Pirate radio unfurls sails in Free Radio Berkeley’s wake

Friday, June 26, 1998

Although a federal court decision sank pirate radio's flagship station last week, supporters of low-power broadcasting say they're keeping efforts to legitimize the movement afloat and are prepared to attack.

“We are going to reclaim our rights and resources through an ever-increasing campaign of electronic civil disobedience and direct action,” said Stephen Dunifer, whose Free Radio Berkeley went silent after a federal judge allowed the Federal Communications Commission to pull its plug. “Free speech by any means necessary. No retreat. No surrender.”

Last week, U.S. District Judge Claudia Wilken allowed the FCC to shut down Free Radio Berkeley for operating without a license. Wilken, who had allowed the station to keep operating while she considered the case, ruled on June 16 that Dunifer's free-speech claims were irrelevant because he never applied for a license.

“The Court finds that the regulatory scheme here withstands constitutional scrutiny because it specifies procedures which the FCC must follow, and it provides for judicial review of any improper FCC ruling,” Wilken wrote. “Thus, Mr. Dunifer's claims that the regulations are unconstitutional in every conceivable application and that they are overbroad must fail.”

Wilken said the FCC had the authority to consider Dunifer's constitutional claims and would have to do so if he applied for a license. A denial could then be appealed in court.

Dunifer, who founded his 50-watt FM station in 1993, is a lifelong leftist political activist whose motto is “Let a thousand transmitters bloom.” He has sold hundreds of low-power transmitters to help other micro-broadcasters start their own stations.

Dunifer claimed that the FCC's license fees—which could exceed $15,000 for a station of Free Radio Berkeley's size—creates a prior restraint. Even if he were to come up with the money, Dunifer and his lawyers claim the FCC would reject the license outright.

“You're more likely to win the California lottery than to have the FCC grant a waiver for micro-radio,” said Alan Korn, one of Dunifer's lawyers.

Media scholar Jerry Landay of the University of Illinois said he was disappointed that Wilken took so long to reach her ruling.

“She could have tossed it out two years ago on these grounds,” Landay said. “She seems to have skirted the fundamental issue of an American citizen's right to the American air.”

Dunifer told freedomforum.org that he would appeal the case. In the meantime, Free Radio Berkeley plans to start broadcasting on the Internet.

FCC Chairman William Kennard said Wilken's decision “puts to rest any doubts about the FCC's authority to manage the public airwaves to prevent interference and protect the public's safety.”

In a written statement, Kennard said the decision and the agency's success in shutting down more than 200 illegal broadcasters sends a clear message: “Obey the law and join the FCC in our efforts to expand the legal uses of the public airwaves.”

Kennard noted that FCC commissioners began to consider making a rule on low-power broadcasting last February. But microbroadcasters say Kennard is leaning toward stations with only one watt of power, insufficient for getting more diversity on the nation's airwaves.

They said the FCC needs to get serious about providing licenses for more powerful stations. One petition calls for the creation of three classes of low-power FM stations, all community-owned and all under 100 watts of power.

The low-power broadcasting movement “is alive and will come back again and again” until the FCC and the courts resolve the issue on constitutional grounds, Landay said.

“No matter where they stand ideologically, they are going to have to confront it and ultimately consider the original intent of the founders of the nation, which is to give the American people access to the soapbox, the speaker's stands of their time,” he said.

–The Associated Press contributed to this report.