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wilkenrules.html
JUDGE WILKEN DENIES FCC MOTION FOR SUMMARY JUDGEMENT!!!
Press Release Follows. To Go Directly To The Full Text Of Judge Wilken's
Decision, Click Here
National Lawyers Guild Committee on Democratic Communications
558 Capp Street, San Francisco 94110
FOR IMMEDIATE RELEASE
COURT REJECTS FCC'S CONSTITUTIONAL CATCH 22
United States District Court Judge Claudia Wilken has rejected
another attempt by the Federal Communications Commission to silence
Berkeley Micro Radio Broadcaster Stephen Dunifer, founder of Free
Radio Berkeley.
In a 13 page opinion released on November 12, 1997, Judge Wilken
once again rejected the government's motion for an injunction to
silence micro radio broadcasts by local radio pioneer Stephen
Dunifer.
In 1995, Judge Wilken rejected the government's first motion for a
preliminary injunction against Dunifer's broadcasts. At that time
the Court found merit in Dunifer's argument that the FCC's ban on
low power, affordable FM broadcasting was a violation of the First
Amendment's guarantee of free speech to all in the United States.
In a blatant attempt to avoid facing its First Amendment obligations
the FCC then urged Wilken to permanently enjoin Dunifer from
Broadcasting and at the same time argued that she could not even
consider the issue of whether its rules, which prevent him from
getting a license, are unconstitutional. In a Kafkaesqe argument,
the Commission argued that Wilken had jurisdiction to issue an
injunction, but no jurisdiction to hear Dunifer's constitutional
arguments. The government claimed that only the higher federal
courts could consider the constitutional question.
In her November 12 decision rejecting the Government's position,
Judge Wilken pointed to the fact that the FCC had taken exactly the
opposite position in the 1994 case of Dougan vs FCC. In that case,
an Arizona micro radio broadcaster had appealed an FCC fine (for
broadcasting without a license) to the 9th Circuit Federal Court of
Appeal, and the FCC had argued that the Court of Appeal had no
jurisdiction over the case, and that it had to be heard by the
District Court. The Court of Appeals agreed with the FCC and sent
the case back to the District Court.
Judge Wilken noted that the Arizona broadcaster had raised the same
constitutional arguments in the Court of Appeals that Dunifer is
raising. The Court ruled that in sending all of the issues in the
Arizona case to the District Court, the Appeals Court recognized
that the District Court had jurisdiction over all aspects of the
case.
In denying the Government's motion for an injunction "without
prejudice," Judge Wilken ordered the Government to file a further
brief on the question of whether the unconstitutionality of the
FCC's ban on micro radio is a valid legal defense to an injunction
against broadcasting at low power without a license. Dunifer's
attorneys, Louis Hiken and Allen Hopper of San Francisco, will have
an opportunity to rebut the government's arguments on this point.
In response to pressure from the commercial broadcaster's lobby, the
National Association of Broadcasters (N.A.B.), the FCC has in recent
months been stepping up its campaign of harassment against the
thousands of micro radio stations now on the air in this country.
Hiken commented "The broadcast industry is clearly afraid of these
little community stations which are speaking truth to its power. In
trying to do the N.A.B.'s bidding, the FCC demonstrates that it is
nothing but an enforcement arm of the commercial broadcast industry
and the multi-national corporations which own it."
The National Lawyers Guild's Committee on Democratic Communications
has represented the Lawyers Guild, San Francisco's Media Alliance,
and the Women's International News Gathering Services as a "Friend
of the Court" (Amicus) in this case. In its Friend of the Court
brief the Lawyers Guild pointed out that FCC regulations make it
impossible for all but the very wealthy to even apply for a
broadcast license. This, they told the Court, is the equivalent of
saying anyone could speak from a soap box in the park, but the box
had to be made of gold. Guild attorney Peter Franck commented "In an
era when Disney owns ABC, the world's largest defense contractor
owns NBC and CNN merges with Time which merges with Warner, and when
'public' broadcasting is told to get its money from corporations,
micro radio may be our last best hope for democracy on the air
ways." He continued "Judge Wilken's decision is a courageous
rejection of the Government's attempt to use a legal Catch-22 to
avoid facing the fact that its ban on micro radio flies in the face
of the Constitution."
The legal team representing Dunifer and the Amicae are very pleased
with Judge Wilken's reasoned and thorough decision denying the FCC's
motion to have the case resolved without a trial on the merits. For
almost 70 years, the FCC has catered solely to the interests of
commercial corporate giants, through their mouthpiece, the National
Association of Broadcasters. These are the pirates, who have stolen
the airwaves from the American people, and who represent corporate
interests valued at more than 60 billion dollars. Only the Pentagon,
the Silicon Valley and the transportation industries possess the
financial wallop represented by the NAB and its constituents.
Judge Wilken's decision represents a vision of what it would be like
for the American people to be given back their own voice. The
decision suggests the likely unconstitutionality of the entire
regulatory structure underlying the FCC's ban on low power radio. It
forewarns of the total failure of that agency to carry out its
statutory obligation to regulate the airwaves in the public interest
-- that is, in the interest of the American people, rather than the
media monopolies that control our airwaves.
The legal team welcomes the opportunity to have a court identify the
real pirates of the airwaves -- not the thousands of microradio
broadcasters who seek to communicate with the people of their
communities, but rather the billionaire commercial interests that
control the airwaves as if they own them. Is it General Electric,
Westinghouse and the Disney Corporation that have the right to
control local community radio, or is that a right that belongs to
all of the American people, regardless of economic status?
FOR MORE INFORMATION, CONTACT:
Peter Franck, Counsel for Amicus
415-415-995-5055
[email protected] (days)
[email protected](evs, wknds)
http://www.368Hayes.com/nlg.cdc.html
Alan Korn, Counsel for Amicus
415-362-5700
[email protected]
Stephen Dunifer, Free Radio Berkeley
415-644-3779
[email protected]
http://www.freeradio.org
Louis Hiken
Counsel for Stephen Dunifer
415-575-3220
[email protected]
http://www.368Hayes.com
Allen Hopper
Counsel for Stephen Dunifer
415-575-3222
[email protected]
http://www.368Hayes.com
SEE THE FULL TEXT OF JUDGE WILKEN'S DECISION
TO STEPHEN DUNIFER/FREE RADIO BERKELEY INFORMATION PAGE
TO FREE RADIO BERKELEY LEGAL BATTLE PAGE
TO NATIONAL LAWYERS GUILD INFORMATION PAGE
TO THE OFFICIAL NATIONAL LAWYERS GUILD WEB SITE
TO NLG COMMITTEE ON DEMOCRATIC COMMUNICATIONS PAGE
TO FREE RADIO BERKELEY WEB SITE
BACK TO LAW OFFICES AT 368 HAYES STREET