Micropower Radio v. the FCC

In early March the U.S. District Court in Oakland, CA will hear a case that highlights the contradictions of a constitution that seeks to protect individual freedom of expression but propagates a government designed to protect the interests of an elite minority. The case -- Federal Communications Commission v. Stephen Dunifer and his Free Radio Berkeley -- polarizes camps at opposite ends of the broadcasting spectrum. On one end is the multimillion-dollar weight of America's broadcasting giants; at the other end, an alliance of community-based broadcasting activists.The FCC brought the suit, supported by an amicus ("friend of the court") brief from the powerful National Association of Broadcasters (NAB), to shut down Free Radio Berkeley, a low- power, microwave-transmitted radio station with a range of 8 to 10 miles and a free-form format of music and public- information programming. The FCC is citing the so-called public interest clause of the federal Communications Act, which it claims will protect the public from a proliferation of small, unregulated radio stations that could have a detrimental effect on major FM broadcasters."Obviously, the FCC believes it is not in the interests of poor, disenfranchised communities to have access to low- powered radio with programming designed to meet their concerns," said Dunifer. "Their interests, according to the FCC, would be best served by large broadcasting conglomerates."The actions of the FCC and the NAB have sparked public interest in micro broadcasting, and the impending hearing has galvanized many disparate groups nationwide that have an interest in community-based broadcasting and freedom-of-speech issues. Dunifer's case is being supported by the National Lawyers Guild's Committee on Democratic Communications (NLGCDC), S.F.-based Media Alliance, and the Women's International News Gathering Service (WINGS). An amicus brief is also being prepared by advocates on behalf of Free Radio Berkeley listeners, local community organizations, and other free micropower radio stations across the land.Last Jan. 20, U.S. District Court judge Claudia Wilken refused to issue a preliminary injunction against Dunifer and urged the FCC to reconsider its policies to reflect the growth in micro radio transmission. Wilken also instructed the government to examine the constitutionality of banning small radio stations.Despite this, the FCC is now requesting that the court issue a "summary judgment" granting a permanent injunction against Free Radio Berkeley. To issue a summary judgment, there must be proof of a flagrant violation of the law, with the facts of a case not in dispute. But Allen Hopper, a member of Free Radio Berkeley's legal team, is confident Judge Wilken again will side against the government."We believe the court will deny the FCC's request for summary judgment, and we are ready for a trial on the merits, at which we will prove the FCC's ban of micro radio is not in the public interest and violates the First Amendment," Hopper explained.In its legal challenge, the FCC responds that while it is within the judicial scope of the district court to grant an injunction stopping Free Radio Berkeley from broadcasting, the court does not have the jurisdiction to decide whether the regulations on which the injunction would be based are constitutional. But that claim contradicts its position in a prior micro radio case, Dougan v. FCC, during which the commission argued that the district court had jurisdiction to decide on the constitutionality of broadcast regulations."The FCC is essentially telling Judge Wilken that she has jurisdiction, but if and only if she agrees to grant their injunction," Hopper said. "Otherwise, says the FCC, 'no jurisdiction.' "Dunifer believes the weakness of the FCC's case is highlighted by the fact that after Wilken gave the agency six months to reconsider its position on micro radio, the agency still came back only to claim that Congress requires it to act in the "public interest." Dunifer added that the claim is also undermined by the commission's own chair, Reed Hundt, who recently gave a speech that was circulated on an FCC Web site concerning the FCC's role as guardian of the airwaves. Said Hundt: "The FCC's current implementation of the public- interest mandate is intellectually indefensible. It is a cruel hoax on the American public."In a speech delivered at Princeton University last December, Hundt spoke about the role of the commission in ensuring that broadcasters uphold the spirit of the First Amendment."In 1968 Senator Al Gore Sr. stated that 'the public owns the airwaves, which we give the television and radio stations permission to use.' The original and enduring purpose of the First Amendment is to ensure an educated citizenry able to participate in our great continuing experiment of democratic self-governance."But Dunifer condemns the FCC for abuse of the judicial system to serve big broadcasters at the expense of himself and micro radio listeners."The FCC is attempting to shield itself from judicial scrutiny and deprive me of my First Amendment rights," he said. "Free Radio Berkeley and all the other micropower broadcasters will not be silenced by this self-serving cabal of corporate broadcast media interests and their lackey, the FCC."