Unlicensed Broadcasting OK in Oklahoma?

Not quite…but it’s an interesting sidebar nonetheless.
A bill called the “Communications Freedom Act” would restrict the FCC’s authority in the Sooner State to license and/or otherwise regulate broadcast stations whose signals do not leave the state, effective November first of this year. The bill was introduced late last month and referred to the Oklahoma House’s Economic Development and Financial Services Committee.
According to the bill’s sponsor, Republican State Rep. Charles Key, “The federal government is out of control. It’s violated it’s role in regards to the Constitution. The government has become a predator of sorts and it’s become a law until itself.” And thus, low-power radio should be allowed to flourish where stations’ signals do not cross state lines.
There is just one problem with this: a 76-year old judicial precedent set in Oklahoma’s southern neighbor, the state of Texas. The case, U.S. v. Gregg et. al. (5 F. Supp. 848 (S.D. Tex. 1934)), first went to court when the Federal Radio Commission moved to silence “The Voice of Labor,” a very small AM radio station broadcasting from a hotel in downtown Houston, Texas.
The three men behind the operation admitted they had no license to broadcast but argued they didn’t need one because they were not engaged in interstate commerce: their signal was so weak that it could not be heard outside the state. Even though this may have been true, the court reasoned the station still had the potential to interfere with the reception of other licensed stations broadcasting into Texas from elsewhere, and thus fell under federal regulation.
According to the ruling, the Voice of Labor’s potential effect on licensees engaged in interstate commerce empowered the FRC to shut it down: “That it is reasonable will be seen by reflecting that a sufficient number of unlicensed and unregulated intrastate radio broadcasting stations, such as is defendants’, broadcasting on different frequencies in each community, could and would not only interfere with, but destroy, all interstate broadcasting” (emphasis in original).
If Oklahoma’s proposed bill becomes law (there is no companion legislation in the state Senate yet), you can bet that case will play a central role in the FCC’s appeal for its repeal. (Not that the idea hasn’t been floated around inside the agency before, however.)
But how, you may ask, does this differ from anti-pirate state laws passed in Florida and New Jersey? Do not those abrogate the FCC’s jurisdictional authority over broadcast licensing? Not in the least: both Florida and New Jersey’s laws simply criminalize the act of unlicensed broadcasting under state statutes, and empower state law enforcement to hunt pirate radio stations.
When Florida passed the first anti-pirate law in 2004, FCC enforcement authorities in the state were careful to tacitly acknowledge it; overworked and understaffed, the FCC actually welcomed state aid in two pirate radio hot spots. That these laws have produced no substantive reduction in unlicensed broadcasting in either state speaks to the priority FL and NJ cops actually put on pirate-hunting. But those laws supplement the FCC’s enforcement authority, not restrict it. Oklahoma’s proposed bill would do exactly the reverse; that will not make the agency happy.
I can’t help but be sentimentally supportive of those who think outside the box, but there’s more effective ways to stymie the FCC’s enforcement authority. Probably one of the most effective (at least in slowing the process down) is to simply get your local/county/state police on your side before the Federales show up. Many local cops do not like it when their jurisdiction is stepped on, especially without their consent.
Such tactics are not guaranteed (see the case of San Francisco Liberation Radio), but they force the FCC to commit greater resources on a case-by-case level, where its enforcement authority is weakest and the relative success of resistance is greatest.