FCC wins injunction against microradio leader Dunifer
Originally published in Current, Aug. 10, 1998
By Jacqueline Conciatore
A U.S. District Judge in June refused to hear the First Amendment arguments of leading radio pirate Stephen Dunifer, banning his unlicensed station, Radio Free Berkeley.
Judge Claudia Wilken granted an FCC request for an injunction against the 50-watt station Dunifer started in 1993. The FCC in 1978 had stopped authorizing stations operating at less than 100 watts.
As unlicensed low-power stations spring up in increasing numbers and as media ownership is more and more consolidated, the activity of radio pirates and their claim of rights to the airwaves are increasingly relevant public policy issues. The FCC is considering proposing a rulemaking to reinstate its low-power classification. Chairman William Kennard has indicated interest in that as a way to reintroduce diversity into the media landscape. Says FCC spokesperson David Fiske: "He's concerned about concentration" but hasn't made up his mind whether low-power is feasible because of interference issues.
Though Judge Wilken last November suggested the FCC prohibition on low-power radio might be unconstitutional, she ruled June 16 that Dunifer lacked standing to challenge the FCC rules because he never applied for a license. While Dunifer argued such an application would be futile, the FCC said that it has granted waivers of the low-power rule to other applicants.
Dunifer told Current last week that he has repeatedly asked the FCC to inform him of the process by which he could apply for a license. "I feel we've exhausted remedy by administrative appeal," he said.
The Berkeley man is a leading activist on behalf of micro radio. His sale of hundreds of kits for building low-cost transmitters has led some to dub him the "Johnny Appleseed" of microradio; his web site bears the slogan, "Let a thousand transmitters bloom."
The FCC and other media interests oppose operations like Dunifer's not only because they are illegal, but also because of potential and real instances of interference with signals from licensed stations.
Though Radio Free Berkeley is now silent, a group of pirate broadcasters has "taken back to the Berkeley hills in the old style" and was on the air Sunday night, Aug. 2, Dunifer reported last week. But deejays "Lucy" and "Peanut" were forced off the air when FCC enforcement agents showed up, he said. Dunifer says the broadcasters fled from two vehicles "barrelling up a treacherous fire road at a great rate of speed with light bars and search lights." The pirates took much of their equipment with them, spent the night in a canyon and eventually eluded the agents, he said.
The group, which Dunifer says is an "autonomous" group not broadcasting under the name "Radio Free Berkeley," announced they will transmit from an undisclosed location on Friday the 14th. Wilken's order reportedly enjoined those who'd worked with Dunifer's station.
At least one of the station's participants, former KPFA personality Bill Mandel, was quoted in the San Francisco Examiner last week saying he planned to be on the air despite the enjoinment. The 81-year-old expert on Soviet society said he was willing to go to jail, but couldn't afford to pay any hefty fines.
Lawyers for Radio Free Berkeley have filed a motion for reconsideration of the injunction, but Dunifer says he is not optimistic. If Wilken doesn't rule in their favor, they'll appeal to the Ninth Circuit, he said.
The decision would seem to bolster the FCC's current crackdown on pirate radio operations, which some reporters have attributed to pressure from the National Association of Broadcasters for stricter enforcement. FCC enforcers have participated in raids, one of which was well-publicized because the broadcaster later issued a press release saying he and his wife were "just happy to be alive" after the task force of armed officials invaded and searched their home for hours. Last year, two Florida operations were shut down for interfering with air traffic signals.
Which way the FCC will go on its potential rulemaking procedure is anyone's guess. The commission called for comments in response to petitions for rulemaking, and is currently reviewing the hundreds of responses, said FCC's Fiske. Any rulemaking would pose questions that are "heavily technically weighted" to get at issues of interference.
NPR's comments opposed granting any new classification for microradio, arguing that the low-power stations would pose interference problems to full-service stations and undermine the transition to digital radio broadcasting.
Outside link: Web site of Radio Free Berkeley, Stephen Dunifer's micro-radio organization, and legal updates from Dunifer's lawyers
Web page created Oct. 2, 1998
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Later news: Current looks back at Michael
Taylor, the South Central Los Angeles man who became a Pacifica reporter and then lost his
life while starting a micro-radio station for his community.