From: geeman@best.com
Date: Mon, 15 Dec 1997 02:49:09 +0800
To: Jim Choate <cypherpunks@ssz.com
Subject: Re: wilkenrules.html
Message-ID: <3.0.32.19691231160000.006ecfb0@shell15.ba.best.com>
MIME-Version: 1.0
Content-Type: text/plain



This entire issue speaks to whether we neeed government or not.  The power
of the judiciary is part and parcel of the power of Government, and in many
cases -this is an excellent example- is all that stands between The
Oligarchy and Freedom.

Imagine if there _were_ no government per-se, and it was the Disney, or
Westinghouse, or GE, or whoever the fuck, corporate security forces taking
action on their own against FRB.


At 09:08 AM 12/14/97 -0600, Jim Choate wrote:
>
>            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
>
> 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
>
>
>