) Since no licensing opportunity was available to rfb, through no fault of its own but due instead to the FCC’s failure to exercise its licensing authority in this power classification, the station chose to leave the air temporarily and go to the people for authority to operate. rfb ceased broadcasting in order to take the time to document to the FCC, pursuant to the commission’s request in its notice, the station’s authority to operate. The station did this through a petitioning process (together with other varied expressions of support given them from a great number of people in the community). When the station had gathered over 2,000 signatures (by August), it returned to the airwaves—on a different, non-interfering frequency. (Text of the petition is attached; the signatures are available.)
Next, in September of 2003, two FCC agents, accompanied by a Brattleboro police officer, visited the station and delivered another "Notice of Unlicensed Radio Operation" through a door slot. Again, in response to the notice, rfb has continued to gather signatures, with over 3000 to date, 1500 of which are local Brattleboro residents. The station has gone to the town authorities. In a resolution adopted on November 18, 2003, the Brattleboro Selectboard declared its support for radio free brattleboro "and the concept of community radio and [we] encourage the Federal Communications Commission to work with radio free brattleboro, and other applicants, to obtain a Low Power FM license which will enable them to serve the needs of the community and its members." (Text of the resolution is attached; "official" version is available in the town office) In addition, the station is gathering signatures to put the question of local authority to broadcast on the ballot for the town voting in March of 2004. (Text of the ballot petition is attached; signatures are available.)
Thus, rfb believes it has generated evidence of local support sufficient to convince the FCC that there is, in fact, authority within this community for a small but necessary and convenient community radio station. There is a strong desire in Brattleboro for the programming and service rfb provides. If there is any doubt, the town vote in March should settle the question. In that regard, I will have a proposal to make to you.
rfb’s "Owners and Controllers"
In our conversation you asked for the name or names of those who own or control the station. Presuming the aim of the request was to find someone to nail (putting it bluntly), I demurred. I still cannot give you names, but that is because there is no single individual or even a few individuals who, fairly, could be identified as owners or controllers. rfb is a 501(c)(3) nonprofit organization, as you probably know. It is, furthermore, a non-hierarchical, democratic (with a small "d"), member-controlled organization supported by all of its disc jockeys and announcers. Currently there are approximately 54 on-air announcers. The roster over the years totals over 300. The disc jockeys, announcers and program hosts on radio free brattleboro are kids, parents, people of all ages and backgrounds, of many ethnicities and cultural heritages—a diversity in fact. Issues and policies affecting the station are discussed by the membership as a whole, in meetings of larger or smaller groups, by email or what-have-you, and decisions made as often as possible by consensus. This is not easy, of course; I daresay it is different from the methods and techniques Rupert Murdoch or Mel Karmazin use to run their empires and satisfy their shareholders. In declining to give you names, therefore, I am not, nor is rfb willfully disregarding any duty that may exist to provide you with names.
For, indeed, the rfb constituency would have to include the supporters—those who have signed rfb’s petition authorizing local broadcasting by the station, and also those who have signed or will sign the petition to put the issue of rfb’s local authority to broadcast on the ballot for town voters’ consideration this spring.
rfb Would Welcome FCC Oversight Of Its License Or Authority To Operate
rfb does not desire to defy the Federal Communications Commission or remain outside the fold, so to speak. rfb agrees that the FCC is the regulatory authority for broadcasting, and rfb would welcome FCC oversight of its license or authority to broadcast. The issue, however, is that in the absence of a 10-watt licensing program regulated by the FCC, there is simply no opportunity for citizen access to or use of small community stations, and to apply for licenses would be futile. The lack of FCC involvement in this classification of broadcasting is a failure to exercise its discretion; or, put another way, the commission has abused its discretion by failing to address the LPFM classification in the public interest. The airwaves are owned by the people of the United States and the broadcast spectrum is held in public trust by the FCC, not owned by the FCC—or by Rupert Murdoch or Clear Channel, for that matter.
radio free brattleboro has done its best to regulate itself using FCC guidelines. For example, adult programming is scheduled for nighttime hours, the equipment and transmission complies with FCC technical requirements, and so forth.
rfb’s Objectives
rfb’s objective is to provide the people of Brattleboro with news, entertainment and opinion that is uniquely a product of this area and intended to please and/or inform this area’s audience. The station is an educational opportunity for its broadcasters. Its existence promotes diversification in broadcasting, radio broadcasting in particular, by providing access to otherwise unheard voices, music and opinion and by providing a purely local, noncommercial alternative to the pervasive and pervasively vapid product sprayed over the airwaves by huge commercial broadcasting corporations. rfb can provide emergency notifications, it can tell folks whether the plow has reached the corner of High Street and Main—concerns that are far from the minds of corporate broadcasters.
In this context, rfb would like time to bring the issue of local authority to operate before the voters on election day in March. The station would apply to the FCC for a waiver in the meantime. Combined with the petition it already has, the outcome of that vote—assuming it is favorable, which is by no means assured, but that’s the whole point—would be strong evidence with which rfb could request an application, or a waiver, or some other appeal to the good sense of the commission for a chance to obtain a license.
Meanwhile, and secondly, the station has also been developing its plans to push for change in the current regulatory scheme—change that will surely help rfb’s legal standing but, more importantly, will allow for the affordable and expeditious licensing of 10-watt microradio broadcasters in the country that wish to live-and-let-live in their own small areas of listenership. To that end, rfb wishes me to send copies of this letter and its accompanying articles to a list of persons who are in position to influence FCC policy, or who may be able to assist in changing the regulatory scheme that so unfairly inhibits locally produced, diverse programming of quality.
I append to this letter an article from the New York Times describing the FCC’s go-ahead for Rupert Murdoch to expand control of the land and skies for broadcasting by buying Direct TV; some pages from an excellent article in Harper’s magazine of December 2003 concerning Clear Channel and corporate broadcasting; and, notably, a selection from the Congressional Record in which, as early as 1996 when the Telecommunications Act of 1996 was passed, the late Senator Paul Simon stated: "The fundamental question is unavoidable: Is mass communications solely a growth game for entrepreneurs, banks, and Wall Street, or is it also a social partner that justifies its existence by living up to its civic obligations?" 104 Cong. Rec. S6108 (daily ed. June 11, 1996) (statement of Sen. Paul Simon). We take the liberty of copying this letter to a number of legislators and news outlets and also to Michael Copps, an FCC commissioner who has vehemently dissented from the "money talks" bias of the current regime at that commission. As Copps stated in a news release of last August, "You cannot use a blanket of study [of local media] to quell the fire of public outrage about increasing control of the public’s airwaves by fewer and fewer conglomerates." Peter Kaplan, "FCC Now Says Media Promote Local Content," Reuters, Aug. 20, 2003, available at reuters.com (copy appended).
Proposals
In our brief conversation you also asked if I was aware of any applicant who has a license pending. I am aware of one local organization that goes by the name Vermont Earthworks and submitted an application some years ago. At a meeting of the Brattleboro Selectboard in November, at which rfb presented a resolution and a spirited public discussion ensued, the Vermont Earthworks applicant informed the meeting that she had an application in years ago but had heard nothing. She indicated she was still interested in getting her license. She expressed support for rfb’s community-oriented approach to broadcasting (that is, diverse programming in the local interest without a "special interest" or doctrine to promote), but in all other ways is entirely unconnected with rfb—which should not matter in the least, but you hinted that it does matter so I am advising you that there is no connection.
So, as rfb sees it there are a couple of avenues available. First, the FCC gives rfb breathing room until the town vote in March, and in the meantime rfb files for a license or waiver with the outcome of the vote to follow in March as supporting documentation for local authority to operate. Alternatively, the following could be a way to solve the current impasse: rfb will agree to voluntarily terminate its broadcast operation in favor of the pending applicant Vermont Earthworks at the time the Vermont Earthworks applicant commences broadcasting in a manner consistent with rfb’s philosophy—which is, in the words of the petition, to "provide a forum for all, including those voices that are often excluded from the increasingly consolidated corporate media." To achieve this goal speedily means, of course, that the FCC will have to give the Vermont Earthworks application expedited attention. On that basis, rfb would defer to Vermont Earthworks and fold up shop.
May I hear back from you on our proposals to resolve the situation, whether "yea" or "nay," and before you undertake any precipitate action? Thank you for your patience with a long letter,
Very truly yours,
MAXWELL, LAWYER
James Maxwell, Esq.
Enc.
Cc: Sen. Patrick Leahy
Sen. Jim Jeffords
Rep. Bernie Sanders
FCC Commissioner
FCC Commissioner
Peter Shumlin
Jeannette White
Roderick Gander
Sara Edwards
Daryl Pillsbury
Virginia Milkey
Town of Brattleboro Selectboard
John Martin, Brattleboro Police Department
Brattleboro Reformer
WTSA News
Brattleboro Observer
Burlington Free Press
rfb
Larry Hildes