LOUIS N. HIKEN, SBN 45337 Attorney at Law One Sansome Street, Suite 900 San Francisco, California 94104 Tel: (415)705-6460 Fax: (415) 705-6444 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States of America, Plaintiff, v. Stephen Paul Dunifer, Defendant No. C 94-3542 CW DEFENDANT’S MOTION IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Date: December 2, 1994 Time: 10:30 a.m. Place: Courtroom 2 1301 Clay Street, Oakland Introduction There is no emergency in this case. The plaintiffs, themselves, argue that Steven Dunifer has been broadcasting for at least one and 1/2 years with low power wattage. The FCC has had pending before it for that entire period of time pleadings which challenge their regulatory scheme. Rather than responding to those pleadings, and the issues raised therein, the FCC now comes to this court seeking an injunction. The declarations filed by the plaintiffs indicate that they are scrupulously monitoring the broadcasts of Radio Free Berkeley, and know precisely when and how often it broadcasts. If there were truly any immediate threat of injury or harm to anybody, why did they wait for over 18 months to bring it to this court's attention? The obvious answer is that there is no immediate harm posed by Radio Free Berkeley's broadcasts. There are micro- radio broadcasters all over the country challenging the FCC's authority to limit the issuance of radio licenses to only wealthy commercial broadcasters. The questions posed by this lawsuit should be resolved through thorough litigation on the merits of the issues. An injunction as this point would only reinforce the arbitrary and discriminatory regulatory scheme enacted by the FCC. It would deny what little non-commercial democratic voice exists over the airwaves and it would protect no interests that require immediate protection. Argument On June 1, 1993, the F.C.C. issued a Notice of Apparent Liability (N.A.L.) against defendant Stephen Dunifer, in which the F.C.C. sought to impose a forfeiture of $20,000 against defendant for allegedly engaging in two unlicensed low power FM broadcasts. On June 28, 1993, defendant filed his Response to the N.A.L. A copy of that Response is attached hereto as exhibit A. We excerpt from that Response: "The Federal Communications Commission (F.C.C.) policies with regard to micro radio broadcasting have failed to keep pace with the rapid proliferation of technological advances in the field of communication. The F.C.C.'s current regulatory scheme completely prohibits micro radio broadcasters and their listeners from accessing the public airwaves. To enforce this absolute prohibition, the F.C.C. is relying upon regulations, and case law applying the regulations, which were intended solely for application to large-scale, commercial broadcasters, and which were promulgated long before the advent of the technology that makes possible micro radio; indeed, even before the advent of FM broadcasting. The F.C.C.'s application of these regulations violates the First Amendment rights of individuals seeking to exercise those rights via methods and mediums that were technologically impossible when the regulations were created. The cost of owning and operating a radio station has skyrocketed into the hundreds of thousands and even million dollar range, and participation in the broadcast media has thereby become limited only to large corporations. The individual seeking to communicate and listen to others over the airwaves in his or her local community is completely left out of the licensing scheme if he or she cannot afford the expenses entailed in purchasing, obtaining a license for and operating a commercial broadcast station with at least 100 watts of power. Micro radio provides a format by which ordinary people can communicate with one another over the airwaves without interfering with the rights of large-scale, F.C.C. licensed commercial stations or their listeners. The F.C.C., however, has not provided a means by which persons wishing to avail themselves of this new technological opportunity can legally do so. The problem is not that micro radio broadcasters are refusing to comply with F.C.C. licensing procedures. Rather, the fundamental problem is that the F.C.C. has not provided procedures by which micro radio broadcasters can become licensed or authorized. Instead, the F.C.C. is applying severe administrative and criminal sanctions, intended for application to large-scale, commercial operators, to micro radio broadcasters with the goal of completely precluding all such broadcasts. The very notion of assessing a $20,000 forfeiture against Mr. Dunifer, an individual with no prior F.C.C. violations, accused of transmitting two low-power, non-commercial broadcasts of approximately 1 hour duration, is ludicrous. It is the obligation of the F.C.C. to construct and enforce its regulatory framework in such a way as to safeguard the First Amendment right of free speech for all persons, regardless of their economic power. By totally prohibiting low-power micro radio, the F.C.C. has failed to comply with its congressional mandate to regulate the airwaves in the public interest, has exceeded the limits of the power conferred upon it by Congress, and is violating the constitutional rights of micro radio broadcasters and their listeners." Response to N.A.L., N.A.L./Acct. No. 315SF0050, SF-93-13555, at pp. 1-2. [Footnote omitted, emphasis in original]. After the F.C.C. denied defendant’s June 28, 1993 request for relief, defendant, pursuant to 47 C.F.R. §1.115, filed with the F.C.C. an Application for Review of Action Taken Pursuant To Delegated Authority. That Application set forth, in detail, the constitutional and procedural arguments as to why the F.C.C.’s N.A.L in defendant’s case, as well as the absolute ban of all low-power FM broadcasting, is illegal. A copy of that document is attached hereto as exhibit B and incorporated herein by reference. As of the date of this filing, the F.C.C. has not acted upon that Application for Review. At footnote 21 of the Application, defendant asks the F.C.C. to provide defendant with any rules or authority that would permit him to seek and obtain F.C.C. authorization to engage in low-power FM broadcasts. The F.C.C. has not responded to that request for the simple reason that no regulations exist by which defendant or any other citizen can apply for or be granted F.C.C. authorization to engage in low power FM broadcasts. Defendant’s formal application for F.C.C. review has been pending for nearly a year and a half with absolutely no response or action by the F.C.C. In July of this year, the Court of Appeals for the D.C. Circuit struck down the entire administrative fine structure upon which the F.C.C. relied to levy its $20,000 fine against plaintiff. Now, plaintiff comes to this Court seeking the extraordinary relief of a Temporary Injunction, claiming imminent and irreparable harm. In his Answer to the plaintiff’s Complaint, Defendant will set forth in detail the constitutional and procedural reasons why the F.C.C.’s regulatory scheme must be rejected by this Court. At this juncture, however, there are several compelling reasons why this Court should reject plaintiff’s request for injunctive relief: 1) The F.C.C., itself, has pending before it documents which seek to permit Mr. Dunifer to broadcast with low-power transmissions. They have been sitting on those documents for over a year without acting on them. They should be compelled to respond to those arguments, even if their response is to be in the negative, before seeking the assistance of this court. 2) Evidence to be presented at hearing will demonstrate that Mr. Dunifer, if authorized to broadcast at a low-power frequency by the F.C.C. can insure that agency that his transmissions will not interfere with emergency channels, or with other licensed broadcasters. The transmitters he has created possess the same ability to insure filtering and frequency accuracy as any officially approved by the F.C.C. Because of the F.C.C.'s current licensing scheme which completely prohibits all low power FM broadcasting, there are no means by which Mr. Dunifer can get formal approval to broadcast with these transmitters. At trial, expert evidence will be presented to demonstrate the adequacy of these devices to broadcast without interference. On the rare occasions in the past when Free Radio Berkeley broadcasts did possibly interfere with another channel, it immediately went off the air, corrected any problem that caused the interference or moved to a frequency where such interference would not occur. The Communications Act of 1934, section 324, requires that broadcasters use the "minimum amount of power necessary to carry out the communications desired" for their broadcasts. Instead of authorizing micro-broadcasting, the F.C.C. licenses stations with tens of thousands of watts. These high-power stations (some of which are as powerful as 100 kilowatts) result in frequent reception difficulties due to the overloading of the FM receivers possessed by many individuals, thereby preventing the reception of nearby F.C.C. licensed broadcast signals of a lessor power. This problem results in a much greater degree of interference than anything that could be accomplished by a micro-broadcaster. At trial, defendant will offer expert testimony to support his representation that his transmitters meet all technical requirements which are constitutionally imposed by the F.C.C. 3) Mr. Dunifer is currently accused of broadcasting for a 3-hour period once a week from the Berkeley Hills. In an 18 month period, the F.C.C. has cited to only two possible occasions when they believe Mr. Dunifer interfered with another station. Evidence at trial will demonstrate that many stations actually licensed by the F.C.C. regularly interfere with other potential broadcasters more frequently than any interference alleged to have been caused by Mr. Dunifer, and with more harmful results. 4) Plaintiffs cite to this Court the Ninth Circuit’s decision in U.S. v. Nutri-Cology, 982 F.2d 394 (1992) for the proposition that the government has met their burden of showing the "irreparable injury" required before this Court can grant the Temporary Injunction. As that decision clearly states, however, the fact that a statutory violation is alleged does not relieve the government of its obligation to make a showing of irreparable injury. 982 F.2d 394,398. Indeed, in Nutri-Cology, both the district court and the Ninth Circuit found the government had failed to make an adequate showing of irreparable injury, and both courts denied the government’s request for injunctive relief. A primary factor in the Court’s decision was that the statutory violation alleged was "substantially disputed, and has been disputed since 1982." 982 F.2d 394,398. Also of importance to the Court was the considerable delay in the government’s seeking relief. 982 F.2d 394, 396. Immediately following the passage quoted by plaintiffs in their Points and Authorities Memorandum (p.6), the Court stated: "However, in statutory enforcement cases where the government can make only a "colorable evidentiary showing" of a violation, the court must consider the possibility of irreparable injury." 982 F.2d 394,398. In the present case, as in Nutri-Cology, the alleged statutory violation is disputed, and has been consistently disputed from the inception of the still-pending administrative proceedings. Furthermore, the only injury alleged by the government here consists of the two minor incidents in which Free Radio Berkeley has been said to have interfered with the licensed broadcasts of a high school radio station late on a Sunday night. As defendant has repeatedly pointed out to the F.C.C. (see exhibits A and B), the agency’s allegations of potential interference with aircraft navigational broadcasts have never been documented, and are spurious. If there is irreparable harm to be found in this case, it is the on-going policy of the F.C.C. to license only the rich, and a handful of educational institutions, that creates such harm. Technology currently exists to allow thousands of Americans to have access to the airwaves in ways that could assure their democratic use and a meaningful voice in the democratic process. Instead, the F.C.C. has created a system whereby the public listens, and the elite broadcast. Allowing Steven Dunifer to continue broadcasting within a 5 - 30 watt limit on a frequency that is not being used by other licensed broadcasters poses a threat to no one. Mr. Dunifer is willing to inform the F.C.C. as to what frequency he will be broadcasting from, and what the wattage will be, if the F.C.C. will permit him the opportunity to continue broadcasting during the pendency of these proceedings. This court has the power and discretion to seek such a compromise from the F.C.C. during these proceedings. Such would provide an excellent test case regarding the opposing assertions made by the parties herein. The F.C.C. has refused to acknowledge that there could be safe, non-interfering micro-power broadcasts, and have made no provisions for authorizing them. The myriad of constitutional violations set forth in exhibits A and B, which arise as a result of the F.C.C.'s decision to preclude the poor from having any access to the airwaves, must not be sanctioned by this court. There are numerous less restrictive alternatives to the current licensing scheme enforced by the F.C.C. that would provide the American people with use of the airwaves. For the reasons set forth in the Response and Application currently pending before the F.C.C., their request for a Temporary Injunction should be denied. The F.C.C.’s current regulations result in the prior restraint of speech, the suppression of diverse ideas, and the unavailability of the airwaves for democratic communications in this country. Those are the rights which defendant seeks to vindicate in this proceeding, and he should not be cut short at this stage by the unfounded accusations of the plaintiffs. DATED: ____________ , at San Francisco, California. Respectfully submitted, LOUIS N. HIKEN, SBN 45337 Attorney for Defendant United States Telephone Association v. F.C.C., No. 92-1321, No. 93-1526, 1994 U.S. App. Lexis 17002. Had defendant, rather than plaintiff, come to this Court seeking injunctive or declaratory relief, the F.C.C. would be vehemently urging denial of review pending exhaustion of administrative remedies. In fact, in a very similar case, Dougan v. F.C.C., 94 C.D.O.S. 2735, No. 92-70734 (9th Cir. 1994) the F.C.C. argued to the Ninth Circuit that the only avenue for judicial review in these cases is appeal to the District Court after the F.C.C. has initiated formal enforcement proceedings to seize the forfeiture amount. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31