The Legal Victory of Free Radio Berkeley

	"All of the cases support us, Your Honor.  The Weiner case, the Red
Lion case, the NBC case, the Nutri-Cology case, the Medina case in the
Southern District of Florida.  In every case where an injunction has been
requested by the Government to prevent unlawful, unlicensed broadcasting,
the District Court has granted the injunction.  There is no case that we
are aware of -- and the Defendant cites none -- where a District Court has
been asked to issue an injunction and the Government has proved an
unlicensed radio operation where the Government has been denied that
injunction. 
	"And there's a very good reason for that.  Unlicensed broadcasting
creates chaos on the airwaves.  It's anarchy on the airwaves.  And to
allow and not to enjoin this kind of operation, the Court should consider
that in doing so it encourages continuing violations not only by the
Defendant, but by those who would also see this as a signal that the law
is not going to be enforced."
	--  Federal Communications Commission (FCC) lawyer David Silberman
speaking at a January 20, 1995 court hearing for an injunction against
Free Radio Berkeley

	In what can only be termed a shocking January 30, 1995 opinion,
federal judge Claudia Wilken considered the constitutional issues raised
by defendant Stephen Dunifer of Free Radio Berkeley (FRB) and declined to
grant an injunction against FRB.  This was the first instance of a federal
court failing to grant the government an injunction to prevent unlicensed
broadcasting
	The immediate and dramatic result is that Radio Free Berkeley is
now broadcasting 24 hours a day from a location in Oakland.  For the
moment, there is nothing the government can do to stop it.  Gone are the
days when the radio station had to be forever moved to evade detection. 
The FCC presumably knows exactly where the station is.  With a stable
studio location, a diverse group of folks put on creative and radical
shows and take calls over the studio phone line.  The station is community
based, alternative and participatory. The Legal Battle
	Founded by Stephen Dunifer two years ago, FRB was originally on
the air three hours per week.  On June 1, 1993, the FCC filed a "Notice of
Apparent Liability" (NAL) against Dunifer seeking a $20,000 fine.  The
fine was based on two broadcasts that Dunifer made without securing a
license from the FCC.  Dunifer's lawyers, connected with the National
Lawyers Guild Committee on Democratic Communication, filed an argument
against the fine based on free speech rights. The FCC did not address the
constitutional issues and as of yet has not enforced the fine against
Dunifer.
	When Dunifer continued the broadcasts following the NAL, the FCC
filed a separate lawsuit in federal court for an injunction against
further FRB broadcasts.  If issued, an injunction would have put the full
weight of the government against FRB, probably preventing further
broadcasts.
	Dunifer's lawyers again raised constitutional arguments against
the injunction.  The FCC asserted that it merely had to prove (1) that
Dunifer had no license to broadcast and (2) that he had made broadcasts
nonetheless.  Even Dunifer's lawyers admitted to this.  Dunifer's lawyers
argued, however, that the injunction should not issue because the FCC
regulations were unconstitutional.  They made it impossible for Dunifer to
seek a license for microradio broadcasts.
	To obtain a preliminary injunction (which would stay in force
until a trial on the merits resolved the ultimate questions of law and
fact allowing the court to issue a permanent injunction) the FCC had to
show that they were likely to win and there might be "irreparable harm" to
the public or they had to show that while they might or might not win, the
government hardships in the absence of an injunction were severe. 
	In this case, the court saw the "merits" of the case involving not
the two factors cited by the government (no license and broadcasts) but
whether Dunifer would prevail on the constitutional issues.  The FCC
clearly didn't want to look at constitutional issues and expected the
court to just consider the two, relatively simple questions.  Probably the
most surprising aspect of the judge's decision is that she considered the
constitutional issues at all, rather than resolving the case with the more
simple method of merely looking at the two government factors.
	The judge found that there was not "probable success on the
merits" given the constitutional issues raised by Dunifer.  Moving to the
second part of the test, she found that the hardships to the government
from continued broadcasts were not severe.  The FCC cited two instances
when FRB interfered with licensed broadcasts to show that continued
broadcasts "hurt the public."  However, FCC officials had to practically
trip over the transmitter in order to register the interference. 
Additionally, Dunifer claimed that the transmitter has since been improved
and that no future interference was likely.  Given this, the judge found
that the constitutional issues raised were too great, and the showing of
hardship too slight, to justify an injunction.  The judge did not want to
address the constitutional issues in the absence of arguments regarding
them from the FCC.  Although Dunifer raised the constitutional issues in
his briefs, the FCC lawyers completely ignored these issues.  The Least
Restrictive Means?
	Dunifer's lawyers has not argued that the FCC lacks authority to
regulate radio broadcasts.  Rather, he argues that the complete ban on
micropower radio (the FCC does not issue licenses for stations with less
than 100 watts of power) is unconstitutional. 
	Past Supreme Court cases dealing with FCC laws and regulations
have found that radio broadcasting involves free speech (first amendment)
questions.  When first amendment free speech rights are impacted by
government regulation, the government must establish that the contested
regulations are the least restrictive means available to further a
compelling state interest.
	The traditional justification for FCC regulation is that there are
a scarce number of frequencies available on the radio dial and that the
FCC must regulate to prevent stations from interfering with each other.
	Dunifer argues that, due to technological improvements in
equipment, microradio broadcasts can be made without interference to
high-power broadcasters and that there is sufficient space on the radio
dial to accommodate micropower radio broadcasts.  He points to regulations
in Canada, where micropower stations were legalized in urban areas in
1993.  (Micropower broadcasters in Canada merely submit a 2 page form and
affirm that their equipment meets technical standards to avoid
interference.)
	Dunifer argues that completely banning micropower radio
broadcasts, rather than developing a system for regulating them, is
unconstitutional because it is not the least restrictive means of
achieving the government interest, in this case preventing interference.
	Dunifer's lawyers also argued that by completely banning
micropower radio, the FCC has eliminated opportunities for community based
alternatives to mainstream -- usually corporate -- radio broadcasting. 
Federal law requires the FCC to regulate "in the public interest," which
Dunifer argues should include the whole public, not just the economically
powerful.  Supreme Court law supports the argument that the FCC must
regulate to attempt to achieve a "balanced presentation" of information. 
	In the end, the judge found that the FCC had not addressed the
constitutional questions and that they were sufficiently convincing, and
that harm had not been sufficiently shown, that the injunction should not
issue.  The court indicated that the FCC should address the constitutional
issues in proceedings to enforce the $20,000 fine against Dunifer, and
that the court would then consider those proceedings in making a final
decision on an injunction.  The court phrased the question as "[I]n light
of current technology, is a total ban on new licensing of micro radio
broadcasting the least restrictive means available to protect against
chaos [o]n the airwaves?"  

What Now?

	The victory in court is very significant but it does not end the
legal struggle.  The government has the ball and will make the next move. 
There are a number of options open to them:
	1.  The government could follow the judge's suggestion.  This
would mean they would move forward with the fine against Dunifer and
address his constitutional arguments.  This process would likely take a
long time.  Only then would the court consider granting an injunction. 
The government cannot seek an injunction in a different court (thereby
getting around this ruling) because of legal rules.  Once a case is
assigned to a particular judge in federal court, the case stays with that
judge. 
	If the government follows this course of action, there is no
certainty that FRB would eventually win on the "merits."  Dunifer's legal
argument, while extremely clever and creative, is somewhat "novel." 
However, while the slow wheels of justice turn, FRB will remain on the air
and can build political and community support.
	2.  The government could decide to ignore FRB and try to win a
similar case before a different judge elsewhere.  Such a victory elsewhere
might influence the court in Oakland, although a victory elsewhere would
only be binding on the court in Oakland if the decision came from (a) the
Ninth Circuit court of appeals or (b) the US Supreme Court. 
	From the government's perspective, the last thing they want is for
the court in Oakland to rule in favor of FRB on the "merits" of the case
after considering the constitutional issues.  If that happened, the case
would be "persuasive" to other courts considering similar cases.
	Judge Wilken is probably the worst possible judge for the FCC
because she appears to honestly and seriously consider the constitutional
issues raised by FRB.  Therefore, the FCC might decide to just drop the
case against FRB and look for a greener pasture.  Under this scenario, FRB
might again stay on the air for a long time.  The FCC has ignored pirate
stations in many other areas and there is nothing that requires them to
act against FRB.  The more public FRB and its violation becomes, the more
pressure there will be for the FCC to do something.
	3.  The FCC might return to court and try to show a higher level
of "harm" to the public interest from FRB than they showed in their
original papers.  Assuming that FRB does not interfere with other
stations, the FCC could possibly make a creative argument finding some
other factor creating "harm" to the public. 
	One possibility, which FRB DJs might consider, is that the FCC
could argue that the public interest is "harmed" by "obscene" language on
the air.  The FCC would argue that "children" could get the broadcasts and
that this harm, even in the absence of interference, justifies an
injunction.  As to the simple use of words like "fuck" on the air, this
argument is pretty silly.  The FCC would have to argue that such words
offend community standards in order to be found "obscene."  However, it is
conceivable that some things going out over the air might offend community
standards.  We have to assume that (1) the FCC badly wants to get an
injunction and (2) that they are listening to and taping everything that
goes out over FRB.  DJs should think about this if they want the station
to stay on the air. Implications
	One potential long term flaw with Dunifer's legal arguments is
that they conceded the FCC's authority to regulate microradio broadcasts. 
This concession is probably unavoidable given the legal system.  However,
it raises long term questions.
	If the FCC loses and the complete prohibition on microradio
licensing is found unconstitutional, the FCC would presumably have to
license microradio stations.  They might do this like in Canada:  with a
simple 2 page form and minimal or no fees.  However, they might agree to
license microradio stations, but make the standards and fees so difficult
as to effectively prohibit real "grassroots" community access to the
medium.  For instance, a $20,000 fee (including technical studies) would
completely prevent access to the airwaves by radicals.  While such a fee
structure would be subject to a similar legal challenge to the one
currently underway (such fees would not be the least restrictive
alternative), it could take years and thousands of dollars to fight such a
legal battle.
	Since the radio band would still be limited there is some kind of
limit on the number of microradio stations even if the FCC agreed to
license them.  How would the FCC decide who got these limited stations? 
Would stations have to comply with all the FCC content regulations that
apply to corporate stations? 
	As Dunifer's lawyers argue, microradio is the "flyer of the 90s." 
We need to fight for access to this medium just as past revolutionaries
fought for free access to printing presses.  Even if the battle is finally
won, there are going to be difficult questions down the road. --PB Floyd