One of the nice things about Vermont is that vacant lots usually don't sit vacant for long. Eventually, someone plants a garden there. Apparently, the same goes for the public airwaves.
Several weeks ago, the Bush administration suffered a political setback when it tried to eliminate the rules that limit the number of media outlets one corporation can own in a single city. On Sept. 3, a federal appeals court in Washington, D.C., issued a surprise order blocking the Federal Communications Commission from implementing new rules that would have made it easier for the nation's biggest media conglomerates to get even bigger. That order was hailed by groups as politically diverse as the National Organi-zation for Women, the National Rifle Association and the U.S. Conference on Catholic Bishops.
What else did the FCC do on Sept. 3 to promote the fair and equitable use of the public airwaves? Two of its enforcement agents drove 225 miles from their field office in Quincy, Massachusetts, to Burlington to shut down an unlicensed, 10-watt FM radio transmitter. As a frame of reference, one of the beefiest stations in Burlington -- 99.9 FM "The Buzz" -- broadcasts at 100,000 watts and can be picked up in Montreal. In contrast, a 10-watt radio signal, or one-sixth the power of the average light bulb, can barely reach from the University of Vermont to Lake Champlain.
For the last two and a half years, some tech-savvy folks have been broadcasting a signal from Free Radio Burlington, a community-operated station that streams commercial-free music, news and political commentary over the Internet. They lift the signal off the Web and broadcast it at 87.9 FM, or, as they put it, "as far left as you can go on the FM dial." But on Sept. 3, FCC agents, accompanied by two officers from the Burlington Police Department, visited a private residence in Burlington's Hill Section and ordered the broadcasters to cease their transmissions or risk a legal spanking.
Since the agents were in Vermont anyway, the following day they paid a similar house call to Radio Free Brattleboro, another unlicensed community station that sprouted on a vacant FM frequency five years ago. Perhaps because the Brattleboro folks have more experience doing the regulatory rumba with the feds -- the FCC last visited them in June -- they managed to keep the agents from entering their premises. Instead, the FCC left behind a form letter that basically said, "move it or lose it," and went on their way.
Keep in mind, neither visit was in response to radio interference or complaints from the public, according to an FCC spokesperson in Washington, D.C. Free Radio Burlington's signal was not jamming radio traffic from the planes flying in and out of Burlington International Airport. Nor was Radio Free Brattleboro stepping on listeners' enjoyment of VPR's "Morning Classics." The only reason for the FCC actions -- Free Radio Burlington got another visit just last week -- was because neither station has a license. Why? Because the FCC isn't granting licenses to stations that small, despite rules saying it will.
In fact, license applications for both frequencies have been pending for years. Yet no Vermont applicant has received so much as a postcard from the FCC acknowledging the application. So now some citizens are trying to reclaim what they say rightfully belongs to them.
There's a concept in real estate law called "adverse possession." Here's how it works: Say you own a house adjacent to a vacant lot. After several years, you notice that no one is tending to the property, so you send a letter to the owner of record but get back no response. One day, you and a neighbor go out there and clean up the trash, rake up the brush piles and pull out the poison ivy. The following year, you plant some flowers. The year after that, a vegetable garden.
After 10 years, no one has stopped by to say, "Hey! Didn't you see the sign? It says, No gardening!'" In effect, you've openly and continuously exercised stewardship over that land. Under the principle of adverse possession, you may be able to claim legal title to it.
What if adverse possession were applied to the electromagnetic spectrum? Unallo-cated radio frequencies that are neither in use nor serving some other technical purpose -- the FM equivalent of open space -- could be considered abandoned real property. After all, the federal caretaker responsible for tending to that property has failed to respond to written requests to put it to good use. As a result, some Vermonters -- who are, after all, the owners of record -- have now planted community gardens there and made them available to anyone who wants to grow something. A far-fetched notion? Perhaps, but similar legal principles are applied to intellectual property rights such as trademarks, which are more abstract concepts than the electromagnetic spectrum.
Incidentally, on Sept. 3 the city council in Santa Cruz, California, passed a resolution in support of the unlicensed station Free Radio Santa Cruz, which has been on the air for eight years. That resolution was modeled after a similar one passed by the San Fran-cisco City Council in support of San Fran-cisco Liberation Radio, which has been broadcasting for 10 years. Perhaps the Burlington City Council or the Brattleboro Select Board could take it one step further and pass a resolution that "deeds" those unallocated frequencies to their own communities. The seeds have already been planted.
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I am a historian and have been a member of the Coolidge Foundation since 1972.