In Support Of Stephen Dunnifer

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA __________________________________________

 FEDERAL COMMUNICATIONS COMMISSION, )            Case No. 17987
 Plaintiffs,                        )             MEMORANDUM OF 
                                    )             POINTS & AUTHORITIES 
 vs.                                )             IN OPPOSITION TO
                                    )             PERMANENT 
 STEPHEN DUNNIFER,                  )             INJUNCTION,
 Defendant.                         )             47 U.S.C. §301, 401
____________________________________)

STATEMENT OF FACTS
Stephen Dunnifer has been operating an unlicensed micropower radio station, called Free Radio Berkeley, in the city of Berkeley, California, for 2 years. Initially, it was in a mobile van. He also sells, for $55, a do-it-yourself radio broadcast kit, to help other people learn to operate their own unlicensed micropower stations, on free speech grounds, calling it "the leaflet of the `90s". The FCC is trying to stop Dunnifer from broadcasting, because he is "operating a radio station without a license". Last month, a federal judge refused to grant a preliminary injunction, saying that she had concerns about the FCC rules as they apply to micropower radio stations.

DISCUSSION
The enabling statute, 47 U.S.C. § 301, as originally enacted, gave limited jurisdiction to regulate "interstate and foreign" radio broadcasting and would not apply to defendant Stephen Dunnifer.

".....(c) from any place in any State, Territory, or possession of the United States....

to any place in any foreign country or to any vessel:

or (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State,
or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State;

or (e) upon any vessel or aircraft of the United States; or (f) upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter."

The United States Constitution, art. 1, § 8, cl. 3, grants power to Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. U.S. Constitution, Amendment 10, provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Reserved means "superior to" the powers granted to Congress.

Over the decades since the beginnings of radio, and the federal government's efforts to control it, a long line of court decisions have discussed this issue at two levels:
1) at the radio waves level, and
2) at radio broadcasting in its aspect as taxable sources of income.

The most thorough and useful decisions were always concerned with taxation. Mostly federal court decisions have stated that all radio transmission is interstate "by its very nature" . These interpretations of law were contrary to obvious Congressional intent, and were an unconstitutional encroachment on state's rights.

If someone did operate an unlicensed radio station, that was not mobile, that did not transmit across state or national borders, that did not transmit to any place that vessels would be operating, and that did not interfere with any already-established radio frequency, then 47 U.S.C. §301 would not apply, and the FCC would have no jurisdiction.

In Whitehurst v Grimes , 21 F.2d 787 (1927), the issue was whether a local government could levy a tax on a duly licensed amateur radio operator. The local tax was not on the property of the radio operator, but rather on the business of radio broadcasting, essentially a sales tax on advertising services. That court held that the ordinance imposing the tax is void, as a regulation of interstate commerce.

"The tax provided is not on the property of the radio operator, but on the business of radio broadcasting. Radio communications are all interstate. This is so, though they may be intended only for intrastate transmission; and interstate transmission of such communications may be seriously affected by communications intended only for intrastate transmission. Such communications admit of and require a uniform system of regulation and control throughout the United States, and Congress has covered the field by appropriate legislation. It follows that the ordinance is void, as a regulation of interstate commerce."

So, early on, the assumption of interference with frequencies assigned to already-established licensed radio stations, was used to justify making the limited jurisdiction statute more inclusive than Congress originally had intended and more inclusive than Congress or the Judicial Branch had been empowered to do by the Constitution. If there is no interference with radio frequency of an established station, this argument fails. There is no showing in this instant case of Stephen Dunnifer, that he has ever broadcast at a frequency that interfered with any other radio station. All of the cases that repeated this misconception, throughout the decades after 1934, should be understood in light of this difference in factual situation.

In United States v Molyneaux , 55 F.2d 912 (1932), the first case found thus far, with an unlicensed radio broadcast, a criminal action for operating a radio apparatus "for which a radio license was required by the Radio Act of 1927", was attacked on the the basis of not having alleged interstate signal transmission, and of showing that the broadcasts actually crossed the state border. It was held that an apparatus was deemed to be the same as a radio station, because it's waves did cross the state line.

"In other words, an apparatus, the effects of which extend beyond the state in which it is stationed, comes within the law requiring a station license."

In Federal Radio Com. v Nelson Bros. B. & M. Co ., 289 U.S. 266, 77 L.Ed. 1166 (1932), disputes over allocation of radio stations to different states within a regional zone,

"(1) No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications. No state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities."

In KVL, Inc. v Tax Commission of Washington, et al. , 12 F.Supp. 497, the court answered the question "Is radio broadcasting interstate commerce?" quoting this same bit of dictum from Federal Radio Com. , supra.

Fisher's Blend Station, Inc. v State Tax Commission, et al , 45 P.2d 942 (1936), 297 U.S. 650, 655, 80 L.Ed. 960, a U.S. Supreme Court case,

"The essential purpose and indispensable effect of all broadcasting is the transmission of intelligence from the broadcasting station to distant listeners. It is that for which the customer pays. By its very nature broadcasting transcends state lines and is national in its scope and mportance---characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause". See Federal Radio Commission v Nelson Bros. Bond & Mortgage Co. , 289 U.S. 266, 279, 77 L.Ed. 1166, 1175, 53 S.Ct. 627, 89 A.L.R. 406.

In 1942, during the security emergency of World War II, a federal district court in Ohio, in United States v Betteridge , 43 F.Supp. 53, 55, 56, follows the same line of reasoning,

"Section 301 points out that it is the purpose of the Chapter "to maintain the control of the United States over all the channels of interstate and foreign radio transmission.

Accordingly, in the enactment of this section, Congress sought to prohibit the operation of any apparatus for the transmission of energy, communications or signals by radio without a license in any manner that may prevent the United States from maintaining such control, and enumerated ...the various uses of transmitting apparatus which would deprive the United States of the control of the channels of interstate and foreign radio communication unless they were regulated by licensing.

It is needless to go into a lengthy dissertation on the inherent natural characteristics of radio transmission to arrive at the inescapable conclusion that all transmission of energy, communications or signals by radio, either use an interstate or foreign channel of transmission or so affect interstate or foreign channels as to require the regulation of their use by licensing or otherwise if the announced purpose of this section, i.e., the retention of control in the United States of all channels of interstate and foreign radio communication is to be carried out effectively. The daily use of the radio, even to a lay mind unacquainted with the science of radio transmission or its engineering intricacies, has clearly demonstrated this conclusion.

[1] A careful analysis of the prohibited operations of a radio transmitting apparatus without a license discloses that the section is so all-inclusive that it would require great imaginative faculty to find an instance where the operation of a transmitting apparatus would not be embraced within the provisions of the Act. In fact, I am bound to come to the conclusion that all the operations of a radio tranmitting apparatus fall into one or the other or several subsections of the statute and that under the Act, none can operate without a license. "

.....In Whitehurst v Grimes , 21 F.2d 787, the Court held that:

"Radio communications are all interstate. This is so, though they may be intended only for intrastate transmission; and interstate transmission of such communications may be seriously affected by communications intended only for intrastate transmission. Such communications admit of and require a uniform system of regulation and control throughout the United States, and Congress has covered the field by appropriate legislation."

There obviously are lots of places where a low-power radio station transmitter could operate without its signals being heard across a state border, or from a vessel. A careful choice of frequencies would not interfere with safety frequencies that navigational vessels might use. It would be irrelevant whether vessels could hear Dunnifer's music or talk radio, if the frequency did not interfere with safety devices, or concern any wartime national security information, which is unlikely. When Dunnifer had it in a mobile van, he obviously was able to be heard from a vessel some part of the time, though by the time the FCC started prosecuting him, the broadcast station was in a stationary location. An injunction in the present and the future would be useless against past acts.

After the war, in a more normal time, in 1947, in Albuquerque Broadcasting Co., v Bureau of Revenue of the State of New Mexico , 51 N.M. 332, 184 P2d 416, [11 ALR2d 966], the New Mexico Supreme Court took the time to examine, more thoroughly, the long line of cases on this issue, and differentiated between interstate and intrastate as sources of income and programming to the radio station, as opposed to range of actual radio waves transmitted through the atmosphere, as the controlling factor in a local tax on radio station gross receipts. In their holding, local advertising was not interstate commerce, so it could be taxed.

According to Albuquerque Broadcasting Co. v Bureau of Rev. , supra, and Freeman v Hewit , 329 U.S. 249-286, 91 L.Ed 265 (1944-1947), the rationale for federal jurisdiction over taxation of interstate commerce was to preclude businesses being taxed multiple times for the same income. If the tax on interstate commerce was apportioned among\between the states, or if it was only on local commerce, then a state tax could be valid. While not on point, factually, these two cases are the most lucid, and least confused on the issue of whether "all radio transmission is interstate, by its very nature".

Gagliardo v United States , 366 F.2d 720 (1966), concerned some bad language heard over the CB radio frequencies. He was charged with violation of 18 USC §1464, prohibiting "obscene, indecent, or profane language by means of radio communication". Cited in support of this FCC criminal enforcement action,

"It is well established that Congress has the power under the Commerce Clause, Article I, § 8, cl. 3 of the Constitution, to impose penal sanctions on what it considers to be morally objectionable conduct so long as "the activity sought to be regulated is `commerce which concerns more States than one' and has a real and substantial relation to the national interest. ... The fact that transmissions over citizens' band radio may cross state borders, either because of unusual atmospheric conditions or because the transmitter is located near a border, justifies a conclusion that such transmissions have a substantial enough effect on interstate commerce to empower Congress to regulate all citizens' band radio. The fact that appellant's isolated transmission may not have traversed state borders is irrelevant since it is the cumulative impact on interstate commerce of all citizen's band radio transmissions which enables Congress to regulate all such transmissions."

Heart of Atlanta Motel v United States , 379 U.S. 241, 255, 275, 85 S.Ct. 348, 356, 13 L.Ed.2d 258 (1964).

It is important to note here that because most CB radios are mobile, and invariably do sometimes cross state lines, they would be covered explicitly by 47 U.S.C.§ 301, anyway.

One of the few injunction cases, United States v McIntire , 365 F.Supp. 618 (1973), and 365 F.Supp. 1301 (1974), concerned a religious broadcaster who set up a radio station on an offshore vessel just beyond the territorial limits of the U.S., in violation of §301, in defiance of the FCC, without a license and interfering with several established frequencies. He had done this after losing his station license for an FM station on land. The FCC put him under a temporary restraining order, and subsequently, a permanent injunction.

This case was different, in that Reverend McIntire was interfering with duly licensed radio station frequencies, and offshore broadcasts were covered by a treaty.

In United States v Brown , 661 F.2d 855 (1981), the FCC confiscated a souped-up CB radio, powerful enough to broadcast over 100 miles, and convicted the defendant of violating 47 U.S.C. § 301(d). The only question on appeal was that jury instructions should have stated that the government must show that the signals actually left the state, i.e., a jurisdictional challenge, just as in Molyneaux .

"Radio communications have traditionally been considered interstate commerce and subject to federal regulation. Pulitzer Publishing Co. v FCC , 94 F.2d 249, 251 (D.C. Cir.1937). See WOKO, Inc. v FCC , 153 F.2d 623, 628 (D.C. Cir.), .... Gagliardo v United States , 366 F.2d 720, 723 (9th Cir.1966). ..... we hold, however, that it is satisfied by proof that defendant's transmission was powerful enough to cross the state border. Requiring the prosecuting authorities to monitor defendant's signalfrom a point outside the state in order to sustain his conviction seems to us to impose a greater burden than the statute contemplates." United States v Brown , 661 F.2d 855 (1981)

The dissenting opinion, however, is clearer about the actual intent of Congress in limiting the FCC enabling statute §301 to foreign and interstate communications, unless there is interference with frequencies.

"The issue in this case, then, is to what extent Congress, in fact, exercised its theoretically plenary powers over broadcasting in 47 U.S.C. § 301. We must be guided by Congress' language in determining how much of its power Congress actually exercised. The language of the statute makes clear that Congress intended to regulate less than its full commerce clause power.

Subsection (d) of 47 U.S.C. § 301, the relevant subsection in this case, covers two kinds of broadcasts: (1) those whose effects extend beyond state borders, and (2) those whose effects do not extend beyond state borders but which interfere with other broadcasts that themselves extend beyond state borders. The government has conceded that the second condition is not involved in this case. The effect of ratifying the instruction in this case is to greatly expand criminal jurisdiction in the face of a contrary congressional intent and counter to the obvious purposes apparent in the general structure of the statutory scheme. "
United States v Brown , 661 F.2d 858 . [ 43 ALR4th 992 (1982) ]

This whole debate was cut short by the amendments to 47 U.S.C. § 301, on September 13, 1982, by a different Congress, making it read thereafter------nothwithstanding the clear intent of (d) still included------- as

"(a) from one place in any State, Territory, or possession of the United States, or District of Columbia to another place in the same State, Territory, or possession of the United States, or District of Columbia",

The legislative history on this amendment, indicates that

"The Senate amended Section 301 of the Communications Act of 1934 to make clear that the Commission's jurisdiction over radio communications extends to intrastate as well as interstate transmissions. ......

The present statutory ambiguity imposes wasteful burdens on the Commission and various United States Attorneys, particularly the Commission and various United States Attorneys, particularly with regard to prosectuion of Citizens Band (CB) radio operators transmitting in violation of FCC rules. Typically in such a case, the defendants concede the violation, but challenge the Federal Government's jurisdiction on the ground that the CB transmission did not cross state lines. To refute this argument, the Commission invariably is asked to furnish engineering data and expert witnesses, often at considerable expense. In most instances, once the expert evidence is made available, the defendants plead guilty and the case terminated.

The provision would end these wasteful proceedings Further, it would make Section 301 consistent with judicial decisions holding that all radio signals are interstate by their very nature. See, e.g., Fisher's Blend Station Inc. v. Tax Commission of Washington State , 297 U.S. 650, 655 (1936)."

In the case of a small, micro-power radio station or broadcasting apparatus, if it does not interfere with another station's frequencies, and it does not rebroadcast national network radio shows and ads, then §301 does not apply.

The amending changes in 1982, purporting to unconstitutionally broaden the jurisdiction of the FCC over the important societal nervous system of the airwaves, should be disregarded, as of no force and effect, because this usurpation of jurisdiction over all radio broadcasting, even local and intra-state, in 1982, is unconstitutional. This hasty reasoning broadened FCC jurisdiction, and encroached unnecessarily upon state's rights, and the rights of the people---unnecessarily because mobile radios were already subject to § 301.

This statute should be returned to its original limited jurisdiction, on interstate and foreign radio transmission, except where a there is a showing of actually interfering with an assigned frequency, or of rebroadcasting programs and/or advertising from a national network.

This would help to free the radio airwaves from so much centralized control, and allow for more creative, less-standardized programming, encouraging and emphasizing the local level, to blossom and flower as a focus of new grass-roots energy, which is needed.

If we continue to allow increasing federal bureaucratic dominance of everything we do, right down to the local neighborhood low-power radio station, and all the radio station operators must exist at the will and sufferance of this centralized bureaucracy, it stiffles the real highest level of expression that some of these station operators are capable of.

Neighborhood radio stations can be more sensitive and attuned to the local needs, which can help facilitate beneficial change right out here, in front of us, instead of feeling as helpless consumers of stagnant media ideas and commercial brainwashing to buy more than we can afford.

CONCLUSION
All radio transmissions are not "interstate, by their very nature". Stephen Dunnifer has pleaded the Affirmative Defense of First Amendment Freedom of Speech and Expression of Ideas, and the Affirmative Defense of compliance with interference and boundary limitations, arguing that this statute does not apply to him.

The court should find that the FCC has no jurisdiction over his very low-power neighborhood radio station and others like it, which are essentially local and intra-state, and do not interfere with established frequencies, or violate some other part of 47 U.S.C. §301.
_______________________________
Sharon E. (Shari) Soza
Dated: 05/21/95

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