Micro-radio Poses Big Constitutional Question

Important, high-profile constitutional issues - decency on the air and Internet, for example, and religious expression in public schools - overshadow another vexing, largely unreported First Amendment debate. It's about the relationship between free enterprise and free-speech rights in the critical public sphere of broadcasting.

A test case involving a so-called "radio pirate" is unfolding before a federal district judge in Oakland, Calif. It could force the federal courts to examine whether regulatory rules that reserve coveted TV and radio channels on public air space for commercial interests deprive citizens of their constitutional rights.

Micro-radio is a late-model expression of civil disobedience. It takes the form of broadcasting to a few square blocks or several square miles over low-power FM stations. These stations are deemed illegal because radio rebels operate them without a required federal license. To the consternation of the Federal Communications Commission (FCC), local authorities, and commercial broadcasters, the protest movement is spreading.

Plug in a microphone, record player, and tape deck to a shoebox-size FM transmitter you can build for $500 and you're a full-fledged radio revolutionary. Radio guerrillas operate from homes, basements, garages, and backpacks. By conservative estimate, 300 to 400 illegal micro-radio stations are on the air from San Francisco to New York City. They employ unused frequencies, trying to avoid interfering with licensed stations.

The micro-radio movement includes minority voices speaking to or for inner cities, as well as ideologues for a variety of populist and religious causes, including freedom of speech.

In Decatur, Ill., Napoleon Williams ran his unlicensed Black Liberation Radio out of his home until last May. Six commercial radio stations exist in Decatur, but Mr. Williams argued that they refuse to serve African-American interests. Since 1990, he has aired such issues as poverty and police brutality - often in terms officials considered inflammatory. In May, a local-state SWAT team seized his equipment and put him in jail.

Doug Brewer aired self-described "populist rap" to listeners in the Tampa Bay area until Nov. 19, when a 20-person "task force" led by federal marshals put him in handcuffs and seized his equipment. They were acting on the complaint of a dominant five-station Tampa ownership group.

There are 11,000 commercial radio and TV stations. They use frequencies that, under federal law, belong to the public. There are 700 licensed noncommercial stations. They rely on public donations, corporate underwriting, and federal funds.

The guiding spirit of the micro-radio rebellion is Stephen Dunifer, a radio engineer and antiwar activist who operates an illegal 25-watt FM radio station in Berkeley, Calif. Micro-radio guerrillas like him argue that the cost of meeting the legal, technical, and regulatory requirements for obtaining a broadcast license is prohibitive and discriminatory. It can run upward of $100,000, exclusive of purchase price. That represents prior restraint of public speech, Dunifer argues. His attorney points to the recent sale of a San Francisco commercial FM station for $42 million.

Dunifer is the Information Age incarnation of the late Mario Savio, whose Berkeley Free Speech Movement among university students sparked social ferment in the 1960s. He calls his radio station Free Radio Berkeley. Dunifer's station only reaches some eight square miles. Yet, the government and the industry see micro-radio as a profound threat.

In 1993, the FCC imposed a $20,000 fine, which Dunifer refused to pay, for operating without a federal license. In January 1995, to general surprise, federal Judge Claudia Wilken threw out the FCC's request for an injunction to put Dunifer off the air and took the case under advisement. Her memorandum acknowledged the First Amendment implications of the case. She said: "The government has failed to show a probability of success on the central issue raised by the defendant, i.e., whether the FCC's complete prohibition of micro-radio is constitutional."

Last month, Judge Wilken spurned FCC arguments that her court lacks jurisdiction in regulatory matters. She has asked both sides to file arguments on constitutional aspects of the case.

The case will place in bold relief the clash between individual rights and broadcast license rights under the current laissez-faire interpretation of constitutional law.

* Jerry M. Landay writes on media-democracy issues from Urbana, Ill.