Series: "Radio with a Conscience: Community Radio in the Late 90s."
This series of articles is dedicated to the exploration of the state and growth of Community Radio in the late 90s.

Article 4: In the face of a legal setback, the battle for low-power community radio continues.

This article originally appeared in the August/September 1998 edition of the WEFT Revue.

By Paul Riismandel

After five years of broadcasting without a license to the city of Berkeley, California, micropower radio station Free Radio Berkeley (FRB) was taken off the air on June 17 by order of Eighth Circuit Court Judge Claudia Wilken. In her decision Judge Wilken granted a permanent injunction against FRB and its creator, free speech activist Stephen Dunifer, blocking both FRB and Dunifer from broadcasting or advocating broadcasting without a license. This decision also prevents Dunifer from operating FRB’s low-power transmitter assembly operation which was used to help fund FRB’s operations and legal defense.

Judge Wilken’s decision to grant the FCC injunction is based on her ruling that FRB and Dunifer could not pursue their challenge of FCC action against them on constitutional grounds. FRB and Dunifer were embroiled in a legal battle with the FCC—which had attempted to shut down FRB and fine Dunifer—claiming that the FCC’s broadcast station licensing regulations favor only the rich and therefore violate the First Amendment. Judge Wilken did not rule on the validity of this claim. Instead she ruled that Dunifer and FRB must first apply for a broadcast station license and be rejected before they may make a constitutional claim—something they have not yet done.

In previous columns I’ve discussed various elements of the growing micropower radio movement, including micropower broadcasters here in Central Illinois. Started in 1993 by activist Dunifer, whose first broadcasts were made with a battery-operated transmitter in the hills of Berkeley, FRB has been the leader in the micropower radio movement. Dunifer created FRB in response to the growing consolidation of all mass media outlets in the hands of just a few large corporations and the increasing commercialization of even public radio stations. Seeing that it is virtually impossible to obtain a new license in even small metropolitan areas, and that it takes millions of dollars to buy an existing one, Dunifer decided that the only way to bring the airwaves back to the public was to defy the Federal Communications Commission and start his own station.

In 1995 the FCC moved to shut down FRB and levied several thousands of dollars in fines on Dunifer. Dunifer, however, was prepared for this. Assisted by the National Lawyers Guild FRB challenged the FCC’s actions in court. FRB claimed that the FCC’s radio licensing standards are unduly restrictive and favor only the very rich. Citing the fact that the FCC stopped issuing licenses for inexpensive low-power non-commercial stations in 1978, FRB noted that it is constantly getting more difficult and expensive for small non-profit groups to establish stations. The basis of FRB’s challenge against the FCC was that these conditions create a significant impediment to free speech, and thus violate the First Amendment.

In 1996 Judge Wilken denied the FCC’s motion for a preliminary injunction against FRB, thereby allowing FRB to remain on the air, protected by court order. In denying the injunction Judge Wilken stated that the FCC had not preliminarily made the case that FRB was necessarily presenting a danger to other broadcasters and radio users like air traffic control. Then in November, 1997 Judge Wilken denied a FCC request for a change in venue ruling that the Ninth Circuit could hear questions of the constitutionality of FCC regulations.

When this ruling was made a brief wave of celebration moved across the micropower radio movement. Unfortunately this wave was very short lived. Just a week after the release of Judge Wilken’s decision the FCC, assisted by federal marshalls and local authorities, made a sweep of micropower stations operating in the Tampa, FL area. One microbroadcaster shut down told of being handcuffed and held at gunpoint for several hours while his house was ransacked and all equipment even vaguely related to broadcasting was confiscated.

Urged on by the powerful National Association of Broadcasters, the FCC has significantly stepped up its operations to shut down micropower broadcasters. In the last two years the FCC claims to have shut down more than 200 micropower stations. During just June the FCC has made even more high-profile busts, including Radio Mutiny in Philadelphia, which hosted a free radio conference this past March that was actually attended by a FCC representative.

But it is Judge Wilken’s decision to grant the FCC’s request for an injunction to take FRB off the air that has sent a chill through the micropower radio community. In a press release on this decision, FRB notes that Judge Wilken’s ruling explicitly states that "the present ruling is not based on the merits of FRB’s criticisms of the FCC’s refusal to license microbroadcasters." In essence, the FCC received its injunction against FRB due to what FRB calls a "legal technicality." In his own press release Dunifer states that his attorneys will be filing a motion "to challenge this extremely flawed ruling which insists that one must, first, take part in a an obviously futile process before constitutional standing can be established."

At this point some micropower broadcasters have decided to shut down their operations in anticipation of stepped up FCC enforcement. Some stations, like Radio Free Allston in Allston, MA, had already decided to cease operations after receiving visits from the FCC where they were warned to shut down or risk prosecution and the confiscation of equipment. Other stations, like Radio Free Cascadia in Eugene, Oregon, have avoided FCC attempts to serve them notices of "apparent liability"—essentially letters of warning that say "we know what you’re doing and you’d better stop now"—and vow to continue broadcasting.

The FCC was seen acting at its most swiftest several days after Judge Wilken released her decision and FRB went off the air. Emulating Dunifer’s earliest FRB broadcasts, on the evening of June 21 two anonymous men took a small battery operated FM transmitter into the hills of Berkeley and began a protest broadcast under the moniker Radio Free Hilltop. A man calling himself the Anonymous DJ talked about the FRB decision and discussed plans to resume broadcasts on FRB’s frequency using different transmitters placed all around the city. Twenty minutes into the broadcast the broadcasters were visited by two FCC agents. Both agents refused to speak on the air and after a few minutes confiscated the transmitter. However, because FCC agents have no police authority and both anonymous men apparently were carrying no identification, it is reported that no action was taken against the broadcasters behind Radio Free Hilltop except the loss of their transmitter.

Such quick response from the FCC is relatively rare, given the amount of effort necessary to track down the location of a radio transmitter. It is obvious that the FCC was prepared for such protest broadcasts in Berkeley and ready to take swift action once they heard one. However, this type of action requires quite a bit of personpower that the FCC, which has had to shut down or reduce staffing at many field offices, has no surplus of. While current enforcement efforts appear to be effective in shutting down some high-profile micropower operations, one has to wonder how long they can continue to keep up such tactics, which frequently also involve federal marshalls as well as state and local police. Current actions against micropower broadcasters may cause a lull in activity, but given the growing fervor and organization of free radio activists—not to mention the availability of ever-cheaper transmitters—it would not be surprising to see micropower stations bounce back in force once the FCC returns to its other business.

Interestingly enough, the FCC is currently accepting comments on a petition for rulemaking filed by micropower radio supporter Rodger Skinner that proposed the creation of a low-power FM radio service. Motivated by the same circumstances that motive unlicensed microbroadcasters, Skinner’s petition seeks "to create opportunities for individuals, minorities, women, small business and others with limited financial means to own low-power FM broadcast stations throughout America." Hoping to encourage localism and community interaction, Skinner is proposing that owners of low-power stations live within 50 miles of their station. His intention is to prevent large broadcasting companies from buying up large numbers of low-power stations, essentially defeating the purpose of a low-power service.

Not surprisingly many commercial broadcasters in addition to the National Association of Broadcasters have filed comments in opposition of creating a low-power FM service. Most prominent amongst their arguments against low-power FM are their claims that small low-power stations are an inefficient use of the radio spectrum (the space on the radio dial), and that these small stations will be an impediment to the creation of digital radio in the future. Others who have filed similar comments include National Public Radio and other public radio networks like Minnesota Public Radio. It is important to note that these groups were all instrumental the elimination of the original 10-watt low-power FM radio stations by the FCC back in 1978.

Skinner’s proposal includes both commercial and non-commercial low-power stations, an aspect which has drawn criticism from many micropower and free radio activists who believe that commercial interests are already over-represented on the radio dial and will only corrupt the ideals of low-power community radio. A small minority of others are simply suspicious of any FCC or government control over micropower radio.

Still, it is to the credit of the FCC that the agency is even considering a low-power radio proposal—something that it has not done in the twenty years since abolishing these stations. This moment also provides the opportunity to see what factors will most influence the FCC’s decision on the matter: the principle of public access and the public service aspect of broadcasting, or the high-powered interests of the National Association of Broadcasters. The FCC’s record on favoring public service in broadcasting has not been great, especially since the Reagan era. But the FCC does have a new commissioner who has at least paid more lip service to the principle than has been heard in quite some time. In the end it is likely that a decision against creating low-power FM will not stop those who are committed to bringing a direct and accessible broadcast voice to their communities.

To find out more about Free Radio Berkeley and their legal battle with the FCC, you can visit their website at http://www.freeradio.org. To learn more about community and micropower radio, visit the Radio For All website at http://www.radio4all.org. Finally, to learn more about the proposal to create a low-power FM service and also find out how to file comments on it with the FCC, go to http://www.concentric.net/~Radiotv/

©1998, 1999 Paul Riismandel, all rights reserved.

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