BRIEF OF AMICUS CURIAE
IN SUPPORT OF DEFENDANT STEPHEN P. DUNIFER


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 9-3542 CW
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FEDERAL COMMUNICATIONS COMMISSION,
Plaintiff,

v.

STEPHEN P. DUNIFER

Defendant

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ALAN KORN, SBN 167933
62 Landers Street
San Francisco, California 94114
Telephone/fax: (415) 552.0989

PETER FRANCK, SBN 34402
One Sansome Street, Suite 900
San Francisco, California 94104
Telephone: (415) 705-6464


Counsel For Amici:

THE NATIONAL LAWYERS GUILD
Center for Democratic Communications

MEDIA ALLIANCE
TABLE OF CONTENTS

THE INTEREST OF AMICI

II. THE INJUNCTION SOUGHT SHOULD NOT ISSUE. AN INJUNCTION AGAINST SPEECH IS A PRIOR RESTRAINT AND AS SUCH IS NEVER FAVORED WHERE CONSTITUTIONAL RIGHTS ARE AT STAKE. THERE IS NO SHOWING OF URGENCY OR IRREPARABLE HARM, THE GOVERNMENT IS NOT LIKELY TO PREVAIL ON THE MERITS, AND THE ISSUANCE OF A PRELIMINARY INJUNCTION AT THIS VERY EARLY STAGE OF THE LITIGATION WOULD HAVE A CHILLING EFFECT

(A) AN INJUNCTION AGAINST SPEECH IS A PRIOR RESTRAINT AND AS SUCH IS NEVER FAVORED WHERE CONSTITUTIONAL RIGHTS ARE AT STAKE.

(B) THE GOVERNMENT IS NOT LIKELY TO PREVAIL ON THE MERITS

1. THE REGULATIONS MUST FALL UNLESS THEY MEET THE CONSTITUTIONAL TEST FOR BROADCAST REGULATIONS: THEY MUST BE NARROWLY TAILORED TO FURTHER A SUBSTANTIAL GOVERNMENT INTEREST

2. THE F.C.C REGULATIONS AT ISSUE IN THIS CASE ARE UNCONSTITUTIONAL ON THEIR FACE

3. THE REGULATIONS AT ISSUE ARE UNCONSTITUTIONAL AS APPLIED, AND THE F.C.C. VIOLATES ITS STATUTORY MANDATE TO SERVE THE PUBLIC CONVENIENCE, INTEREST AND NECESSITY BY ITS FAILURE TO ALLOW MICRO POWER RADIO BROADCASTING. TO THE EXTENT THAT THERE IS A LEGITIMATE GOVERNMENTAL INTEREST IN REGULATING MICRO RADIO THE FIRST AMENDMENT REQUIRES THAT GOVERNMENT USE THE NARROWEST POSSIBLE MEASURES TO ACCOMPLISH THAT OBJECTIVE.

4. THE FACT THAT THE GOVERNMENT HAS NOT NARROWLY TAILORED THE REGULATIONS TO FURTHER A SUBSTANTIAL GOVERNMENT INTEREST IS MADE CLEAR BY THE FACT THAT NEIGHBORING COUNTRIES WITH LESS STRINGENT FREE SPEECH GUARANTEES PROVIDE A SIMPLE AND APPROPRIATE REGULATORY STRUCTURE FOR MICRO RADIO.

(C) THE POSSIBILITY OF HARM CAUSED BY DEFENDANT'S MICRO RADIO BROADCASTS DOES NOT OUTWEIGH THE CHILLING EFFECT WHICH WOULD RESULT FROM THE ISSUANCE OF A PRELIMINARY INJUNCTION AT THIS VERY EARLY STAGE OF THE LITIGATION

GRANTING THE GOVERNMENT'S MOTION FOR INJUNCTIVE RELIEF WOULD BE UNCONSTITUTIONAL AS AN UNNECESSARY ABRIDGEMENT OF FREE SPEECH WHERE OTHER REGULATORY ALTERNATIVES ARE AVAILABLE.

IV. CONCLUSION
TABLE OF AUTHORITIES

Cases:

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). . 4

Columbia Broadcasting System, Inc. v. Democratic
National Committee, 412 U.S. 94 (1973) . . . . . . . . 13,22

C.J. Community Services, Inc. v. FCC, 15 R.R. 2029
(D.C. Cir. 1957) . . . . . . . . . . . . . . . . . . . 21

FCC v. League of Women Voters, 468 U.S.364 (1984). 6,10,12

F.C.C. v. Sanders Brothers Radio Station,
309 U.S. 470, 474 (1940) . . . . . . . . . . . . . . . . 9

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) . . . . 22

In re Syracuse Peace Council,
2 F.C.C. Rcd 5043 (1987) . . . . . . . . . . . . . . . 10

NBC vs. United States, 319 U.S. 190 (1943). . . . . . . 9

Near v. Minnesota, 283 U.S. 697 (1931) . . . . . . . . 4

NEW YORK TIMES CO. v. UNITED STATES 403 U.S. 713, 714; 91 S. Ct. 2140 . . . . . . . . . . . . . . . . . . . . . . .3

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . 4

Perry Ed. Ass'n v. Perry Local Educator's Ass'n,
460 U.S. 37, 45 (1983) . . . . . . . . . . . . . . . . 12

Red Lion Broadcasting, 395 U.S. 367 (1969) . . . . . . 5

Society for Krishna Consciousness v. Lee,
___ U.S. ___, 112 S.Ct. 2701, 2717 (1992). . . . . . . 11


Telecommunications Research & Action Center
v. F.C.C., 801 F.2d 501 (D.C. Cir. 1986) . . . . . . . 10


United States v. Weiner, 701 F.Supp. 14
(D.Mass. 1988), aff'd, 887 F.2d 259 (1989) . . . . . . 8

United States v. McIntire, 370 F.Supp. 1301
(D.N.J. 1974). . . . . . . . . . . . . . . . . . . . . 8

United States v. McIntire, 365 F.Supp. 618
(D.N.J. 1973). . . . . . . . . . . . . . . . . . . . . 8

United States Telephone Association v. F.C.C., No. 92-1321, No. 93-1526, 1994 U.S. App. Lexis 17002. . . . . . . . 4,8



Statutes and Regulations:

47 C.F.R. ¤ 15.239(b). . . . . . . . . . . . . . . . . 15

47 C.F.R. ¤¤ 73.501 et. seq. . . . . . . . . . . . . . 12

47 C.F.R. ¤ 73.211 et. seq. . . . . . . . . . . . . . 14

47 C.F.R. ¤ 73.511(a). . . . . . . . . . . . . . . . . 15

Other:

In the Matter of Changes in the Rules Relating
to Commercial Educational FM Broadcast Stations,
69 F.C.C. 2d 240, 44 R.R. 2d 235 (1978), amended,
70 F.C.C. 2d 972, 44 R.R. 2d 1685 (1979). . . . . . . . 6,7

Note, Educational FM Radio - the Failure of Reform,
34 Fed. Com. L.J. 432 (1982). . . . . . . . . . . . . . 8

International Covenant on Civil and Political Rights,
Article 19. . . . . . . . . . . . . . . . . . . . . . . 18

American Convention on Human Rights, Article 13 . . . . 18

European Convention on Human Rights, Article 10 . . . . 18
Financial Qualifications Standards of Aural Broadcast Applicants, 69 F.C.C. 2d 407 (1978) . . . . . . . . . . 9

Spitzer, The Constitutionality of Licensing
Broadcasters, 64 NYU LR 990 (1989). . . . . . . . . . . 10

In the Matter of Stephen P. Dunifer, NAL/Acct. No. 315SF0050; SF-93-1355, Forfeiture Order . . . . . . . . 13

Public Notice Canadian Radio-television and Telecommunications Commission 1993-95, Canadian Radio-television and Telecommunication Commission (1993) . . . 16

Broadcast Procedure BP-15, Canada Department of Communications (1978) . . . . . . . . . . . . . . . 16

The Case of Sarah: A Testing Ground for the Regulation of Radio Piracy in the United States, 12 Fordham International Law Journal 67, 69 (1988) . . . . . . . . . . . . . . . . 20



BRIEF OF AMICUS CURIAE
IN SUPPORT OF DEFENDANT STEPHEN P. DUNIFER


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 9-3542 CW
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FEDERAL COMMUNICATIONS COMMISSION,
Plaintiff,

v.

STEPHEN P. DUNIFER

Defendant

-------------------------

I. THE INTEREST OF AMICI

Micro radio is a method by which ordinary people can communicate with one another over the airwaves without having the huge sums of money necessary to get into commercial broadcasting.
The Center for Democratic Communications (CDC) is a national committee of the National Lawyers Guild. The work the committee focuses on the rights of all peoples to have a world-wide system of media and communications based upon the principle of cultural and informational self-determination. Areas of study and activity include:
1) Analysis of the social and political implications of the concentration and control of the mass media by a few multinational corporations, and the implications of that control for traditional First Amendment concepts;
2) Support for independent media organizations and independent forms of communication (i.e., micro-radio, community radio, PeaceNet, public access television), free from corporate or state control;
3) Legal support for groups and individuals seeking to establish and sustain such independent forms of communication;
4) participation with national and international organizations involved in ensuring that access to information and communications become a democratic right enjoyed by all.

Because of the CDC's longstanding work on behalf of individuals and organizations working with new and developing forms of alternative communications, the CDC has a unique perspective and expertise with respect to the many issues surrounding micro power radio broadcasting. Low power FM broadcasting is accessible, affordable, and easily used by minority and other disenfranchised groups traditionally ignored by the mainstream media. The CDC argues that F.C.C. policies with regard to micro radio broadcasting have failed to keep pace with the rapid proliferation of technological advances in the field of communication.

The Media Alliance is a 3,000-member media workers' services and public information organization serving Northern California for the past 19 years. Members include professionals in print, broadcast, and video media as well as those employed in fiction writing, computer fields and public relations.
Media Alliance's public education activities include forums investigating crucial communications issues, media skills seminars and classes for nonprofit organizations, awards ceremonies celebrating excellence and social commitment in local media, and a bimonthly newspaper that scrutinizes local media performance for bias and sensationalistic coverage.
Media Alliance supports the rights of low-power radio broadcasters in general and Steven Dunifer in particular.
As an organization committed to democratic communications, Media Alliance believes that the impossibility of broadcasting on the FM band without large sums of money effectively denies a voice to the majority of Americans, and that any attempts to silence such broadcasting on the basis of interference that has yet to be proved is tantamount to prior restraint. It is Media Alliance's fervent belief that democracy can only be strengthened by a multiplicity of diverse voices, and that micro broadcasting is an ideal way for such diversity to occur.

II. THE INJUNCTION SOUGHT SHOULD NOT ISSUE. AN INJUNCTION AGAINST SPEECH IS A PRIOR RESTRAINT AND AS SUCH IS NEVER FAVORED WHERE CONSTITUTIONAL RIGHTS ARE AT STAKE. THERE IS NO SHOWING OF URGENCY OR IRREPARABLE HARM, THE GOVERNMENT IS NOT LIKELY TO PREVAIL ON THE MERITS, AND THE ISSUANCE OF A PRELIMINARY INJUNCTION AT THIS VERY EARLY STAGE OF THE LITIGATION WOULD HAVE A CHILLING EFFECT

(A) AN INJUNCTION AGAINST SPEECH IS A PRIOR RESTRAINT AND AS SUCH IS NEVER FAVORED WHERE CONSTITUTIONAL RIGHTS ARE AT STAKE.

As the Supreme Court pointed out in NEW YORK TIMES CO. v. UNITED STATES 403 U.S. 713, 714 ; 91 S. Ct. 2140:
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931).
The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).
The government, in seeking an injunction in this case thus carries the "heavy burden of showing justification for the imposition of such a restraint." Amici submit that the government's mere assertion of a violation of a regulation, a regulation who's constitutionality is being seriously challenged, does not meet that burden. That is particularly true where the alleged conduct has been going on for a substantial period of time, where the FCC itself is mid-stream in its administrative proceedings on this very case, and where the government seeks to impose this prior restraint by injunction on the most outspoken of the micro-broadcasters currently active.
Perhaps because the F.C.C.'s fine and forfeiture schedule was held invalid earlier this year,1/ the Commission now seeks injunctive relief against Stephen P. Dunifer, one of this country's most outspoken critics of F.C.C. policy with respect to micro radio broadcasting. Dunifer's alleged low power broadcasts have been closely scrutinized by the F.C.C. for at least 1-1/2 years. The commission has been aware of others over at least the last six year period. It is ridiculous for the F.C.C. to now suddenly assert that Mr. Dunifer's activities should be enjoined because of potential "chaos" and "harm" to public safety. In fact, the Commission would seem to be in violation of the First Amendment, since their choice for the target of their first attempt to invoke the equity powers of the Federal Court against a micro-broadcaster is the nation's most outspoken advocate of micro radio.
By seeking to enjoin low-power micro radio the F.C.C. is seeking to invoke the court's power on behalf of its failure to comply with its congressional mandate to regulate the airwaves in the public convenience, interest and necessity; in its attempt to exceed the limits of the power conferred upon it by Congress; and in its continuing violation of the constitutional rights of micro radio broadcasters and their listeners.1/

(B) THE GOVERNMENT IS NOT LIKELY TO PREVAIL ON THE MERITS

The basic constitutional problem presented by this case is the Government's position that (1) all persons broadcasting to their fellows must have a license to do so, and (2) that it will not consider issuing a license to broadcast at under 100 watts of power. Thus it says to someone like defendant in the present case: "You can't broadcast without a license, and we won't consider an application for the kind of low power broadcasting you want to do." Catch 88.8

1. THE REGULATIONS MUST FALL UNLESS THEY MEET THE CONSTITUTIONAL TEST FOR BROADCAST REGULATIONS: THEY MUST BE NARROWLY TAILORED TO FURTHER A SUBSTANTIAL GOVERNMENT INTEREST1/

Amici contend that these regulations are neither narrowly tailored nor do they further a substantial government interest. By banning all broadcasting at less than 100 watts of power the FCC takes a blunderbuss approach to a dubious government interest. As stated in their 1978 Second Report and Order, In the Matter of Changes in the Rules Relating to Commercial Educational FM Broadcast Stations, 69 F.C.C. 2d 240, 44 R.R. 2d 235 (1978), amended, 70 F.C.C. 2d 972, 44 R.R. 2d 1685 (1979) they intended to professionalize non-commercial broadcasting, by forcing the large number of (then largely college affiliated) 10 watt stations to either go off the air or increase in power and budget.
It is not at all clear that there is "a substantial government interest" in keeping very low power broadcasters off the air. Quite the contrary, Amici feel very strongly that in this age of big government and big media the first Amendment requires regulations which facilitate such micro broadcasting. However that is not before this court. The issue before this court is whether the regulations at issue here, limiting the airwaves to large broadcasters, meet the constitutional test. We submit that they clearly do not.
Looked at more broadly, the F.C.C. regulations have failed to keep pace with the rapid proliferation of technological advances in the field of communication, by completely prohibiting micro radio broadcasters and their listeners from access to each other over the public's airwaves.1/
The F.C.C. seeks to invoke here regulations which were intended solely for application to large-scale, commercial broadcasters, and which were promulgated long before the advent of the technology that makes micro radio possible.
The movement to use ultra low power, micro radio, to communicate on a local community level is a growing movement which comes out of the conjunction of a new technology on the one hand, and massive increase in the concentration of ownership of the mass media, at the very time of the removal by the FCC of most community service requirements on commercial media, on the other hand.
Micro radio broadcasters can engage in effective low-cost radio in an era of increasing monopoly control of the airwaves. The cost of owning and operating a radio station today is in the hundreds of thousand and million dollar range. Use of the broadcast media has become limited to large media owning corporations. The person who wants to communicate and listen to others over the airwaves in his or her community is completely left out of the licensing scheme.1/
Amici feel that it is the obligation of the F.C.C. to create a "safe harbor" for non-licensed very low power broadcasting, or, in the alternative, to amend and apply its regulatory framework in such a way as to safeguard the First Amendment right of free speech for all persons, regardless of their economic power. Instead, the F.C.C. has sought to apply severe administrative and criminal sanctions, intended for application to large-scale commercial operators, to micro radio broadcasters with the goal of completely precluding all such broadcasts.
Even if it sees some great urgency in the situation the duty of the FCC, would be to do an expedited rule-making to create a simplified set of rules under which micro-broadcasters could operate.1/
2. THE F.C.C REGULATIONS AT ISSUE IN THIS CASE ARE UNCONSTITUTIONAL ON THEIR FACE
Current F.C.C. policy constitutes a prior restraint of free speech in violation of the First Amendment, and the F.C.C.'s move to enjoin micro radio broadcasts in this instance constitutes an abridgement of fundamental First Amendment guarantees. The F.C.C. must uphold the First Amendment rights of micro radio broadcasters and their audience in furtherance of their mandate to regulate the airwaves in the public interest, convenience and necessity. That is, the F.C.C. may not outlaw this media under the constitution, although the Commission COULD develop a regulatory procedure appropriate to this media if such is found necessary.
The purpose claimed for requiring radio broadcasters to obtain licenses from the F.C.C. is to prevent interference from other radio broadcasts. See, e.g., NBC v. United States, 319 U.S. 190, 212 (1943); FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 474 (1940). The F.C.C. cites authority suggesting that due to the finite size of the radio spectrum, or "spectrum scarcity", only a limited number of radio frequencies are capable of broadcasting at the same time in the same space without undue interference from neighboring signals. F.C.C Reply to Defendant's Opposition to Motion for Preliminary Injunction, page 4. However, the justification for regulating airwave broadcasts based upon this scarcity theory has undergone significant criticism.1/
The F.C.C. itself found the concept of "spectrum scarcity" to be a much weaker argument in modern times than it was when the Communications Act was initially adopted in 1932. It consequently found "scarcity" to be an improper basis for applying a different constitutional standard to broadcast media than is applied to other media. In re Syracuse Peace Council, 2 F.C.C. Rcd 5043 (1987). As the F.C.C. pointed out in Syracuse, while it may be true that there are only a finite number of broadcast frequencies, this is no less true of the computers, delivery trucks, ink and newsprint which are used in the production of printed speech:
[W]e simply believe that, in analyzing the appropriate First Amendment standard to be applied to the electronic press, the concept of scarcity -- be it spectrum or numerical -- is irrelevant. As Judge Bork said in Trac v. F.C.C. [801 F.2d at 508], 'Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.'

Id. at 5055.

It is important to note, in addition, that so the called spectrum scarcity is itself a product of FCC policies: The policy of granting a relatively small number of licenses to extremely powerful broadcast stations. (On any given frequency in a major urban area there can be only one 100,000 watt station, where there could be dozens of one to five watt stations, for example.)
3. THE REGULATIONS AT ISSUE ARE UNCONSTITUTIONAL AS APPLIED, AND THE F.C.C. VIOLATES ITS STATUTORY MANDATE TO SERVE THE PUBLIC CONVENIENCE, INTEREST AND NECESSITY BY ITS FAILURE TO ALLOW MICRO POWER RADIO BROADCASTING. TO THE EXTENT THAT THERE IS A LEGITIMATE GOVERNMENTAL INTEREST IN REGULATING MICRO RADIO THE FIRST AMENDMENT REQUIRES THAT GOVERNMENT USE THE NARROWEST POSSIBLE MEASURES TO ACCOMPLISH THAT OBJECTIVE.

"In a country where most citizens travel by automobile and parks all too often become locales for crime rather than social intercourse, our failure to recognize the possibility that new types of government property may be appropriate forums for speech will lead to a serious curtailment of our expressive activity." Society for Krishna Consciousness v. Lee, ___ U.S. ___, 112 S.Ct. 2701, 2717 (1992), (Kennedy, concurring in part).

To paraphrase Justice Kennedy in the context of this case:
'In a country where most citizens get their information over the air, and the commercial broadcast media all too often become locales for crime stories rather than for community and social intercourse, the FCC's failure to recognize the possibility that new types of broadcasting may be appropriate forums for speech will lead to a serious curtailment of our expressive activity.'

It is the obligation of the F.C.C. to construct and enforce its regulatory framework in such a way as to safeguard, and indeed strengthen, the First Amendment right of free speech for all persons, regardless of their economic power. By totally prohibiting low-power micro radio, the Commission has failed to carry out its congressional mandate to regulate the airwaves in the public interest, has exceeded the limits of the power conferred on it by Congress, and is violating the constitutional rights of micro radio broadcasters and their listeners.
Although the Commission retains regulatory authority over micro radio, no compelling interest supports the blanket prohibition of very low power community radio broadcasts. The Communications Act of 1934 states that the Commission may assign bands of frequencies to the various classes of stations, assign frequencies for each individual station and determine the power which each station shall use. 47 U.S.C. ¤ 303(c). However, while the Commission serves the role of "traffic cop" with regard to spectrum allocation, a blanket refusal to permit low power FM broadcasts is an arbitrary and capricious abuse of Congressional authority, and is therefore an unconstitutional violation of the First Amendment rights of micro radio broadcasters.
The FM band of the electromagnetic spectrum is a place where speakers communicate messages to an audience, and, like any other forum where First Amendment activity is subject to interference, government may make reasonable rules for its use, FCC v. League of Women Voters, 468 U.S. 364 (1984). While the government may regulate activity in a First Amendment forum so long as reasonable rules are adopted to regulate the time, place and manner of protected speech, it is equally true that upon opening a forum to First Amendment activity the government is constrained in the exclusions it may enforce. A designated public forum is created when the state opens to the public generally "a place for expressive activity." Perry Ed. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983). Regulation of designated public fora is subject to strict scrutiny. Id. at 46. A designated public forum must be "held open to the general public" or made available "for indiscriminate use by the general public." Id. at 47.
Because the electronic media is today the dominant means of communicating with the public, any policy that absolutely denies citizens access to the airwaves necessarily renders even the concept of "full and free discussion" practically meaningless. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 196 (1973) (Brennan, dissenting) (citing Red Lion, supra, at 386 n. 15) Most Americans today rely on the electronic media almost exclusively to obtain information previously obtained through the print media or social gathering places. As a result, the airwaves must be appropriately analogized to a designated public forum, with strict scrutiny required to uphold any time/place/manner regulations impinging upon First Amendment rights, and the means used narrowly drawn to accomplish the Commission's regulatory objective.
The problem is not that micro radio broadcasters are refusing to comply with F.C.C. licensing procedures. Rather, the fundamental problem is that the F.C.C. has not provided procedures by which micro radio broadcasters can become licensed or authorized. Instead, the F.C.C. is applying severe administrative and criminal sanctions, intended for application to large-scale, commercial operators, to micro radio broadcasters with the goal of completely precluding all such broadcasts.
The Commission has recently gone to great lengths to argue that its regulations do not in fact completely prohibit micro radio. In its earlier "Forfeiture Order" to Mr. Dunifer, the Commission stated that there "is clear indication that there is no 'complete and absolute prohibition'" against micro power radio broadcasting. In the Matter of Stephen P. Dunifer, NAL/Acct. No. 315SF0050; SF-93-1355, Forfeiture Order at 6. The Commission cites four methods by which it alleges that micro radio broadcasting may be permitted pursuant to its current regulatory framework. These methods may be summarized as follows:
1) Petition the Commission to change the current regulatory framework that prohibits non-commercial broadcasts of less than 100 watts

2) Apply for a license to operate a 10 watt station above 92 Mhz on the FM band;

3) Broadcast as permitted under 47 C.F.R. ¤ 15.239(b);

4) Apply for a license to operate a Non-Commercial Educational FM Broadcast station under 47 C.F.R. ¤¤ 73.501 et. seq. See id. at 3, 6.

Non of these suggestions, however can save the regulations from constitutional attack. Further, an analysis of the claimed opportunities for micro radio broadcasting within the F.C.C.'s current regulatory framework reveals them to be illusory, at best. Number 1 would require micro radio broadcasters (or anyone else) to petition to change a rule that is unconstitutional on its face, before it could be challenged in District Court. Such a principle would completely deprive the courts of the right (and duty) to declare laws conflicting with the constitution unconstitutional, since (the argument would go) an aggrieved party could petition congress to change such a law. Number 2, above is, in effect, the same as petitioning for a rule change, since the minimum power requirements for acquiring a license to operate above 92 Mhz are 100 watts or a six kilometer reference distance.1/ 47 C.F.R. ¤¤ 73.211 et. seq., 73.511. Number 3 above is meaningless, since the maximum field strength permitted by ¤15.239(b) is so low as to preclude any micro radio broadcast from being received more than a few hundred feet from the transmitter. Any suggestion by the Commission that a 10 watt broadcast could comply with the field strength limitations imposed by ¤15.239(b) is misleading, at best.
Number 4 comes very close to being disingenuous. 47 C.F.R. ¤73.511(a) explicitly provides that "No new Non-Commercial Educational station will be authorized with less power than minimum power requirements for commercial Class A facilities," that is, less than 100 watts. While it may be true that no one is precluded under the current regulatory framework from applying for a license, it is also true that no such application can be approved by the Commission under its current regulations.
Although the F.C.C. states that micro power radio broadcasters should ask the agency to establish rules that would permit them to operate, this does not alter the fact that existing F.C.C. regulations governing micro power radio are unconstitutional. Nor does it, if the FCC is serious, prevent it from opening such a rule making. Indeed, when the courts rule the present regulations unconstitutional the FCC will have to do just that. As an agency charged with the precious duty of implementing the first Amendment on the public airwaves it should be doing that now, not trying to punish innovative broadcasters.
4. THE FACT THAT THE GOVERNMENT HAS NOT NARROWLY TAILORED THE REGULATIONS TO FURTHER A SUBSTANTIAL GOVERNMENT INTEREST IS MADE CLEAR BY THE FACT THAT NEIGHBORING COUNTRIES WITH LESS STRINGENT FREE SPEECH GUARANTEES PROVIDE A SIMPLE AND APPROPRIATE REGULATORY STRUCTURE FOR MICRO RADIO.

While the Commission cites the risk of cacophony over the airwaves, as well as public safety and aviation concerns, such concerns have not stopped the Canadian Radio-television and Telecommunications Commission (CRTC) from adopting policies with respect to micro power radio broadcasting. In June of 1993 the CRTC established a priority system allowing Very Low Power FM (VLPFM) radio operators to obtain broadcast licenses in urban areas. Public Notice CRTC 1993-95, CRTC (1993). VLPFM has been defined as an FM broadcaster having transmitting power of one watt or less. Broadcast Procedure BP-15, Canada Department of Communications, p.1 (1978). Since 1978 Canada has licensed VLPFM broadcasters in remote communities with a simple 3 page application form. BP-15. Canada presently allows VLPFM broadcasts in urban areas where frequencies are scarce, including the metropolitan areas of Toronto, Montreal and Vancouver.
In their notice Broadcast Procedure BP-15, the Canadian Department of Communications recommends that application forms and required information for the operation of very low power FM transmitters be simple enough to allow for easy application by potential low power licensees. Id. at 50. These forms request operational information (name of licensee, address, etc.), technical information (frequency/channel, antenna location, type of equipment, etc.) information concerning the community being served, and statements as to how operation of a low power transmitter will serve the needs of the community. A cursory examination of this scheme indicates that the licensing and administrative requirements necessary to oversee operation of micro radio stations are not burdensome. Indeed, these licensing forms reveal that micro radio can be easily regulated so as to prevent any risk of signal interference. It is therefore obvious that FCC regulations prohibiting the operation of micro power radio unduly burden First Amendment rights, inasmuch as there exist obviously less restrictive means of furthering the government's interest in regulating the airwaves.


(C) THE POSSIBILITY OF HARM CAUSED BY DEFENDANT'S MICRO RADIO BROADCASTS DOES NOT OUTWEIGH THE CHILLING EFFECT WHICH WOULD RESULT FROM THE ISSUANCE OF A PRELIMINARY INJUNCTION AT THIS VERY EARLY STAGE OF THE LITIGATION

The balance of hardships in this matter involves Mr. Dunifer's fundamental First Amendment right to free speech and the free speech rights of his listener's against the F.C.C.'s assertion that there is the "possibility" that harm "may" result from Mr. Dunifer's freedom from an injunction, during the next stages of this lawsuit.
Balanced against the "potential" harms asserted by the F.C.C. is the chilling effect on free speech that an injunction in this matter would have. As newspaper and magazine articles submitted by Plaintiff suggest, Stephen P. Dunifer is a high profile advocate of the Constitutional right of citizens to communicate using low power micro radio. It is no surprise that the F.C.C. has chosen to focus on Mr. Dunifer, even as the practice of micro radio continues to blossom throughout the country.
The F.C.C. apparently seeks to set an example by silencing Mr. Dunifer, thereby causing others to refrain from asserting their constitutional and international law right to communicate using low-cost, low impact micro radio technologies. See, e.g., International Covenant on Civil and Political Rights, Article 19 (ratified by U.S. Senate, April 2, 1992); American Convention on Human Rights, Article 13; European Convention on Human Rights, Article 10)
Enjoining Mr. Dunifer during the pendency of his Constitutional challenge to the F.C.C. regulations prohibiting micro radio would have a chilling effect on all others who seek to challenge unconstitutional regulations abridging their right to free speech.
An injunction would also signal that the poor, ethnic minorities and other disenfranchised groups lack even the barest semblance of access to the airwaves. Should an injunction issue, under represented poor and minority communities would effectively be denied the basic right to communicate over the public airwaves. Rather, the public airwaves will continue to reflect the ideas and beliefs of those affluent enough to own a broadcast outlet, while minority ownership of broadcast outlets will remain outrageously and disproportionatley small.
The chilling effect of an injunction will severely affect those communities possessing a high illiteracy rate, those communities where representation in the broadcast media is significantly marginalized, and all other disenfranchised communities otherwise lacking access to the electronic media. The F.C.C. argues that micro power broadcasts may cause harm due to interference with licensed stations, yet in the present case F.C.C. engineers provide scant evidence of interference or other harm caused by Free Radio Berkeley, despite extensive monitoring of Free Radio Berkeley's activities. Given the high profile media attention accorded to these broadcasts and the degree of F.C.C. scrutiny applied to Free Radio Berkeley, it is significant that the F.C.C. alleges receipt of only two "complaints" concerning such broadcasts.
It is also notable that the F.C.C. has been unable or unwilling to provide the Amicus National Lawyers Guild's with additional details regarding these two alleged complaints, despite a May 19, 1994 Freedom of Information Act ("FOIA") request and an assurance from the F.C.C.'s Field Operations Bureau that this request would be acted upon no later than June 22, 1994. No response has been provided by the F.C.C. since their initial reply to this request, despite repeated requests by the Guild newspaper. The F.C.C.'s "denial" of this FOIA request has been appealed, and no response to the appeal was received from the F.C.C. within the 20 day statutory period required by law. (see Exhibit A, attached hereto). As a result, the Guild's editors are preparing a complaint to be filed in this Court to obtain disclosure of this disputed information.
Amici believe that no serious threat to public safety is posed by low power FM broadcasts such as those allegedly made by Free Radio Berkeley. In addition to the alleged complaints described above, the F.C.C. simply asserts, without proof, that there are safety risks posed by Mr. Dunifer's low power FM broadcasts. Had the F.C.C. been seriously concerned with safety hazards posed by Mr. Dunifer's alleged micro radio broadcasts, it would have sought to enjoin these broadcasts immediately rather than waiting for a period of 1-1/2 years before bringing this matter to the court's attention. Had they known of any incident of endangerment of public safety they would certainly have drawn it to the Court's attention in this proceeding.
While the F.C.C. in its motion cites one law review article, Bender, The Case of Sarah: A Testing Ground for the Regulation of Radio Piracy in the United States, 12 Fordham International Law Journal 67, 69 (1988), in support of their contention of harmful interference, that article focuses on two notable cases in which defendants broadcast commercial high power AM transmissions from a seagoing ship beyond the territorial limit of the United States. See, United States v. Weiner, 701 F.Supp. 14 (D.Mass. 1988), aff'd, 887 F.2d 259 (1989); United States v. McIntire, 370 F.Supp. 1301 (D.N.J. 1974); United States v. McIntire, 365 F.Supp. 618 (D.N.J. 1973). The facts in the instant case differ significantly in that Dunifer's alleged low power FM broadcasts are unlikely to interfere with air or ship navigation, nor endanger public safety. Furthermore, unlike defendants in Weiner and McIntire, Mr. Dunifer has no option but to broadcast without a license inasmuch as FCC regulations prevent micro radio operators from applying for a license because they operate at too low an Effective Radiating Power (ERP) and cannot otherwise afford the $50,000 to $100,000 necessary to operate a station pursuant to F.C.C. regulations.1/
Because the potential for harm cited by the F.C.C. is significantly exaggerated and because the F.C.C. prohibition on micro radio fails to meet constitutional standards with respect to the First Amendment, plaintiff's motion for injunctive relief should be rejected by this Court.


GRANTING THE GOVERNMENT'S MOTION FOR INJUNCTIVE RELIEF WOULD BE UNCONSTITUTIONAL AS AN UNNECESSARY ABRIDGEMENT OF FREE SPEECH WHERE OTHER REGULATORY ALTERNATIVES ARE AVAILABLE.
Amici believe that the F.C.C.'s efforts to enjoin micro radio broadcasts are unconstitutional as an abuse of discretion where these low power broadcasts serve the public interest and other regulatory alternatives are available to the F.C.C.. Precedent is found in C.J. Community Services, Inc. v. FCC, 15 R.R. 2029 (D.C. Cir. 1957), a very similar case, in which the court held that the F.C.C. was not required to issue a cease and desist order where unauthorized operation of an unlicensed booster station, which could cause some interference to authorized operations was taking place. This booster station re-broadcast television signals to the community of Bridgeport, Washington - a community which otherwise received no useable television signals. Id. at 2031 (emphasis added).
The situation facing micro radio broadcasters is analogous to the facts in that case. In C.J. Community Services, Inc., no application for licensing of the low power booster station was made, Id. Just as the F.C.C. now prohibits all low power FM radio operations, the Rules and Standards at that time did not provide for the licensed operation of such a booster station, nor did the rules allow for the issuance of such a license. Id. at 2030-31. In C.J. Community Services, Inc. the court found that the unlicensed station served a compelling need in that it broadcast programming to an under-represented, under-served community.
Similarly, micro radio broadcasters typically serve segments of the local community that are not served by more conventional commercial or non-commercial broadcast outlets. Particularly in light of the social, political and cultural information broadcast over Free Radio Berkeley (see Plaintiff's Exhibits from the Sunday New York Times (October 24, 1993) and in Spin Magazine (May 1994)), the court must strive, as in C.J. Community Services, Inc., to achieve a fair and equitable result. Such a result is particularly important given the First Amendment issues raised in this case, inasmuch as "speech concerning public affairs...is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).1/

CONCLUSION
The National Lawyers Guild Center for Democratic Communications and the Media Alliance firmly believe that F.C.C. policies prohibiting all operation of micro radio broadcasting constitute prior restraint prohibited by the First Amendment, exceed the F.C.C.'s constitutional authority, and are inconsistent with the F.C.C.'s established guidelines and function. Amici also firmly believe that these same F.C.C. policies are violative of Due Process and Equal Protection in that they discriminate against the poor and minorities, and do not provide for adequate representation by counsel or opportunity for a hearing or administrative review. In addition, the F.C.C.'s action to enjoin micro radio practitioner Stephen Dunifer is intellectually flawed and factually incorrect. The F.C.C. frequently fails to comply with its own procedures, the relief sought is grossly disproportionate given the nature of the alleged offenses, and the action for injunctive relief is based upon unsubstantiated accusations with insufficient evidentiary support.
Based on the foregoing, Amici urge the Court to deny the F.C.C.'s request for injunctive relief in this matter. Instead, the F.C.C. should be instructed to draft new regulations allowing for the operation of micro radio stations where such operation serves the public interest, convenience and necessity as required pursuant to 47 CFR ¤73.201 et seq. Until such time as these new regulations are drafted and implemented, all relief sought by the F.C.C. with respect to micro radio should be denied.

Dated: Respectfully submitted,

NATIONAL LAWYERS GUILD Center for Democratic Communications

MEDIA ALLIANCE


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Alan Korn, CA # 167933
Staff Attorney NLG CDC



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Peter Franck CA # 34402
Attorney, NLG CDC
1. United States Telephone Association v. F.C.C., No. 92-1321, No. 93-1526, 1994 U.S. App. Lexis 17002. 1. . "It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences...(and) that right may not constitutionally be abridged either by Congress or by the FCC." Red Lion Broadcasting v F.C.C., 395 U.S. 367, 390 (1969). 1. FCC v. LEAGUE OF WOMEN VOTERS 468 U.S. 364, 380; 104 S. Ct. 3106 (1984), 468 U.S. 364; 104 S. Ct. 3106; 82 L.Ed. 2d 278 4. The F.C.C. has refused to license all FM stations (except some in Alaska) that operate with less than a minimum effective radiated power of 100 watts since their 1978 Second Report and Order, In the Matter of Changes in the Rules Relating to Commercial Educational FM Broadcast Stations, 69 F.C.C. 2d 240, 44 R.R. 2d 235 (1978), amended, 70 F.C.C. 2d 972, 44 R.R. 2d 1685 (1979). 1. The rule that the FCC will not consider an application for a license for a station with less than 100 watts of power is a regulatory creation of the Commission. The 100 watt minimum was justifiably criticized shortly after it was adopted in Note, Educational FM Radio - the Failure of Reform, 34 Fed. Com. L.J. 432 (1982). Nothing in the Communications Act (47 U.S.C. 151 et. seq.) prohibits micro radio broadcasting. To the extent that the F.C.C.'s regulations have banned micro radio, they are in conflict with the statutory framework and must be set aside. The arbitrary nature of the FCC's rules is highlighted by the sole exception to the 100 watt minimum. The FCC does permit 10 watt translators. Translators are transmitters which repeat a larger station's signal. Thus 10 watts is OK if you are repeating a signal already on the air, but not OK if you want to do original community based programming. 1. The need for an expedited proceeding of this sort is all the more highlighted by the decision of the Court of Appeals for the D. C. Circuit United States Telephone Association v. FCC, No. 92-1321, No. 93-1526, 1994 U.S. App. Lexis 17002 invalidating the schedule of fines which the Commission has been applying to micro-broadcasters. 1. See F.C.C. v. League of Women Voters, 468 U.S. 364, 376 n. 11 (1984), in which the Court explicitly invited Congress or the F.C.C. to rule that technological developments have advanced so far that some revision of the system of broadcast regulation may be required. See, also, Spitzer, The Constitutionality of Licensing Broadcasters, 64 NYU LR 990 (1989). 1. "Reference distance" is a technical concept defined at 47 C.F.R. ¤ 73.211(b)(1)(i). 1. Financial Qualifications Standards of Aural Broadcast Applicants, 69 F.C.C. 2d 407 (1978). 1. . As the Supreme Court observed in Columbia Broadcasting System, Inc. v. Democratic National Committee 412 U.S. 94 (1973): Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of great delicacy and difficulty.... The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded ten years hence. Id. at 102. ?? (..continued) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. amicus1.new 10 11 2:26