Injunction shuts down Free Radio Berkeley but the fight for micro-powered, community radio continues
Free Radio Berkeley, which for the past three and a half years had been openly broadcasting 24 hours a day on 104.1 FM after Federal Judge Claudia Wilken refused to grant the Federal Communications Commission (FCC) an injunction to shut the station down, went off the air June 16 after Wilken finally issued the FCC its injunction. The injunction order, based on a legal technicality which the judge said prevented her from ruling on the constitutional issues raised by FRB during the lengthy litigation, brought an abrupt end to one of the most original and revolutionary radio stations ever.
Under the injunction, anyone acting in active concert or participation with FRB founder Stephen Dunifer faces contempt of court charges for making any radio transmissions or doing any act, whether direct or indirect, to cause unlicensed radio transmissions or to enable such radio transmissions to occur.
The harsh and overbroad injunction language convinced many in FRB that continued open, on-air broadcasting as Free Radio Berkeley carried a significant possibility of arrest and harsh punishment. An FRB meeting the day the injunction issued voted to temporarily go off the air to save the transmitter from seizure and make a plan for its defense. The station never went back on the air. Decision making was paralyzed in divisive meetings following the injunction and many former DJs drifted away in disgust or fear.
Finally, over a month down the road, initial disorganization is being supplanted by diversified strategies to continue the struggle for participatory community access to the radio airwaves.
Covert Broadcasting Service
Soon after the injunction, unidentified persons have returned to FRB’s roots, making covert broadcasts from the hills on 104.1 FM, mostly on weekend nights. Calling themselves the Covert Broadcasting Service (CBS), rumors are circulating that additional underground broadcasting cells may soon form to reclaim 104.1 FM seven days a week, at least in the evenings. Although the unusual schedule and barriers to wide participation posed by the need for secrecy and the mobile, hill location means that CBS is unlikely to soon replace Free Radio Berkeley’s role as a community station, CBS shows that resistance continues and is possible. Media interest in CBS has kept the fights against corporate control of the airwaves in the public eye.
Since the injunction only affects those acting in concert with Dunifer, most would-be broadcasters in Berkeley and Northern Californian now face the same risks always faced by other micro broadcasters around the US. And these risks may not be as great as the FCC would like people to think they are.
Even before the injunction, micro broadcasters outside of California faced intermittent FCC raids and threats. In most cases, micro broadcasters received numerous warnings, but the FCC rarely followed through with military-style raids. The FCC has always had the power to seize unlicensed transmitters and levy fines against micro-broadcasters. And, the Communications Act has always carried criminal penalties for unlicensed broadcasts, although they are rarely used. In the only recent criminal prosecution, Lonnie Kobres, who faced up to 28 years for illegal broadcasts, was sentenced July 14 to 3 years probation, 6 months of house arrest and a $7,000 fine for micro-broadcasts in Florida. The judge didn’t buy the FCC’s claims that Mr. Kobres was a threat to public safety for exercising his free speech. Kobres is the only recent criminal case out of thousands who have gone on the air over the past year.
The FCC’s actions locally have demonstrated that it is still possible to get away with micro-powered broadcasting. Only a week after the injunction, two unidentified individuals calling themselves Free Radio Cedar Tree broadcast on 104.1 FM from the Berkeley hills. Although FCC agents located them in 15 minutes, the FCC didn’t try to arrest them or seize their transmitter. They merely asked them to turn the transmitter off. After attempting to interview the FCC live on the air, the radio rebels shut down and escaped into the night.
Another form of civil disobedience- broadcasting is to transmit from public events. On the Fourth of July, two dozen people openly broadcast on 104.1 FM from the Independence Day celebration at the Berkeley Marina. Although the broadcast was in broad daylight, the FCC took no action. Broadcasts from demonstrations or even house parties combine a media stunt with the relative safety that numbers provide against FCC intervention. Of course, scattered public broadcasts may have few listeners, since its impossible to know when or where to tune in.
Some former FRB DJs have also rebuilt the FRB studio to legally transmit audio files over the internet. While this project can potentially reach a worldwide audience (of those with computers) and is interesting in its own right, it hardly replaces local, on-air broadcasts.
Nationally, the injunction seems to have encouraged FCC repression against other open micro broadcasters. Soon after the FRB injunction, Radio Mutiny in Philadelphia, one of the best organized micro radio stations aside from Free Radio Berkeley, was raided by FCC agents, who seized all equipment in sight, but made no arrests. Radio Mutiny recently hosted an East Coast micro radio conference and was involved in high profile publicity efforts. The FCC apparently targeted it to eliminate another vocal critic.
Several other micro stations, including San Francisco Liberation Radio, have also recently gone off the air after receiving FCC threats or in reaction to the injunction in Berkeley. A national micro-radio Pledge of Resistance is being circulated so people can commit to defending stations threatened by FCC action.
Free Radio Berkeley lawyers immediately attacked the injunction by filing a motion for reconsideration. Unfortunately, motions for reconsideration are rarely granted. If the motion for reconsideration is denied, an appeal is also possible. During all of the possible future legal maneuvering, however, it appears that the injunction will be in force, preventing Free Radio Berkeley from openly broadcasting.
The Court injunction stated that Free Radio Berkeley didn’t have standing to use a constitutional defense to the FCC’s injunction action because it had never applied for (and been denied) a license to broadcast.
The ruling may be vulnerable since the FCC has continuously stated that it would automatically deny a micro power license application from Free Radio Berkeley if one was made. The Court’s reasoning requires micro radio proponents to be rich enough to spend about $100,000 to apply for a micro-powered FCC license (which doesn’t exist) so they can be denied in order to show they have standing to challenge whether the FCC rules which limit broadcasting to the rich are constitutional! In addition to the $3,000 FCC application fee, an FCC license applicant has to submit expensive engineering studies and prove that the applicant has a one year advance supply of operating funds. Radio Mutiny in Philadelphia attempted to apply for a license with a fee waiver, but the application was denied without reaching the micro-power issue.
Into the Future
Ultimately, the period during which Judge Wilken refused to grant the FCC its injunction was an unprecedented opportunity to build a movement for micro powered, community radio. During the three and a half year opening, hundreds of transmitters were built and distributed around the country and thousands of people coast-to-coast experienced first-hand the potential that micro radio represents.
At a time when fewer and fewer mega-corporations dominate the airwaves, when radio formats sound the same from New York to LA, micro-power radio represents a huge opportunity for
a different model of radio broadcasting. Micro power is cheap, simple and accessible, allowing communities and individuals to have a voice. The Free Radio movement received extensive media coverage over the last three years partly because the alternative to corporate domination that it represents is so attractive, even to members of the corporate media.
At this stage of the micro radio movement, as litigation to challenge the constitutionality of FCC regulation of the airwaves continues, although without a legal gray area to permit open broadcasting in Berkeley, the movement needs to redouble its efforts to reach middle America with the message that there is another way. Under the Communications Act, the FCC is charged with regulating in the public interest. Their gross mismanagement of the airwaves must be exposed for what it is: a giveaway to corporations.
Efforts thus far against the FCC have been largely focused on litigation. There are now enough proponents of micro powered radio throughout the country to better develop a second, politically-oriented attack.
Since the start of 1998, at least two petitions for rulemaking have been filed with the FCC to permit forms of micro-powered broadcasting. The petitions, developed by small-business persons, aren’t exclusively focused on allowing non-profit, community oriented radio as envisioned by Free Radio activists, but they show that changes in FCC rules may be on the horizon. Public comment is accepted on every proposed rulemaking, and Free Radio needs to have its comments heard. Free Radio activists need to get involved in this process to amend the existing petitions and write new ones so that the new rules better reflect the public interest.
Various FCC officials have also recently given lip service to taking another look at smaller, community oriented radio. Unfortunately, their words ring hollow. The explosion in use of cell phones and digital technology, including High Definition TV, are all making demands on radio spectrum space. All of these technologies are championed by the kind of well-funded, massive corporate interests that the FCC has a long history of serving. Nonetheless, Free Radio activists should use their words to demand action.
The network of Free Radio activists developed over the past three years can become significant critics of the FCC’s current, corporate-oriented priorities. Combining tactics such as covert broadcasting, mainstream media coverage, media stunts, teach-ins, radio trainings and micro broadcasts at public rallies, Free Radio activists can point out the alternative as well as the bankruptcy of the current FCC rules. It’s also time to recruit any politicians who aren’t already bought and paid for by the broadcast industry to the cause. The fight for free speech on the airwaves is not over; it has only begun.