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 with rebellion
     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
     town.

     The bearded, genial Dunifer considers his Free Radio Berkeley
     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
     public safety.

     The heart of Dunifer's argument is that the FCC's regulations,
     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
     speech.

     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
     interference concerns."

     "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
     control towers."

     That argument means little to Dunifer. "The air-to-ground
     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
     megahertz.

     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
     and corrupt."

     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 broadcasters the
     importance of taking every precaution to prevent interference with
     other signals.

     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
     enforcement.

     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."