Self-described Bay Area radio anarchists celebrated their two-year anniversary of defying the laws of the airwaves last weekend and received a two-month reprieve from an Oakland federal court judge allowing them to continue.
Members and supporters of Free Radio Berkeley and San Francisco Liberation Radio held a free speech demonstration at the Oakland Federal Building, conducted workshops on how to set up unlicensed micro-power radio stations, participated in a Berkeley public forum on corporate-owned media and partied at Cesars in the Mission District.
"This is a fight for the right of people to communicate freely in any way they choose," said Stephen Dunifer, originator of Free Radio Berkeley, 104.1 FM.
Dunifer said about 40 people run Free Radio Berkeley, an unlicensed, commercial-free 24-hour station heard from North Oakland to Albany. Donations from supporters along with the sales of inexpensive radio transmitter kits made by Dunifer, keep the station alive.
San Francisco Liberation Radio, 93.7 FM, has only four people on staff, said Richard Edmondson, who started broadcasting "by flashlight one night a week while battling wind and weather on Twin Peaks." Now, listeners from the Richmond District to SF State can tune in nightly.
In addition, Radio Libre, 103.3 FM, emanates from the Mission every night. Plus, there are now unlicensed stations broadcasting from San Rafael (88.1 FM) and Sausalito (87.9 FM) to Santa Cruz (89 FM) and Salinas (96.3 FM). According to Edmondson, the interest in micro-power radio is growing as more and more fledgling broadcasters buy Dunifer's $55 kits and jump on the airwaves.
The Federal Communications Commission wants this phenomenon to stop. The FCC refuses to recognize the term "micro-power," preferring "pirate radio." And said these "pirates" are breaking the law by broadcasting without a license. The FCC slapped a $20,000 fine on Dunifer, a $10,000 fine on Edmondson and took Dunifer to federal court.
But on Jan. 20, United States District Court Judge Claudia Wilken denied the FCC's request for a preliminary injunction against Free Radio Berkeley -- the first time the FCC has been refused an injunction against an unlicensed station. Wilken said, for now, the station could continue broadcasting. She cited First Amendment concerns and asked the FCC to come up with new regulations for micro-power broadcasters by May 12.
According to FCC attorney David Silberman, however, the FCC asked for a continuation until July 14. Wilken granted the request. Silberman said the FCC is still "considering the best way to proceed in the case."
Silberman refused to comment further, but in an interview in the Sacramento Bee on March 17, he reiterated the FCC's position that Dunifer is breaking the law and the FCC is not abridging freedom of speech.
Silberman said the Supreme Court has repeatedly held that there is no First Amendment guarantee to operate a station because of spectrum scarcity.
In 1927, Congress decided the airwaves were a public resource and gave the Federal Radio Commission, which later became the FCC in the Communication Act of 1934, the authority to regulate the radio spectrum because of the limited number of frequencies.
The FCC decided that the best way to regulate was to license frequencies. That way, broadcasters' signals wouldn't interfere with each other. Silberman argued that this is precisely the problem with "pirate radio." He said unlicensed broadcasters create chaos.
Dunifer said Free Radio Berkeley is a low-powered station that uses a nondesignated frequency, so it doesn't interfere with other stations.
"We're not saying that the FCC doesn't have a right to regulate the airwaves," said Luke Hiken, Dunifer's attorney. "But, the FCC doesn't have the right to sell the airwaves to the richest bidders, or to pimp for corporate America. There's nothing that mandates that in the act."
San Francisco attorney Peter Franck, a fellow supporter of micro-power radio, agreed with Hiken. "FCC rules mean you've got to have a lot of money to get on the airwaves -- about $100,000. It restricts speech to the wealthy," Franck said.
He added that the FCC excludes people by not licensing stations that use less than 100 watts of power. Dunifer's kits call for one to ten watts.
"By limiting the spectrum to high-powered stations, the FCC created scarcity," Franck said. "With micro-power stations, you give voice to the voiceless."
Dunifer said the advent of new technologies such as cable TV and the Internet, means scarcity no longer exists, except in the rules of the FCC.
SF State broadcasting and electronic communication arts Professor Herb Kaplan disagreed: "Spectrum scarcity still exists in that not everyone who wants to broadcast can. Because if they did, it would be chaos just like the 1920s."
The government helped create scarcity, however, by taking a huge chunk of the spectrum for itself, Kaplan said, who is also an attorney and former censor for NBC-TV.
"But legally, I don't think they (Dunifer and Hiken) have a case."
That's because the public owns the airwaves. So, Congress had the right to create the FCC to regulate frequencies in the public interest, just as it has the right to regulate national parks, Kaplan said.
Hiken said this is a free speech issue and the FCC is forcing people to break the law in order to exercise their First Amendment rights.
"The FCC is saying if people want to speak democratically, they have to speak outside the law," he said.
"America has got to get her voice back," Hiken said. "We're saying either give it to us legally, or we'll take it back."
BECA Professor and KSFS Radio Adviser Rick Houlberg agreed with Kaplan that scarcity still exists -- but for capitalistic reasons. "It's a have versus have-not issue."
"Money talks over the air, too," he said. Broadcasting is about selling audiences to advertisers.
Houlberg compared broadcasting to starting up a newspaper or magazine: you can do it, if you have enough money.
SF State broadcast law Professor Philip Tymon rejected Houlberg's analogy. Micro-power radio isn't like newspapers, it's more like pamphlets, he said.
"The average person doesn't want to start the New York Times," he said. Like printing up fliers and leaflets, micro-power radio enthusiasts want free speech -- in a small way.
Tymon agreed with Houlberg, however, that scarcity still exists in economic terms. "There's scarcity, in the sense that I want a license and can't afford one. Currently, if you don't have big bucks or deep pockets, you can't get one."
A part of the problem is the incestuous nature of the broadcasting industry and the FCC, Tymon said. "People who become FCC commissioners come from the broadcast industry." So like broadcasters, the FCC has an interest in protecting the status quo.
Another problem is that most people don't know how the licensing procedure works, he said. The average person doesn't realize that they have a voice in saying who gets licenses.
"And people have no economic incentive to hire lobbyists in Washington D.C. to change the system," he said.
Tymon said Free Radio Berkeley has a good case because it hasn't interfered with other broadcast stations. He pointed out that the FCC doesn't block some unlicensed college radio stations from broadcasting -- as long as those stations don't interfere with licensed ones. "Are these colleges creating chaos in the airwaves?" he asked. KSFS broadcasts via cable.
For the past couple of years, Tymon has invited Dunifer to speak at his broadcast law classes. One of the questions at the last session was: "If the FCC stops regulating frequencies, what would stop another station from interfering with Free Radio Berkeley?"
"I would hope we could solve frequency disputes on the community level," Dunifer replied.
Tymon said Dunifer is being idealistic. "You can't just trust everyone to be nice," he said. At some point the FCC would have to step in and settle disputes.
Still, Tymon said FCC regulations are too restrictive for micro-power stations that don't cause interference. From a First Amendment standpoint, the courts might ultimately find those regulations unconstitutional, he added.
While they're waiting, Tymon said, micro-power broadcasters should come up with an alternative plan for the airwaves.
One idea is to set aside a part of the spectrum for micro-power radio. But, there's still the question of who gets which frequency.
In the meantime, Free Radio Berkeley, inspired by Mabana Kantako, founder of Black Liberation Radio in Springfield, Ill., has at least two more months to broadcast its vibrant mix of leftist politics, eclectic music, Internet news and political satire.
And Dunifer keeps selling radio kits to people from all around the world, including the United Nations. Selling the kits is not illegal. He said the rock band Pearl Jam has ordered a kit to broadcast their summer tour.
San Francisco Liberation Radio is looking to move its format of children's programming and talk shows on controversial issues, to a larger place from which to broadcast, Edmondson said. The station also produces programs for Food Not Bombs, a San Francisco homeless advocacy group. Edmondson hopes to start broadcasting 24 hours a day, and he hopes the FCC will leave him alone.
"The FCC continues to send me notices and letters with requests 'to please send a check for $10,000,'" he said.