Some Comments and Excerpts from:


"The United States of America Vs Stephen Dunifer"


by: The Black Hat, FRB Programmer
     What happened on January 20, 1995 was a continuing play of historic events that embraced the acts of those who were in attendance in the United States District Court of the Northern District of California in San Francisco.
     These included (in spirit) the Plaintiff, the United States, an oppressive geo- political entity that resides between the sovereign states of Canada to the north and Mexico to the south and in body its representatives: David Silberman, an attorney for the FCC and Patricia Duggan, special assistant United States attorney. Also appearing for the Defendant, Stephen Dunifer, a political activist, an anarchist and a twenty five year veteran of street action: Louis Hiken, his attorney, and Peter Franck, an attorney.
     Sitting on the bench is a person who recent decisions have given hope to many struggling groups and individuals: the (very) honorable Claudia Wilken, United States District Judge.
     Neither the Plaintiff nor the Defendant speak as the drama of the day unfolds: Ms. Duggan, Mr. Hiken and Mr. Silberman introduce themselves to Judge Wilken, referred in the transcripts as "the court". She responds:

The Court: Well, it seems to me that there are some constitutional issues here with respect to the FCC's regulatory scheme. It appears that this Court is not the one that would rule those....it seems that what this Court should do is allow the FCC to have its consideration of the issues, which it could do in the context of the pending forfeiture action [the $20K fine against Stephen Dunifer by the FCC]. If Mr. Dunifer or anyone else doesn't like what the FCC does, it can appeal it, I presume.

     Judge Wilken is making the case for the constitutional effects of the FCC's restriction of broadcast under 100 watts. She is attempting to redirect the FCC back to its own internal processes as a means to address the issue before the court that day.
     Mr. Silberman interrupts her thought and interjects peevishly:

Mr. Silberman: No, Your Honor. And we disagree that the pending forfeiture matter has any effect on this Court's jurisdiction...to issue an injunction to prevent a continuing irreparable harm...

     He attempts the argument that all other FCC means to stop Stephen's broadcasts have been "exhausted" and the FCC must ask the court to stop him with an injunction.

Mr. Silberman: Your Honor, we believe that there is a major difference between a preliminary injunction, which is to prevent further violations of the law and the forfeiture matter which is pending at the agency.

     Judge Wilken reminds Mr. Silberman of the FCC's "primary jurisdiction" and he objects, claiming a "major difference" between the request for an injunction and the $20,000 fine. Clearly Mr. Silberman has been taken by surprise and indulges in a lengthy harangue at Judge Wilken.

Mr. Silberman: The forfeiture deals with two of the 24 illegal broadcasts. And not to issue an injunction would allow the lawlessness to continue...Section 504(a) of the Communications Act requires the commission to ask the United States to file a complaint against the Defendant, Mr. Dunifer to recover the amount of the [fine]. There would be a trial...on that matter which could take some time...[I]n our view, the case that we cite to you...addressed that issue about exhaustion. The statute specifically authorizes this Court to issue an injunction if there are violations of the statute. The substantive charges are not disclaimed or denied in this case. there is an ongoing violation of Communications Act because of making radio transmissions without a license...We've proved irreparable harm because the statutory violation gives us that presumption.

The Court: Not if the statute is unconstitutional.

Mr. Silberman: Your Honor, there is no facial challenge to the constitutionality of the Communications Act, Section 301, in this case.

The Court: There's a challenge to the regulatory scheme.

Mr. Silberman: And if the defendant, or anyone else who wants to operate a radio station, wants to challenge those regulations, they can file a petition for rule- making at the commission...All of the cases support us, your honor...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... [where] 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.

     Mr. Silberman is clearly beginning to squirm and chafe under the idea that he may not only not get his injunction, but that Judge Wilken may take the FCC to task for it's procedures and require some clarification of Stephen Dunifer's rights under the present circumstances. The judge has no problem admitting that she could in fact do something on behalf of the situation, but turns the matter back to the FCC saying that they have preempted their own available procedures and prematurely brought the matter to the court.

The Court: I don't dispute that I have the jurisdiction. My concern is that if there were--and I think there are--serious questions about the constitutionality of [your] regulatory scheme, and if the FCC is meant to address those before I do, or in fact to the exclusion of me addressing them, how can we obtain the FCC's rulings on that so that they can then be reviewed by some court...My thought was that we could do it in the context of the forfeiture action. This action could be stayed. The forfeiture action could be ruled upon. You say it would have to go to the District Court first, right?

     This bombshell from Judge Wilken sends Silberman into a panic and he tries to demonize Stephen Dunifer and his broadcasts and criticizes the actions of the court in this context.

Mr. Silberman: That's right. And then there would be an appeal to the Court of Appeals and then the Supreme Court, all the while if there was no injunction by this Court, Mr.Dunifer would have the freedom to violate the law. And this Court, by not issuing an injunction, would permit him to violate the law...Your Honor, the Defendant has a right to go to the commission and ask it to change its mind. What this Court should do is issue an injunction to prevent him from continuing to broadcast, because each broadcast provides for irreparable injury.

     Mr. Silberman is unable to resist throwing in a personal note that reflects on his age and what he presumes to be the age of Judge Wilken.

Mr. Silberman: The constitutionality of Section 301 was established right after I was born and before you were born, Your Honor, in 1943 in the NBC case. The Supreme Court said, "No one has a right to operate a radio station without a license, and the scheme for licensing is constitutional." ...The law is clear, Your Honor. An injunction should issue.

     Judge Wilken now turns to Mr. Hiken, Stephen's attorney. In the course of their conversation, Mr. Hiken makes it clear how the FCC will not listen to requests for rule changes under its own regulations. He punctures the argument that FRB broadcasts are any sort of "emergency", given the nature and amplitude of micro- power broadcasting. He points out the position of the FCC in not recognizing the "standing" of person to challenge their "regulatory scheme".

The Court: Why don't you petition for a change in the rule to the FCC?

Mr. Hiken: We believe that...the forfeiture hearing is a perfectly legitimate forum within which to raise this.

The Court: Maybe so, but why not file this petition to change the rule, in addition to it?

Mr. Hiken: [refers Court to book] [This] book outlines the history of the FCC from the period of 1928 to 1935 in which the radio industry...was placed in the pockets of the corporations that have controlled them since. The idea that the FCC does not have before them the information they need to initiate rule proceedings on their own is ludicrous. There is a broadcaster in Springfield [Illinois] who has been broadcasting 24 hours a day, a blind African American man, for five years. They gave him a forfeiture order five years ago. If there is an emergency, why is it that they haven't done anything about that? There's no emergency in this case. And we would point out to the Court that the suggestion you were making is exactly what should occur here. We made a request in the forfeiture order that "If there were proceedings or rules or means whereby we can raise this issue for your consideration, please give them to us." We did that a year and a half ago.

The Court: Right. But what they are saying is you're supposed to file a petition for a change of the rules.

Mr. Hiken: But the petition for change of rules is a procedure which is applicable...only if the constitutional standard is appropriate and legitimate...

The Court: I don't follow that. Why can't you go to them and petition that they change their rule that says they won't license a low amp station or whatever it is?

Mr. Hiken: [T]he equivalent to...their law is if people can't go into the parks and speak because we're finding...litter and things like that and people are saying "That's unconstitutional." There's no need to go petition the rule-making authority to say, "We asked you not to have this unconstitutional rule and law." This microradio we're talking about. To compare this...with something that Ted Turner or KCBS is using with 100,000 watts over the airwaves is ludicrous. Mr. Dunifer does not have the kind of funds or the ability, nor do any of the people that are involved in trying to regain just a voice over the radio, have the means to go to the FCC and do this.

The Court: Maybe you don't have to do it, but what's the problem with it?

Mr. Hiken: In the Duggan case that was argued a year ago, Justice Kleinfeld asked Mr. Silberman to brief the question of: "Why does the FCC regulatory scheme ignore microradio. Would you please explain why you're dealing with this technology the same way you're dealing with megawatt stations?" The FCC said that a person even who had received a forfeiture order did not have the standing to go into court to challenge their regulatory schemes...If you read the decision in Duggan you will see that the Court...was saying, "No, that's not so." The second you issue a forfeiture order, the person has standing to go into Federal Court...Our feeling is that the proper procedures to challenge the legality and constitutionality of their scheme is before the FCC itself first...Their own act gives them the authority to initiate rule-making procedures anytime they feel it's appropriate.

The Court: So if you get an adverse decision from the FCC...you would take it to the District Court, would you?

Mr. Hiken: When and If they will finally give us a ruling before the FCC, we'll be back here. That's why we request that you stay these proceedings. If there's an emergency, they can rule on those issues so that you will have the benefit of knowing their analysis.

     At about this point Mr. Silberman objects and asks to interject that only the Government can a initiate a lawsuit based on recovering a fine and then the Defendant is subject to trial. The Defendant cannot start this action. In effect, if the FCC chooses not to collect its fine, it need not defend its regulations in court unless it decides to do so.

The Court: Would you do that?

Mr. Silberman: What?

The Court: Will you do that?

Mr. Silberman: It depends on what the commission does. And we do try to recover forfeitures.

     He waffles playing a what-if game. This is a topic Silberman would clearly like to avoid. Just as they have avoided dealing with that other matter in Springfield for five years. He shifts gears and goes on another long whining harangue, citing the same cases and regulations, apparently having played out his arguments he tries to give them added strength by repeating them again ad nauseam. This proves too much for the attorney for the defense.

Mr. Silberman: And we're entitled to an injunction because we've proved in our papers that there is irreparable injury. And they don't challenge that, really.

Mr. Hiken: Your Honor, he's repeating himself.

Mr. Silberman: Well, may I just....

Mr. Hiken: It's my opportunity to argue, I believe, sir.

Mr. Silberman: I'm sorry. I'm sorry.

The Court: That's all right.

Mr. Silberman: But irreparable injury...

The Court: Well, they do challenge...

Mr. Silberman: And there's no adequate remedy at law.

The Court: There's no adequate remedy at law for who?

Mr. Silberman: There's no adequate remedy at law for the Government here.

The Court: For the Government?

Mr. Silberman: No. there is not, because every time there is a broadcast it's irreparable harm.

The Court: Well, it's sort of an odd statutory scheme and regulatory scheme, but what it leaves me with is I have to balance your likelihood of prevailing and the harm to either side. And what I think is relevant to that is the constitutionality of the regulatory scheme...So I think what I have to do, in order to carry out the test I need to apply is to turn to the FCC and ask them to do what they are supposed to do, and tell us whether this regulatory scheme is required and proper and still correct in light of existing technology. Then I can decide on the constitutionality.

     Mr. Silberman indulges his previous arguments one more time. To paraphrase Mr. Hiken, Silberman seems to think that if he repeats his arguments often enough, someone will finally believe them.

The Court: Well, my inclination is to deny the preliminary injunction and to stay the proceedings and turn to the FCC to act on it in the context of the forfeiture proceedings, so that this Court will have their guidance with respect to the need of those regulations and the balancing of the need for the regulations against the constitutional interests of the people who wish to broadcast and so forth.

     As the matter begins to wind down, Ms. Duggan steps into the fray for clarification and makes it possible for Mr. Silberman to makes his penultimate "can of worms" argument.

Ms. Duggan: If I could ask for a point of clarification about when the Court is saying "a stay" are you expressing an inclination towards denying the preliminary injunction?

The Court: I'm denying it at this time. I would say without prejudice.

Ms. Duggan: [The injunction] is not being stayed, but the further proceedings after the preliminary injunction are being stayed.

The Court: Right. Because I can't make a final ruling without turning to the FCC first to do its statutory evaluation.

Mr. Silberman: Your Honor, I know you seem to make your decision. When we have a rule-making proceeding...that could affect the public at large and other broadcasters...there would be a requirement for notice and comment. And it could take months to years to resolve that question. Is Your Honor saying that we would have to have a rule-making proceeding, open up for public comment, have the staff consider the recommendations, provide a report...to the commission, and go through the judicial review process if someone were to challenge any new rules or to challenge the decision not to adopt new rules? This could take years.

The Court: That's not what I'm saying at this point.

Mr. Silberman: Because that's precisely what's going to happen, Your Honor. Your Honor, this opens up such a can of worms. You don't realize. I mean it. Your honor, what would happen would be that you've given carte blanche to this group of people who think they can operate a radio station without a license...This is turning it on its head, Your Honor. I know you are inclined, and you've made a determination. But it opens up such hazards to the public interest that I want you to realize what you're doing...

The Court: I didn't find such egregious hazards on the records. I mean, if there is some further showing that you want to make at some point, I can't prevent you from doing that.

     Though a court date was set for early March for a showing by the FCC, this was later postponed. As of this date April 25, 1995, nothing has emerged from the FCC, and something is expected within the first two weeks of May. If ever. After all, to quote Silberman, this could take years. Hold on to your transistors, it could be a bumpy ride.
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