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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HIS ANSWER TO PLAINTIFF’S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF TABLE OF CONTENTS TABLE OF AUTHORITIES i i INTRODUCTION 1 I. THE F.C.C. SHOULD BE REQUIRED TO COMPLETE ITS PENDING ADMINISTRATIVE REVIEW OF THESE ISSUES BEFORE SEEKING RELIEF FROM THIS COURT. 6 II. THE PROHIBITION OF MICRO RADIO VIOLATES THE F.C.C.’S STATUTORY MANDATE TO REGULATE THE AIRWAVES IN THE PUBLIC INTEREST, TO ENCOURAGE THE LARGER AND MORE EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST, TO ENCOURAGE THE PROVISION OF NEW TECHNOLOGIES AND SERVICES TO THE PUBLIC, AND TO PROMOTE DIVERSIFICATION OF THE MASS MEDIA AS A WHOLE. 8 III. T HE F.C.C. REGULATIONS PROHIBITING MICRO RADIO VIOLATE THE FIRST AMENDMENT. 1 1 A. THE SPECTRUM SCARCITY DOCTRINE NEITHER REQUIRES NOR JUSTIFIES THE REGULATIONS. 11 B. THE REGULATIONS AS APPLIED IN THIS CASE ARE CONTENT BASED RESTRICTIONS OF SPEECH, AND ARE NOT NARROWLY TAILORED TO FURTHER A SUBSTANTIAL GOVERNMENT INTEREST. 15 IV. P LAINTIFF’S SUGGESTION THAT DEFENDANT HAS NOT PURSUED "AVAILABLE" MEANS OF OBTAINING F.C.C. AUTHORIZATION TO ENGAGE IN MICRO RADIO BROADCASTING IS FATUOUS. 2 0 V. THE PROHIBITION OF INTRASTATE MICRO RADIO BROADCASTS EXCEEDS THE FEDERAL GOVERNMENT'S REGULATORY AUTHORITY UNDER THE COMMERCE CLAUSE 2 3 VI. T HE F.C.C.’S PROHIBITION OF MICRO RADIO BROADCASTING VIOLATES MICRO RADIO BROADCASTERS' AND THEIR LISTENERS' RIGHT TO COMMUNICATE UNDER THE U.N. DECLARATION OF HUMAN RIGHTS, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, AND THE AMERICAN CONVENTION ON HUMAN RIGHTS. 2 3 CONCLUSION 2 5 TABLE OF AUTHORITIES Cases Associated Press v. United States, 326 U.S. 1 (1945) 12 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) 12 FCC v. League Of Women Voters of California 468 U.S. 364 (1984) 5, 14, 15, 17 Federal Communications Commission v. National Citizens Committee For Broadcasting et al. 436 U.S. 775 (1978) 5, 10, 11, 12 National Broadcasting Co. v. United States 319 U.S. 190 (1943) 5, 9, 10, 12 Near v. Minnesota 283 U.S. 697 (1931) 17 New York Times Co. v. United States 403 U.S. 713 (1971) 17 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) 5, 10, 13, 14 United States v. McIntire, 365 F.Supp 618 and 370 F.Supp 1301 (D.N.J. 1974) 4,7 United States v. Medina, 718 F.Supp 928 (S.D.Fla. 1989) 4 Statutes 47 U.S.C. §154(i) 8 47 U.S.C. §157(a) 4 47 U.S.C. §303(r) 8 47 U.S.C. §301 2, 23 47 U.S.C. §301(d) 23 47 U.S.C. §303(g) 3, 9 47 C.F.R. part 15 2 47 C.F.R. §12.1235 19 47 C.F.R. §12.1237 20 47 C.F.R. §15.1 2 47 C.F.R. §15.239(a) 2 47 C.F.R. §15.239(b) 20,21 47 C.F.R. §73.201 19 47 C.F.R. §73.211(a) 2 47 C.F.R. §73.506 2 47 C.F.R. §73.511(a) 19 47 C.F.R. §74.1201 19 47 C.F.R. §74.1202 19 47 C.F.R. §74.1202(b) 19 47 C.F.R. §74.1203 19 47 C.F.R. §74.1232 19 47 C.F.R. §74.1250 20 47 C.F.R. §74.1261 20 47 C.F.R. §74.1262 20 47 C.F.R. §74.1263 20 Public Broadcasting Act of 1967, §399 16 Other Authorities Public Notice CRTC 1993-95, CRTC (1993) 18 Radio World, August 10, 1994, p. 9, "Radio Translators Fill in Coverage Gaps." 19 Report and Recommendations in the Low Power Television Inquiry, Appendix 1 (BC Docket No. 78-253) 18 Telecommunications, Mass Media, and Democracy; The Battle for the Control of U.S. Broadcasting, 1928-1935, by Robert W. McChesney, Oxford University Press, 1993 22 U.N. Declaration Of Human Rights, Article 19 24 International Covenant On Civil And Political Rights, Article 19 24 American Convention On Human Rights, Article 13(2) 24 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HIS ANSWER TO PLAINTIFF’S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Introduction Micro radio represents a technological advancement comparable to the invention of the printing press. For the first time in history, the technology exists whereby an individual without corporate or government backing, or independent wealth can, for less than one hundred dollars, obtain equipment by which she can broadcast to her neighborhood, making possible truly community oriented, originated, and controlled radio. Micro radio is the leaflet of the 1990’s, permitting citizens to communicate with their neighbors by a method heretofore reserved for huge radio stations promoting commercial interests from distant locations. The central issue in this case is the F.C.C.’s prohibition of micro radio broadcasting. Despite plaintiff’s protestations to the contrary , the F.C.C. is indeed enforcing a complete and absolute ban of all micro radio broadcasts--that is, all original FM broadcasts of less than 100 watts capable of reaching a listening audience. Federal law prohibits anyone from broadcasting without a license , and the F.C.C. refuses to grant anyone a license unless they are capable of broadcasting with a minimum of 100 watts. While 47 C.F.R. part 15 permits certain unlicensed "broadcasts," this exception to the 100 watt minimum applies only if the field strength of the broadcast is less than 250 microvolts/meter at three meters. As plaintiff is well aware, a broadcast in compliance with the parameters of 47 C.F.R. part 15 could not be received by anyone farther than a house or two away from the source. Plaintiff’s denial that their rules completely prohibit micro radio is deceptive, and begs the question before this court. Plaintiff has stated to this court that, "The same public interest considerations that require licensing of other radio devices apply equally to low-power stations: namely to prevent the ‘cacophony of sounds’ and chaos on the limited radio spectrum." Assuming, arguendo, that this is true, plaintiff has never proffered an explanation as to why, if "the same public interest considerations" apply, the government has refused to establish any procedure by which defendant or anyone else can engage in licensed, regulated micro radio broadcasting. Plaintiff's regulations apply to broadcasters in rural areas with virtually no spectrum competition just as they do to areas with a concentrated number of stations. Plaintiff has argued to this court that the "logical extension" of defendant’s argument is that "anyone proclaiming that he will not cause interference can set up a radio station without F.C.C. oversight." Defendant, however, does not challenge the F.C.C.’s authority to regulate micro-power broadcasts. Rather, defendant herein challenges the constitutionality of the F.C.C.’s complete ban of all FM broadcasts of less than 100 watts. The F.C.C. is statutorily required to regulate the airwaves in the public interest, and to "study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest." 47 U.S.C. § 303(g). 47 U.S.C. §157(a) provides that, "It shall be the policy of the United States to encourage the provision of new technologies and services to the public." 47 U.S.C. §324 provides that, "In all circumstances, except in case of radio communications or signals relating to vessels in distress, all radio stations, including those owned and operated by the United States, shall use the minimum amount of power necessary to carry out the communication desired." Micro radio provides a perfect opportunity for the F.C.C. to fulfill these statutory mandates. Instead, the F.C.C. is enforcing an irrational ban of micro radio. The government asserts repeatedly its interest in "regulating the airwaves," but nowhere explains to this Court how this ban serves the public interest, or why it has chosen to prohibit micro radio altogether. The constitutionality of the F.C.C.’s prohibition of micro radio is a matter of first impression. The cases cited by plaintiff regarding the district court authority to enjoin unlicensed broadcasts involved full power broadcasts; activities for which the enjoined parties could have been licensed, had they gone through the appropriate procedures. The ban of micro radio at issue here is distinguishable from cases in which the F.C.C. has denied a broadcast license to an individual applicant. Here, a whole class of broadcasters is denied even the opportunity to apply for a license, based upon the F.C.C.’s unreasonable decision to impose the 100 watt minimum. Defendant herein could never be licensed to conduct micro radio broadcasts under the current regulatory framework, because of the 100 watt minimum. The fact that this case presents a matter of first impression does not leave the court without applicable standards. Several Supreme Court cases, including four cases cited but not discussed by plaintiff, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), FCC v. League Of Women Voters of California 468 U.S. 364 (1984), National Broadcasting Co. v. United States 319 U.S. 190 (1943), and Federal Communications Commission v. National Citizens Committee For Broadcasting et al. 436 U.S. 775 (1978), provide the constitutional and statutory standards with which the government’s regulation of the airwaves must comply. These cases make clear that while the F.C.C. is granted wide latitude in its regulation of the airwaves, its discretion is far from absolute. The Commission’s regulations governing the licensing of broadcasters must serve the public interest, convenience, or necessity. This mandate includes the requirement that the airwaves must be regulated in a manner which protects and furthers the public’s First Amendment rights to have access to a broad and diverse range of opinions and perspectives, and to receive a balanced presentation of views on diverse matters of public concern. Furthermore, while the doctrine of "spectrum scarcity" results in a modified First Amendment analysis for the broadcast media, even this modified analysis has permitted government restrictions of broadcasters’ First Amendment rights only when such restrictions were narrowly tailored to further a substantial government interest. Plaintiffs have chosen to ignore the central issue in these proceedings (the constitutionality of their prohibition of micro radio), and in so doing mis- characterize the question before this court as a simple matter of deciding whether or not the F.C.C. has the authority to regulate the airwaves, and whether or not defendant has broadcast without an F.C.C. license. Defendant does not herein challenge the F.C.C.’s authority to regulate the airwaves, nor does defendant deny that he has broadcast without an F.C.C. license. Defendant does not have an F.C.C. license to engage in micro radio broadcasting because the F.C.C. simply does not provide any mechanism or procedure whatsoever by which such a license can possibly be obtained, by defendant or by anyone else. This prohibition of micro radio broadcasting is unreasonable, does not serve the public interest, and violates the First Amendment. If the regulations as currently enforced by the F.C.C. violate the agency’s statutory mandate and are unconstitutional, defendant’s violation thereof cannot form the basis for granting the declaratory and injunctive relief sought by plaintiff. I. THE F.C.C. SHOULD BE REQUIRED TO COMPLETE ITS PENDING ADMINISTRATIVE REVIEW OF THESE ISSUES BEFORE SEEKING RELIEF FROM THIS COURT. 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., and, on December 2, 1993, 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 the constitutional and procedural arguments as to why the F.C.C.’s N.A.L in defendant’s case, as well as the ban of all micro radio broadcasting, is illegal. More than a year and a half has passed since defendant first filed his request for relief challenging the F.C.C.’s ban of micro radio. The F.C.C. has not responded to that request. The F.C.C. should be required to complete its own internal review of these issues before seeking this Court’s intervention. Plaintiff cites United States v. McIntire, 365 F.Supp 618 and 370 F.Supp 1301 (D.N.J. 1974) in this regard, but McIntire is distinguishable from the present case. In McIntire, the defendant lost his F.C.C. license, and then engaged in full-power broadcasts from a boat offshore. There was no currently-pending administrative review action, as there is here, initiated by the F.C.C. and raising the precise issues as those before the federal court. It is ironic that the F.C.C. claims that defendant herein has failed to pursue discretionary administrative relief, such as a rule-change or waiver request, and yet has itself refused to respond to defendant’s administrative appeal which has been before it for more than eighteen months. There are factual and legal questions to which the F.C.C. itself should be required to respond; this will provide guidance useful to the Court in its evaluation of the pending issues. This Court should exercise its discretion to retain jurisdiction over this case, and require the F.C.C. to complete its internal administrative review of defendant’s claim. II. THE PROHIBITION OF MICRO RADIO VIOLATES THE F.C.C.’S STATUTORY MANDATE TO REGULATE THE AIRWAVES IN THE PUBLIC INTEREST, TO ENCOURAGE THE LARGER AND MORE EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST, TO ENCOURAGE THE PROVISION OF NEW TECHNOLOGIES AND SERVICES TO THE PUBLIC, AND TO PROMOTE DIVERSIFICATION OF THE MASS MEDIA AS A WHOLE. The authority for the F.C.C.’s regulatory power is derived from the Communications Act. 47 U. S. C. §303(r) provides that "the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [make] such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Act]." 47 U. S. C. §154(i) provides that, "The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions." The Communications Act also provides that, "...[t]he Commission from time to time, as public convenience, interest, or necessity requires, shall...[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest." 47 U.S.C. §303(g). The Supreme Court analyzed these statutory bases of the F.C.C.’s regulating authority in National Broadcasting Co. v. United States, 319 U.S. 190 (1943) (hereinafter "NBC"). In NBC, the Court upheld challenged F.C.C. regulations prohibiting multiple ownership of AM radio stations. The Court, after reviewing the statutory framework, found that, "[the] avowed aim of the Communications Act of 1934 was to secure the maximum benefits of radio to all the people of the United States," and that "[t]he criterion governing the exercise of the Commission's licensing power is the ‘public interest, convenience, or necessity.’" 319 U.S. at 215, 217. The Court acknowledged that because "[t]he facilities of radio are not large enough to accommodate all who wish to use them," Congress had committed to the F.C.C. the task of allocating the available spectrum space, but then stated: " The Commission was, however, not left at large in performing this duty. The touchstone provided by Congress was the public interest, convenience, or necessity, a criterion which is as concrete as the complicated factors for judgment in such a field of delegated authority permit. This criterion is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power. The requirement is to be interpreted by its context, by the nature of radio transmission and reception, by the scope, character and quality of services. The public interest to be served under the Communications Act is thus the interest of the listening public in ‘the larger and more effective use of radio.’ [citing 47 U.S.C. § 303 (g)]. The facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest." NBC, supra, 319 U.S. at 216, internal quotations and citations omitted. The Supreme Court again reviewed the F.C.C.’s regulatory authority, and the "public interest, convenience and necessity" standard, in Federal Communications Commission v. National Citizens Committee For Broadcasting et al. 436 U.S. 775 (1978) (hereinafter NCC). In NCC, the Court upheld F.C.C. regulations prospectively barring the initial licensing or the transfer of newspaper-broadcast combinations where there is common ownership of a radio or television broadcast station and a daily newspaper located in the same community. The Court discussed at length the relationship between the doctrine of spectrum scarcity, the First Amendment, and the F.C.C.’s obligation to regulate in the public interest: "As we have discussed on several occasions [citing NBC and Red Lion], the physical scarcity of broadcast frequencies, as well as problems of interference between broadcast signals, led Congress to delegate broad authority to the Commission to allocate broadcast licenses in the public interest. And the avowed aim of the Communications Act of 1934 was to secure the maximum benefits of radio to all the people of the United States. It was not inconsistent with the statutory scheme, therefore, for the Commission to conclude that the maximum benefit to the public interest would follow from allocation of broadcast licenses so as to promote diversification of the mass media as a whole. Our past decisions have recognized, moreover, that the First Amendment . . . values underlying the Commission's diversification policy may properly be considered by the Commission in determining where the public interest lies. The public interest standard necessarily invites reference to First Amendment principles and, in particular, to the First Amendment goal of achieving the widest possible dissemination of information from diverse and antagonistic sources." NCC, supra, 436 U.S. at 795, internal quotations and citations omitted. 47 U.S.C. 307 (a) directs that "the Commission, if public convenience, interest, or necessity will be served thereby, subject to the limitations of this Act, shall grant to any applicant therefor a station license provided for by this Act." In making initial licensing decisions between competing applicants, the F.C.C. has long given primary significance to diversification of control of the media of mass communications. Federal Communications Commission v. National Citizens Committee For Broadcasting et al. 436 U.S. 775,794 (1978). Yet under the F.C.C.’s current policy, no one is even permitted to apply for, much less be granted a license to engage in micro radio broadcasting. Micro radio represents a significant opportunity to further the important public interest and First Amendment goal of diversification of control of the mass media. Instead of fulfilling their statutory and constitutional mandate to regulate the airwaves in the public interest, and in a manner designed to achieve "the widest possible dissemination of information from diverse and antagonistic sources," the F.C.C. is relegating the airwaves to the exclusive control of megawatt stations serving corporate and commercial interests. III. THE F.C.C. REGULATIONS PROHIBITING MICRO RADIO VIOLATE THE FIRST AMENDMENT. A. THE SPECTRUM SCARCITY DOCTRINE NEITHER REQUIRES NOR JUSTIFIES THE REGULATIONS. The government seems to be asserting that the doctrine of spectrum scarcity provides to F.C.C. regulations absolute immunity from First Amendment challenge. This interpretation of the Supreme Court’s First Amendment analysis in this area is incorrect. As the cases cited in the above section make clear, the F.C.C.’s regulations must meet the "public interest, convenience and necessity" standard. "This criterion is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power," and the "public interest to be served under the Communications Act is . . . the interest of the listening public in the larger and more effective use of radio." NBC, supra, 319 U.S. at 216. "[The] public interest standard necessarily invites reference to First Amendment principles, and, in particular, to the First Amendment goal of achieving the widest possible dissemination of information from diverse and antagonistic sources." NCC, supra, 436 U.S. 775, 795. See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 122 (1973); Associated Press v. United States, 326 U.S. 1, 20 (1945). While the decisions cited by the F.C.C. indicate that the broadcast spectrum is subject to a different First Amendment standard than other media, the Supreme Court in these cases repeatedly emphasized its concern with broadening and diversifying the sources of information available to the public. None of these decisions permitted the type of across-the-board prohibition of a new means of community-based communication that is at issue in the present case. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Supreme Court upheld the F.C.C.’s "fairness doctrine" against a First Amendment challenge brought by broadcasters. The Red Lion decision enunciated the classic formulation of the "scarcity doctrine," establishing that the finite number of frequencies available in the broadcast spectrum mandated a modified First Amendment analysis for determining the constitutionality of government regulations of the broadcast medium. The Court, however, repeatedly emphasized that the paramount First Amendment concern underlying their decision was the right of the public to have access to perspectives, opinions, and ideas as wide and varied as possible on matters of public concern. The public’s First Amendment rights were held by the Court to outweigh those of broadcasters forced by the fairness doctrine to air views and opinions at odds with their own: "This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in [forbidding] FCC interference with the right of free speech by means of radio communication. Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee...It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 389-390, internal quotations and citations omitted. The public has a First Amendment right to receive the broad variety of view-points, perspectives, and programming formats which micro radio offers. The advent of micro radio not only gives radio listeners a non-governmental, non- commercial alternative to the perspectives presented on mainstream commercial or "public" radio; this new technology allows individual citizens to broadcast themselves, and present their own personal and local community interests directly and effectively, making the public airwaves truly public for the first time. Unlike commercially controlled interests involving huge financial investments, micro radio broadcasters will not shy away from controversial or wide-ranging topics of discussion to please the largest possible audience. The government’s assertion that the doctrine of spectrum scarcity requires or permits their ban of micro radio is unsupported by the case law to which they cite the Court. In FCC v. League Of Women Voters of California 468 U.S. 364 (1984), the Supreme Court struck down a federal statute prohibiting public broadcasters from endorsing political candidates or editorializing. The Court plainly stated that the restrictions placed upon the broadcast media under the spectrum scarcity rationale are permitted because the overall impact is to further and protect the public’s First Amendment rights of access to broad and diverse perspectives. Furthermore, the Court pointed out, never had restrictions based on spectrum scarcity been permitted absent a showing that they were narrowly tailored to further a substantial government interest: "...[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern....But, as our cases attest, these restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues." FCC v. League Of Women Voters of California, supra, 468 U.S. at 380-381, emphasis added, citations omitted. Applying this standard, the Court held that the statute before them violated the First Amendment because not all of the interests asserted by the government were deemed "substantial," and the statute was not narrowly tailored to further those interests that were so deemed. 468 U.S. at 398-402. B. THE REGULATIONS AS APPLIED IN THIS CASE ARE CONTENT BASED RESTRICTIONS OF SPEECH, AND ARE NOT NARROWLY TAILORED TO FURTHER A SUBSTANTIAL GOVERNMENT INTEREST. The F.C.C.’s decision to seek injunctive relief against defendant in this case is based upon the nature and the content of his broadcasts, and statements he has made in other print and broadcast media. Defendant herein is one of many micro radio broadcasters nationwide. Yet the government has sought to enjoin only defendant, the most prominent and outspoken critic of the F.C.C. and their regulatory authority. The government asserts that unless enjoined by this Court, defendant will cause irreparable injury to the public. Yet after months of intensive monitoring of Free Radio Berkeley (hereinafter "F.R.B."), the F.C.C. can point to only two instances of "interference." In both instances, the only interference to which the government refers was reported by F.C.C. agents themselves, and in at least one of these instances, only in the immediate proximity of the F.R.B. transmitter. In its October 14, 1994 response to a FOIA request filed by the newsletter of the National Lawyers Guild, the F.C.C. admitted that it had received no complaints regarding interference from the F.R.B. signal. Rather, as the F.C.C. response makes clear, the F.C.C. received a handful of complaints regarding the fact that defendant was broadcasting at all. Some of these complainants apparently never even heard an F.R.B. broadcast, but had seen flyers or otherwise heard about F.R.B.’s challenge to the F.C.C.’s regulations. Defendant’s public criticism of the F.C.C., rather than actual interference with licensed broadcasts, is the reason he has been targeted by the F.C.C. in this federal court action. Under the holding of FCC v. League Of Women Voters of California, supra, and the cases cited therein, content- based restrictions of speech, even in the broadcast media, are permissible only if narrowly tailored to further a substantial government interest. 468 U.S. at 380-381. The F.C.C. asserts that the government interest served by the prohibition of micro radio is the prevention of "chaos" and a "cacaphony of sound." The prohibition of micro radio broadcasting effected by the current regulatory scheme, however, is far from narrowly tailored to achieve this goal; there are clearly less restrictive means of regulation available which would not unduly burden the government. All of the government’s asserted concerns can be addressed by the regulation of micro radio broadcasting; the creation of a similar system of licensing broadcasters, assigning frequencies and monitoring the technical specifications of broadcasting equipment as that which exists for full-power broadcasts. The government need look no further than to Canada for examples of much less restrictive means of addressing micro radio. Since 1978, Canada has licensed low power FM radio broadcasters in remote communities with a simple three-page application form. The Canadian Radio-Television and Telecommunications Commission (CRTC) has recently modified its rules to permit such broadcasts even in urban areas, where frequency space is much more scarce. Indeed, in a report on low power television, the F.C.C. itself attached as an appendix a copy of Canadian recommendations regarding the regulation of low power FM broadcasting. These recommendations included the suggestion that application forms and required information be simple enough to allow for easy application by potential low power licensees. Review of this F.C.C. report and the attachments thereto reveals that the licensing and administrative requirements necessary to oversee operation of micro radio stations is not overly burdensome. Indeed, these licensing forms reveal that micro radio can be easily regulated so as to prevent any risk of signal interference. Further evidence of the less restrictive alternatives available to the Commission in this regard is available in the F.C.C.’s own history. Until relatively recently, Non- Commercial Educational FM broadcast stations could be licensed by the F.C.C. to broadcast with up to 10 watts of power. Finally, the F.C.C.’s own regulations pertaining to FM translators provide an example of how the F.C.C. could regulate micro radio. The F.C.C. permits translators to re- broadcast, on frequencies within the normal commercial and noncommercial FM radio band, signals that originate from huge radio stations located far from the community in which the translator is placed. Current F.C.C. regulations permit low power transmitters to operate with less than 100 watts if they are transmitting a signal originating from a full-power radio station, but prohibit local broadcasters from using a transmitter with identical wattage to broadcast any program originating in the listener’s community. The F.C.C. has promulgated translator regulations to address issues such as frequency assignment , interference , licensing requirements , power limitations , antenna location , transmitters and equipment , frequency tolerance , frequency monitors and measurements , and time of operation. Many of these regulations could be just as easily applied, almost verbatim, to micro radio broadcasts originating in the communities to which they are being broadcast. IV. PLAINTIFF’S SUGGESTION THAT DEFENDANT HAS NOT PURSUED "AVAILABLE" MEANS OF OBTAINING F.C.C. AUTHORIZATION TO ENGAGE IN MICRO RADIO BROADCASTING IS FATUOUS. Plaintiff suggests that defendant has not availed himself of possible avenues by which F.C.C. permission might be sought and obtained. This suggestion is disingenuous. Defendant, in his Application for Review currently pending before the F.C.C., responded to a similar contention raised by the F.C.C. in those proceedings. In their argument to this Court, the government has dropped some of the F.C.C.’s more transparent "suggestions" as to how defendant could supposedly have sought F.C.C. approval for micro radio broadcasting. Still remaining, however, are the F.C.C.’s assertions that, 1) defendant could legally broadcast without a license under the provisions of 47 C.F.R. § 15.239(b); and 2) defendant could have "asked the agency to establish rules that would permit him to operate...[by presenting] a rulemaking petition pursuant to the [A.P.A.], or a request for waiver." The first "option" is meaningless, since the field strength permitted by §15.239(b) is so low as to preclude any micro radio broadcast capable of being received beyond approximately one block away from the transmitter. The activity for which defendant is seeking F.C.C. permission consists of communicating with his neighbors and his community via the new technology which for the first time in history makes low power FM broadcasting economically feasible for individual citizens. The government’s suggestion that a micro radio broadcast could comply with the field strength limitations imposed by §15.239(b) is misleading, at best. The second option suggested by the government, petitioning the Commission for a rule change or waiver, again begs the question before this Court. Defendant is challenging the F.C.C.’s regulatory framework, as currently formulated and enforced, because they violate the F.C.C.’s statutory mandate and the First Amendment. Plaintiffs seek to avoid addressing the constitutional infirmity of the current rules by suggesting that defendant should have asked the F.C.C. to change or waive their rules. Citizens have no responsibility whatsoever to petition the F.C.C. to change unconstitutional regulations--rather, the F.C.C. is required to structure its regulatory framework so as to comply with the relevant statutory standards and the First Amendment. Similarly evasive is the government’s suggestion that there is no complete ban of micro radio because defendant could initiate a formal rule-change procedure under the A.P.A. Neither defendant, nor any other individual citizen of modest means, could conceivably afford the monetary expense involved in initiating and participating in such a process; nor could defendant hope to meaningfully compete with the commercial interests and their lobbyists that would inevitably become involved in and eventually control such a process. The historical significance of micro radio lies precisely in the fact that average citizens can now have access to the airwaves to communicate with their neighbors. Requiring defendant to initiate a formal rule- making procedure under the A.P.A. would serve the same function as the 100 watt minimum: it would place the ability to engage in this new form of communication out of the reach of all but the very wealthy. V. THE PROHIBITION OF INTRASTATE MICRO RADIO BROADCASTS EXCEEDS THE FEDERAL GOVERNMENT'S REGULATORY AUTHORITY UNDER THE COMMERCE CLAUSE. The Communications Act of 1934 was originally enacted to maintain the control of the United States over all the channels of interstate and foreign radio transmissions. This power is arguably in accord with Art. I Sect. 2 of the U.S. constitution, which permits Congress to regulate interstate commerce. While the language of 47 U.S.C. § 301(d) states that the F.C.C. has the authority to regulate even purely intrastate transmissions, the statute must be interpreted and applied in a manner consistent with the constitutional limitations of Congress's power to regulate interstate commerce. Thus, F.C.C. regulation of intrastate transmissions which interfere with, and perhaps those which are capable of interfering with, interstate commerce may be constitutional. However, where, as here, there is absolutely no showing that any of the F.R.B. transmissions has in any way interfered, or could possibly interfere, with interstate signals, the F.C.C. is venturing beyond its regulatory authority. An application or interpretation of 47 U.S.C. §301 which permits such excessive regulation is unconstitutional under the commerce clause. VI. THE F.C.C.’S PROHIBITION OF MICRO RADIO BROADCASTING VIOLATES MICRO RADIO BROADCASTERS' AND THEIR LISTENERS' RIGHT TO COMMUNICATE UNDER THE U.N. DECLARATION OF HUMAN RIGHTS, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, AND THE AMERICAN CONVENTION ON HUMAN RIGHTS. More than at any time in the world’s history, communication amongst the world’s people plays a pivotal role. Events in places such as Bhopal, Chiapas, or Chernobyl can and do profoundly impact societies and communities halfway around the world. As a result, each nation’s communications policies take on an importance unparalleled in many other fields of law. Given the international scope of events that the world’s peoples must learn about, it is more important than ever for the Court to incorporate into its evaluation of the issue pending before it those treaties and international principles that shed light on this subject. These treaties are made part of the law of our nation through Article VI of the U.S. Constitution, and are highly relevant to consideration of the issues argued herein. Article 19 of the U.N. Declaration Of Human Rights and the parallel Article 19 of the International Covenant On Civil And Political Rights state: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information through any media and regardless of frontiers." These international treaties promote recognition of the right to expression and information as a universal human right guaranteed by international law. The treaties expressly forbid undue restraints on freedom of expression, and require the government to establish, and substantiate if necessary, its justification for restrictions placed upon its citizens' right of free expression. Similarly, Article 13(2) of the American Convention on Human Rights requires that any governmental "restrictions imposed. . . on freedom of expression depend upon a showing that the restrictions are required by a compelling state interest," and that if there exist "various options to achieve this objective, that which least restricts the right protected must be selected." As signatory to these international treaties, the United States government has a responsibility to conform its regulation of the electronic broadcast media to the treaties' requirements. The F.C.C.’s ban of micro radio broadcasting is a blatant violation of this most fundamental of internationally recognized human rights. Conclusion For the reasons stated above, defendant respectfully requests that the Court deny the relief sought by defendants, and declare the F.C.C. prohibition of micro radio unconstitutional and in violation of the F.C.C.’s statutory mandate to regulate the airwaves in the public interest. DATED: ____________ , at San Francisco, California. Respectfully submitted, LOUIS N. HIKEN, SBN 45337 Attorney for Defendant The term "Micro radio" refers to low-power FM broadcasting, ranging from 1 watt or less to about 30 watts, as contrasted with the thousands, or even hundreds of thousands, of watts generated by most commercial and public broadcasting radio stations. See PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION at p.11. 47 U.S.C. 301 (1994) 47 C.F.R. §73.211(a) provides that FM stations must operate with a minimum effective radiated power (ERP) of 0.1kW, or 100 watts. 47 C.F.R. §73.506 provides that noncommercial educational FM stations may broadcast with less than 100 watts, but in 1985 the F.C.C. promulgated 47 C.F.R. 73.511(a), which provides that "No new noncommercial educational station will be authorized with less power than minimum power requirements for commercial Class A facilities [100 watts]." See 47 C.F.R. §15.1 et. seq. 47 C.F.R. §15.239(a) IBID. PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION at p. 6. United States v. Medina, 718 F.Supp 928 (S.D.Fla. 1989); United States v. McIntire, 365 F.Supp 618 (D.N.J. 1973); United States v. McIntire, 370 F.Supp 1301 (D.N.J. 1974). The Response to the N.A.L. and the Application for Review were submitted to this Court with Defendant’s Opposition to Plaintiff’s Motion for Preliminary Injunction, as, respectively, Exhibits A and B thereto. Federal Communications Commission v. National Citizens Committee For Broadcasting et al. 436 U.S. 775, 795 (1978) The fairness doctrine imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues be given fair coverage. Red Lion, supra, 395 U.S. at 369. The doctrine included components, codified as formal rules promulgated by the F.C.C., which required broadcasters to allow equal time for response by any identified person or group "personally attacked" on the air, and equal time for candidates opposing any candidate endorsed editorially by the broadcasters. Id. at 373; see also 32 Fed. Reg. 10303, twice amended, 32 Fed. Reg. 11531, 33 Fed. Reg. 5362 (1968). Section 399 of The Public Broadcasting Act of 1967. The F.C.C. has filed N.A.L.s against numerous micro radio broadcasters who have continued their unlicensed broadcasts. The F.C.C. has not sought injunctive relief against any of these other broadcasters in spite of the fact that their broadcasts are more frequent and regular than those of defendant. See, e.g., the newspaper and magazine articles attached as Exhibits A and B to PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION. See the declarations submitted with PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Hartshorn Declaration and Zears Declaration. In one of these instances, the alleged interference was encountered only after the F.C.C. agent drove literally right up to the transmitter. See Zears Declaration at 7-10. The broadcast discussed therein was intended for and capable of reception by only the participants in the Anti-Nuclear Rally in immediate vicinity of the transmitter. Copies of the FOIA request and the F.C.C. response are attached hereto and marked as Exhibit A. To the extent that the F.C.C. justifies its ban of micro radio based upon the possibility that some micro radio broadcasters might cause interference to other licensed broadcasters, the ban constitutes an impermissible prior restraint of speech. New York Times Co. v. United States 403 U.S. 713 (1971); Near v. Minnesota 283 U.S. 697 (1931). Sample form attached hereto and marked as Exhibit B. Public Notice CRTC 1993-95, CRTC (1993), attached hereto and marked as Exhibit C. Report and Recommendations in the Low Power Television Inquiry, Appendix 1 (BC Docket No. 78-253). 47 C.F.R. §73.511(a). See Radio World, August 10, 1994, p. 9, "Radio Translators Fill in Coverage Gaps", attached hereto and marked as Exhibit D. 47 C.F.R. §74.1201 et. seq., copy attached hereto and marked as Exhibit E. §74.1202(b), which provides the frequencies on which translators may broadcast, refers to the frequencies as "channels." 47 C.F.R. §73.201 explains that the frequencies available for FM broadcasting are given numerical designations, or channel numbers. §73.201 also contains a table that provides the channel numbers designated for each available frequency. For the Court’s easy reference, a copy of §73.201 is attached hereto and marked as Exhibit F. See 47 C.F.R. §74.1202. See 47 C.F.R. §74.1203. See 47 C.F.R. §74.1232. See 47 C.F.R. §12.1235. See 47 C.F.R. §12.1237. See 47 C.F.R. §74.1250. See 47 C.F.R. §74.1261. See 47 C.F.R. §74.1262. See 47 C.F.R. §74.1263. See PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION at p.8, n.3 See Defendant’s APPLICATION FOR REVIEW OF ACTION TAKEN PURSUANT TO DELEGATED AUTHORITY at pp. 4-6, submitted to the F.C.C. on December 2, 1993, in response to the F.C.C.’s FORFEITURE ORDER dated November 8, 1993. The APPLICATION FOR REVIEW is attached as exhibit B to DEFENDANT’S MOTION IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, filed with this Court on November 14, 1994. PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION at p. 10, PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION at p.8, n.3. Furthermore, defendant has requested that, "To the extent that any standards or procedures do exist pertaining to the Commission’s suggestion that we request a rule change or waiver, or that persons should apply for a license despite the fact that they know they do not meet the regulatory requirements, we would request at this time that the Commission provide such standards or procedures to us, to guide us in attempting to comply with the Commission’s suggestions." See Defendant’s APPLICATION FOR REVIEW OF ACTION TAKEN PURSUANT TO DELEGATED AUTHORITY at p.5, n.18, submitted to the F.C.C. on December 2, 1993, in response to the F.C.C.’s FORFEITURE ORDER dated November 8, 1993. The APPLICATION FOR REVIEW is attached as exhibit B to DEFENDANT’S MOTION IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, filed with this Court on November 14, 1994. The F.C.C. has not responded to this request. For the definitive discussion of why it is a cruel hoax to suggest that an individual such as defendant might obtain relief through this process, see Telecommunications, Mass Media, and Democracy; The Battle for the Control of U.S. Broadcasting, 1928-1935, by Robert W. McChesney, Oxford University Press, 1993. U.N. Human Rights Committee, Communication No. 11/1977, paragraph 17. Advisory Opinion of the Inter-American Court, 13 November 1985, 8 EHRR 165. 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 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