Nov. 4 Is the Date for More than One Important Vote

There is a vote scheduled for November 4 that is very easily overshadowed by another, somewhat more high-profile vote. While the nation’s voters decide whether Barack Obama or John McCain (or Cynthia McKinney or Bob Barr) will be the next president the FCC will be making an important decision about the future of internet access in the US.

At its Nov. 4 meeting the FCC is scheduled to decide on opening up to broadband wireless internet spectrum being vacated by the analog TV turn-off. Already FCC engineers have released a report endorsing this use of these so-called “white spaces.”

Predictably, the National Association of Broadcasters is going to great lengths to prevent this from happening, sensing a credible threat to their broadcast spectrum oligopoly and plans to turn TV and radio frequencies into tightly-controlled digital networks that are internet-like but mostly useful for helping you spend money. Like in 2000 when they cried “interference” over the creation of 100 watt low-power FM stations next to their 50,000 watt blowtorches, the NAB is challenging the FCC’s own engineers to claim that opening up white spaces for what is being called “wi-fi on steroids” will cause interference to television broadcasts. Nevermind that the FCC engineer’s are about as cautious and conservative a bunch you’ll ever find, backed up by independent analysts time and again.

So what do you do when you’re a industry lobbying group that doesn’t have the engineering facts on your side? Why, you lobby Congress with bogus arguments hoping they’ll intervene! The NAB also filed a request with the FCC to delay the vote, which doesn’t seem to be getting a warm reception at the Commission.

It’s no secret that the broadcast industry isn’t in great shape, largely due to decades of backwards-looking, anti-innovation business moves combined with repeated Congressional and FCC lobbying efforts to win regulatory protection in direct conflict with their free-market rhetoric. Now the NAB has no problem blocking the potential for greater nationwide broadband internet access that could be especially valuable to rural and other underserved areas. Just think, anywhere that can receive an over-the-air TV signal now could be receiving broadband internet wirelessly.

Groups like Free Press are running campaigns to help reach out to your congresscritters, though I’m betting they’re unlikely to pay much attention to the NAB’s bellyaching right now.

I’ll also be covering the issue on this week’s radioshow, with eagle-eyed FCC watcher Matthew Lasar joining to bring maximum analysis to the situation.

Catching Up

It seems like all of my available mediageek energy has been poured into the radioshow lately, the result of having a firm weekly commitment to dozen stations. Were the radioshow a non-broadcast podcast I’m not so certain I would be so diligent.

At least I can say that I’ve had a couple of great guests recently that you really should check out if you haven’t already listened to the shows.

Faythe Levine was my guest on August 22 where we talked about her upcoming documentary film and book, both named Handmade Nation. The project’s nice new website just went online. Faythe was also featured in today’s New York Times Home section in an article looking at the DIY craft phenomenon and connecting it to her own home design. She scanned in the print article to her Flickr site.

One of the hardest working folks in the media reform, Gigi Sohn, was last week’s guest. Gigi is the executive director of Public Knowledge, a public interest group that does great work on issues like spectrum use and preservation, intellectual property and broadcast ownership. On this show we talked about the FCC’s recent sanctions against Comcast, and why that decision deserves recognition as an historical moment in the modern media reform movement.

I have another interesting interview slated for this week’s radioshow, too. My friend Sarah Kanouse will tell us about Voices of America, a participatory radio remix project she put together along with Lee Azzarello of free103point9. You can listen live to the show when it first airs on community radio WEFT 90.1 FM in Champaign, IL on Friday at 5:30 PM CDT, either over the airwaves or over the internet. It will be available online at the radioshow page shortly thereafter.

Catching up with friends

My pals on the internets have been keeping busy informing the masses about what’s really going on with overlords of our media environment. If you don’t keep up with Matthew Lasar’s Ars Technica articles or John Anderson’s DIYmedia missives, here’s some recent posts you should check out:

• Matthew reports that FCC Democrat Jonathan Adelstein is now on board to approve the Sirius/XM satellite radio merger, but only with significant conditions. This makes him commissioner #2 after Chairman Martin. Matthew also digs up some interesting dirt about Commissioner Tate tapping industry lobbyists for advice.
• John comments on the “glimmer” of hope that the FCC would take real action against Comcast for its BitTorrent filtering being downgraded to a “mirage.”
  

  After about a day and a half of happy-buzz, Martin and the FCC clarified their position – Comcast will not be substantially penalized in any meaningful fashion for its data-discrimination practices. There will be no further investigation, no priority inquiry, not even a monetary forfeiture: instead, the FCC will require the company to “disclose” its bandwidth-management practices and “encourage” Comcast to adopt more “protocol-agnostic” methods of shaping the traffic that flows over its pipes.

• Back in June John noted the current trends in FCC enforcement action against unlicensed broadcasters, observing that “the FCC is on relative track to meet its record-breaking enforcement effort of last year.” However, the FCC isn’t collecting any more financial forfeitures, and
  

  Although the FCC is getting more diligent about reducing the time between finding out about a pirate and making contact with the station, there is no obvious correlation between a diminution of stations on the air as a result.

FCC Hearing on Broadband and the Digital Future Going On Now

If you enjoy a good FCC hearing now and again, you can watch the hearing live online:
http://www.fcc.gov/realaudio/#jul21

If you don’t quite have the four and a half hours to spare you should be able to watch an archive on the FCC website within some reasonable timeframe after the hearing is over. If you prefer a digest version, I intend to play some excerpts on this coming Friday’s radioshow.

If you prefer a text digest, at least one Twitter user is live-tweeting the hearing from Pittsburgh.

And, I write this under the assumption that somehow anything at this hearing will make a difference….

One small step for logic and reason: 3rd Circuit Tosses Out FCC’s Janet Jackson Superbowl Fine

I believe I can see the house of cards that is the FCC’s current approach to broadcast indecency starting to fall apart. Today the 3rd Circuit Court of Appeals tossed out the FCC’s $500k fine against CBS for the infamous “wardrobe malfunction” during the Super Bowl half-time show. In its ruling the Court said the Commission’s policy on indecency, especially with regard to fleeting indecency (Janet Jackson’s breast was exposed for 9/16 of a second) is “arbitrary and capricious.”

A major component of this decision is the Court questioning the FCC’s change to treating fleeting indecency much more severely after a consistent record of otherwise “restrained enforcement” since FCC v Pacifica. The FCC tried to justify its crackdown based upon the fact that the Super Bowl half-time incident was visual in nature, whereas its past “restrained enforcement” only regarded spoken indecency.

The Court soundly rejected that argument:

“In sum, the balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion.”

I think this decision does not bode well for the survivability of the FCC’s indecency regime against fleeting indecency and expletives, whether it’s Bono’s f-bomb at the Golden Globes or a woman’s bare buttock on NYPD Blue. Although the true future of this regime is now in the hands of the Supremes, it seems to me unlikely that the SCOTUS will rule entirely opposite of the Circuit Courts in finding the FCC’s approach to “arbitrary and capricious.”

Matthew Lasar and I discussed the state of indecency before this Third Circuit decision on the July 11 radioshow. Matthew said that one worry some media reform activists have is that a Supreme Court judgement against the FCC’s indecency regime might take aim at the foundational decisions establishing the FCC’s domain over the airwaves, such as Red Lion v FCC. Eric Alterman and George Zornick outline this concern in an article for the Center for American Progress.

Yet Red Lion is much bigger than indecency, and it should be possible for the Court to rule against the FCC’s current indecency regime without throwing out the totality of the FCC’s regulatory power over broadcast. Just because the big broadcasters hope to use their case to chip away at Red Lion doesn’t mean the Court will take them up on it.

At the same time, I’m not exactly a fan of the Red Lion decision. Although this is a topic for a much longer treatise, my problem with Red Lion is that it relies primarily on the scarcity of spectrum argument, which is a double-edged sword. While it justifies what is in reality merely limp-wristed FCC enforcement of the public interest, it primarily serves as a method for the dominant broadcasters to retain their oligarchy on the airwaves, keeping potential new entrants–like LPFM–at bay, while reaping enormous profits without paying back one red cent of rent on that valuable spectrum.

Were the FCC something more than a toothless captured regulator and it were willing and able to make good on the public interest bargain promised by Red Lion, then I might be more concerned about that decision’s survival. Instead, clinging to this decision smacks of begging for crumbs–something I have almost no stomach for.

However, I’m not arguing or even necessarily hoping for the Supreme Court to eviscerate Red Lion if it rules against the FCC’s indecency regime. The most likely alternative to Red Lion is an even more toothless FCC armed only to act as security guards for the nation’s media elite. A more rational approach to broadcast spectrum regulation based on public interest and not scarcity is necessary if Red Lion is lost, and I have little confidence we’ll see such an approach in my lifetime.

So, hooray for (fleeting) boobies, and let’s hope they don’t fuck it up for broadcast regulation in total!

The FCC Can Has Google for Piratez

Ever wondered how the FCC tracks down and busts pirate radio operators? Anyone familiar with the subject has heard about radio tracking equipment that helps agents triangulate a signal, but what other tools are in their arsenal?

Google is a big one. Another tool? Taking pictures of the buildings where they find signals, and photographing the license plates of cars parked in front.

That’s what we learn thanks to a Freedom of Information Act request filed by the Lumberjack, the student-run newspaper of California’s Humboldt State University. The paper filed the request regard the FCC’s investigation of the Humboldt Free Radio Alliance last year which led to the station shutting down.

Amongst the notes revealed in the case file obtained by the paper are an agent’s “investigation” of a MySpace page:

“The webpage shows a number of people who are dj’s. Printed out the myspace web pages and placed them in the case folder,” FCC documents said.

The Commission apparently learned that the station had shut down from a Google search, too, which brought up a post to an Indymedia site:

“Googled ‘Humboldt Free Radio Alliance’ an (Internet publication) IndyMedia article related to our shutdown,” stated the FCC documents.

“Since information indicates station off the air and may be trying to find a new location, will close the case based on the certified mail receipt. A new location will require a new case.”

What’s interesting about this is the sheer mundaneness of it all. Aside from being able to use signal finding equipment, there’s very little cleverness about finding pirate operators. And you really don’t even need the fancy equipment in the first place. A relatively sensitive radio can help you track down a pirate signal to within a block or so. Then you can look around for an antenna, which needs to be mounted high and away from other blockages, and so is likely to be somewhat conspicuous if you know what you’re looking for.

Indeed, the way most pirates evade the FCC is through simply keeping things on the down-low and common sense. Not broadcasting 24-7, and keeping a more erratic schedule are two very simple ways of minimizing detection and making it a little more difficult for the FCC to track you down, since agents have lots of other things to do besides hunt down pirates.

It’s also good to see some confirmation of the fact that agents do use the internet. Ever since I started following the pirate radio underground on the ‘net some 14 years ago, the most common admonition you’d read–whether on usenet, listservs or bulletin boards–is not to post too much identifying information about your station and its broadcasts.

Of course, the problem with not using the internet to publicize a station is that it makes it more difficult to attract listeners who might be interested.

Although I haven’t seen the case file, my guess is that the FCC only starts its Google searches once it’s opened an investigation. That is, I doubt that the Commission spends a lot of time trolling the internet to find pirate radio websites and posting–though I also would believe that agents do peruse pirate-related sites like the Free Radio Network. The Commission after all is truly a complaint-driven bureaucracy.

More likely is that the searches start once the Commission has received complaints from listeners or other broadcasters.

So, keep that in mind if you want to publicize your unlicensed station online. Publicity comes with a price, so a little caution goes a long way.

Sirius/XM Merger an Opportunity for Openness & Access? LPFM for Satellite?

Matthew Lasar continues his excellent reporting for Ars Technica with an article on a recent letter from House Energy and Commerce Chair John Dingell (D-MI) and Internet subcommittee Chair Edward J. Markey (D-MA) to the FCC urging an open platform for satellite radio if the Commission approves the Sirius/XM deal. What they’re calling for is the ability for any manufacturer to make Sirius/XM compatible satellite radios, without the ability for the merged company to prevent things like iPod docks or HD Radio capability.

Lasar also notes the gathering steam in support for setting aside some of the merged company’s channel capacity for noncommercial programming, similar to what has been required for direct-broadcast satellite TV. Apparently even Clear Channel wants 5% of capacity set aside for “public interest” programming, whatever Cheap Channel means by that.

I oppose the merger on the principled basis of the fact that such a merger was specifically prohibited as a provision of the original authorization of the service. Nevertheless, I recognize that principle rarely rules the day in DC. Therefore I very much support setting aside channel capacity for non-commercial broadcasters as a necessary condition if the FCC chooses to approve the merger.

Obtaining a non-commercial channel on Dish Network was vitally important for Free Speech TV and has allowed that organization to distribute its radically critical grassroots programming in a way that it simply could not before, feeding public access TV stations around the country.

Although internet distribution is still more practical for radio programming than for TV programming, having several nation-wide progressive and grassroots radio channels nonetheless would be a great opportunity, and could be of great service to community radio stations.

A channel I’d love to see is one built on an Indymedia type of model, mixed with Current TV. It would be fed by programming from independent producers and community stations, like the programs you find at the A-Info Radio Project and Radio Indymedia. But, like Current, it should be edited and curated. That is, I’d like to see things selected and knit together into a coherent program flow. Maybe a whole show would be carried, or just a particularly good segment. And then combine these shows and segments with regular hosts and other original content related to particular themes and topics.

In a way, this idea is a lot like what a lot of people over the years have hoped would come of NPR or Pacifica, that they would function truly more like networks connecting up stations than as program syndicators. But I do understand how the overhead of the kind of operations they need to run make playing that networking role more difficult.

That’s the beauty of having new channels on satellite radio — the overhead is comparatively low because you don’t have to worry about physical broadcast stations, licenses or signing up affiliates. Like an internet station, but with a different kind of reach, the low overhead allows more opportunity for experimentation.

Of course the kind of channel I’m envisioning is not necessarily well suited to distributing programming in the same way that Free Speech distributes Democracy Now to stations. That’s why we need to have multiple channels set aside, so there is room for multiple models. Compared even to satellite TV channels, satellite radio channel capacity is cheap. I don’t see any reason why the FCC can’t or shouldn’t make this a condition of approving the merger. It could be like creating LPFM for the nation.

May 2 Radioshow Notes & Links

Links and notes related to the May 2 mediageek radioshow:

• FCC Proceeding on localism: http://www.fcc.gov/localism
• Public Knowledge’s Orphan Works Act page: http://www.publicknowledge.org/issues/ow
• Matthew Lasar’s Ars Technica article: NPR’s war on Low Power FM: the laws of physics vs. politics

You can read the full test of the show’s news headlines after the jump.
Read more »

NPR Still Ludicriously Fighting LPFM

It’s been eight years since the FCC voted to establish LPFM, and in that time NPR has only seen its fortunes rise, with listenership and income rising in sharp contrast to the fortunes of the Clear-Channeled commercial radio industry. Yet, as Matthew Lasar reports in Ars Technica, the nation’s largest public radio network continues to trot out the beaten dead horse of interference in arguing that the Commission should not take steps to protect LPFM stations. NPR’s especially against the proposal that full-power stations that want to relocate transmitters should assist LPFM stations in making sure the low-power signals are not degraded in the change.

I covered this on Friday’s radioshow, too, and the more I think about it, the more disappointed I am in NPR. Despite many of the criticisms of NPR’s establishment-oriented news coverage and upper-middle-class demographic focus, there’s much to like about NPR and its programming. I am a daily listener because NPR’s news programming is better than anything on the commercial radio dial, and better than commercial TV news. That said, I don’t get all my news from NPR, and think it’s also vitally important to have community radio and great international programs like Democracy Now and Free Speech Radio News, both of which merit wider distribution and better funding.

Back in 2001 when I had a little Q&A with then NPR president Kevin Klose he maintained that the network was hewing to the interference concerns of the Western NPR affiliates, using translator stations to reach mountainous and isolated regions. He tried to express sympathy for the goals of LPFM, while also criticizing the FCC for how he believed it rushed LPFM through.

But we all learned the interference concerns were unfounded when the Congressionally mandated Mitre report was released. So why does NPR insist on opposing LPFM still?

The only answer that makes sense is that the network is behaving in a very Clear Channel/NAB way, opposing any competition, regardless of the potential competitor’s merits. This is nothing new, NPR joined up with the CPB back in the 70s to kill low-power Class D radio the first time around (see my chapter in the Radio Reader). NPR’s competition anxiety is a little different than Clear Channel’s in that now, as in the 1970s, it has a lot to do with CPB grants, which are still the lifesblood of most NPR affiliate stations. These grants have been shrinking, and increasingly are based on listener ratings. Especially in medium size markets, LPFMs can pose a real threat of listener erosion.

The bigger fear, I reckon, is that beyond just posing competition, NPR fears that some stations might actually have to give way to or assist LPFMs if they want to move tower locations or increase power.

Nevertheless, I remain unconvinced of NPR’s apparent fears and critical of their opposition to LPFM. I believe that public radio as a whole has more to gain from having additional noncommercial, community stations on the dial than it has to lose. In any event, NPR’s continued opposition of LPFM is short-sighted and unnecesary.

I am definitely considering halting my contributions to NPR-affiliated stations in protest of NPR’s stupid LPFM stance. I wish there were a way to make pledges to stations to continue support local programming without any of that money going to the network (maybe there is?). What do you think?

Wrap Up on Senate Net Neutrality Hearing

The Benton Foundation has compiled an excellent wrap-up of testimony and press coverage of yesterday’s Senate Commerce Committee hearing on network neutrality.