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Free Radio Berkeley's 2nd reponse to FCC
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Louis N. Hiken
Attorney at Law
One Sansome Street, Suite 900
San Francisco, California 94104
Tel: (415) 705-6460
Fax: (415) 705-6444
Mr. Philip M Kane
Acting Engineer in Charge
Federal Communications Commission
3777 Depot Road, Room 420
Hayward, California 94545
Re: In the Matter of Stephen P. Dunifer; NAL/Acct. No.
315SF0050; SF-93-1355.
Dear Mr. Kane,
The following is our response to the Notice of Apparent
Liability, filed against my client, Stephen P. Dunifer, on June
1, 1993.
INTRODUCTION
As set out more fully below, it is Mr. Dunifer's position
that the Notice of Apparent Liability (N.A.L.) in this case is
unwarranted, procedurally flawed, constitutionally invalid, and
calls for a forfeiture amount that is grossly disproportionate to
the alleged violations and which exceeds the maximum limits set
by statute.
Before proceeding, however, a prefatory comment as to the
broader, fundamental problem giving rise to the N.A.L. seems to
be in order. The Federal Communications Commission (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 F.C.C.'s current regulatory
scheme completely prohibits micro radio broadcasters and their
listeners from accessing the public airwaves. To enforce this
absolute prohibition, the F.C.C. is relying upon regulations, and
case law applying the 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 possible micro radio; indeed, even before the advent of FM
broadcasting. The F.C.C.'s application of these regulations
violates the First Amendment rights of individuals seeking to
exercise those rights via methods and mediums that were
technologically impossible when the regulations were created.
The cost of owning and operating a radio station has
1
skyrocketed into the hundreds of thousands and even million
dollar range, and participation in the broadcast media has
thereby become limited only to large corporations. The
individual seeking to communicate and listen to others over the
airwaves in his or her local community is completely left out of
the licensing scheme if he or she cannot afford the expenses
entailed in purchasing, obtaining a license for and operating a
commercial broadcast station with at least 100 watts of power.1
Micro radio provides a format by which ordinary people can
communicate with one another over the airwaves without
interfering with the rights of large-scale, F.C.C. licensed
commercial stations or their listeners. The F.C.C., however, has
not provided a means by which persons wishing to avail themselves
of this new technological opportunity can legally do so. 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 very notion of
assessing a $20,000 forfeiture against Mr. Dunifer, an individual
with no prior F.C.C. violations, accused of transmitting two low-
power, non-commercial broadcasts of approximately 1 hour
duration, is ludicrous.
It is the obligation of the F.C.C. to construct and enforce
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. By totally prohibiting low-power micro
radio, the F.C.C. has failed to comply with its congressional
mandate to regulate the airwaves in the public interest, has
exceeded the limits of the power conferred upon it by Congress,
and is violating the constitutional rights of micro radio
broadcasters and their listeners.
ARGUMENT
1. The F.C.C. Has Failed To Comply With Its Own Procedures.
Stephen Dunifer is a non-licensee and a non-applicant who
falls within 47 USC 503(b)(5) and 47 CFR 1.80(d).
Accordingly, prior to issuing the N.A.L., the F.C.C. was required
to send Mr. Dunifer a citation providing notice of the charged
violations and to give Mr. Dunifer a reasonable opportunity for a
personal interview with F.C.C. officials. (47 USC 503(b)(5); 47
____________________
1It is important to note that the 100 watt minimum is a
regulatory creation of the F.C.C. Nothing in the Communications
Act (47 U.S.C. 151 et. seq.), on its face, prohibits micro radio
broadcasting. To the extent that the F.C.C.'s regulations have
effectively banned micro radio, the regulations are in conflict
with the statutory framework and must be set aside.
2
CFR 1.80(d)).2 These violations of the F.C.C.'s own procedural
rules constitute grounds for rescinding the forfeiture order.
2. The Forfeiture Is Based Upon Unsubstantiated Accusations With
Insufficient Evidentiary Support.
The F.C.C. has failed to present a prima facie case that Mr.
Dunifer is in violation of F.C.C. rules. The facts presented in
the N.A.L. do not prove that the allegations contained therein
are true, correct, or provide a valid basis for the demand of a
forfeiture. Without clear and convincing evidence that Mr.
Dunifer operated radio equipment without proper authorization,
the F.C.C. may not impose any forfeiture.
The N.A.L. presents insufficient evidence that Mr. Dunifer
is the operator of "Free Radio Berkeley." The only indications
put forth by the Bureau on the N.A.L. to substantiate this
allegation are the partial transcripts of the tapes of the radio
broadcast using "Free Radio Berkeley" as an identifier and that
Mr. Dunifer's was among five names found on the mail slot at 809B
Allston Way at the time the transmissions were alleged to have
emanated from that address.
The F.C.C. offers no supporting evidence to show that the
broadcasts that were monitored on May 2, 1993, were broadcast
from the same location that was monitored on April 25, 1993, and
allegedly transmitted from 809B Allston Way. The Commission has
not explained the basis for its conclusion that Mr. Dunifer,
rather than one or more of the other persons residing at the
address, was responsible for the broadcasts. Absent further
explanation or discovery, it is impossible for Mr. Dunifer to
prepare a proper response to the factual allegations of the
N.A.L.
According to paragraph 7 of the N.A.L., an unidentified
person refused inspection of 809B Allston Way. From the N.A.L.,
however, it is impossible to determine if the F.C.C agents ever
specifically requested entry into the residence at any time. If
the F.C.C. agents never requested entry, it is impossible for a
refusal of inspection to have occurred. Furthermore, Mr. Dunifer
____________________
2While these sections do not apply to persons "engaging in
activities for which a license. . . is required" (47 USC 503(5),
47 CFR 1.80(d)(3)), Mr. Dunifer clearly does not fall within this
exception. The activity in which it is alleged he was engaged,
broadcasting with approximately 10 watts of power, is one for
which there simply is no procedure by which one can be licensed.
This is the crux of the problem with the current F.C.C.
regulations dealing with small-power FM broadcasting. Had Mr.
Dunifer sought an F.C.C. license to engage in the alleged
activity, the F.C.C. would not have licensed him unless he was
capable of broadcasting with at least 100 watts of power. Since
there is absolutely no licensing procedure for micro radio
broadcasters, the F.C.C. cannot argue that Mr. Dunifer falls
within this exception to the citation and "opportunity for
meeting" requirements of 503(b)(5).
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does not hold an F.C.C. license that would require him to permit
entrance for inspection absent a search warrant, nor does he know
of any individual living at that address who holds such a
license.
The F.C.C. concludes the voice broadcasting on April 25 and
May 2 as "Free Radio Berkeley" was that of Mr. Dunifer. The
F.C.C., however, has presented no evidence that the voice on
their tapes is indeed Mr. Dunifer's, or even that the voice on
their April 25 tape is the same as the voice on the tape of May
2. Even assuming, arguendo, that the voice recorded by the
agents on one or both occasions is Mr. Dunifer's, this does not
prove that Mr. Dunifer was the person broadcasting. Broadcasters
often employ pre-recorded tapes of programming, prepared off-the-
air at some earlier date. The F.C.C. has not brought forth any
evidence which demonstrates that the transmissions received by
the agent/investigators were "live" broad-casts. The violation
alleged in the N.A.L. is the transmission of radio signals
without proper authority. Establishing the identity of the
individual doing the transmissions is therefore essential to
sustaining the forfeiture order against Mr. Dunifer, regardless
of whether it was Mr. Dunifer's voice being heard over the air.
Assuming arguendo that all the evidence presented,
purportedly reliable in nature, is a true collection of facts,
that evidence clearly shows that persons other than Mr. Dunifer,
could just as easily be the source of the "Free Radio Berkeley"
transmissions. Several persons reside at 809B Allston Way, any
of whom may have access to the areas from which the transmissions
were alleged to have come. It is clear that the Commission has
not demonstrated a prima facie case against Mr. Dunifer. The
N.A.L. should therefore be rescinded.
3. The Imposed Forfeiture Amount Exceeds The Statutory Maximum
And Does Not Comply With the F.C.C.'s Established Standards For
Assessing Forfeitures and Violates the Eighth Amendment.
A. The F.C.C.'s "Policy Statement, Standards For Assessing
Forfeitures" Does Not Apply To Unlicensed Micro Radio
Broadcasts.
The N.A.L. states that Mr. Dunifer's forfeiture amount was
determined pursuant to the F.C.C.'s Policy Statement, Standards
for Assessing Forfeitures, ("Policy Statement") and that
according to the standards therein, "the base forfeiture amount
for operation without authorization in broadcast services is
$20,000.00." The Policy Statement, however, was never meant to
be applied to unlicensed low power micro radio broadcasters.
This is readily apparent from an analysis of the legislative
history of the Policy Statement, and from the fact that such
application in this case results in a base forfeiture amount that
violates 47 CFR 1.80(b)(3) and 47 U.S.C. 503(b)3, the
____________________
3The base forfeiture amount determined by the F.C.C. in this case
is $20,000. 47 U.S.C. 503(b) and 47 CFR 1.80 set a statutory
4
statutory authority upon which the Policy Statement is based.
The Policy Statement was adopted by the F.C.C. in July,
1991, and was released August, 1991. In June, 1992, the F.C.C.
issued a Memorandum Opinion and Order denying several petitions
for reconsideration of the Policy Statement (Memorandum Opinion
and Order, 70 RR 2d 1207), wherein the F.C.C. explained the
background of the Policy Statement:
"In 1989, Congress amended the Communications Act of 1934 to
increase substantially the maximum dollar amounts of
forfeitures the Commission could impose under Section 503(b)
and under other sections of the Act. Previously, Section
503(b) limited the Commission's forfeiture authority to
$20,000 for broadcasters and common carriers and to $5,000
for all other services. The amended section 503(b) now
provides the Commission with authority to assess forfeitures
of up to $25,000 against broadcasters, cable operators, or
applicants for such facilities, $100,000 against common
carriers or applicants for such facilities, and $10,000
against others. . . . The Commission's forfeiture rule [47
CFR 1.80(b)(1)-(3)] has been amended to reflect the higher
forfeiture amounts. . . . On August 1, 1991, the Commission
released the Policy Statement to assist both the Commission
and licensees in adjusting to the statutory increases. The
Policy Statement provides base forfeiture amounts for a wide
range of generic violations . . . . The base forfeiture
amount for each type of violation is a percentage of the
statutory maximum for the service involved for each
violation. . . . The base forfeiture amount may be increased
or decreased by applying adjustment criteria as relevant to
the facts of any particular case." Memorandum Opinion and
Order, 70 RR 2d 1207 [emphasis added].
The Memorandum Opinion and Order specifically states that
the Policy Statement was released to assist "the Commission and
licensees," and both the Memorandum Opinion and Order and the
Policy Statement itself refer numerous times to the effect of the
Policy Statement on licensees, but neither make any mention
whatsoever of non-licensees. Moreover, the standards set forth
in the Policy Statement list thirty-eight categories of
violations to which the new standards are to be applied. None of
these categories refers to unlicensed radio broadcasts.
The F.C.C. apparently based the determination of Mr.
Dunifer's forfeiture amount on the standards set forth in the
Policy Statement for violations within the category listed as
"Construction and/or Operation Without an Instrument of
Authorization for the Service." (Policy Statement, Standards for
Assessing Forfeitures, appearing in the Appendix to the
Memorandum Opinion and Order, 70 RR at p. 1211). The F.C.C.,
then, is apparently interpreting this category to include
unlicensed micro radio broadcasting. Such an interpretation of
____________________________________________________________
maximum of $10,000 for violations by non-licensees who are not
common carriers.
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the Policy Statement is, at best, strained.
When the F.C.C. has, in the past, instructed its agents and
the public as to the forfeiture amounts to be assessed for
unlicensed radio operations, it has stated its intention plainly
and clearly. Public Notice 2049, promulgated March 5, 1990, and
published at 67 RR 2d 619, stated:
"FCC TO INCREASE FINES FOR UNLICENSED RADIO OPERATIONS
Unauthorized Radio Operations; Forfeitures.
The Amount of the routine administrative monetary
forfeiture for unauthorized operation of a radio
station is increased from $750 to $1000. The routine
forfeiture amount for first violations of the
proscription of unauthorized operation in the aviation,
maritime, public safety and special emergency radio
services is increased from $1000 to $1,250. These
increases are prompted by increasing complaints of
interference stemming from illegal pirate operations
and other unauthorized activities. Unlicensed Radio
Operations (Routine Fines). 67 RR 2d 619 [1990].
"The Commission is increasing the amount of a routine
administrative monetary forfeiture for the unauthorized
operation of a radio station. The usual amount for a first
time violation will be changed from $750 to $1000. . . .
"The increases were prompted by numerous complaints of
interference resulting from "piracy" of the airwaves. FCC
licensees, broadcast associations and radio listeners have
reported increased illegal operations and a proliferation of
abusive activities. Such malicious practices violate FCC's
Rules, impede efficient management of the spectrum and
frustrate spectrum users." 67 RR 2d 619
The F.C.C. has issued no subsequent Public Notice indicating
any further change in F.C.C. policy or guidelines with respect to
unlicensed micro radio broadcasting. The Policy Statement that
was issued in 1991 cannot, under any reasonable interpretation of
its language or history, be held to supersede Public Notice 2049.
The Policy Statement, as discussed above, was issued in
response to, and in keeping with, the statutory increases
contained in the 1989 amendments to 47 U.S.C. 503(b). Those
increases were, as the F.C.C. has noted, "substantial."
(Memorandum Opinion and Order, 70 RR 1207). The maximum
forfeiture amounts for the various categories of violators were
increased, respectively, as follows: Licensed broadcasters, cable
operators, or applicants for such facilities, increase of 25%,
from $20,000 to $25,000; Common carriers or applicants for such
facilities, increase of 500%, from $20,000 to $100,000; All
Others, increase of 100%, from $5000 to $10,000. However, the
F.C.C.'s attempt here to apply the policy statement to unlicensed
micro radio broadcasts results in an increase of 2000%, from the
$1000 indicated in Public Notice 2049 to the "base forfeiture" of
$20,000 alleged in the present N.A.L. Such a result was plainly
not contemplated by the authors of the Policy Statement.
If the F.C.C. meant to change its procedures so drastically
6
with regard to so-called "pirate" radio operations, it was
required to so indicate in a manner that could be understood as
clearly as Public Notice 2049. After such a clear and
unambiguous statement of policy as that contained in Public
Notice 2049, the Policy Statement of 1991 cannot be said to
provide reasonable or adequate notice that the policy was being
changed. There is a simple explanation: The F.C.C. obviously
did not intend the Policy Statement to supersede Public Notice
2049 with regard to unlicensed radio operation. Under Commission
policy and procedures, then, Mr. Dunifer's forfeiture amount
should be reduced to $1000.00, in accordance with F.C.C. policy
as expressed in Public Notice 2049.
B. Even If The Policy Statement Standards Do Apply, The
F.C.C. Has Improperly Calculated The Base Forfeiture
Amount.
Even if the Policy Statement Guidelines of 1991 were
intended for application to micro radio broadcasters, the F.C.C.
has improperly calculated the base forfeiture amount in this
case. As noted, supra, the Policy Statement was promulgated in
response to the increases contained in the 1989 amendments to 47
U.S.C. 503(b), and the F.C.C. explicitly relied upon 503(b)
and 47 CFR 1.80 as the enabling authority for its
promulgation. (Memorandum Opinion and Order, 70 RR 2d 1207). In
the cited Memorandum Opinion and Order, the F.C.C. explained that
"[t]he base forfeiture amount for each type of violation is a
percentage of the statutory maximum for the service involved for
each violation." Id. The F.C.C. apparently arrived at the
$20,000 base forfeiture in this case by reference to the category
of violation labeled, "Construction and/or Operation Without an
Instrument of Authorization for the Service." (Policy Statement,
Standards for Assessing Forfeitures, appearing in the Appendix to
the Memorandum Opinion and Order, 70 RR at p. 1211). The table
in which the Policy Statement Standards are set out explains that
the base forfeiture amount for this category of violations is 80%
of the statutory maximum for each of the three categories of
violators within the violation category. These violator
categories are labeled: "BC/CABLE"; "CC"; AND "Other". For each
of these violator categories, the table indicates the statutory
maximum, as follows : BC/CABLE: $25,000; CC: $100,000; OTHER:
$10,000. These violator categories are obviously based upon the
statutory maximums provided in 47 U.S.C. 503(b). Comparing
the statute to the violator categories set out in the Policy
Statement Standards table, it is clear that "BC/CABLE," "CC," and
"OTHER" refer to 503(b)(2), which divides violators into the
following three categories:
"(A) . . . (i) a broadcast station licensee or permitee,
(ii) a cable television operator, or (iii) an applicant
for any broadcast or cable television operator
license, permit, certificate, or other instrument of
authorization issued by the Commission.";
"(B) common carrier[s]";
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"(C) any case not covered in subparagraph (A) or (B)"
The Policy Statement sets the base forfeiture amounts for
each category of violators within this category of violations as
follows: BC/CABLE: $20,000 (80% of the statutory maximum of
$25,000); CC: $80,000 (80% of the statutory maximum of $100,000),
and; OTHER: $8000 (80% of the statutory maximum of $10,000). In
arriving at the $20,000 base forfeiture amount, then, it is clear
that the F.C.C. in this case considered Mr. Dunifer to fall
within the "BC/CABLE" category of violators. This is plainly
erroneous, as Mr. Dunifer does not fall within 47 U.S.C.
503(b)(2)(A), since he is not a "broadcast station licensee or
permitee," nor is he an applicant for license or other
authorization. Neither is Mr. Dunifer a common carrier. The
only category to which Mr. Dunifer could possibly belong is the
"OTHER" category. The statutory maximum for violations in this
category is $10,000, and the base forfeiture amount set by the
Policy Statement is $8000.4
Under established F.C.C. procedure, however, any forfeiture
imposed in this case should be substantially lower than even this
amount. "It is not the Commission policy to fix the amount of
the forfeiture at the maximum of the statutory limit". (Williams
County Broadcasting System, Inc. 34 RR 2d 110, (1974)). Factors
to be considered in determining the forfeiture amount include the
seriousness of the violation, the circumstances under which they
were committed, their duration, and financial condition of the
licensee. (Id.; Radio Beaumont, Inc., 13 F.C.C. 2d 965 (1968);
47 U.S.C. 503(b)(2)(D); 47 CFR 10.503(A)). In the Memorandum
Opinion and Order, 70 RR 1207, the F.C.C. stated:
"The Policy Statement does not . . . require the Commission
to issue a forfeiture of any particular magnitude -- or any
forfeiture at all. . . . Most importantly, proposed
forfeiture amounts may be challenged in any proceeding in
which they are applied, and the Commission has broad
____________________
4The "base forfeiture" amount set by the F.C.C. in this case,
then, not only contravenes the Policy Statement Standards, but
violates 47 U.S.C. 503(b)(2) and 47 CFR 1.80 as well. Nor
should the F.C.C be permitted to belatedly assert that the N.A.L.
amount was based upon two violations rather than one. While the
N.A.L. does discuss two separate incidents, it is clear from
reading the section of the N.A.L. (paragraph 12) which discusses
the forfeiture amount that Mr. Dunifer's base forfeiture amount
was determined by consulting the Policy Statement table entry for
a single violation for "operation without authorization in
broadcast services." (N.A.L., paragraph 12, at p. 2) Had the
F.C.C. correctly consulted the "OTHER" violator category, even
for two offenses, the base forfeiture amount would have only been
$16,000. The only reasonable interpretation of paragraph 12 of
the N.A.L. is that the F.C.C. based Mr. Dunifer's forfeiture
amount on a single violation for the "BC/Cable" category, and
then adjusted the amount upward because there were multiple
incidents alleged and these were considered "willful."
8
discretion to take any equitable factors into account, as
relevant, to insure that licensees are not assessed
substantial forfeitures unless warranted." Memorandum
Opinion and Order, 70 RR 1207, quoting Order, 6 FCC Rcd 7016
(1991).5
The F.C.C.'s established policy of assessing forfeiture
amounts far below the statutory maximum to take into account
various equitable considerations is codified in the Policy
Statement's "Downward Adjustment Criteria." (Policy Statement,
Standards for Assessing Forfeitures, appearing in the Appendix to
the Memorandum Opinion and Order, 70 RR at p. 1213; see also 47
U.S.C. 503(b)(2)(D); 47 CFR 10.503(A)). Any forfeiture
penalty imposed in this case should be determined in accordance
with the "Downward Adjustment Criteria" for a minor violation.
The charges against Mr. Dunifer allege non-commercial, non-profit
low power broadcasts, consisting of two one-hour transmissions of
political speech and music, which were broadcast to only a
limited area, interfered with no other radio frequency and posed
absolutely no threat to life or property. The minimal "gravity"
of the alleged violations warrants the full 90% reduction
specified in the "Downward Adjustment Criteria," resulting in an
adjusted forfeiture amount of $800.
Additionally, the "Downward Adjustment Criteria" instruct
the F.C.C. to take into account "ability to pay." Id. While the
forfeiture amount imposed in this case might be appropriate for a
commercial station with the resources requisite to licensed
operation, this same forfeiture is clearly not appropriate for a
private individual accused of engaging in a purely non-commercial
operation of very small proportions, and who has no economic
resources whatsoever with which to pay either a forfeiture
penalty of any amount or the attorney's fees to contest a
forfeiture.6 To impose the proposed fine on Mr. Dunifer would
cause an extreme financial hardship on him and his family, and
this factor, which the F.C.C. is statutorily required to
consider, clearly was not considered in arriving at this
outrageously high forfeiture amount.
That the F.C.C. improperly applied their own regulations in
this case is not surprising. These laws, regulations, and
procedures were simply never meant for application to micro
radio. The numerous procedural errors in this case dramatically
illustrate the need for changes in the regulatory framework to
accommodate micro radio.
It is arbitrary and capricious for the F.C.C. to levy this
fine with no opportunity for a hearing, no opportunity to meet
with the F.C.C., no explanation of how one might legally continue
broadcasting, and without proper consideration of the statutorily
mandated factors for determining the amount of the fine. The
____________________
5The specific reference here to licensees provides still further
evidence that the F.C.C. never intended the Policy Statement
Standards to be applied to unlicensed micro radio broadcasts.
6See Statement of Stephen Dunifer, attached hereto as Appendix
"A"
9
alleged two one-hour micro radio transmissions at 1/10th or less
of the power emitted by the smallest licensed commercial
broadcast, without commercial profit or motive, causing no
interference whatsoever, by a private individual interested only
in exercising his constitutional rights cannot logically warrant
the maximum penalty assessed here by the F.C.C.
4. The Complete And Absolute Prohibition of Micro Radio
Broadcasts Resulting From The F.C.C.'s Improper Implementation
Of Their Statutory Authority Violates the First Amendment.
The foremost purpose of requiring radio broadcasters to ob-
tain licenses from the F.C.C. is to prevent interference from
other radio broadcasts. The F.C.C. maintains 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. The F.C.C. has argued that this so-
called spectrum scarcity somehow justifies the application of a
lower level of First Amendment protection for persons utilizing
the air-waves as compared to other forums.
The F.C.C. itself, however, has found the concept of
"spectrum scarcity" to be an improper basis for applying a dif-
ferent constitutional standard to broadcast media than to other
forms of media. (In re Syracuse Peace Council, 2 F.C.C. Rcd 5043
(1987)) As the Commission pointed out in Syracuse Peace Council,
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.'" 2 F.C.C.
Rcd 5043, 5055.
The F.C.C. went on to state that:
"[The] First Amendment was adopted to protect the
people not from journalists, but from the government.
It gives people the right to receive ideas that are
unfettered by government interference. We fail to see
how this right changes when individuals choose to
receive ideas from the electronic media instead of the
print media. There is no doubt that the electronic
media is powerful and that broadcasters can abuse their
freedom of speech. But the framers of the Constitution
believed that the potential for abuse of private
10
freedoms posed far less a threat to democracy than the
potential for abuse by a government given the power to
control the press." (Id. at 5057.)
It is clear that the F.C.C. must ensure that their reg-
ulations provide micro radio broadcasters the same constitutional
protections that have been established for more traditional means
of expression. The F.C.C. is constitutionally required to
develop a regulatory procedure appropriate to this media rather
than simply creating and enforcing a complete and absolute
prohibition of micro radio. This current policy constitutes a
prior restraint of free speech in violation of the First
Amendment.
The people of the United States have a constitutionally
protected interest in free speech by means of radio and other
forms of broadcast media. Metro Broadcasting, Inc., v. F.C.C.,
111 L.Ed. 2d 445, 110 S.Ct. 2997 (1990) stands for the premise
that the rights of the listeners and viewers are paramount to the
interests of the broadcasters. Given the Supreme Court's
recognition of the supremacy of these public rights, the F.C.C.'s
assertion of an, at best, remote, and as yet undocumented
possibility that micro radio may interfere with the broadcasts of
licensed, commercial stations is simply inadequate to overcome
the right of radio listeners to receive the broad variety of
view-points, perspectives, and programming formats which micro
radio offers. The advent of micro radio not only gives radio
listeners a low-cost alternative to the perspectives presented on
mainstream, commercial radio, but it furthermore allows members
of the public the opportunity to participate and present their
own personal and local community interests in a direct and
effective way, making the public airwaves truly public for the
first time.
5. The Forfeiture Imposed In This Case Violates Due Process And
Equal Protection.
As a preliminary matter, it should be noted that Mr. Dunifer
faces a huge forfeiture penalty and possible criminal sanctions
if he is found to be in violation of 47 U.S.C. 301. Mr.
Dunifer should have the right to appointed counsel, for both the
civil and criminal enforcement of the Act. Federal and state
courts provide counsel for indigent persons who cannot afford to
retain competent legal representation. In the extremely
specialized area of tele-communications law, even if competent
counsel could be found, their fees place their services well
beyond the reach of the average person. It is a violation of Due
Process and of the Fifth and Sixth Amendment rights to effective
assistance of counsel for the F.C.C. to levy a $20,000 forfeiture
against Mr. Dunifer with-out the appointment of a competent
attorney. This is especially true, given that the law provides
criminal sanctions for the very violations of which Mr. Dunifer
stands accused. 47 U.S.C. 501.
The F.C.C. administrative review provisions did not provide
an opportunity for Mr. Dunifer to meet with the F.C.C. or to
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present his case to the full Commission prior to the institution
of this excessive forfeiture. It is a violation of Due Process
to subject Mr. Dunifer to a $20,000 forfeiture without a hearing
or an opportunity to remedy his alleged violation of Section 301
of the Communications Act in a manner that conforms to F.C.C.
regulations.
The F.C.C.'s complete and absolute prohibition of micro
radio violates Equal Protection by discriminating against
minorities and the poor and by denying equal opportunity for
licensing and broadcasting to anyone who is financially unable to
operate a full-power (100 watts or more) commercial radio
station.
Finally, it is a further violation of Due Process for the
Commission to selectively initiate forfeiture proceedings against
Mr. Dunifer because of the political content and nature of the
alleged broadcasts. The F.C.C. is targeting alleged micro-radio
broadcasters because they are perceived as a challenge to the
F.C.C.'s regulatory authority, rather than in response to any
real threat of actual interference with licensed transmissions.
6. Prohibition Of Intrastate Micro Radio Broadcasts Exceeds The
Federal Government's Regulatory Authority Under The Commerce
Clause.
The Communications Act of 1934 was originally enacted to
maintain the control of the United States over all the channels
of interstate and foreign radio transmissions. This power is
arguably in accord with Art. I Sect. 2 of the U.S. constitution,
which permits Congress to regulate interstate commerce. While
the language of 47 U.S.C. 301(d) states that the F.C.C. has the
authority to regulate even purely intrastate transmissions, the
statute must be interpreted and applied in a manner consistent
with the constitutional limitations of Congress's power to
regulate interstate commerce. Thus, F.C.C. regulation of
intrastate transmissions which interfere with, and perhaps those
which are capable of interfering with, interstate commerce may be
constitutional. However, where, as here, there is absolutely no
showing that the low-wattage signal allegedly transmitted has in
any way interfered, or could possibly interfere, with interstate
signals, the F.C.C. is venturing beyond its regulatory authority.
An application or interpretation of section 301 which permits
such excessive regulation is unconstitutional under the commerce
clause.
7. The F.C.C.'s Complete And Absolute Prohibition Of Micro Radio
Broadcasting Violates Micro Radio Broadcasters' And Their
Listeners' Right To Communicate Under The U.N. Declaration Of
Human Rights, The International Covenant On Civil And Political
Rights, And The American Convention On Human Rights.
Article 19 of the U.N. Declaration Of Human Rights and the
parallel Article 19 of the International Covenant On Civil And
Political Rights state:
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"Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart
information through any media and regardless of frontiers."
These international treaties promote recognition of the
right to expression and information as a universal human right
guaranteed by international law. The treaties expressly forbid
undue restraints on freedom of expression, and require the
government to establish, and substantiate if necessary, its
justification for restrictions placed upon its citizens' right of
free expression. (U.N. Human Rights Committee, Communication No.
11/1977, paragraph 17). Similarly, Article 13(2) of the American
Convention on Human Rights requires that any governmental "res-
trictions imposed. . . on freedom of expression depend upon a
showing that the restrictions are required by a compelling state
interest," and that if there exist "various options to achieve
this objective, that which least restricts the right protected
must be selected." (Advisory Opinion of the Inter-American
Court, 13 November 1985, 8 EHRR 165).
As signatory to these international treaties, the United
States government has a responsibility to conform its regulation
of the electronic broadcast media to the treaties' requirements.
The complete and absolute prohibition of low-power micro radio
broadcasting, wherein no aspiring broadcaster can obtain a
license or F.C.C. permission under any circumstances whatsoever,
is a blatant violation of this most fundamental of
internationally recognized human rights.
CONCLUSION
The N.A.L. issued to Mr. Dunifer is defective in numerous
regards. The F.C.C. has failed to comply with its own
procedures. The forfeiture imposed is grossly disproportionate,
given Mr. Dunifer's income and assets and the nature of the
alleged offenses. The forfeiture is based upon unsubstantiated
accusations with insufficient evidentiary support. The F.C.C.
policies upon which the forfeiture is based constitute prior
restraint prohibited by the First Amendment, and are violative of
Due Process and Equal Protection in that they discriminate
against the poor and minorities, and do not provide for adequate
representation of counsel or opportunity for a hearing or
administrative review. The policies also exceed the F.C.C.'s
constitutional authority, and are inconsistent with the F.C.C.'s
established guidelines and function. The Notice of Apparent
Liability should be rescinded.
Sincerely,
Louis N. Hiken
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Attorney for Stephen Dunifer
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