Date: Fri, 19 Dec 1997 12:39:20 -0500 (EST)
From: "landay jerry m." <j-landay@ux1.cso.uiuc.edu>
Subject: MICRORADIO REBELLION -- LANDAY IN THE MONITOR
 

 FOLLOWING IS THE FINAL DRAFT OF A COLUMN BY JERRY M. LANDAY
THAT APPEARS IN TODAY'S CHRISTIAN SCIENCE MONITOR -- THE PAPER
OF FRIDAY 12/19/1997.  IT'S THE TALE OF SOME COURAGEOUS PEOPLE WHO
ARE MARRYING THEIR PRINCIPLES TO THEIR
ACTIONS.
---

Rebellion by Radio: Free-Speech on Trial
by Jerry M. Landay
for The Christian Science Monitor
 

        High-profile constitutional issues such as decency on the
air and Internet and religious expression in public schools,
important as they are, mask another vexing, argely unreported
First- Amendment debate. It is about the relationship between
free enterprise and free-speech rights in the critical public
sphere of television and radio.

        A little-noticed test case involving a so-called "radio
pirate" is unfolding before a federal district judge in Oakland,
California.  It could force the federal court system to examine
whether the regulatory rules that reserve coveted television and
radio channels on public air space largely for commercial
interests deprive citizens of their basic Constitutional rights.

        Micro-radio is a late-model expression of nonviolent, civil
disobedience.  It takes the form of broadcasting to a few square
blocks or several square miles over low-power FM stations.  These
stations are deemed illegal because radio rebels operate them
without a required federal license.  To the consternation of the
Federal Communications Commission, local authorities, and the
commercial broadcasting industry, the protest movement is
spreading.

        Plug in a microphone, record player, and tape deck to a
shoebox-size FM transmitter you can build for $500 and you're a
full-fledged radio revolutionary on an electronic soap-box. Radio
guerrillas operate from homes, basements, garages, and mobile
back-packs. By conservative estimate, there are now 300 to 400
illegal micro-radio stations on the air, from San Francisco to
New York City. They employ unused frequencies, trying to avoid
interfering with licensed stations.  The micro-radio movement
includes minority voices speaking to or for black
ghettoes and public housing, and ideologues for a variety of
populist and religious causes from left to right, not the least
of which is freedom of speech.

        In Decatur Illinois, near where I write, Napoleon Williams
ran his unlicensed Black Liberation Radio out of his home in
Decatur, Illinois until last May.  Blacks constitute 16 per cent
of the population of a major industrial center beset with labor
unrest. Though there are six commercial radio stations in
Decatur, Williams argued that they refuse to serve legitimate
African-American interests.  Since 1990, Williams aired issues of
poverty, unemployment and police brutality -- often in terms that
officials considered inflammatory.  In May, a combined local-
state SWAT team barricaded Williams' street, shut off his power,
seized his equipment and put him in jail.

        Doug Brewer aired a self-described "populist rap" to devoted
listeners in the Tampa Bay area until Nov. 19, when a 20-person
"task force" led by federal marshals put him in handcuffs and
seized his equipment.  They were acting on the complaint of a
dominant five-station Tampa owneship group that belongs to the
National Association of Broadcasters.  Brewer explains: "I don't
have a license because I'm not rich."

        Media corporations speak through 11,000 commercial radio and
TV stations.  They use frequencies that belong under federal
statute to the public.  There are only 700 licensed noncommercial
stations, but they depend on corporate underwriting and federal
funding (itals) WITH (/itals) strings attached.

        The guiding spirit of the micro-radio rebellion is Stephen
Dunifer.  He is a 45-year-old radio engineer and anti-war
activist who operates an illegal 25-watt FM radio station in
Berkeley, California.  FCC rules have put a floor of 100 watts on
the output of transmitters.  Dunifer calls that blantantly
discriminatory.

        Micro-radio guerillas also argue that the cost of
merely meeting the legal, technical, and regulatory requirements
for obtaining a broadcast license is prohibitive and
discriminatory. It can run upward of $100,000, exclusive of
purchase price.  That represents prior restraint of public
speech, Dunifer argues, unconstitutionally dedicating a public
resource to powerful private interests.  His attorney points to
the recent sale of a San Francisco commercial FM stations for $42
million.

        Dunifer is the Information Age incarnation of the late Mario
Savio, whose Berkeley Free Speech Movement among university
students sparked the social ferment of the 1960s. In that spirit,
Dunifer calls his radio station Free Radio Berkeley.  His web
site offers detailed plans for building a low-power FM
transmitter.  Though Dunifer's station only reaches some eight
square miles, the government and the industry see micro-radio as
a profound threat to the established order.

        In 1993, the FCC imposed a $20,000 fine, which Dunifer
refused to pay, for operating without a federal license.  In
January of 1995, to general surprise, not least the FCC, federal
Judge Claudia Wilken threw out its request for an injunction to
put Dunifer off the air, and took the case under advisement. Her
memorandum acknowledged the First-amendment implications of the
case.

       She said: "The government has failed to show a probability
of success on the central issue raised by the Defendant, i.e.,
whether the FCC's complete prohibition of micro-radio is
constitutional."  "If people can't communicate, they can't
organize," Dunifer says.  "And if they can't organize, they can't
fight back."

        His attorney Louis Hiken charges that the FCC has become the
enforcement arm of the National Association of Broadcasters,
which has driven it to harry low-power operators with police
raids and costly court actions.

        Just last month, Judge Wilken spurned FCC arguments that her
court has no jurisdiction in such regulatory business.  Dunifer
proclaimed another victory.  The judge has asked both sides to
file arguments this month on Constitutional aspects of the case.

        It's vital that the Dunifer case come to trial.  It will
highlight the paradox between democratic values and the
commercial monopoly of electric speech under the First Amendment.
It will place in bold relief the clash between individual rights
and corporate rights under the current laissez-faire
interpretation of Constitutional law.
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        Jerry M. Landay writes on media-democracy issues from
Urbana, Illinois. He was a news correspondent for ABC and CBS,