Ron Sakolsky (RS): What do you find particularly important about the Stephen Dunifer case? What interests you about it?
Louis Hiken (LH): To me what this case has brought to light is the degree to which the American people are without a voice. The media is so monopolized today. The case deals with the whole question of the facade of free speech that we have in this country which, in fact, means that you’re allowed to say whatever you want in your own living room, but any attempts to try and communicate with anybody else in your community, unless you do it by yelling in a park or on a street, go unheard or have to be filtered through the commercial interests that decide what’s to be broadcast and what’s not. For somebody like Stephen Dunifer, it was the Gulf War that brought that reality home, when the media was so clearly a pawn of the Pentagon mouthing the instructions given to them by their rulers. It just shocked many people to a point of saying, ‘For God’s sake, if we’re going to speak in this country at all we have to somehow control the means of communication.’ We have to have access to a means of communicating that doesn’t require us to go through Disney or Westinghouse or GE or the billionaire corporations that now dominate the airwaves.
RS: What are the issues in the Dunifer case now before Judge Claudia Wilken?*
LH: Judge Wilken is faced with a body of law that has been built up over a series of decades, that has been defined and dominated by the FCC and commercial broadcasters. She’s not taking it upon herself to say ‘I don’t like what’s going on.’ She has to judge the context of the law as it’s presented to her. Now the history of this case is that the FCC issued what they call a Notice of Apparent Liability to Stephen, which is a notice saying, ‘It’s been brought to our attention that you are broadcasting without a license in violation of the law and you therefore owe us $20,000. If you disagree with us, let us know.’ We, at that point, responded. We being myself, his attorney, and the National Lawyers Guild’s Committee for Democratic Communications, which was a group that had been trying to deal with this problem of the monopolized media on an international level as well as a national one. We said to the FCC, ‘Look, you provide no vehicle whatsoever whereby the poor can communicate over the airwaves. You’ve given the airwaves 100 percent to the commercial broadcasters and that violates the statutory authorization you have to responsibly define who uses the airwaves and to license accordingly. They responded by saying, ‘No, we disagree. What we’re doing is fine. Pay us $20,000.’ That’s where it sat. We at that point had a right to file a petition for review or a petition to appeal that decision, which we filed. They sat on that for years.
Stephen did not stop broadcasting. He continued to broadcast because he continued to feel that the position that we set forth in our arguments was correct and that he had a lawful right to broadcast because the FCC was violating its own authorization, its own authority. The FCC then went into Federal District Court, and asked Judge Claudia Wilken to enjoin Dunifer from broadcasting. We raised before her the same constitutional issues that we had raised before the Commission. We pointed out that they had not yet even ruled on what we had presented to them, and that there were constitutional infirmities that at least deserved a trial in which there was a likelihood we would prevail, and that they should not issue an injunction unless we had no legal standing to challenge it.
She evaluated the case at that point based upon those factors, and found, number one, that it made no sense for them to have sat on our appeals for two years and then come to her for an injunction when they should have at least ruled on our request first so that she had the benefit of their own analysis of it. The second part of her opinion said to the FCC that she was not going to issue an injunction, because they hadn’t shown any likelihood of irreparable harm and injury. The FCC then went back and issued their own ruling. They then returned to her court, and said that she didn’t have jurisdiction to hear the argument. They said that they had the legal right to come into court and ask for an injunction, but we didn’t have a right to challenge the regulatory scheme and the FCC’s statutory conduct as our defense. We pointed out that, ‘Wait a minute, number one, you’re the ones who came into this court seeking the court’s jurisdiction; we didn’t. Number two, you took the position in another case called "FCC versus Dougan" that it was the District Court that should have jurisdiction to hear a challenge to a Notice of Apparent Liability. Now that you have a District Court that you don’t like, you’re saying it’s the Court of Appeals that should have the jurisdiction.’
She has not yet issued a decision because there are complicated constitutional issues involved. The FCC is trying to rephrase it as an attack upon a regulatory scheme, but they are not authorized to regulate the airwaves however they choose. We’re not saying that the FCC is not an agency authorized to license or regulate communications in the interest of the American people. We’re just saying the airwaves are not their gift from Congress to give only to the rich, or only to white people or only to their relatives. That’s a constitutional delegation question, and not merely a question of some minor procedure that is properly dealt with as a regulatory question.
RS: So it sounds like part of the issue here is the allocation of who gets access to the airwaves. How would you see an appropriate reallocation vis a vis micropower radio?
LH: We have no problem with a certain portion of the radio spectrum going to commercial broadcasters. We feel though that, constitutionally, the American people themselves have a right to another portion of the spectrum space, and that microbroadcasters represent an interest that is absolutely precluded from any access to the airwaves at this time. If you want to broadcast a city council meeting in a small town, who’s going to do it under the current regulatory scheme that the FCC has devised? Nobody is going to broadcast the Emeryville City Council meeting unless there’s a station in Emeryville, and there isn’t one because the FCC now sells their stations at the rate of about $50-80 million apiece. So, you’re talking about church groups and community groups and political groups and social groups, none of whom have access to what is a public freeway, the airwaves, because the FCC has defined access solely on the basis of financial power. They are whoring for commercial broadcasters instead of carrying out their legal responsibility to administer the airwaves in the interests of the American people.
With micropower radio you’re talking about a person in any city or village in this country being able for about three or four hundred dollars to go on the air and speak to the people in their community about their concerns and their feelings and their beliefs! They don’t have to have somebody’s approval because what they’re saying is or is not politically correct. They don’t have to be complying with some commercial broadcasters’ sense of what’s going to sell products or not. Right now, there’s a greater discrepancy between the rich and the poor in this country, more than any nation in the western hemisphere. We are facing crises economically and socially that are really unparalleled. The idea that the American people have no access to any means of communication to talk to themselves about how to solve these problems but instead have to sit and listen to the political solutions being offered by the rich is nonsense.
The FCC is absolutely tied in to those financial interests with no interest whatsoever in giving the American people a voice. There is no access whatsoever to hear what people are saying, what their concerns are, what their solutions to problems are, and when you start looking at that with a magnifying glass you realize that nobody, nobody, has access that’s not controlled and dominated by the rich. I think we’re living during a period where marketplace economics are the God of Justice and Truth, and it merely is replicated in the radio spectrum. Communications is a very different concept than selling products, and if you’re going to define access to communications systems by what is commercially viable, you, for all intents and purposes, silence the democratic communications that a nation has got to have. So the question is where do the people then conduct those discussions, and where does that dialogue take place?
RS: Some people who are in favor of the big commercial broadcasters have argued that because they’re so big they reach many more people and therefore they’re much more acceptable to give the airwaves to than a small station that has a very narrow focus. Would you care to comment on that?
LH: It is clearly true that a 100,000 watt station reaches more people than 500 microradio stations. And it’s surely easier to police one station than it is 500 stations. But if you’re talking about communications as a concept, when you have the ability to have 500 stations on the same frequency as one station; that’s a choice. That’s a political choice! In San Francisco for instance you could have seven stations on the very same frequency at the same time, none of them interrupting each other because of the way FM signals are broadcast. That gives access to a significant number of people who can talk about the issues that are affecting their communities in their areas. Now who can say that it’s better to have only easy listening music on that same frequency, selling automobiles and beer, and that that is in the American interest; but that the seven stations that could also be on that same frequency talking about what’s going on with crime and what’s going on with investment and what’s going on with politics and religion, are not an interest that should be recognized? All that we say to the FCC is that they’ve got to recognize that the concept of democratic communications is as important and equal a concept as commercial sales and that both have to have a place in anything that they’re going to regulate whether it’s over the television or whether it’s over the radio.
RS: We don’t really know, even if its decided that micropower radio stations should be licensed, what form that licensing would take as far as the government is concerned. Do you have a particular preference that you would like to see? It seems to me the range is anywhere from self-regulation where you simply have agreements between stations, to informal registration, to actually having an FCC approved license.
LH: Our hope and expectation is that if the FCC were to allocate a certain portion of the spectrum for microradio that it would vary from place to place. How many people and how many interests would want to be on and for how long could be worked out relatively informally, either through the kind of post card that you send in with a CB radio saying here’s what I’m using and here’s the frequency, to any kind of first come first serve allocation for the remainder of the spectrum space. There’s a lot of variables on how that could be done, and we’re prepared to present to the court a series of different alternatives as to what we feel the best way to do it would be.
RS: It sounds to me from what you were saying that this mail-in registration would, in your opinion, satisfy the requirement of FCC licensing. Is that correct?
LH: Well it might vary from area to area. You’re talking about a different thing if you’re in the middle of Wyoming where you’re lucky to get one or two stations versus, say, Manhattan. It might be that in one area you require more specificity and more of an identification as to the ability of the people to broadcast in a way that won’t interrupt. Most importantly, any licensing procedures should be based on a notification process rather than a financial qualification. That’s the major distinction. We don’t oppose notification to the FCC so they can regulate. What people oppose is this financial qualifying that they have created that basically excludes 99.9 percent of the American people from access.
RS: Right. Now do you think this kind of notification system is likely to be the form that licensing takes as the court rules, or do you think that there might be some other possibilities that would be based on more of a regulatory process that involves not simply notification but justification, commercial fees, and all the rest. What do you expect in terms of this court decision? Do you expect a favorable decision, and what would that entail in terms of regulation?
LH: I don’t know what’s going to happen. I do know that the FCC is not about to allow Claudia Wilken to issue a decision that challenges their authority and procedures without a fight. They will appeal to the 9th Circuit and to the Supreme Court rather than comply.
RS: So you think it might ultimately go to the Supreme Court?
LH: I think it’s very likely. We’re sure not going to accept a lower court decision that says only the rich can broadcast. The FCC is surely not going to accept a decision that says anybody can broadcast. So, (chuckles) if you’re saying what do I think it’s ultimately going to look like, I think eventually the American people are going to insist upon the ability to speak to each other without having to go through Disney. I think that’s ultimately what’s going to happen. Now if you’re saying to me, is that going to be by means of a court decision or is it going to be the same way the CB radio licensing was changed, I tend to think the latter is what’s going to happen. There’ll just be people saying this is crazy that we can’t talk to each other, and so I’m going to just do it!
RS: Is that what you’re saying was the way that CB licensing was changed?
LH: Yeah. When CB radio was first started, the FCC wanted to license them, but so many people just went on the air without a license that the FCC changed it and said, all right, it’s a notification system.
RS: That’s a very interesting analogy. CB radios, however, didn’t interfere with commercial broadcasting privilege in the same way that micropower radio might do.
LH: Not commercially. It did much more with safety vehicles, much more so than microradio does, but interestingly enough that didn’t (chuckling) concern the FCC so much. (laughter … )
RS: So this is a tougher nut to crack in a way?
LH: Absolutely, I mean look at what’s going on. Look at who’s running the show. I think the way it’s going to change is the way Mbanna Kantako changed it. He said, ‘Look, there’s no way in the world that African Americans in this community are going have a voice on the radio unless we create our own station. I don’t care what the FCC says and I don’t care what the court says; it’s more important for me to talk to my community.’
RS: What Mbanna says very clearly is that if the FCC has the power to grant a license then they also will have the power to revoke it. So he’s not interested in licensing at all. Sometimes there seems to be a divide between the people in the micropower movement who are trying to challenge the licensing procedures to allow for more access to licensing vis a vis micropower radio, and those people, like Mbanna, who are saying we don’t want anything to do with licensing, which is why he decided not to be part of the court case in the first place. So, it sounds like you see those two wings of the micropower radio movement working together in a way that might eventually overthrow the control of the airwaves by commercial interests.
LH: Absolutely. To me they’re not contradictions at all. There are people in this society who tend to think that compromise is a possibility or that people can sit down and reason together, and there are others who come to the conclusion that unless they take what is theirs they’re never going to get it.
RS: I posed the same question to Stephen of course and he said — and I’d be interested in your response as well — that challenging the FCC in court has meant that more people have gone on the air, and the more people that go on the air the better because that will increase the momentum for change. So he sees it as a strategic decision. He doesn’t necessarily disagree with Mbanna. Each individual station has to make its own choice about what is best to build the movement. Even though he is challenging the FCC through the courts, he recognizes at the same time that change will not come exclusively through the courts.
LH: I think that the law is a forum that is as legitimate a forum for change as any other in this society, education is another forum for changing the public’s mind, and civil disobedience is a third. Mbanna’s decision not to go that route is probably based upon his own consciousness and recognition that what he represents is never given a meaningful voice by the courts of this country, so why waste the time? We’ve had long discussions with him, and I have a great respect for his integrity and his principled position.
— September 13, 1996
* Since this interview was done in 1996, Judge Wilken has again ruled against the FCC, and in favor of Stephen Dunifer, on constitutional grounds. We have added an addendum on the legal implications of her November 12, 1997 decision at the end of this article.
United States District Court Judge Claudia Wilken has rejected another attempt by the Federal Communications Commission to silence Berkeley Microradio 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 microradio 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 arguments. The government claimed that only the higher federal courts could consider the constitutional question.
In her November 12, 1997 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 microradio 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 microradio 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 its 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 multinational 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 Gathering 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, microradio may be our last best hope for democracy on the airwaves." 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 microradio 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?
Courtesy: National Lawyers Guild’s Committee
on Democratic Communications,
November 13, 1997
