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TUCoPS :: Radio :: guild.txt

Court rejects FCC's constitutional Catch-22

National Lawyers Guild Committee on Democratic Communications
558 Capp Street, San Francisco 94110


Court Rejects FCC's Constitutional Catch 22

United States District Court Judge Claudia Wilken has rejected another
attempt by the Federal Communications Commission to silence Berkeley
Micro Radio Broadcaster Stephen Dunifer, founder of Free Radio

In a 13 page opinion released on November 12, 1997, Judge Wilken once
again rejected the government's motion for an injunction to silence
micro radio broadcasts by local radio pioneer Stephen Dunifer.

In 1995, Judge Wilken rejected the government's first motion for a
preliminary injunction against Dunifer's broadcasts. At that time the
Court found merit in Dunifer's argument that the FCC's ban on low
power, affordable FM broadcasting was a violation of the First
Amendment's guarantee of free speech to all in the United States.

In a blatant attempt to avoid facing its First Amendment obligations
the FCC then urged Wilken to permanently enjoin Dunifer from
Broadcasting and at the same time argued that she could not even
consider the issue of whether its rules, which prevent him from
getting a license, are unconstitutional. In a Kafkaesqe argument, the
Commission argued that Wilken had jurisdiction to issue an injunction,
but no jurisdiction to hear Dunifer's constitutional arguments. The
government claimed that only the higher federal courts could consider
the constitutional question.

In her November 12 decision rejecting the Government's position, Judge
Wilken pointed to the fact that the FCC had taken exactly the opposite
position in the 1994 case of Dougan vs FCC. In that case, an Arizona
micro radio broadcaster had appealed an FCC fine (for broadcasting
without a license) to the 9th Circuit Federal Court of Appeal, and the
FCC had argued that the Court of Appeal had no jurisdiction over the
case, and that it had to be heard by the District Court. The Court of
Appeals agreed with the FCC and sent the case back to the District

Judge Wilken noted that the Arizona broadcaster had raised the same
constitutional arguments in the Court of Appeals that Dunifer is
raising. The Court ruled that in sending all of the issues in the
Arizona case to the District Court, the Appeals Court recognized that
the District Court had jurisdiction over all aspects of the case.

In denying the Government's motion for an injunction "without
prejudice," Judge Wilken ordered the Government to file a further
brief on the question of whether the unconstitutionality of the FCC's
ban on micro radio is a valid legal defense to an injunction against
broadcasting at low power without a license. Dunifer's attorneys,
Louis Hiken and Allen Hopper of San Francisco, will have an
opportunity to rebut the government's arguments on this point.

In response to pressure from the commercial broadcaster's lobby, the
National Association of Broadcasters (N.A.B.), the FCC has in recent
months been stepping up its campaign of harassment against the
thousands of micro radio stations now on the air in this country.
Hiken commented "The broadcast industry is clearly afraid of these
little community stations which are speaking truth to its power. In
trying to do the N.A.B.'s bidding, the FCC demonstrates that it is
nothing but an enforcement arm of the commercial broadcast industry
and the multi-national corporations which own it."

The National Lawyers Guild's Committee on Democratic Communications
has represented the Lawyers Guild, San Francisco's Media Alliance, and
the Women's International News Gathering Services as a "Friend of the
Court" (Amicus) in this case. In its Friend of the Court brief the
Lawyers Guild pointed out that FCC regulations make it impossible for
all but the very wealthy to even apply for a broadcast license. This,
they told the Court, is the equivalent of saying anyone could speak
from a soap box in the park, but the box had to be made of gold. Guild
attorney Peter Franck commented "In an era when Disney owns ABC, the
world's largest defense contractor owns NBC and CNN merges with Time
which merges with Warner, and when 'public' broadcasting is told to
get its money from corporations, micro radio may be our last best hope
for democracy on the air ways." He continued "Judge Wilken's decision
is a courageous rejection of the Government's attempt to use a legal
Catch-22 to avoid facing the fact that its ban on micro radio flies in
the face of the Constitution."

The legal team representing Dunifer and the Amicae are very pleased
with Judge Wilken's reasoned and thorough decision denying the FCC's
motion to have the case resolved without a trial on the merits.  For
almost 70 years, the FCC has catered solely to the interests of
commercial corporate giants, through their mouthpiece, the National
Association of Broadcasters.  These are the pirates, who have stolen
the airwaves from the American people, and who represent corporate
interests valued at more than 60 billion dollars. Only the Pentagon,
the Silicon Valley and the transportation industries possess the
financial wallop represented by the NAB and its constituents.

Judge Wilken's decision represents a vision of what it would be like
for the American people to be given back their own voice.  The
decision suggests the likely unconstitutionality of the entire
regulatory structure underlying the FCC's ban on low power radio.  It
forewarns of the total failure of that agency to carry out its
statutory obligation to regulate the airwaves in the public interest
-- that is, in the interest of the American people, rather than the
media monopolies that control our airwaves.

The legal team welcomes the opportunity to have a court identify the
real pirates of the airwaves -- not the thousands of microradio
broadcasters who seek to communicate with the people of their
communities,but rather the billionaire commercial interests that
control the airwaves as if they own them.  Is it General Electric,
Westinghouse and the Disney Corporation that have the right to control
local community radio, or is that a right that belongs to all of the
American people, regardless of economic status?


Peter Franck, Counsel for Amicus
415-995-5055 (days) (evs, wknds)

Alan Korn, Counsel for Amicus

Stephen Dunifer, Free Radio Berkeley

Louis Hiken
Counsel for Stephen Dunifer

Allen Hopper
Counsel for Stephen Dunifer

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