From: Jim Choate <ravage@ssz.com>
Date: Sun, 14 Dec 1997 22:53:40 +0800
To: cypherpunks@ssz.com
Subject: wilkenrules.html
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            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
     pfranck@hbmvr.com (days)
     pfranck@a.crl.com(evs, wknds)
     http://www.368Hayes.com/nlg.cdc.html
     
     Alan Korn, Counsel for Amicus
     415-362-5700
     aakorn@igc.org
     
     Stephen Dunifer, Free Radio Berkeley
     415-644-3779
     frbspd@crl.com
     http://www.freeradio.org
     
     Louis Hiken
     Counsel for Stephen Dunifer
     415-575-3220
     hiken@igc.org
     http://www.368Hayes.com
     
     Allen Hopper
     Counsel for Stephen Dunifer
     415-575-3222
     lazlo@igc.org
     http://www.368Hayes.com
     
     
SEE THE FULL TEXT OF JUDGE WILKEN'S DECISION

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