It is now easy to run the scratchy video images in my mind's eye, colorless yet texture filled. A heavily dressed Stephen Dunifer piloting his 64 Volvo station wagon around the Berkeley Hills on a cold wet winter's night. He stops and fires up an array of home-made electronics, sets his antenna, and beams Free Radio Berkeley into the sprawl of the East San Francisco Bay. This scenewould seem more at home in a cyber-fiction novel of the dark future, rather than the Post-Gulf War America of the early 1990s. To many this act would seem a minor occurrence, hardly worth notice. However, to the mega corporations and trans-national conglomerates who control the vast majority of media in the United States, it is trespassing. This view is shared by the Federal Communications Commission (FCC) whose job it is to police the airwaves and to keep all interlopers safely away. The irony that Dunifer helps to pay the salaries of those who seek his silence is not lost to him. With a weary smile and a calm determination, this social warrior is the classic hero. He does what he does not because he wants to, but because he feels he must. Dunifer has had enough and his morality calls him to action. He is the point-man in a frontal assault on one the most heavily protected bastions of wealth and power in the world, broadcasting.
Revolution in my Backyard
I discovered the fight for America's airspace by chance in an article in the magazine Mondo 2000. I have along standing interest in radio and had worked at a carrier-current (cable transmitted) AM station at Humboldt State University as well as announcing at the local public radio station, KHSU. I had been at San Jose State University working on my master's in mass communications for about 6 months. Having experienced the roadblocks to getting on-the-air since my return , the idea of someone doing radio by the seat of his pants was fascinating. The fact that it was happening 90 minutes north of where I live just made it that much better. This started two years of research and adventure that led to the completion of my thesis on micro radio and my involvement in the fight to open the airwaves to the people who supposedly own them, us. I have talked to the FCC; lawyers for the micro broadcasters; and the micro broadcasters themselves in the San Francisco Bay Area, other parts of California,and across the>United States. Combining this with government and court documents, press articles, and field observations, I have assembled a collage of the emerging micro radio movement. At its core is the saga of Free Radio Berkeley (FRB) and Stephen Dunifer. What follows is a case study of FRB and the implications of its activities on traditional broadcasting in the United States.
A Brief History of Unlicensed Radio
Since the advent of radio broadcasting regulation in the late 1920s and early 30s, there have been those who object to the government's control over the electromagnetic spectrum (the spectrum on which radio and television broadcast). The spectrum, as I shall call it, has a limited amount of space. Because of this, the government treats the spectrum as a limited natural resource and exerts control to maintain order and limit access to it. Knowing nothing about this new technology, the government went to the companies that helped to develop radio for advice on how to regulate it. They combined this advice with pre-existing public utility regulation and dictated that the spectrum be used for the public interest, convenience, and necessity. and established the Communications Act in 1934. The document, most recently revised in 1996, dictates the accepted uses of the spectrum. Acting on the advice of RCA and other communications giants, the Federal Communications Commission (FCC) adopted an operating model based on the most efficient use of the space. Essentially, those who had the best transmitting equipment received preference for the available space. This marginalized all those who did not produce such equipment or have the funds to purchase it. Not surprisingly, there have always been broadcasting "pirates," those who objected to such a scheme and chose to operate out-side FCC regulations. It is interesting to note the first instances of wave piracy were perpetrated by those who, before regulation, had the better equipment and more powerful transmitters. These wave pirates moved to take over a certain frequency occupied by a weaker rival. Since regulation, pirates were, and are, more polite. Having less power, in the literal as well as figurative sense, they usually seek unoccupied frequencies to squat on.
Before the 1970s, most unlicensed broadcasting existed on the short-wave spectrum. This spectrum is used by Ham radio operators, international broadcast stations, governments, the military, and other similar entities. These were mostly hobbyists who broadcast to each other, as opposed to the general public. With the civil unrest of the 1960s and 70s, unlicensed broadcasting was heard more and more on the normal AM/FM radio bands. Almost without exception, these stations operated on an intermittent basis to avoid being located and shut down by the FCC. The FCC almost always would issue warnings or fines to unlicensed broadcasters. In extreme or repeat cases, the FCC would seize unlicensed broadcasters' equipment. The FCC cannot act alone when attempting to shut down unlicensed broadcasters. Their agents must get the cooperation of the local U.S. District Attorney, who in turn must assign Federal Marshals to serve warrants and seizure orders. Often this help is not forthcoming, as unlicensed broadcasting is seen as a low priority for over-extended federal law enforcement agencies. This, combined with the small number of FCC field offices, makes for uneven enforcement and penalties. I see micro radio differentiating from traditional radio piracy in several keys areas. Micro broadcasters operate on a set schedule, broadcast in the open, and openly defy FCC regulations in a manner described by them as electronic civil disobedience. Further, they tend to be groups instead of individuals, and are to one degree or another, activists with little or no background in media. Traditional pirates intentionally have sought to avoid conflict or discovery by authorities, and take steps to ensure this. They usually operated as individuals or small groups and were familiar with the technology.
It may be useful to frame the basic arguments in terms of an analogy used repeatedly by all FCC personnel interviewed as well as by lawyers for the Committee for Democratic Communication (CDC; the group which is helping Stephen Dunifer with his legal case). The FCC likens itself to a traffic cop or safety patrol and the electromagnetic spectrum to a highway. Driving is a privilege, not a right, and rules of the road are needed to keep people from running over each other. The FCC enforces these rules as a traffic cop would the speed limit. The CDC responds to this analogy by stating that the spectrum, held in trust for the American people by the government, is like a highway everyone paid taxes to build, but only the richest five percent of the population can drive on it Everyone else just gets to watch. The CDC admits that rules of the road are needed. They just believed that everyone should have the opportunity to drive on it.
The Emergence of Micro Radio
Micro radio emerged in Springfield, ILL in 1986. A blind African-American named Mbanna Kantako started a 10-watt FM station to serve his small community. He felt that large segments of the population, especially the poor and minorities, are under-represented by the media. Using a grant from a church charity organization, he purchased a transmitter kit, put it together, and went on the air. The act of providing a voice for this community, something that upset the local power structure, attracted the attention of the authorities. The FCC cited and fined Kantako $700. However, Kantako walked out of court when the FCC refused to provide council for him. Violations of the Communications Act are almost always civil actions, not criminal. In a civil action, individuals do not have the right to council if they cannot afford one. Kantako left the courthouse and went back to his station. With the local Federal District Attorneys Office's interest waning, the FCC had no further avenues to shut Kantako down. He has been broadcasting since that time. Although others had broadcast in defiance of the FCC before Kantako, (most notably Walter Dunn Jr., The Black Rose, in Fresno, CA), it was Kantako who coined the term micro radio. Further, where Dunn had been a professional broadcaster before his unlicensed station went on the air, Mbanna was a non-professional. This non-professional status is generally a hallmark of the micro broadcaster. They are primarily activists who seek to use radio as a tool of activism and communication with under-represented communities. With the apparent success of Black Liberation Radio, other activists around the country took note. Of particular interest to me, this small group included a life long activist and electronics engineer living in Berkeley, CA named Stephen Dunifer.
The Saga of Free Radio Berkeley
Stephen Dunifer began Free Radio Berkeley (FRB) as a direct response to the Gulf War, or rather, as a response to the media coverage of that conflict. Dunifer was appalled by the way the media "moved into a spare office in the Pentagon and tried to make it some national celebration that we murdered several hundred thousand people in that part of the world." He saw this as confirmation of what he already had seen as an social activist--that the control of the airwaves by those who hold the same interests as the government was at the very least disturbing and a direct threat to our already embattled civil rights. FRB began broadcasting from a portable transmitter at demonstrations over city ordinances at Peoples Park in Berkeley, CA. This expanded over several months to include broadcasts from the front of the local Pacifica station, KPFA-FM. These were part of a protest over actions taken by station management and the perceived selling out by the non-profit station in general. Eventually, Dunifer took to the hills and made broadcasts from his Volvo or outside. This was only the beginning of a carefully planned effort to re-write federal communications regulation by direct action. And all he needed was the cooperation of the FCC.
The Committee for Democratic Communication
The National Lawyers Guild is a progressive organization of lawyers, many of whom are committed to social change and the protection of person rights. The Committee for Democratic Communication (CDC) is a section of this organization dedicated to the democratization of media. The CDC had watched the Kantako case closely. They had approached Kantako with the idea of a test case against the FCC's regulatory scheme, using the standing that Kantako had as an unlicensed broadcaster with an outstanding judgment against him. Kantako declined. At this point the CDC, located across the bay from Free Radio Berkeley in San Francisco, and Dunifer became aware of each other. Dunifer would be their test case.
The Saga Continues
Dunifer started broadcasting on a regular schedule from a fixed location in Berkeley in the winter of 1993. The operation started to> grow and would eventually reach 100 volunteers. The FCC was> aware something was up, having a field office in nearby Hayward. By May, the FCC had located Free Radio Berkeley, and in June of that year Dunifer was issued a Notice of Apparent Liability (NAL) that carried a fine of $20,000. This fine was 10 times the size of the average fine issued for such offenses. The CDC respond with a challenge to the basic regulatory scheme used by the FCC to issue broadcasting licenses. Although a number of people have tried to challenge the right of the FCC to regulate the airwaves over the years (with the courts siding with the FCC), no one had ever challenged the manner in which the FCC's regulating was done. The challenge is based upon the way the FCC issues licenses. The process to apply for a radio broadcasting is complex and expensive. It involves engineering studies and petitioning of the FCC by communication law specialists, a very rare and expensive type of lawyer. This expense is combined with the requirement that a radio station have a minimum broadcasting power of 100 watts. The smallest wattage licensed was 10 watts until 1978 when the FCC> eliminated this Class D license in order to use the spectrum more efficiently. The total licensing costs reach the area of $100,000, far beyond the reach of 95% of the population. The CDC contends that this is unconstitutional because the regulations are arbitrary and deny equal access to the spectrum. The CDC asked the FCC to review the licensing regulations. There was no response.
The FCC took no further action on the Dunifer case until December 1994, 18 months after the initial NAL. Without further contacting the CDC or Dunifer, the FCC filed for a Preliminary Injunction and Declaritory Relief with the Federal District Court for the Northern District of California to stop further broadcasts by Dunifer. This action is consistent with FCC actions in the past concerning unlicensed broadcasting. If the court stops Dunifer from broadcasting, and he ignores the injunction and continues to broadcast, he would be in contempt of court. This would then leave the case to the U.S. Attorneys office to prosecute.
A Day In Court
The injunction hearing was held in the palatial federal court house in Oakland, a building which looks as if it was flown in and dropped among the decay of downtown. Security was extremely tight, with guards taking my two- inch Swiss army knife, and refusing to allow all cameras and tape recorders. David Silberman, whom I had interviewed in Washington, DC, was representing the FCC. With him was a woman from the local federal district attorneys office. The case the FCC presented was consistent with FCC actions taken in the past. The FCC argued that Congress gave the FCC the authority to establish a licensing scheme and regulations that act in "the public interest, convenience, and necessity." Since Congress did not define what this was, this statement was left to the discretion of the Commission to define. At the Act's essence, pertaining to this case, was the basic premise that an individual would need a license issued by the FCC, as the government's agent, to broadcast an FM signal over a half-watt in power. The FCC stated that this was a simple case of someone (Dunifer) who wished to broadcast without obtaining a license. Silberman noted that all cases brought before a judge concerning the FCC's right to regulate the airwaves in a manner determined by the agency, have been decided in the favor of the FCC. All precedents in federal court and the U.S. Supreme Court support this contention. Further, all major issues concerning the right of the FCC to regulate as it saw fit, barring an act of Congress, have been argued and fallen in the FCC's favor. Therefore, from the FCC's perspective, there were no grounds for an argument; Dunifer simply broke the law and that was the end of the case. The FCC also took the position that the court needed to file a preliminary injunction against Dunifer to enjoin him from broadcasting because of irreparable harm caused by his illegal transmissions. The FCC supported its claim of irreparable harm in two ways. First, the FCC accused Dunifer of interference with licensed broadcasters. However, these allegations were not substantiated in court. Second, the FCC argued that Dunifer's actions harmed the regulatory scheme itself . According to the FCC, unchecked violation of the law would cause an increase in violations and lead to chaos on the airwaves similar to what occurred prior to regulation. If the court were to issue such an injunction, any future broadcast would leave Dunifer in contempt of court. This would necessitate prosecution by the U.S. Attorney, thus removing the FCC from the legal process. The FCC would cease to be involved because the issue would no longer be illegal broadcasting, but contempt of court, a criminal offense.
Luke Hiken, Dunifer's attorney, presented the defense. In arguing Dunifer's case, Hiken contended that the Commission's rules, which did not provide for licensing of a stand-alone transmitter under 100 watts, were overly restrictive and constituted a total ban against micro broadcasting. Therefore, Hiken said the rules violated Dunifer's First Amendment right to free speech. A stand-alone transmitter sends primary signals, as opposed to an FM translator, which simply boosts a signal to increase range. FM translators are legal and in wide use. Thus, Hiken argued, the Commission's failure to establish regulations for a micro power radio service violated its mandate to create a regulatory scheme that was the least restrictive in terms of state interest. Moreover, Hiken argued in the court hearing that because the FCC had refused to issue low-power radio licenses, a large percentage of individuals could not afford to participate in this medium. The cost of establishing a 100-watt radio station is easily in excess of $100,000, much of it in legal, licensing, and engineering fees. This leaves only the wealthy in control of the airwaves. Dunifer said> that he believed that most of these costs were artificial and were designed to restrict access, violating his interpretation of the FCC's mandate to provide for "the public interest, convenience, and necessity." Dunifer's attorneys argued that such a financial qualification did not serve the public interest, and violated the equal protection clause of the Constitution. Hiken contended that the precedents stated by Silberman had no bearing on Dunifer's case because they did not deal with micro radio and the challenging of regulatory schemes. Further, those cases dealt with the right of the FCC to regulate the airwaves or selectively issue licenses as it saw fit. Hiken stated that he was not arguing these points. Hiken responded to the FCC's assertion that Dunifer had administrative alternatives to breaking the law in three ways. First, Hiken stated that such alternatives were not real alternatives because of the cost and time involved. Second, he argued that Dunifer's individual Constitutional rights were violated because he did not have the opportunity to apply for a broadcasting license. Third, Hiken said that the FCC rule-making and waiver process, which allowed the Commission itself to rule without review until an appeal to the courts, was an excessively lengthy process. During the hearing, Silberman strenuously argued against Hiken's conclusions, and citing multiple precedents of what he (Silberman) considered similar cases. He implied that the judge's decision had been dictated in advance by other courts actions. Silberman further reiterated the dire consequences of the judge not finding in his favor. Citing the nature of the Dunifer case, Judge Wilken questioned her own jurisdiction, as well as the case's Constitutional considerations. Silberman responded that she did have jurisdiction, that there were no Constitutional considerations, and that she virtually had to find in the FCC's favor.
Judge Wilken's Decision
"My inclination is to deny the preliminary injunction..."
-Judge Claudia Wilken
Judge Wilken found that there are Constitutional issues involved with the Dunifer case, that there was not compelling evidence of interference with licensed operations as documented by the FCC, and that the issue of irreparable harm had not been proven to her satisfaction. Wilken concluded, "my inclination is to deny the preliminary injunction and to stay the proceedings and to turn to the FCC to act on it in the context of the forfeiture proceedings, so that this court will have guidance with respect to the need of those regulations and the balancing of the need for the regulations against the Constitutional interests of the people to broadcast." She issued a continuance, and instructed the FCC to examine its regulatory scheme and whether it was proper in light of new technologies, and return with explanations and justifications of its policies. At that time, Wilken would have the proper information to decide on the Constitutionality of the scheme. Further, the judge could not find any egregious hazards to the public interest, as implied by Silberman, that would justify a stay of a preliminary injunction. Despite Silberman's pleading against giving "carte blanche" to people who would operate a radio station without a license, Wilken stated in the court hearing that she was sticking by her decision that the public interest was not endangered.
"Opening A Can of Worms"
-Davis Silberman, FCC
During the January 20, 1995 court hearing, Silberman stated that by not enjoining further broadcasts of Free Radio Berkeley, Judge Wilken was "opening a can of worms." In fact, after the stay by Judge Wilken, the Free Communications Coalition (FRB's activist arm) declared in its newsletter, Reclaiming the Airwaves: Now is the time to seize the space before this window of opportunity slams shut. The effort was to put as many stations on the air as possible while the FCC clarified its position to the court. FRB immediately began to broadcast on a seven day/24 hour a day schedule. This period of enforcement confusion was seen by the micro broadcasters as an opportunity to operate in the open with less fear of FCC action. Although the FCC could still seek inspection of unlicensed stations and issue Notices of Apparent Liability, the ultimate outcome of those actions would be in doubt. Any work done might be fruitless in the event, however unlikely, that the FCC would accept a low-power radio service.
From the period starting in February 1995 and ending in August 1995, the number of micro radio stations in the Greater Bay Area and Northern California increased markedly. The original three were Free Radio Berkeley, San Francisco Liberation Radio, and Radio Libre (located in the Mission District in San Francisco). The Free Communications Coalition and Free Radio Santa Cruz (FRSC) reported additional micro radio sources, including stations in Saulsalito, Hunters Point in San Francisco, San Jose, and Mendicino County, as well as other parts of rural Northern California. A major area of proliferation was in Santa Cruz County. In addition to Free Radio Santa Cruz, located in the city of Santa Cruz, there were two stations in Watsonville, one of which was a 40-watt transmitter, another in Salinas operating on the same frequency with different programming, and a back-up transmitter for Free Radio Santa Cruz for servicing or other eventualities. According to Tom Schreiner of Free Radio Santa Cruz, there were at least two other transmitters on-line and technically ready to go. He put the total number of micro stations in California at 20 or more. After several months, during which the micro radio movement expanded and developed, the FCC fulfilled Federal District Court Judge Wilkens request for further information and responded to the regulatory questions posed by the court.
The FCC Responds
"costly, disruptive, inefficient, and directly contrary to the expressed will of Congress.."
-FCC Memorandum Opinion and Order, August 1995.
After asking for and being granted several postponements, the FCC responded to Judge Wilkens request for review on August 1995. In a Memorandum Opinion and Order, the FCC answered Dunifers challenges and upheld its earlier regulatory scheme. The FCC declared that there were no Constitutional issues involved. Essentially restating the case they had made in court, they simply ignored Dunifers primary arguments as irrelevant. For the FCC, the issue was the fact that Dunifer broadcast illegally. Further, the FCC had looked at low power radio and decided that it was not in the public interest. The only concession made was the lowering of the fine from $20,000 to $10,000, as to be more consistent with other cases. With the battle-lines unmoved, both the CDC and the FCC looked to Judge Wilken. She has still refused to issue an injunction against> Free Radio Berkeley, but as of this writing has only asked for a few documents. Several short hearings have been held concerning the Free Radio Berkeley. They are mainly about scheduling and access to documents. The federal court case is at standstill awaiting a decision by Judge Wilken. The decision will certainly be met with an appeal by the losing side, so this battle is expected to go on for years.
The Micro Radio Movement Today
"One consideration that is important to realize is that micro radio is only one prototype of the concept of democratic communication....So, its important to look at micro radio in that overall context, and not just as an end to itself"
-Luke Hiken, CDC.
In the meantime, micro stations have spread across the country, especially in California. The number of stations has continued to climb with estimates ranging into the 30s for California. The movement has also supported two conferences. The first conference was is San Jose in April 1996. Organized and planned two weeks beforehand, it drew over 100 people from Arcata to Los Angeles. Networking and workshops ran for a full day and into the night. The second conference, dubbed the First International Free Radio Micro Broadcasting Conference, took place in Oakland in November. It drew representatives from as far away as Haiti and Mexico and ran for three days. An internet network has developed with several different organizations organizing and exchanging information and news, the zine Rockrap Confidential, the Industrial Workers of the World (IWW), the Greens, the Association of Micro Broadcasters , and others. These networks gives up-to-the-minute coverage of events effecting the micro radio movement. When Napoleon Williams of Black Liberation Radio in Decatur, ILL (no affiliation to BLR in Springfield, ILL) was shut down in January 1997, the network knew within hours. Information that it was local police and not the FCC followed the same day, as did an appeal for funds to replace seized equipment. By the next day Dunifer was on the net stating that he had sent a new 40 watt transmitter to replace the seized 10 watt Williams was using, and asking for donations to cover the $600 for it.
The FCC, facing this high level of unlicensed radio proliferation and organization, is confronted with a number of difficulties in trying to shut down these stations. These difficulties have to do with the activist nature of the broadcasters and the FCC's lack of financial resources. This makes fining the unlicensed broadcasters, the primary tool of FCC enforcement, problematic. At the time of this writing, the Dunifer case is awaiting the next series of hearings and micro radio stations are spreading out across Northern California. The micro broadcasting movement is a significant deviation from past unlicensed activities and the normal commercially-based corporate environment to which the FCC is accustomed. Louis Hiken, Dunifers attorney, contends that the Commission absolutely knew what the micro broadcasting movement means and is taking steps to stifle it. However, the preponderance of information I have gathered indicates that the FCC's rank and file either fail to grasp the primary differences between past pirate activity and present micro radio or choose to ignore the issues Dunifers case raises. These factors may be compounded by the FCC's limited economic and personnel resources. Previous unlicensed broadcasters sought to broadcast on their own terms for reasons ranging from profit to political ferment. In contrast, the present micro broadcasting movement, generally embraced by dedicated activists, is grounded in the fundamental principle of legitimate access to a means of communication. The primary proponents of this movement have already committed their lives to pursuing their definition of social justice, and they view micro radio as an important tool in attaining their goals. Thus, the use of radio is not an end to itself, nor is the right of a particular person, Stephen Dunifer of Free Radio Berkeley or Richard Edmonson of San Francisco Liberation Radio, to broadcast. Rather, micro radio is a means to achieving the principle of democratic communication. As Hiken explained, "One consideration that is important to realize is that micro radio is only one prototype of the concept of democratic communication. . . . So, its important to look at micro radio in that overall context, and not just as an end to itself." It is this view of micro radio as a tool of social change that the FCC fails to publicly acknowledge. Micro communication is clearly becoming an important area of study. The idea of democratic communication extends far beyond the initial arguments concerning micro radio. Average people, as opposed to large public or private institutions, having the ability and access to communication technology, could alter the landscape of mass communication. All those interviewed who were participating in micro radio or the Free Communications Movement have interests, ideas, and plans for the major means of electronic communication, including television, the Internet, and computer technology. Tom Schreiner of Free Radio Santa Cruz states that he has recruited help in developing plans for an FM transmitter that is sealed and integrated. The transmitter should be able to meet all FCC specifications, not require a technician, and be about the size of a cigar box. The technology exists for these and other innovations that will allow ordinary people to produce as well as consume media, to own the means of media production and communicate with others in their own language and on their own terms. This would be a distinct shift from the dominant mass communication paradigm which is dictated by traditional media sources, most of which are profit driven. Because of the low cost, these new technologies could eliminate the restrictions that are inherent in profit-driven mass media. Even public broadcasting is restricted by the immense costs of maintaining large facilities and the need to please revenue-generating target audiences along with corporate sponsors and underwriters.
Micro radio's legal battle goes beyond the abstract concepts of electronic access by the average person. Those involved make it clear that they see the media as predominantly controlled by wealthy corporations and the privileged few, the haves, who cooperate with the government to maintain the status-quo. This is a direct threat to the survival of civil rights, as well as the physical survival of the burgeoning underclass, the have-nots or the dispossessed, as Schreiner put it. In the view of Schreiner, and many of the micro broadcasters, denying media access is one of several ways in which the rights of people whose only crime is being poor or not motivated by the drive to acquire property, cash, and power, are eliminated. This alienation of the have-nots is evident on the political right as well as the left. Media as community organizing tools are apolitical, and with all likelihood, will be embraced by many people of different ethnic and political persuasions who feel threatened by the public and private powers which control these resources. This revolution of technological access is going to occur with or without official government approval. Those involved in the Bay Area micro broadcasting movement stated without reservation that their actions will continue, whether or not the FCC approves. The>micro broadcasters are prepared for either eventuality. They have studied the opposition and know the FCC's limitations.