Date sent: Mon, 8 Dec 1997 16:35:16 -0800 (PST)
NY Times December 8, 1997
Radio Renegade Fights FCC Rules
By JULIE LEW
BERKELEY, Calif. -- For most of his life, Stephen
Dunifer did not
hesitate to speak out or become involved in causes, from saving
redwoods to protesting the Persian Gulf war. But the only cause
that has put him in the limelight is his current one: the battle to
open the nation's airwaves to small, low-power stations like his
Free Radio Berkeley.
His fight began on a night four years ago when
he hiked into the
Berkeley hills with a radio transmitter tucked in his backpack and
sent his voice out over the local airwaves. The battle has since
moved to federal court, where Dunifer is challenging Federal
Communications Commission regulations that set a minimum
transmission power standard of 100 watts for any radio station with
a broadcast license.
For two generations, Berkeley has been synonymous
against the status quo, with contrarian -- not to mention utopian
-- thinking. Dunifer's notion that anyone with a transmitter should
be able to start a radio station fits the egalitarian tenor of the
The bearded, genial Dunifer considers his Free
broadcasts an exercise in free speech and a galvanizing force for
listeners. The station's mix of news, music, and political
commentary in half a dozen languages, he says, gives a voice to
segments of the area ignored by larger stations.
But by operating it, he is ignoring federal
rules. As the FCC
continues its efforts to legally enjoin him from broadcasting, the
fight that the 46-year-old self-taught electronics engineer and
computer-system designer is waging has become a cause celebre for
many of the perhaps 1,000 unlicensed broadcasters nationwide. Many
of them, in fact, are his customers; he also sells the equipment
needed to start a low-power station.
In their 1993 rebuttal to the FCC's attempt
to fine Dunifer
$20,000, his lawyers wrote that "the fundamental problem is that
the FCC has not provided procedures by which micro radio
broadcasters can become licensed. ... ." But if Dunifer's advocates
see him as a free-speech crusader and the Johnny Appleseed of
low-power radio, the FCC, the legal guardian of the common property
of the airwaves, sees him as a radio "pirate" who is breaking the
law, disrupting licensed broadcasters, and posing a threat to
The heart of Dunifer's argument is that the
particularly a 1978 rule requiring an applicant for a radio license
to use a transmitter with a minimum power of 100 watts, are based
on outmoded technological assumptions and set an insurmountable
economic barrier for many would-be broadcasters.
In one filing, Dunifer's lawyers wrote: "The
cost of owning and
operating a radio station has skyrocketed into the hundreds of
thousands and even million-dollar range," effectively limiting
participation in the broadcast media to large corporations only.
Since 1993, when Dunifer's court battle with
the FCC began, he has
achieved a partial victory. Judge Claudia Wilkin refused in
November to grant an injunction sought by the FCC that would have
shut Dunifer's station down pending arguments on his contention
that existing rules amount to an unconstitutional restraint on free
But as far as the FCC is concerned, Dunifer
is flouting rules that
other broadcasters must live with. In a telephone interview last
week, William E. Kennard, the new chairman of the FCC, said that
the commission had studied proposals to license small radio
stations, "and I think they rejected that approach because of
"It's a terrible safety problem," Kennard said.
"Some of these
unlicensed broadcasters have chosen bands adjacent to air traffic
control channels. We just can't allow a situation where you have
illegal broadcasters disrupting communications between pilots and
That argument means little to Dunifer. "The
frequencies are 118 to 135 megahertz," he said. "There would be no
reason for anyone operating in those bands, because no one will be
able to hear them." Commercial FM radio operates between 88 and 108
Dunifer is not the only pirate broadcaster
in the FCC's sights. The
commission's push against low-power broadcasters has taken two such
stations off the air in the last two months: Radio Free Allston, a
noncommercial low-power station in the Boston area, which the
agency shut down on Oct. 28, and "Tampa's Party Pirate" in Florida,
which was closed last month.
In New York City, the Steal This Radio collective,
at 88.7 FM,
started its station in 1995 on the Lower East Side with an antenna
built from plumbing supplies. It remains on the air.
Such broadcasters, Dunifer argues, serve a
vital function in their
communities, giving more voices a chance to be heard. The FCC, he
declares, should accommodate them.
"This is an important case because it shows
the really corrupt
nature of broadcast policy," said Robert W. McChesney, a scholar
who has written several books on mass media. "The reality is that
the commercial broadcast lobby is the single most powerful lobby in
the country. Given their immense power, it's virtually impossible
for any public participation, so the laws are simply undemocratic
In the spring of 1993, the FCC, perhaps acting
on a complaint,
began monitoring Free Radio Berkeley broadcasts, then sent Dunifer
a notice that he would be fined $20,000.
Dunifer's lawyers contested the fine, leading
the FCC to seek an
injunction against his broadcasts. Dunifer was gleeful. "We've
gotten our fondest wish, which is to be in federal court," he said
recently. "This was being done basically as a free-speech statement
and a challenge to their regulatory and statutory structure."
The focus of his challenge, currently before
the Federal District
Court for the Northern District of California, is a 1978 FCC
regulation limiting the award of new broadcast licenses to stations
operating at a minimum of 100 watts. The rule was adopted in an
effort to eliminate clutter and overlapping signals, but it also
had the effect of raising the price of entry for broadcasters.
"This is the moment for this kind of thing
to come together because
the technology has made it possible," said Ron Sakolsky, a public
policy professor at the University of Illinois.
"If you get an FCC license, you have to initially
invest $50,000 to
$100,000," he said. "Now, it's possible to do it for a much smaller
cost, and people are saying, 'Why can't we go on the air?' "
For those in a hurry to get their soapbox on
the air, Dunifer sells
a package for $595 that includes equipment for a half-watt station.
It does not include audio gear, but "$1,500 can get you on the
air," he said. Half a watt of power sends a signal strong enough to
cover about half a mile.
Dunifer said he emphasized with all would-be
importance of taking every precaution to prevent interference with
Not surprisingly, broadcasters who have paid
their license fees and
are protective of the clarity of their signals are working with the
FCC to shut down low-power stations.
The National Association of Broadcasters says
the number of
unlicensed micro-broadcasters has been growing as the price of
broadcasting equipment drops.
"We want to make sure unlicensed broadcasters
and their illegal
activities won't be tolerated," said John Earnhardt, a spokesman
for the association, which has pushed the FCC to step up
Still, in his interview, Kennard emphasized
that he was open to
changing the face of the radio spectrum.
"I am personally very concerned that we have
more outlets for
expressions over the airwaves," he said. "I have made it a point of
my tenure here as chairman to try to spotlight the fact that the
broadcast industry is consolidating at a very rapid pace. And as a
result of this, there are fewer opportunities of entry by minority
groups, community groups, small businesses in general. And I'm very
interested in hearing ideas to remedy the unfortunate closing of
opportunities for a lot of new entrants."