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 MOTION IN
OPPOSITION TO PLAINTIFF'S
MOTION FOR PRELIMINARY
INJUNCTION
Date: December 2, 1994
Time: 10:30 a.m.
Place: Courtroom 2
1301 Clay Street,
Oakland
Introduction
There is no emergency in this case. The plaintiffs,
themselves, argue that Steven Dunifer has been broadcasting
for at least one and 1/2 years with low power wattage. The
FCC has had pending before it for that entire period of time
pleadings which challenge their regulatory scheme. Rather
than responding to those pleadings, and the issues raised
therein, the FCC now comes to this court seeking an
injunction.
The declarations filed by the plaintiffs indicate that
they are scrupulously monitoring the broadcasts of Radio Free
Berkeley, and know precisely when and how often it broadcasts.
If there were truly any immediate threat of injury or harm to
anybody, why did they wait for over 18 months to bring it to
this court's attention?
The obvious answer is that there is no immediate harm
posed by Radio Free Berkeley's broadcasts. There are micro-
radio broadcasters all over the country challenging the FCC's
authority to limit the issuance of radio licenses to only
wealthy commercial broadcasters. The questions posed by this
lawsuit should be resolved through thorough litigation on the
merits of the issues. An injunction as this point would only
reinforce the arbitrary and discriminatory regulatory scheme
enacted by the FCC. It would deny what little non-commercial
democratic voice exists over the airwaves and it would protect
no interests that require immediate protection.
Argument
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. A copy of that Response is attached hereto as
exhibit A. We excerpt from that Response:
"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
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.
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." Response to N.A.L., N.A.L./Acct.
No. 315SF0050, SF-93-13555, at pp. 1-2. [Footnote
omitted, emphasis in original].
After the F.C.C. denied defendant's June 28, 1993 request
for relief, defendant, pursuant to 47 C.F.R. SS1.115, filed
with the F.C.C. an Application for Review of Action Taken
Pursuant To Delegated Authority. That Application set forth,
in detail, the constitutional and procedural arguments as to
why the F.C.C.'s N.A.L in defendant's case, as well as the
absolute ban of all low-power FM broadcasting, is illegal.
A copy of that document is attached hereto as exhibit B
and incorporated herein by reference. As of the date of this
filing, the F.C.C. has not acted upon that Application for
Review. At footnote 21 of the Application, defendant asks the
F.C.C. to provide defendant with any rules or authority that
would permit him to seek and obtain F.C.C. authorization to
engage in low-power FM broadcasts. The F.C.C. has not
responded to that request for the simple reason that no
regulations exist by which defendant or any other citizen can
apply for or be granted F.C.C. authorization to engage in low
power FM broadcasts.
Defendant's formal application for F.C.C. review has been
pending for nearly a year and a half with absolutely no
response or action by the F.C.C. In July of this year, the
Court of Appeals for the D.C. Circuit struck down the entire
administrative fine structure upon which the F.C.C. relied to
levy its $20,000 fine against plaintiff. Now, plaintiff comes
to this Court seeking the extraordinary relief of a Temporary
Injunction, claiming imminent and irreparable harm.
In his Answer to the plaintiff's Complaint, Defendant
will set forth in detail the constitutional and procedural
reasons why the F.C.C.'s regulatory scheme must be rejected by
this Court. At this juncture, however, there are several
compelling reasons why this Court should reject plaintiff's
request for injunctive relief:
1) The F.C.C., itself, has pending before it documents
which seek to permit Mr. Dunifer to broadcast with low-power
transmissions. They have been sitting on those documents for
over a year without acting on them. They should be compelled
to respond to those arguments, even if their response is to be
in the negative, before seeking the assistance of this court.
2) Evidence to be presented at hearing will demonstrate
that Mr. Dunifer, if authorized to broadcast at a low-power
frequency by the F.C.C. can insure that agency that his
transmissions will not interfere with emergency channels, or
with other licensed broadcasters. The transmitters he has
created possess the same ability to insure filtering and
frequency accuracy as any officially approved by the F.C.C.
Because of the F.C.C.'s current licensing scheme which
completely prohibits all low power FM broadcasting, there are
no means by which Mr. Dunifer can get formal approval to
broadcast with these transmitters. At trial, expert evidence
will be presented to demonstrate the adequacy of these devices
to broadcast without interference.
On the rare occasions in the past when Free Radio
Berkeley broadcasts did possibly interfere with another
channel, it immediately went off the air, corrected any
problem that caused the interference or moved to a frequency
where such interference would not occur.
The Communications Act of 1934, section 324, requires
that broadcasters use the "minimum amount of power necessary
to carry out the communications desired" for their broadcasts.
Instead of authorizing micro-broadcasting, the F.C.C. licenses
stations with tens of thousands of watts. These high-power
stations (some of which are as powerful as 100 kilowatts)
result in frequent reception difficulties due to the
overloading of the FM receivers possessed by many individuals,
thereby preventing the reception of nearby F.C.C. licensed
broadcast signals of a lessor power. This problem results in
a much greater degree of interference than anything that could
be accomplished by a micro-broadcaster.
At trial, defendant will offer expert testimony to
support his representation that his transmitters meet all
technical requirements which are constitutionally imposed by
the F.C.C.
3) Mr. Dunifer is currently accused of broadcasting for
a 3-hour period once a week from the Berkeley Hills. In an 18
month period, the F.C.C. has cited to only two possible
occasions when they believe Mr. Dunifer interfered with
another station. Evidence at trial will demonstrate that many
stations actually licensed by the F.C.C. regularly interfere
with other potential broadcasters more frequently than any
interference alleged to have been caused by Mr. Dunifer, and
with more harmful results.
4) Plaintiffs cite to this Court the Ninth Circuit's
decision in U.S. v. Nutri-Cology, 982 F.2d 394 (1992) for the
proposition that the government has met their burden of
showing the "irreparable injury" required before this Court
can grant the Temporary Injunction. As that decision clearly
states, however, the fact that a statutory violation is
alleged does not relieve the government of its obligation to
make a showing of irreparable injury. 982 F.2d 394,398.
Indeed, in Nutri-Cology, both the district court and the Ninth
Circuit found the government had failed to make an adequate
showing of irreparable injury, and both courts denied the
government's request for injunctive relief. A primary factor
in the Court's decision was that the statutory violation
alleged was "substantially disputed, and has been disputed
since 1982." 982 F.2d 394,398. Also of importance to the Court
was the considerable delay in the government's seeking relief.
982 F.2d 394, 396. Immediately following the passage quoted by
plaintiffs in their Points and Authorities Memorandum (p.6),
the Court stated:
"However, in statutory enforcement cases where the
government can make only a "colorable evidentiary
showing" of a violation, the court must consider the
possibility of irreparable injury." 982 F.2d 394,398.
In the present case, as in Nutri-Cology, the alleged
statutory violation is disputed, and has been consistently
disputed from the inception of the still-pending
administrative proceedings. Furthermore, the only injury
alleged by the government here consists of the two minor
incidents in which Free Radio Berkeley has been said to have
interfered with the licensed broadcasts of a high school radio
station late on a Sunday night. As defendant has repeatedly
pointed out to the F.C.C. (see exhibits A and B), the agency's
allegations of potential interference with aircraft
navigational broadcasts have never been documented, and are
spurious.
If there is irreparable harm to be found in this case, it
is the on-going policy of the F.C.C. to license only the rich,
and a handful of educational institutions, that creates such
harm. Technology currently exists to allow thousands of
Americans to have access to the airwaves in ways that could
assure their democratic use and a meaningful voice in the
democratic process. Instead, the F.C.C. has created a system
whereby the public listens, and the elite broadcast.
Allowing Steven Dunifer to continue broadcasting within a
5 - 30 watt limit on a frequency that is not being used by
other licensed broadcasters poses a threat to no one. Mr.
Dunifer is willing to inform the F.C.C. as to what frequency
he will be broadcasting from, and what the wattage will be, if
the F.C.C. will permit him the opportunity to continue
broadcasting during the pendency of these proceedings. This
court has the power and discretion to seek such a compromise
from the F.C.C. during these proceedings. Such would provide
an excellent test case regarding the opposing assertions made
by the parties herein. The F.C.C. has refused to acknowledge
that there could be safe, non-interfering micro-power
broadcasts, and have made no provisions for authorizing them.
The myriad of constitutional violations set forth in
exhibits A and B, which arise as a result of the F.C.C.'s
decision to preclude the poor from having any access to the
airwaves, must not be sanctioned by this court. There are
numerous less restrictive alternatives to the current
licensing scheme enforced by the F.C.C. that would provide the
American people with use of the airwaves.
For the reasons set forth in the Response and Application
currently pending before the F.C.C., their request for a
Temporary Injunction should be denied. The F.C.C.'s current
regulations result in the prior restraint of speech, the
suppression of diverse ideas, and the unavailability of the
airwaves for democratic communications in this country. Those
are the rights which defendant seeks to vindicate in this
proceeding, and he should not be cut short at this stage by
the unfounded accusations of the plaintiffs.
DATED: "at San Francisco, California.
Respectfully submitted,
LOUIS N. HIKEN, SBN 45337
Attorney for Defendant
United States Telephone Association v. F.C.C., No. 92-1321, No. 93-1526,
1994 U.S. App. Lexis 17002.
Had defendant, rather than plaintiff, come to this Court seeking
injunctive or declaratory relief, the F.C.C. would be vehemently urging
denial of review pending exhaustion of administrative remedies. In fact, in
a very similar case, Dougan v. F.C.C., 94 C.D.O.S. 2735, No. 92-70734 (9th
Cir. 1994) the F.C.C. argued to the Ninth Circuit that the only avenue for
judicial review in these cases is appeal to the District Court after the
F.C.C. has initiated formal enforcement proceedings to seize the forfeiture
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