FCC loses motion for judgment in ‘pirate’ radio case

CALIFORNIA–In mid-November, a federal District Court Judge in Oakland denied a motion filed by the Federal Communications Commission for summary judgment in its case against a “pirate” radio station, and refused for the second time to enjoin the radio station from broadcasting.

Judge Claudia Wilken also ruled that she has jurisdiction to hear the case, rejecting an argument advanced by the Federal Communications Commission that the case should be heard by the federal appeals court in San Francisco (9th Cir.). The government argued that since the FCC had already ruled on the issue, it should go directly to the appellate court for review.

The FCC sued Stephen Dunifer in 1994 to shut down his unlicensed radio station, Radio Free Berkeley. The FCC also asked the court to enjoin Dunifer from operating the station.

In 1995, Wilken refused to grant the government’s motion for an injunction, holding that there were “serious questions as to the constitutionality” of the government’s 63-year-old blanket ban on unlicensed, low-watt radio stations.

Dunifer argued that the FCC’s restriction violates the First Amendment because it ignores technological advances that have rendered the ban on pirate stations obsolete. The court said that the regulation was no longer the least restrictive alternative available to the government in its goal of regulating the airways. (U.S. v. Dunifer; Media Counsel: Louis Hiken, San Francisco)