Tim Hwang

The mediageek radioshow airs live this Thursday, August 20 at 9 PM Central time on WNUR 89.3 FM in Evanston-Chicago, IL and online at www.wnur.org. If you have questions or comments for Tim Hwang send them to me by email – paul(at)mediageek(dot)net – or by twitter. The syndicated podcast will be posted Sunday night, or you can listen to the show on any of the thirteen other affiliates listed at the radioshow site.

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A screen shot of an online chat with an Apple rep purports to show that Apple blames AT&T for the Google Voice block. For its part AT&T says it “does not manage or approve applications for the App Store.”

It’s a tangled web at the moment, but still one thing is clear: while Blackberry and Android phone users can get Google Voice, iPhone users are blocked.

But it’s not just about Google Voice, though this instance appears to have come at the right time, with a newly confirmed and tech-savvy FCC Chairman, along with a full slate of commissioners for the first time since 2008. There are other apps you can’t get in the iPhone store, and those that are crippled–like Skype and the Sling Player–presumably to protect AT&T’s cellular voice and cable TV services from competition.

While it’s true one can still go shopping for a different phone or a different carrier to avoid some of these restrictions, it’s also true that not every carrier or phone is available everywhere. There are places where you can’t get an iPhone, and places where you can only get a smartphone by using AT&T, Verizon or Sprint. Increasingly it’s looking like the worst fears of Net Neutrality advocates have come to mobile devices first.

Veteran FCC watchers are actually amazed at how fast Chairman Genachowski responded to the Google Voice iPhone story, since the agency isn’t known for quick action. Such responsiveness may be an indicator as to how critical the potential threat is to free and open communications, given the likelihood that soon more people will access the ‘net via a mobile device than with a PC.

We’ll be discussing this topic on Thursday’s mediageek radioshow with guest Tim Karr who recently blogged about the topic for Free press.

I want to know what you think: should the FCC or Congress step in to regulate mobile cellular and broadband networks and devices? Should the government act to limit handset exclusivity and curtail the power of Apple and AT&T to reject applications that might promote competition?

I’ll be reading your responses live on the radioshow. Send them to me three ways: comment on this post, send me an email (paul[at]mediageek[dot]net), or respond via twitter.

The radioshow airs live this Thursday at 9 PM Central time on WNUR 89.3 FM in Chicago and online at WNUR.org. If you’re listening live we’ll also be taking your calls at 847-866-9687. The following week you can listen to the podcast archive online or on any of the 13 other mediageek affiliate stations.

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So I set about investigating what might be going on, since Boulder has been the site of free radio innovation for quite some time. I’ve not been able to find any news reports on any bust, but a check of the FCC’s most recent enforcement actions turns up four virtually identical Notices of Unlicensed Operation (NOUO) dated May 8. Three were issued to individuals and one was issued simply to “Boulder Free Radio, Boulder, CO.” There’s no indication in the NOUOs that the FCC talked to anyone associated with the station or gained access to a transmitter. Unusually, there aren’t even any street addresses listed. Likely this means that agents didn’t mail the notices, but left them at the door.

This evening I received email confirmation from Boulder Free Radio that there was another FCC visit to a transmitter location last Friday, May 29, and that they’re off the air. They’re planning to stay off the air for the time being while they assess the situation. However, their web radio stream continues to broadcast (on the internet only, of course).

The current KBFR is operating according to a similar gameplan as the original station, using the tactic of separating the studio and transmitter using an internet audio stream as the studio-to-transmitter-link (STL). If the transmitter is visited they pack up shop there and move to a new location without the studio or the on-air talent being affected. This method ostensibly allows the station to have a sizable staff of DJs without having to divulge to them the location of the transmitter, or expose the DJs to liability for the unlicensed broadcast.

Indeed, with this method there really isn’t any need for the persons behind the web stream to even know the persons operating the transmitters. This method also has been employed during large protest actions, where a live webstream will originate from a convergence center or Independent Media Center which is then rebroadcast for the duration of the protest by anonymous, unrelated pirates.

Monk and the original KBFR were able to keep up this tactic for nearly five years of cat and mouse games with the unusually aggressive Denver FCC office. He finally called it a day in January, 2005. According to Monk, the FCC agent on their case

bordered on (and in talking to lawyers we know, actually crossed the line) illegal activity. He harassed private citizens at their work place (accusing them, to their bosses, of ‘breaking the law on company time’) and the aforementioned roommate of the original Monk from Five Years Ago. We’ve since learned that this ex-roomie of the original Monk actually had to hire a lawyer to protect himself from having just been the roommate of one of us. And HALF a DECADE ago. …

The reason we shut down is our fear of innocents getting blamed for things they didn’t do…

Who knows if the FCC will be that aggressive with the new KBFR, especially given that the FCC agent in question supposedly retired four years ago.

As for the second station Monk reports being shut down: I’ve found no other recent actions against unlicensed stations in Boulder in the FCC’s enforcement action list. However I have heard that another station, unrelated to Boulder Free Radio, was operating.

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However, what the FCC’s spokesman David Fiske is quoted as saying is actually, “Anything using RF energy — we have the right to inspect it to make sure it is not causing interference.” While I’m not one to archly defend the FCC’s enforcement regime, Fiske’s claim stops a bit short of a warrantless search-and-seizure, or even warrantless wiretapping in severity and scope.

Indeed, as experienced unlicensed broadcasters and FCC observers have known for years, while a visiting FCC agent will always claim to have the right to inspect a suspected unlicensed transmitter, that agent has no means to express that right. That is, FCC agents aren’t cops, don’t carry guns and can’t enter your house or property without your consent. You don’t have to speak with them except to tell them to go away.

If the FCC really wants to come and inspect or seize your transmitter they need to get a real warrant, requested by a real United States attorney and issued by a real federal judge. Then they need to get real cops–usually federal marshals–to actually serve the warrant. This is a big pain for the Commission and not something relished by US attorneys and marshals more interested in nabbing big criminals, so it’s pretty rare.

Still, it is true that if the Commission thinks it has a pretty good case that you’re operating an unlicensed transmitter in an illegal fashion they’ll hold it against you for not cooperating with them, adding to the fine they’ll try to collect. In a case of this vein, Wired’s Singel reports that,

In a 2007 case, a Corpus Christi, Texas, man got a visit from the FCC’s direction-finders after rebroadcasting an AM radio station through a CB radio in his home. An FCC agent tracked the signal to his house and asked to see the equipment; Donald Winton refused to let him in, but did turn off the radio. Winton was later fined $7,000 for refusing entry to the officer. The fine was reduced to $225 after he proved he had little income.

This reduction in fines is a pretty common occurrence with the FCC. An even more common occurrence is the FCC failing to collect on fines at all, as John Anderson of DIYmedia.net has pointed out continuously on his site and on the mediageek radioshow. Again, the amount of bureaucracy and inter-agency cooperation required to actually enforce the collection of fines against unlicensed broadcasters often results in the statute of limitations running out before any money is collected. For instance, reporting on the FCC’s 2006 enforcement actions, John noted,

These cases highlight instances of negative productivity in the enforcement process: the FCC spent much more in resources (personnel-time and travel, to name two) than it will recoup from the punishment meted, provided the five-year statute of limitations on each case doesn’t run out before the agency makes an effort to actually collect the fines.

So, the kerfuffle over the FCC claiming warrantless inspection powers looks like a tempest in a teapot when compared against the reality of the FCC’s powers to inspect, fine and collect. Nevertheless, we should be critical and mindful of any government agency’s claim that it has the right to make warrantless inspections of our private property. Even when it comes to licensed broadcasters the right to inspect is not absolute; the obligation to let the FCC inspect your transmitter only extends as far as your desire to keep your broadcast license. Still, I’ll be glad if an intrepid attorney or radio pirate wants to challenge the FCC’s claimed right to inspect in court.

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So, here’s the notes for the April 9, 2009 edition of the radioshow (now online):

Bloomberg – Todd Shields: FCC Head Says Agency Should Reconsider Newspaper Ownership Rule

Huffington Post – Jeff Jarvis To Newspaper Moguls: You Blew It

ArsTechnica – Julian Sanchez: AP launches campaign against Internet “misappropriation”

FCC’s Press Release on National Broadband Plan (PDF).

FCC’s Notice of Inquiry on National Broadband Plan (PDF).

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But it’s even worse for community radio CJAM at the University of Windsor in Ontario. This 1000 watt station never received “protected” status from the CRTC (the Canadian FCC) due to pressure from the FCC over interference concerns. Now its existence is threatened by a station soon to be licensed by the FCC south of the border on the same frequency, 91.5 FM, in China Township, Michigan.

This is the second such threat to the station’s existence. The first came from inside Canada when the CBC wanted to set up a station on CJAM’s frequency. That situation was resolved when the CBC chose a different frequency.

CJAM is now petitioning the CRTC to move to a different frequency, 99.1 FM, and receive protected status there.

To the best of my knowledge CJAM is the only community station in the Windsor or Detroit area, and it would be a shame to lose such a diverse community voice after 25 years of service. It would be especially tragic to lose CJAM to a cookie-cutter, statewide “positive hits” radio network repeater blaring in from the States. CJAM is asking listeners to send letters to the CRTC and Industry Canada on its behalf:

CJAM has identified a new signal – 99.1 FM – that could afford the station protected status and has moved forward with applications for this new signal to Industry Canada and the CRTC. The application currently before the CRTC is now open for public comment, and this is where we need you, our community of listeners, programmers and volunteers to make your voice heard. If you value CJAM and community radio in Windsor and Detroit, please express your support of our application.

Letters may be submitted electronically at the CRTC website , by fax at 819-994-0218, or by conventional mail to the following address: CRTC Ottawa Ontario K1A 0N2.

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Listen to this show right now:

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The first show of the new year featured my annual year in review discussion with John Anderson of DIYmedia.net. In the first half of the program we noted the relative lack of progress on many issues and discussed Larry Lessig’s call to get rid of the FCC. For the second half we got down to brass tacks reviewing John’s research on FCC enforcement action against unlicensed broadcasters in 2008 — a whole lotta smoke, not much fire. Ragnar also excerpted a portion of this on his Pirate’s Week podcast.

Listen to part one of the year-in-review:

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Listen to part two, all about FCC enforcement in 2008:

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Tune in to the show live at 9 PM CST, Thursday, Jan. 15 on WNUR 89.3 FM Evanston-Chicago, IL, live stream at wnur.org. Or you can catch the archive later at radio.mediageek.net or on any of the other 15 stations that carry the program, like KWMD, 90.7 FM Kasilof, AK & 104.5 Anchorage, AK or Radio Free Moscow, KRFP 92.5 FM, Moscow, ID.

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Indeed, Lessig provoked a response across the media reform blogosphere and elsewhere. I’m a little late to the game in adding my comments (a whole week is like a decade for a blog!), but I’ve wanted to think about it for a while before firing off.

As John and I discussed on last night’s radioshow, I think replacing the FCC is problematic, primarily because I don’t trust another government agency to necessary do a better job. Why would I think an iEPA would be any better than the current EPA, which has been hamstrung under the Bush administration in a far more damaging way than the Bush FCC?

The ban on industry ties is the most interesting amongst Lessig’s proposals, though one which would also be difficult to achieve in practical terms. Nevertheless, it’s valuable for Lessig to jump-start the debate like this, regardless of the details.

What has been left out of the debate is the very fundamental notion of democracy. The left-progressive reaction to Lessig’s salvo has been along the lines of, “don’t throw the baby out with the bathwater” or more reactionarily fearful of losing the few public interest regulations that still have teeth. The libertarian reaction has been mostly “Atta boy, but you don’t go far enough!” Unfortunately it gets boiled down to regulation vs. deregulation or government vs. no government.

What it really should be is public accountability vs. industry solidarity. For all of its flaws the FCC is still a nominally democratic agency, with five commissioners who actually vote on proceedings, who represent the two major parties. While the majority represent the party in the executive, there is still a reasonably powerful minority that can’t be steamrolled constantly, even in the unlikely event that the majority commissioners march in utter lockstep.

The uptick in citizen activism on media and communication issues has only forced the FCC to become more responsive, though not nearly as much as we’d like. Compared to the USDA or DHS the FCC seems absolutely transparent and accountable. Yet I agree that the FCC is still a captured regulator where commissioners and high level staff have a disproportionate incentive to feather their beds for a soft landing in the private sector after their public service tour.

There’s a strong side of me that would love nothing more but to see the FCC go away, except that I don’t trust the so-called “free market” to result in anything better for the public. We’re not starting at ground zero, and the current inequities in communication–especially the oligopolistic control of broadcast and telecomm–would only be exacerbated by an FCC-less US. While I do like the idea of a “reboot” with a new agency, I’m not sure this kind of creative destruction would be sufficiently creative nor destructive. In what way is the Department of Homeland Security that different from the separated pre-2001 TSA and FEMA?

Instead, I think the focus needs to be the increased democratization of regulatory bodies, making changes that require greater public responsiveness and accountability. What if FCC commissioners were elected? Sure, it flies in the face of our current executive practices, but it also means we could end up with an FCC that is far more representative of the public interest than either the president or congress. Less radically, what if public comment requirements were strengthened and the equal of anti-lobbying rules enacted, along the lines of Lessig’s suggestions for an iEPA? Combined with restricting the industry ties of FCC staff I think you’d see a lot of changes at the Commission.

Of course we can’t expect the FCC to become that much better than any other federal agency, not to mention the Congress and the president. There’s an overall lack of accountability and democracy in the US government in general. It’s unreasonable to expect the FCC or iEPA to be any more accountable than the executive or your state’s senators. Without wider reform or reconstruction of the nation’s politics we are not going to see a substantially better FCC. Following the libertarian argument, doing away with the FCC entirely is only useful if we do away with government entirely, which, to me, is only useful if we also dismantle corporate power in the process, truly leveling the playing field. That’s the plan that would get my vote if it were truly on the table.

Short of that, reforming the FCC we have is our best bet. With our current corporatized government a better, more responsive and accoutable FCC is better than no FCC at all.

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The show airs live tonight, Thursdays, 9 – 10 PM Central time on WNUR 89.3 FM Evanston-Chicago, IL and online at WNUR.org. You can catch it on Friday at 5:30 PM on Community Radio WEFT 90.1 FM in Champaign-Urbana, IL, which also has a live stream.

If you can’t catch the live streams, the show will be available at the radioshow website this weekend, and airs on thirteen other community stations next week.

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