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Legal points concerning Stephen Dunnifer's case ag
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LOUIS N. HIKEN, SBN 45337
Attorney at Law
One Sansome Street, Suite 900
San Francisco, California 94104
Tel:(415)705-6460 Fax:(415)705-6444
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States of America,
Plaintiff,
v.
Stephen Paul Dunifer,
Defendant
No. C 94-3542 CW
DEFENDANT?S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF HIS ANSWER TO
PLAINTIFF?S COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF
TABLE OF CONTENTS
TABLE OF AUTHORITIES
i
i
INTRODUCTION 1
I. THE F.C.C. SHOULD BE REQUIRED TO COMPLETE ITS PENDING
ADMINISTRATIVE REVIEW OF THESE ISSUES BEFORE SEEKING
RELIEF FROM THIS COURT. 6
II. THE PROHIBITION OF MICRO RADIO VIOLATES THE F.C.C.?S
STATUTORY MANDATE TO REGULATE THE AIRWAVES IN THE
PUBLIC INTEREST, TO ENCOURAGE THE LARGER AND MORE
EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST, TO
ENCOURAGE THE PROVISION OF NEW TECHNOLOGIES AND
SERVICES TO THE PUBLIC, AND TO PROMOTE DIVERSIFICATION
OF THE MASS MEDIA AS A WHOLE. 8
III.
T
HE F.C.C. REGULATIONS PROHIBITING MICRO RADIO VIOLATE
THE FIRST AMENDMENT.
1
1
A. THE SPECTRUM SCARCITY DOCTRINE NEITHER
REQUIRES NOR JUSTIFIES THE REGULATIONS. 11
B. THE REGULATIONS AS APPLIED IN THIS CASE
ARE CONTENT BASED RESTRICTIONS OF
SPEECH, AND ARE NOT NARROWLY TAILORED TO
FURTHER A SUBSTANTIAL GOVERNMENT
INTEREST. 15
IV.
P
LAINTIFF?S SUGGESTION THAT DEFENDANT HAS NOT PURSUED
"AVAILABLE" MEANS OF OBTAINING F.C.C. AUTHORIZATION TO
ENGAGE IN MICRO RADIO BROADCASTING IS FATUOUS.
2
0
V. THE PROHIBITION OF INTRASTATE MICRO RADIO BROADCASTS
EXCEEDS THE FEDERAL GOVERNMENT'S REGULATORY AUTHORITY
UNDER THE COMMERCE CLAUSE
2
3
VI.
T
HE F.C.C.?S 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.
2
3
CONCLUSION
2
5
TABLE OF AUTHORITIES
Cases
Associated Press v. United States, 326 U.S.
1 (1945) 12
Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S.
94 (1973) 12
FCC v. League Of Women Voters of California
468 U.S. 364 (1984) 5, 14, 15, 17
Federal Communications Commission v.
National Citizens Committee For
Broadcasting et al. 436 U.S. 775 (1978) 5, 10, 11, 12
National Broadcasting Co. v. United States
319 U.S. 190 (1943) 5, 9, 10, 12
Near v. Minnesota 283 U.S. 697 (1931) 17
New York Times Co. v. United States 403 U.S.
713 (1971) 17
Red Lion Broadcasting Co. v. FCC, 395 U.S.
367 (1969) 5, 10, 13, 14
United States v. McIntire, 365 F.Supp 618
and 370 F.Supp 1301 (D.N.J. 1974) 4,7
United States v. Medina, 718 F.Supp 928
(S.D.Fla. 1989) 4
Statutes
47 U.S.C. ?154(i) 8
47 U.S.C. ?157(a) 4
47 U.S.C. ?303® 8
47 U.S.C. ?301 2, 23
47 U.S.C. ?301(d) 23
47 U.S.C. ?303(g) 3, 9
47 C.F.R. part 15 2
47 C.F.R. ?12.1235 19
47 C.F.R. ?12.1237 20
47 C.F.R. ?15.1 2
47 C.F.R. ?15.239(a) 2
47 C.F.R. ?15.239(b) 20,21
47 C.F.R. ?73.201 19
47 C.F.R. ?73.211(a) 2
47 C.F.R. ?73.506 2
47 C.F.R. ?73.511(a) 19
47 C.F.R. ?74.1201 19
47 C.F.R. ?74.1202 19
47 C.F.R. ?74.1202(b) 19
47 C.F.R. ?74.1203 19
47 C.F.R. ?74.1232 19
47 C.F.R. ?74.1250 20
47 C.F.R. ?74.1261 20
47 C.F.R. ?74.1262 20
47 C.F.R. ?74.1263 20
Public Broadcasting Act of 1967, ?399 16
Other Authorities
Public Notice CRTC 1993-95, CRTC (1993) 18
Radio World, August 10, 1994, p. 9, "Radio
Translators Fill in Coverage Gaps." 19
Report and Recommendations in the Low Power
Television Inquiry, Appendix 1 (BC Docket
No. 78-253) 18
Telecommunications, Mass Media, and
Democracy; The Battle for the Control of
U.S. Broadcasting, 1928-1935, by Robert
W. McChesney, Oxford University Press,
1993 22
U.N. Declaration Of Human Rights, Article 19 24
International Covenant On Civil And
Political Rights, Article 19 24
American Convention On Human Rights, Article
13(2) 24
LOUIS N. HIKEN, SBN 45337
Attorney at Law
One Sansome Street, Suite 900
San Francisco, California 94104
Tel:(415)705-6460 Fax:(415)705-6444
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States of America,
Plaintiff,
v.
Stephen Paul Dunifer,
Defendant
No. C 94-3542 CW
DEFENDANT?S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF HIS ANSWER TO
PLAINTIFF?S COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF
Introduction
Micro radio represents a technological advancement
comparable to the invention of the printing press. For the
first time in history, the technology exists whereby an
individual without corporate or government backing, or
independent wealth can, for less than one hundred dollars,
obtain equipment by which she can broadcast to her
neighborhood, making possible truly community oriented,
originated, and controlled radio. Micro radio is the
leaflet of the 1990?s, permitting citizens to communicate
with their neighbors by a method heretofore reserved for
huge radio stations promoting commercial interests from
distant locations.
The central issue in this case is the F.C.C.?s
prohibition of micro radio broadcasting. Despite
plaintiff?s protestations to the contrary , the F.C.C. is
indeed enforcing a complete and absolute ban of all micro
radio broadcasts--that is, all original FM broadcasts of
less than 100 watts capable of reaching a listening
audience. Federal law prohibits anyone from broadcasting
without a license , and the F.C.C. refuses to grant anyone
a license unless they are capable of broadcasting with a
minimum of 100 watts. While 47 C.F.R. part 15 permits
certain unlicensed "broadcasts," this exception to the 100
watt minimum applies only if the field strength of the
broadcast is less than 250 microvolts/meter at three
meters. As plaintiff is well aware, a broadcast in
compliance with the parameters of 47 C.F.R. part 15 could
not be received by anyone farther than a house or two away
from the source. Plaintiff?s denial that their rules
completely prohibit micro radio is deceptive, and begs the
question before this court.
Plaintiff has stated to this court that, "The same
public interest considerations that require licensing of
other radio devices apply equally to low-power stations:
namely to prevent the ?cacophony of sounds? and chaos on
the limited radio spectrum." Assuming, arguendo, that this
is true, plaintiff has never proffered an explanation as to
why, if "the same public interest considerations" apply,
the government has refused to establish any procedure by
which defendant or anyone else can engage in licensed,
regulated micro radio broadcasting. Plaintiff's regulations
apply to broadcasters in rural areas with virtually no
spectrum competition just as they do to areas with a
concentrated number of stations.
Plaintiff has argued to this court that the "logical
extension" of defendant?s argument is that "anyone
proclaiming that he will not cause interference can set up
a radio station without F.C.C. oversight." Defendant,
however, does not challenge the F.C.C.?s authority to
regulate micro-power broadcasts. Rather, defendant herein
challenges the constitutionality of the F.C.C.?s complete
ban of all FM broadcasts of less than 100 watts.
The F.C.C. is statutorily required to regulate the
airwaves in the public interest, and to "study new uses for
radio, provide for experimental uses of frequencies, and
generally encourage the larger and more effective use of
radio in the public interest." 47 U.S.C. ? 303(g). 47
U.S.C. ?157(a) provides that, "It shall be the policy of
the United States to encourage the provision of new
technologies and services to the public." 47 U.S.C. ?324
provides that, "In all circumstances, except in case of
radio communications or signals relating to vessels in
distress, all radio stations, including those owned and
operated by the United States, shall use the minimum amount
of power necessary to carry out the communication desired."
Micro radio provides a perfect opportunity for the F.C.C.
to fulfill these statutory mandates. Instead, the F.C.C. is
enforcing an irrational ban of micro radio. The government
asserts repeatedly its interest in "regulating the
airwaves," but nowhere explains to this Court how this ban
serves the public interest, or why it has chosen to
prohibit micro radio altogether.
The constitutionality of the F.C.C.?s prohibition of
micro radio is a matter of first impression. The cases
cited by plaintiff regarding the district court authority
to enjoin unlicensed broadcasts involved full power
broadcasts; activities for which the enjoined parties could
have been licensed, had they gone through the appropriate
procedures. The ban of micro radio at issue here is
distinguishable from cases in which the F.C.C. has denied a
broadcast license to an individual applicant. Here, a whole
class of broadcasters is denied even the opportunity to
apply for a license, based upon the F.C.C.?s unreasonable
decision to impose the 100 watt minimum. Defendant herein
could never be licensed to conduct micro radio broadcasts
under the current regulatory framework, because of the 100
watt minimum.
The fact that this case presents a matter of first
impression does not leave the court without applicable
standards. Several Supreme Court cases, including four
cases cited but not discussed by plaintiff, Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969), FCC v. League
Of Women Voters of California 468 U.S. 364 (1984), National
Broadcasting Co. v. United States 319 U.S. 190 (1943), and
Federal Communications Commission v. National Citizens
Committee For Broadcasting et al. 436 U.S. 775 (1978),
provide the constitutional and statutory standards with
which the government?s regulation of the airwaves must
comply.
These cases make clear that while the F.C.C. is
granted wide latitude in its regulation of the airwaves,
its discretion is far from absolute. The Commission?s
regulations governing the licensing of broadcasters must
serve the public interest, convenience, or necessity. This
mandate includes the requirement that the airwaves must be
regulated in a manner which protects and furthers the
public?s First Amendment rights to have access to a broad
and diverse range of opinions and perspectives, and to
receive a balanced presentation of views on diverse matters
of public concern.
Furthermore, while the doctrine of "spectrum scarcity"
results in a modified First Amendment analysis for the
broadcast media, even this modified analysis has permitted
government restrictions of broadcasters? First Amendment
rights only when such restrictions were narrowly tailored
to further a substantial government interest.
Plaintiffs have chosen to ignore the central issue in
these proceedings (the constitutionality of their
prohibition of micro radio), and in so doing mis-
characterize the question before this court as a simple
matter of deciding whether or not the F.C.C. has the
authority to regulate the airwaves, and whether or not
defendant has broadcast without an F.C.C. license.
Defendant does not herein challenge the F.C.C.?s authority
to regulate the airwaves, nor does defendant deny that he
has broadcast without an F.C.C. license. Defendant does not
have an F.C.C. license to engage in micro radio
broadcasting because the F.C.C. simply does not provide any
mechanism or procedure whatsoever by which such a license
can possibly be obtained, by defendant or by anyone else.
This prohibition of micro radio broadcasting is
unreasonable, does not serve the public interest, and
violates the First Amendment. If the regulations as
currently enforced by the F.C.C. violate the agency?s
statutory mandate and are unconstitutional, defendant?s
violation thereof cannot form the basis for granting the
declaratory and injunctive relief sought by plaintiff.
I. THE F.C.C. SHOULD BE REQUIRED TO COMPLETE ITS PENDING
ADMINISTRATIVE REVIEW OF THESE ISSUES BEFORE SEEKING RELIEF FROM
THIS COURT.
On June 1, 1993, the F.C.C. issued a Notice of
Apparent Liability (N.A.L.) against defendant Stephen
Dunifer, in which the F.C.C. sought to impose a forfeiture
of $20,000 against defendant for allegedly engaging in two
unlicensed low power FM broadcasts. On June 28, 1993,
defendant filed his Response to the N.A.L., and, on
December 2, 1993, pursuant to 47 C.F.R. ?1.115, filed with
the F.C.C. an Application for Review of Action Taken
Pursuant To Delegated Authority. That Application set forth
the constitutional and procedural arguments as to why the
F.C.C.?s N.A.L in defendant?s case, as well as the ban of
all micro radio broadcasting, is illegal.
More than a year and a half has passed since defendant
first filed his request for relief challenging the F.C.C.?s
ban of micro radio. The F.C.C. has not responded to that
request. The F.C.C. should be required to complete its own
internal review of these issues before seeking this Court?s
intervention.
Plaintiff cites United States v. McIntire, 365 F.Supp
618 and 370 F.Supp 1301 (D.N.J. 1974) in this regard, but
McIntire is distinguishable from the present case. In
McIntire, the defendant lost his F.C.C. license, and then
engaged in full-power broadcasts from a boat offshore.
There was no currently-pending administrative review
action, as there is here, initiated by the F.C.C. and
raising the precise issues as those before the federal
court.
It is ironic that the F.C.C. claims that defendant
herein has failed to pursue discretionary administrative
relief, such as a rule-change or waiver request, and yet
has itself refused to respond to defendant?s administrative
appeal which has been before it for more than eighteen
months.
There are factual and legal questions to which the
F.C.C. itself should be required to respond; this will
provide guidance useful to the Court in its evaluation of
the pending issues. This Court should exercise its
discretion to retain jurisdiction over this case, and
require the F.C.C. to complete its internal administrative
review of defendant?s claim.
II. THE PROHIBITION OF MICRO RADIO VIOLATES THE F.C.C.?S STATUTORY
MANDATE TO REGULATE THE AIRWAVES IN THE PUBLIC INTEREST, TO
ENCOURAGE THE LARGER AND MORE EFFECTIVE USE OF RADIO IN THE PUBLIC
INTEREST, TO ENCOURAGE THE PROVISION OF NEW TECHNOLOGIES AND
SERVICES TO THE PUBLIC, AND TO PROMOTE DIVERSIFICATION OF THE MASS
MEDIA AS A WHOLE.
The authority for the F.C.C.?s regulatory power is
derived from the Communications Act. 47 U. S. C. ?303®
provides that "the Commission from time to time, as public
convenience, interest, or necessity requires, shall . . .
[make] such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as
may be necessary to carry out the provisions of [the Act]."
47 U. S. C. ?154(i) provides that, "The Commission may
perform any and all acts, make such rules and regulations,
and issue such orders, not inconsistent with this chapter,
as may be necessary in the execution of its functions."
The Communications Act also provides that, "...[t]he
Commission from time to time, as public convenience,
interest, or necessity requires, shall...[s]tudy new uses
for radio, provide for experimental uses of frequencies,
and generally encourage the larger and more effective use
of radio in the public interest." 47 U.S.C. ?303(g).
The Supreme Court analyzed these statutory bases
of the F.C.C.?s regulating authority in National
Broadcasting Co. v. United States, 319 U.S. 190 (1943)
(hereinafter "NBC"). In NBC, the Court upheld challenged
F.C.C. regulations prohibiting multiple ownership of AM
radio stations. The Court, after reviewing the statutory
framework, found that, "[the] avowed aim of the
Communications Act of 1934 was to secure the maximum
benefits of radio to all the people of the United States,"
and that "[t]he criterion governing the exercise of the
Commission's licensing power is the ?public interest,
convenience, or necessity.?" 319 U.S. at 215, 217. The
Court acknowledged that because "[t]he facilities of radio
are not large enough to accommodate all who wish to use
them," Congress had committed to the F.C.C. the task of
allocating the available spectrum space, but then stated:
" The Commission was, however, not left at large
in performing this duty. The touchstone provided
by Congress was the public interest, convenience,
or necessity, a criterion which is as concrete as
the complicated factors for judgment in such a
field of delegated authority permit. This
criterion is not to be interpreted as setting up a
standard so indefinite as to confer an unlimited
power. The requirement is to be interpreted by its
context, by the nature of radio transmission and
reception, by the scope, character and quality of
services.
The public interest to be served under the
Communications Act is thus the interest of the
listening public in ?the larger and more effective
use of radio.? [citing 47 U.S.C. ? 303 (g)]. The
facilities of radio are limited and therefore
precious; they cannot be left to wasteful use
without detriment to the public interest." NBC,
supra, 319 U.S. at 216, internal quotations and
citations omitted.
The Supreme Court again reviewed the F.C.C.?s
regulatory authority, and the "public interest, convenience
and necessity" standard, in Federal Communications
Commission v. National Citizens Committee For Broadcasting
et al. 436 U.S. 775 (1978) (hereinafter NCC). In NCC, the
Court upheld F.C.C. regulations prospectively barring the
initial licensing or the transfer of newspaper-broadcast
combinations where there is common ownership of a radio or
television broadcast station and a daily newspaper located
in the same community. The Court discussed at length the
relationship between the doctrine of spectrum scarcity, the
First Amendment, and the F.C.C.?s obligation to regulate in
the public interest:
"As we have discussed on several occasions [citing
NBC and Red Lion], the physical scarcity of
broadcast frequencies, as well as problems of
interference between broadcast signals, led
Congress to delegate broad authority to the
Commission to allocate broadcast licenses in the
public interest. And the avowed aim of the
Communications Act of 1934 was to secure the
maximum benefits of radio to all the people of the
United States. It was not inconsistent with the
statutory scheme, therefore, for the Commission to
conclude that the maximum benefit to the public
interest would follow from allocation of broadcast
licenses so as to promote diversification of the
mass media as a whole.
Our past decisions have recognized, moreover,
that the First Amendment . . . values underlying
the Commission's diversification policy may
properly be considered by the Commission in
determining where the public interest lies. The
public interest standard necessarily invites
reference to First Amendment principles and, in
particular, to the First Amendment goal of
achieving the widest possible dissemination of
information from diverse and antagonistic
sources." NCC, supra, 436 U.S. at 795, internal
quotations and citations omitted.
47 U.S.C. 307 (a) directs that "the Commission, if
public convenience, interest, or necessity will be served
thereby, subject to the limitations of this Act, shall
grant to any applicant therefor a station license provided
for by this Act." In making initial licensing decisions
between competing applicants, the F.C.C. has long given
primary significance to diversification of control of the
media of mass communications. Federal Communications
Commission v. National Citizens Committee For Broadcasting
et al. 436 U.S. 775,794 (1978). Yet under the F.C.C.?s
current policy, no one is even permitted to apply for, much
less be granted a license to engage in micro radio
broadcasting. Micro radio represents a significant
opportunity to further the important public interest and
First Amendment goal of diversification of control of the
mass media. Instead of fulfilling their statutory and
constitutional mandate to regulate the airwaves in the
public interest, and in a manner designed to achieve "the
widest possible dissemination of information from diverse
and antagonistic sources," the F.C.C. is relegating the
airwaves to the exclusive control of megawatt stations
serving corporate and commercial interests.
III. THE F.C.C. REGULATIONS PROHIBITING MICRO RADIO VIOLATE THE
FIRST AMENDMENT.
A. THE SPECTRUM SCARCITY DOCTRINE NEITHER REQUIRES NOR JUSTIFIES
THE REGULATIONS.
The government seems to be asserting that the doctrine
of spectrum scarcity provides to F.C.C. regulations
absolute immunity from First Amendment challenge. This
interpretation of the Supreme Court?s First Amendment
analysis in this area is incorrect.
As the cases cited in the above section make clear,
the F.C.C.?s regulations must meet the "public interest,
convenience and necessity" standard. "This criterion is not
to be interpreted as setting up a standard so indefinite as
to confer an unlimited power," and the "public interest to
be served under the Communications Act is . . . the
interest of the listening public in the larger and more
effective use of radio." NBC, supra, 319 U.S. at 216.
"[The] public interest standard necessarily invites
reference to First Amendment principles, and, in
particular, to the First Amendment goal of achieving the
widest possible dissemination of information from diverse
and antagonistic sources." NCC, supra, 436 U.S. 775, 795.
See also Columbia Broadcasting System, Inc. v. Democratic
National Committee, 412 U.S. 94, 122 (1973); Associated
Press v. United States, 326 U.S. 1, 20 (1945).
While the decisions cited by the F.C.C. indicate that
the broadcast spectrum is subject to a different First
Amendment standard than other media, the Supreme Court in
these cases repeatedly emphasized its concern with
broadening and diversifying the sources of information
available to the public. None of these decisions permitted
the type of across-the-board prohibition of a new means of
community-based communication that is at issue in the
present case.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969), the Supreme Court upheld the F.C.C.?s "fairness
doctrine" against a First Amendment challenge brought by
broadcasters. The Red Lion decision enunciated the classic
formulation of the "scarcity doctrine," establishing that
the finite number of frequencies available in the broadcast
spectrum mandated a modified First Amendment analysis for
determining the constitutionality of government regulations
of the broadcast medium. The Court, however, repeatedly
emphasized that the paramount First Amendment concern
underlying their decision was the right of the public to
have access to perspectives, opinions, and ideas as wide
and varied as possible on matters of public concern. The
public?s First Amendment rights were held by the Court to
outweigh those of broadcasters forced by the fairness
doctrine to air views and opinions at odds with their own:
"This is not to say that the First Amendment is
irrelevant to public broadcasting. On the
contrary, it has a major role to play as the
Congress itself recognized in [forbidding] FCC
interference with the right of free speech by
means of radio communication. Because of the
scarcity of radio frequencies, the Government is
permitted to put restraints on licensees in favor
of others whose views should be expressed on this
unique medium. But the people as a whole retain
their interest in free speech by radio and their
collective right to have the medium function
consistently with the ends and purposes of the
First Amendment. It is the right of the viewers
and listeners, not the right of the broadcasters,
which is paramount. It is the purpose of the First
Amendment to preserve an uninhibited marketplace
of ideas in which truth will ultimately prevail,
rather than to countenance monopolization of that
market, whether it be by the Government itself or
a private licensee...It is the right of the public
to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences
which is crucial here. That right may not
constitutionally be abridged either by Congress or
by the FCC." Red Lion Broadcasting Co. v. FCC,
supra, 395 U.S. at 389-390, internal quotations
and citations omitted.
The public has a First Amendment right 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 non-governmental, non-
commercial alternative to the perspectives presented on
mainstream commercial or "public" radio; this new
technology allows individual citizens to broadcast
themselves, and present their own personal and local
community interests directly and effectively, making the
public airwaves truly public for the first time. Unlike
commercially controlled interests involving huge financial
investments, micro radio broadcasters will not shy away
from controversial or wide-ranging topics of discussion to
please the largest possible audience.
The government?s assertion that the doctrine of
spectrum scarcity requires or permits their ban of micro
radio is unsupported by the case law to which they cite the
Court. In FCC v. League Of Women Voters of California 468
U.S. 364 (1984), the Supreme Court struck down a federal
statute prohibiting public broadcasters from endorsing
political candidates or editorializing. The Court plainly
stated that the restrictions placed upon the broadcast
media under the spectrum scarcity rationale are permitted
because the overall impact is to further and protect the
public?s First Amendment rights of access to broad and
diverse perspectives. Furthermore, the Court pointed out,
never had restrictions based on spectrum scarcity been
permitted absent a showing that they were narrowly tailored
to further a substantial government interest:
"...[A]lthough the broadcasting industry plainly
operates under restraints not imposed upon other
media, the thrust of these restrictions has
generally been to secure the public's First
Amendment interest in receiving a balanced
presentation of views on diverse matters of public
concern....But, as our cases attest, these
restrictions have been upheld only when we were
satisfied that the restriction is narrowly
tailored to further a substantial governmental
interest, such as ensuring adequate and balanced
coverage of public issues." FCC v. League Of Women
Voters of California, supra, 468 U.S. at 380-381,
emphasis added, citations omitted.
Applying this standard, the Court held that the
statute before them violated the First Amendment because
not all of the interests asserted by the government were
deemed "substantial," and the statute was not narrowly
tailored to further those interests that were so deemed.
468 U.S. at 398-402.
B. THE REGULATIONS AS APPLIED IN THIS CASE ARE CONTENT BASED
RESTRICTIONS OF SPEECH, AND ARE NOT NARROWLY TAILORED TO
FURTHER A SUBSTANTIAL GOVERNMENT INTEREST.
The F.C.C.?s decision to seek injunctive relief
against defendant in this case is based upon the nature and
the content of his broadcasts, and statements he has made
in other print and broadcast media. Defendant herein is one
of many micro radio broadcasters nationwide. Yet the
government has sought to enjoin only defendant, the most
prominent and outspoken critic of the F.C.C. and their
regulatory authority.
The government asserts that unless enjoined by this
Court, defendant will cause irreparable injury to the
public. Yet after months of intensive monitoring of Free
Radio Berkeley (hereinafter "F.R.B."), the F.C.C. can point
to only two instances of "interference." In both instances,
the only interference to which the government refers was
reported by F.C.C. agents themselves, and in at least one
of these instances, only in the immediate proximity of the
F.R.B. transmitter.
In its October 14, 1994 response to a FOIA request
filed by the newsletter of the National Lawyers Guild, the
F.C.C. admitted that it had received no complaints
regarding interference from the F.R.B. signal. Rather, as
the F.C.C. response makes clear, the F.C.C. received a
handful of complaints regarding the fact that defendant was
broadcasting at all. Some of these complainants apparently
never even heard an F.R.B. broadcast, but had seen flyers
or otherwise heard about F.R.B.?s challenge to the F.C.C.?s
regulations. Defendant?s public criticism of the F.C.C.,
rather than actual interference with licensed broadcasts,
is the reason he has been targeted by the F.C.C. in this
federal court action.
Under the holding of FCC v. League Of Women Voters of
California, supra, and the cases cited therein, content-
based restrictions of speech, even in the broadcast media,
are permissible only if narrowly tailored to further a
substantial government interest. 468 U.S. at 380-381.
The F.C.C. asserts that the government interest served
by the prohibition of micro radio is the prevention of
"chaos" and a "cacaphony of sound." The prohibition of
micro radio broadcasting effected by the current regulatory
scheme, however, is far from narrowly tailored to achieve
this goal; there are clearly less restrictive means of
regulation available which would not unduly burden the
government. All of the government?s asserted concerns can
be addressed by the regulation of micro radio broadcasting;
the creation of a similar system of licensing broadcasters,
assigning frequencies and monitoring the technical
specifications of broadcasting equipment as that which
exists for full-power broadcasts.
The government need look no further than to Canada
for examples of much less restrictive means of addressing
micro radio. Since 1978, Canada has licensed low power FM
radio broadcasters in remote communities with a simple
three-page application form. The Canadian Radio-Television
and Telecommunications Commission (CRTC) has recently
modified its rules to permit such broadcasts even in urban
areas, where frequency space is much more scarce. Indeed,
in a report on low power television, the F.C.C. itself
attached as an appendix a copy of Canadian recommendations
regarding the regulation of low power FM broadcasting.
These recommendations included the suggestion that
application forms and required information be simple enough
to allow for easy application by potential low power
licensees. Review of this F.C.C. report and the
attachments thereto reveals that the licensing and
administrative requirements necessary to oversee operation
of micro radio stations is not overly burdensome. Indeed,
these licensing forms reveal that micro radio can be easily
regulated so as to prevent any risk of signal interference.
Further evidence of the less restrictive alternatives
available to the Commission in this regard is available in
the F.C.C.?s own history. Until relatively recently, Non-
Commercial Educational FM broadcast stations could be
licensed by the F.C.C. to broadcast with up to 10 watts of
power.
Finally, the F.C.C.?s own regulations pertaining to FM
translators provide an example of how the F.C.C. could
regulate micro radio. The F.C.C. permits translators to re-
broadcast, on frequencies within the normal commercial and
noncommercial FM radio band, signals that originate from
huge radio stations located far from the community in which
the translator is placed.
Current F.C.C. regulations permit low power
transmitters to operate with less than 100 watts if they
are transmitting a signal originating from a full-power
radio station, but prohibit local broadcasters from using a
transmitter with identical wattage to broadcast any program
originating in the listener?s community. The F.C.C. has
promulgated translator regulations to address issues such
as frequency assignment , interference , licensing
requirements , power limitations , antenna location ,
transmitters and equipment , frequency tolerance ,
frequency monitors and measurements , and time of
operation. Many of these regulations could be just as
easily applied, almost verbatim, to micro radio broadcasts
originating in the communities to which they are being
broadcast.
IV. PLAINTIFF?S SUGGESTION THAT DEFENDANT HAS NOT PURSUED "AVAILABLE"
MEANS OF OBTAINING F.C.C. AUTHORIZATION TO ENGAGE IN MICRO RADIO
BROADCASTING IS FATUOUS.
Plaintiff suggests that defendant has not availed
himself of possible avenues by which F.C.C. permission
might be sought and obtained. This suggestion is
disingenuous. Defendant, in his Application for Review
currently pending before the F.C.C., responded to a similar
contention raised by the F.C.C. in those proceedings. In
their argument to this Court, the government has dropped
some of the F.C.C.?s more transparent "suggestions" as to
how defendant could supposedly have sought F.C.C. approval
for micro radio broadcasting. Still remaining, however, are
the F.C.C.?s assertions that, 1) defendant could legally
broadcast without a license under the provisions of 47
C.F.R. ? 15.239(b); and 2) defendant could have "asked the
agency to establish rules that would permit him to
operate...[by presenting] a rulemaking petition pursuant to
the [A.P.A.], or a request for waiver." The first
"option" is meaningless, since the field strength permitted
by ?15.239(b) is so low as to preclude any micro radio
broadcast capable of being received beyond approximately
one block away from the transmitter. The activity for
which defendant is seeking F.C.C. permission consists of
communicating with his neighbors and his community via the
new technology which for the first time in history makes
low power FM broadcasting economically feasible for
individual citizens. The government?s suggestion that a
micro radio broadcast could comply with the field strength
limitations imposed by ?15.239(b) is misleading, at best.
The second option suggested by the government,
petitioning the Commission for a rule change or waiver,
again begs the question before this Court. Defendant is
challenging the F.C.C.?s regulatory framework, as currently
formulated and enforced, because they violate the F.C.C.?s
statutory mandate and the First Amendment. Plaintiffs seek
to avoid addressing the constitutional infirmity of the
current rules by suggesting that defendant should have
asked the F.C.C. to change or waive their rules. Citizens
have no responsibility whatsoever to petition the F.C.C. to
change unconstitutional regulations--rather, the F.C.C. is
required to structure its regulatory framework so as to
comply with the relevant statutory standards and the First
Amendment.
Similarly evasive is the government?s suggestion that
there is no complete ban of micro radio because defendant
could initiate a formal rule-change procedure under the
A.P.A. Neither defendant, nor any other individual citizen
of modest means, could conceivably afford the monetary
expense involved in initiating and participating in such a
process; nor could defendant hope to meaningfully compete
with the commercial interests and their lobbyists that
would inevitably become involved in and eventually control
such a process. The historical significance of micro radio
lies precisely in the fact that average citizens can now
have access to the airwaves to communicate with their
neighbors. Requiring defendant to initiate a formal rule-
making procedure under the A.P.A. would serve the same
function as the 100 watt minimum: it would place the
ability to engage in this new form of communication out of
the reach of all but the very wealthy.
V. THE 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 any of the F.R.B. transmissions
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
47 U.S.C. ?301 which permits such excessive regulation is
unconstitutional under the commerce clause.
VI. THE F.C.C.?S 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.
More than at any time in the world?s history,
communication amongst the world?s people plays a pivotal
role. Events in places such as Bhopal, Chiapas, or
Chernobyl can and do profoundly impact societies and
communities halfway around the world. As a result, each
nation?s communications policies take on an importance
unparalleled in many other fields of law. Given the
international scope of events that the world?s peoples must
learn about, it is more important than ever for the Court
to incorporate into its evaluation of the issue pending
before it those treaties and international principles that
shed light on this subject. These treaties are made part of
the law of our nation through Article VI of the U.S.
Constitution, and are highly relevant to consideration of
the issues argued herein.
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:
"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. Similarly,
Article 13(2) of the American Convention on Human Rights
requires that any governmental "restrictions 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."
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 F.C.C.?s ban of micro radio
broadcasting is a blatant violation of this most
fundamental of internationally recognized human rights.
Conclusion
For the reasons stated above, defendant respectfully
requests that the Court deny the relief sought by
defendants, and declare the F.C.C. prohibition of micro
radio unconstitutional and in violation of the F.C.C.?s
statutory mandate to regulate the airwaves in the public
interest.
DATED: ____________ , at San Francisco, California.
Respectfully submitted,
LOUIS N. HIKEN, SBN 45337
Attorney for Defendant
The term "Micro radio" refers to low-power FM broadcasting, ranging
from 1 watt or less to about 30 watts, as contrasted with the
thousands, or even hundreds of thousands, of watts generated by most
commercial and public broadcasting radio stations.
See PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION at p.11.
47 U.S.C. 301 (1994)
47 C.F.R. ?73.211(a) provides that FM stations must operate with a
minimum effective radiated power (ERP) of 0.1kW, or 100 watts. 47
C.F.R. ?73.506 provides that noncommercial educational FM stations may
broadcast with less than 100 watts, but in 1985 the F.C.C. promulgated
47 C.F.R. 73.511(a), which provides that "No new noncommercial
educational station will be authorized with less power than minimum
power requirements for commercial Class A facilities [100 watts]."
See 47 C.F.R. ?15.1 et. seq.
47 C.F.R. ?15.239(a)
IBID.
PLAINTIFF?S REPLY TO DEFENDANT?S OPPOSITION TO MOTION FOR PRELIMINARY
INJUNCTION at p. 6.
United States v. Medina, 718 F.Supp 928 (S.D.Fla. 1989); United
States v. McIntire, 365 F.Supp 618 (D.N.J. 1973); United States v.
McIntire, 370 F.Supp 1301 (D.N.J. 1974).
The Response to the N.A.L. and the Application for Review were
submitted to this Court with Defendant?s Opposition to Plaintiff?s
Motion for Preliminary Injunction, as, respectively, Exhibits A and B
thereto.
Federal Communications Commission v. National Citizens Committee For
Broadcasting et al. 436 U.S. 775, 795 (1978)
The fairness doctrine imposed on radio and television broadcasters
the requirement that discussion of public issues be presented on
broadcast stations, and that each side of those issues be given fair
coverage. Red Lion, supra, 395 U.S. at 369. The doctrine included
components, codified as formal rules promulgated by the F.C.C., which
required broadcasters to allow equal time for response by any
identified person or group "personally attacked" on the air, and equal
time for candidates opposing any candidate endorsed editorially by the
broadcasters. Id. at 373; see also 32 Fed. Reg. 10303, twice amended,
32 Fed. Reg. 11531, 33 Fed. Reg. 5362 (1968).
Section 399 of The Public Broadcasting Act of 1967.
The F.C.C. has filed N.A.L.s against numerous micro radio
broadcasters who have continued their unlicensed broadcasts. The F.C.C.
has not sought injunctive relief against any of these other
broadcasters in spite of the fact that their broadcasts are more
frequent and regular than those of defendant.
See, e.g., the newspaper and magazine articles attached as Exhibits
A and B to PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PRELIMINARY INJUNCTION.
See the declarations submitted with PLAINTIFF?S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;
Hartshorn Declaration and Zears Declaration. In one of these instances,
the alleged interference was encountered only after the F.C.C. agent
drove literally right up to the transmitter. See Zears Declaration at
7-10. The broadcast discussed therein was intended for and capable
of reception by only the participants in the Anti-Nuclear Rally in
immediate vicinity of the transmitter.
Copies of the FOIA request and the F.C.C. response are attached
hereto and marked as Exhibit A.
To the extent that the F.C.C. justifies its ban of micro radio based
upon the possibility that some micro radio broadcasters might cause
interference to other licensed broadcasters, the ban constitutes an
impermissible prior restraint of speech. New York Times Co. v. United
States 403 U.S. 713 (1971); Near v. Minnesota 283 U.S. 697 (1931).
Sample form attached hereto and marked as Exhibit B.
Public Notice CRTC 1993-95, CRTC (1993), attached hereto and marked
as Exhibit C.
Report and Recommendations in the Low Power Television Inquiry,
Appendix 1 (BC Docket No. 78-253).
47 C.F.R. ?73.511(a).
See Radio World, August 10, 1994, p. 9, "Radio Translators Fill in
Coverage Gaps", attached hereto and marked as Exhibit D.
47 C.F.R. ?74.1201 et. seq., copy attached hereto and marked as
Exhibit E. ?74.1202(b), which provides the frequencies on which
translators may broadcast, refers to the frequencies as "channels." 47
C.F.R. ?73.201 explains that the frequencies available for FM
broadcasting are given numerical designations, or channel numbers.
?73.201 also contains a table that provides the channel numbers
designated for each available frequency. For the Court?s easy
reference, a copy of ?73.201 is attached hereto and marked as Exhibit
F.
See 47 C.F.R. ?74.1202.
See 47 C.F.R. ?74.1203.
See 47 C.F.R. ?74.1232.
See 47 C.F.R. ?12.1235.
See 47 C.F.R. ?12.1237.
See 47 C.F.R. ?74.1250.
See 47 C.F.R. ?74.1261.
See 47 C.F.R. ?74.1262.
See 47 C.F.R. ?74.1263.
See PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION at p.8, n.3
See Defendant?s APPLICATION FOR REVIEW OF ACTION TAKEN PURSUANT TO
DELEGATED AUTHORITY at pp. 4-6, submitted to the F.C.C. on December 2,
1993, in response to the F.C.C.?s FORFEITURE ORDER dated November 8,
1993. The APPLICATION FOR REVIEW is attached as exhibit B to
DEFENDANT?S MOTION IN OPPOSITION TO PLAINTIFF?S MOTION FOR PRELIMINARY
INJUNCTION, filed with this Court on November 14, 1994.
PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION at p. 10,
PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION at p.8, n.3.
Furthermore, defendant has requested that, "To the extent that any
standards or procedures do exist pertaining to the Commission?s
suggestion that we request a rule change or waiver, or that persons
should apply for a license despite the fact that they know they do not
meet the regulatory requirements, we would request at this time that
the Commission provide such standards or procedures to us, to guide us
in attempting to comply with the Commission?s suggestions." See
Defendant?s APPLICATION FOR REVIEW OF ACTION TAKEN PURSUANT TO
DELEGATED AUTHORITY at p.5, n.18, submitted to the F.C.C. on December
2, 1993, in response to the F.C.C.?s FORFEITURE ORDER dated November 8,
1993. The APPLICATION FOR REVIEW is attached as exhibit B to
DEFENDANT?S MOTION IN OPPOSITION TO PLAINTIFF?S MOTION FOR PRELIMINARY
INJUNCTION, filed with this Court on November 14, 1994. The F.C.C. has
not responded to this request.
For the definitive discussion of why it is a cruel hoax to suggest
that an individual such as defendant might obtain relief through this
process, see Telecommunications, Mass Media, and Democracy; The Battle
for the Control of U.S. Broadcasting, 1928-1935, by Robert W.
McChesney, Oxford University Press, 1993.
U.N. Human Rights Committee, Communication No. 11/1977, paragraph
17.
Advisory Opinion of the Inter-American Court, 13 November 1985, 8
EHRR 165.
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