The Battle for 105.9 FM

    Micro Kind Radio v. The FCC, and a couple of Texas Kicks
    Film by Stefan Wray and Pam Thompson
    Austin, June 1998
    In March of 1999, Ptak and co-founder Zeal Stefanoff wrote to the FCC, explaining their intent to start a radio station in San Marcos and requesting a waiver from "any regulation they thought might apply." They sent along a $25 check to cover any filing fees. Ptak and Stefanoff are not green to the snarls of media law. As operators of the intermittent newsweekly the Hays County Guardian, they had already won one Supreme Court case that allowed them to distribute their newspaper freely on the campus of Southwest Texas State University.
    The FCC sent the check back uncashed, and KIND Radio began its broadcast later that month. In due time, they too received a visit from Agent Perry. But "illegal direct action" -- the shutdowns and crowds of protesting supporters, were not KIND Radio's style. They told Perry that they had what they believed was a "bureaucratic dispute" with the FCC. They promised to be in touch. Perry went away.
    Throughout the summer, while Free Radio Austin was dodging the FCC's certified letters, KIND was badgering the commission for advice on how to proceed, how to run the station exactly as it was -- except legally. At length, the FCC scheduled an administrative hearing with KIND in Washington, D.C. Ptak requested a change of venue (no time or money to travel to Washington) and an extension -- their lawyer, the one who had seen them through their Supreme Court case, had just died. The FCC denied both requests. Ptak wrote again: If he came to Washington, with no money and no lawyer, would the FCC let him sleep on the floor of agency's office? The FCC responded with a cease-and-desist order, and an $11,000 fine against the station (both posted on the agency's Web site). The order was not delivered by hand, however, until after the deadline to appeal the order had passed. KIND protested the decision, and the FCC nominally re-opened the case. Shortly afterward, with no further contact by the FCC to KIND, a second cease-and-desist order was posted. This time, KIND sued. "If we were a multinational corporation, and came across a bureaucratic dispute like this, they would have had us meeting with the FCC, they would have dropped the prosecution and negotiated a settlement with us," Ptak says. "What they did is, they excluded the private citizens' interest -- and so part of our argument is that the FCC has turned the radio spectrum into a license to mint money for the corporate interest."
    Either KIND Radio was lucky in the draw for their judge, or else their argument and repeated attempts to settle amicably with the FCC were persuasive. Federal Judge Fred Biery compared KIND Radio to Thomas Paine and Nelson Mandela, and upheld KIND's right to be considered for an LPFM license "on a level playing field" with other applicants. Although there was no way around the fact that KIND had operated without a license, Biery put the case in abeyance until Texas' LPFM application filing window closes in late June. With the legal decision postponed, KIND won't have to check the box on the LPFM application that says they have been legally found to have operated without a license. If KIND's application has not been accepted when the case is taken up again, Biery told lawyers for the FCC, he would expect an explanation. If KIND's application is accepted, they'll resume the broadcasts they voluntarily suspended last fall. If it isn't, they plan to sue again.
    "Either way, we'll get back on the air," Ptak says. "Hopefully, we might set some kind of favorable precedent. At the moment, I think we are the best and brightest hope for microradio stations of our kind."

    August 15, 2009