Radio Station Loses Legal Fight

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The former operator of Free Radio Berkeley, an unlicensed, low-power operation, lost a legal battle Thursday that would have allowed the station to resume operation.

Although a U.S. Circuit Court of Appeals ruled against Steven Dunifer, a Berkeley resident who has spent the last five years trying to gain legal broadcasting rights, Louis Hiken, his lawyer, said yesterday that the ruling was in fact a victory for microradio stations across the country.

In a San Francisco courtroom, Hiken argued that the Federal Communication Commission's restrictions on low-power radio stations violated the constitutional right to free speech. He added that applying for a waiver to broadcast as a low-power station was "futile" because the commission rarely granted them.

The court dismissed Dunifer's appeal of a U.S. District Court ruling that shut down Free Radio Berkeley in 1998. The appeals court said an operator cannot challenge a district court order to close down a station with a charge of a constitutional violation.

Instead, the court said, any complaints must first be made directly to the commission and then disputed, if necessary, in a special federal appeals court in Washington, D.C.

Since January, the commission has changed its rules to permit licensing of low-power radio stations that operate at 100 watts or less. Hiken said the change in commission rules was in response to Dunifer's case as well as the increasing pressure it generated from an estimated 1,000 low-power radio stations that were broadcasting unlicensed throughout the country.

"(The commission) has legalized exactly what Dunifer wanted," Hiken said. It recognized that it was shameful to give all the airwaves to nine corporations, that it's not just for the rich and that they need to give (the radio) back to the people."

A spokesperson for the commission could not be reached for comment, but chairperson William Kennard said in a statement that he supports microradio.

"Those who want to silence low-power FM radio are ignoring a strong, substantive, methodically-developed, two-year public record replete with solid engineering analysis," he said. "The only real interference to low-power FM radio is from high-priced Washington lobbyists."

Free Radio Berkeley, 104.1 FM, first began broadcasting from the Berkeley Hills in 1993. Dunifer served as its operator for five years.

The station later moved to an office in South Berkeley, where it broadcast 24 hours a day at approximately 50 watts of power.

A federal judge shut down the radio station in 1998 after commission lawyers filed a lawsuit to take it off the air for broadcasting without a license.

Hiken said despite the commission's alterations, low-power radio stations in urban areas like Berkeley will not likely be licensed due to an existing commission rule barring radio stations whose frequencies are too close to one another and could interfere with broadcasting.

In the meantime, Hiken said the station continues to broadcast under a different group and still without a license.

"People in Berkeley will continue to operate low-power radio stations illegally because (trying to get licensed) is a meaningless charade," he said.

The U.S Department of Justice first tried to shut the station down. Department representatives did not return calls for comment yesterday.


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