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National Lawyers Guild Committee on Democratic Communications
Court Rejects FCC’s Constitutional Catch 22
United States District Court Judge Claudia Wilken has rejected another attempt by the Federal Communications Commission to silence Berkeley Micro Radio Broadcaster Stephen Dunifer, founder of Free Radio Berkeley.
In a 13 page opinion released on November 12, 1997, Judge Wilken once again rejected the government’s motion for an injunction to silence micro radio broadcasts by local radio pioneer Stephen Dunifer.
In 1995, Judge Wilken rejected the government’s first motion for a preliminary injunction against Dunifer’s broadcasts. At that time the Court found merit in Dunifer’s argument that the FCC’s ban on low power, affordable FM broadcasting was a violation of the First Amendment’s guarantee of free speech to all in the United States.
In a blatant attempt to avoid facing its First Amendment obligations the FCC then urged Wilken to permanently enjoin Dunifer from Broadcasting and at the same time argued that she could not even consider the issue of whether its rules, which prevent him from getting a license, are unconstitutional. In a Kafkaesqe argument, the Commission argued that Wilken had jurisdiction to issue an injunction, but no jurisdiction to hear Dunifer’s constitutional arguments. The government claimed that only the higher federal courts could consider the constitutional question.
In her November 12 decision rejecting the Government’s position, Judge Wilken pointed to the fact that the FCC had taken exactly the opposite position in the 1994 case of Dougan vs FCC. In that case, an Arizona micro radio broadcaster had appealed an FCC fine (for broadcasting without a license) to the 9th Circuit Federal Court of Appeal, and the FCC had argued that the Court of Appeal had no jurisdiction over the case, and that it had to be heard by the District Court. The Court of Appeals agreed with the FCC and sent the case back to the District Court.
Judge Wilken noted that the Arizona broadcaster had raised the same constitutional arguments in the Court of Appeals that Dunifer is raising. The Court ruled that in sending all of the issues in the Arizona case to the District Court, the Appeals Court recognized that the District Court had jurisdiction over all aspects of the case.
In denying the Government’s motion for an injunction “without prejudice,” Judge Wilken ordered the Government to file a further brief on the question of whether the unconstitutionality of the FCC’s ban on micro radio is a valid legal defense to an injunction against broadcasting at low power without a license. Dunifer’s attorneys, Louis Hiken and Allen Hopper of San Francisco, will have an opportunity to rebut the government’s arguments on this point.
In response to pressure from the commercial broadcaster’s lobby, the National Association of Broadcasters (N.A.B.), the FCC has in recent months been stepping up its campaign of harassment against the thousands of micro radio stations now on the air in this country, Hiken commented “The broadcast industry is clearly afraid of these little community stations which are speaking truth to their power. In trying to do the N.A.B.’s bidding, the FCC demonstrates that it is nothing but an enforcement arm of the commercial broadcast industry and the multi-national corporations which own it.”
The National Lawyers Guild’s Committee on Democratic Communications has represented the Lawyers Guild, San Francisco’s Media Alliance, and the Women’s International News Services as a “Friend of the Court” (Amicus) in this case. In its Friend of the Court brief the Lawyers Guild pointed out that FCC regulations make it impossible for all but the very wealthy to even apply for a broadcast license. This, they told the Court, is the equivalent of saying anyone could speak from a soap box in the park, but the box had to be made of gold. Guild attorney Peter Franck commented “In an era when Disney owns ABC, the world’s largest defense contractor owns NBC and CNN merges with Time which merges with Warner, and when ‘public’ broadcasting is told to get its money from corporations, micro radio may be our last best hope for democracy on the air ways.” He continued “Judge Wilken’s decision is a courageous rejection of the Government’s attempt to use a legal Catch-22 to avoid facing the fact that its ban on micro radio flies in the face of the Constitution.”
The legal team representing Dunifer and the Amicae are very pleased with Judge Wilken’s reasoned and thorough decision denying the FCC’s motion to have the case resolved without a trial on the merits. For almost 70 years, the FCC has catered solely to the interests of commercial corporate giants, through their mouthpiece, the National Association of Broadcasters. These are the pirates, who have stolen the airwaves from the American people, and who represent corporate interests valued at more than 60 billion dollars. Only the Pentagon, the Silicon Valley and the transportation industries possess the financial wallop represented by the NAB and its constituents.
Judge Wilken’s decision represents a vision of what it would be like for the American people to be given back their own voice. The decision suggests the likely unconstitutionality of the entire regulatory structure underlying the FCC’s ban on low power radio. It forewarns of the total failure of that agency to carry out its statutory obligation to regulate the airwaves in the public interest — that is, in the interest of the American people, rather than the media monopolies that control our airwaves.
The legal team welcomes the opportunity to have a court identify the real pirates of the airwaves — the thousands of microradio broadcasters who seek to communicate with the people of their communities, or the billionaire commercial interests that control the airwaves as if they own them. Is it General Electric, Westinghouse and the Disney Corporation that have the right to control local community radio, or is that a right that belongs to all of the American people, regardless of economic status?
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