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November 23rd 1997

WOW what an issue this one is this week. Some heavy reading
but great contributions - Thanks to all.

Straight to the hottest SW station recently:-



Provisional schedule:

Saturday December 20th, 1997: 
- 20-24 UTC on  7.580 kHz LSB 
20 and 22 in Italian/English (1h) 
21 and 23 in German (1h) 

Sunday December 21st, 1997: 
- 04-07 UTC on  7.580 kHz LSB 
04 and 06 in Italian/English (1h) 
05 in German (1h) 

- 07-10 UTC on  7.440 kHz LSB 
07 and 09 in Italian/English (1h) 
08 in German (1h) 

- 07-17 UTC on 11.410 kHz USB 
07 and 09 in German (1h) 
08 in Italian/English (1h) 
10-17 test at reduced power 

If in your country the frequencies, at the suggested times, are affected 
from interferencies, we hope to receive your warning by sending an 
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Thanks in advance for your cooperation.

the correct reception reports with: 
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TEMPLE TERRACE - Federal agents pulled the plug on three area pirate
radio stations Wednesday, arrested a Lutz man and seized thousands of
dollars of equipment.

A radio executive at a licensed station praised the raids but expressed
doubt the renegade stations would be silenced for good.

Investigators descended on unlicensed radio operators at dawn and
confiscated broadcasting equipment.

Arthur Kobres, 53, of Lutz was charged in a 14-count federal indictment
with operating a radio without a license. He was released at an
hearing on $25,000 security bond.

Kobres has been operating Lutz Community Radio, 96.7 on the FM dial,
where he broadcast anti-government material. Federal prosecutors have
said Kobres and his wife, Cheryl, were unindicted co-conspirators in the
recent federal trial of Emilio Ippolito and the renegade Constitutional
Common Law Court.

Wednesday marked Kobres' second go-around with the Federal
Communications Commission. Agents confiscated his equipment March 7,
1996. He managed to be back on the air the next day.

Agents also hit 102.1, ``The Party Pirate'' in Temple Terrace, and 87.9,
``87X'' in Seminole Heights on Wednesday. Authorities wouldn't say if
other unlicensed radio stations in the Tampa Bay area would be shut

Kelly Benjamin, 22, who operates 87X using the name Kelly Kombat, was
arrested on state charges of possessing marijuana and drug
paraphernalia, which federal agents said they found during the seizure.
Benjamin was released hours later on $1,000 bond..

Doug Brewer, who operates The Party Pirate from his home, watched
alongside other station disc jockeys as U.S. marshals rolled electronic
equipment into a Ryder truck parked in his driveway.

``We knew it was eventually going to happen,'' said Rob Elting, known as
Bonehead on the air.

Brewer, 43, said he was awakened at 6:30 a.m. by armed U.S. marshals,
who handcuffed him. Agents seized equipment from his home studio and
gear from his remote van, he said. They also dismantled a 150-foot radio
tower. Some of the equipment taken, he said, belonged to other groups,
like the Temple Terrace Golf & Country Club.

``There will be repercussions about it,'' Brewer said. ``Not only that,
community will be in an uproar about it because they're losing their
favorite radio stations.''

Brewer argued that while the FCC requires broadcasters to have a license
to operate, they only grant them to big-monied corporations. Brewer said
he applied for a broadcast license but was turned down.

Known to listeners as Craven Moorehead, Brewer has taunted FCC officials
on and off the air. He refused to pay a $1,000 FCC fine. His Web page
includes a photograph of agents outside his house measuring the radio

Ralph Barlow, who heads the FCC office in Tampa, would not comment as he
supervised the seizure at Brewer's home. In an article about Brewer in
The Wall Street Journal last month, Barlow was quoted as saying,
``Sooner or later, I'll nail him.''

Proponents of pirate radio say the stations offer diverse opinions and
entertainment, whereas corporate media offer sanitized, boring fare.

Opponents of unlicensed broadcast counter that unregulated stations are
a menace that often interfere with licensed operations and poison the
airwaves with profanity and hate speech.

Assistant U.S. Attorney Monte Richardson would not say why Kobres was
the only suspect charged with operating an unlicensed radio station.
However, he added that Kobres' return to the airwaves last year after
his broadcast equipment was seized may have been a factor. The content
of Kobres' broadcasts played no role, Richardson said.

It's rare for a pirate station operator to face criminal charges, said
Louis Hiken, a San Francisco lawyer representing Free Radio Berkeley
operator Stephen Dunifer in a case pirate broadcasters are closely

The FCC has beefed up enforcement over the past several months at the
behest of the National Association of Broadcasters, pirate radio
supporters say.

Drew Rashbaum, vice president and general manager of five radio
stations, including WHPT, 102.5 FM, lauded the seizures. Rashbaum filed
a complaint against The Party Pirate about a year ago, claiming its
proximity to WHPT on the dial was confusing listeners.

``We're pleased that this is finally occurring,'' Rashbaum said. ``It's
taken awhile, but true to their word, the FCC did indeed shut down these
unlicensed psuedo-broadcasters.''

``To some degree, it makes the airwaves safer to listen to,'' he said.
``There's much less chance of unmonitored profanity and subject

But Rashbaum doubts the seizures will close the matter. ``We'd like to
think that they're off for good, but I wouldn't count on it,'' he said.

Asked whether The Party Pirate will return to the airwaves, Brewer said:
``Stay tuned.''

( via
Frederick R. Vobbe, W8HDU
Great Northern Broadcast Company )

Thu, 20 Nov 1997 20:35:42 -0
 From: Paul_W._Griffin@xxxxxxxx (Paul W. Griffin)
Organization:  BMUG, Inc.

A few of our buddies in Florida just got taken off the air in a very
forceful manner. Doug Brewer (party pirate), Kelly Kombat
(87x) and Lonnie Kobres (Lutz Community Radio) were woken to the sound
of jack-booted thugs breaking into their homes
on tuesday morning. Doug was detained for about 12 hours, Kelly had to
post a small bail, and Lonnie is being held in prison.
These micro-power operators were threatened with guns, denied basic
human rights, and anything electronic was confiscated.
In protest, we will be gathering at the federal district courthouse here
in Oakland on tuesday, november 25th. The demo is
scheduled for 5:00 PM. Just look for all the cops. The address is Clay
Street at 13th. As Stephen Dunifer recently said, "If
they come for my transmitter tonight, they'll come for yours in the
morning". The right to use a transmitter is guaranteed by the
constitution and no government has the right to block access to the
airwaves. For more info about this ugly turn of events, call
me at (510) 848-1455 or respond to this email. 

Thanks for your help! -Paul 


National Lawyers Guild Committee on Democratic Communications 
558 Capp Street, San Francisco 94110
Court Rejects FCC's Constitutional Catch 22 
United States District Court Judge Claudia Wilken has rejected another 
attempt by the Federal Communications Commission to silence Berkeley
Micro Radio Broadcaster Stephen Dunifer, founder of Free Radio Berkeley. 
In a 13 page opinion released on November 12, 1997, Judge Wilken once
again rejected the government's motion for an injunction to silence
micro radio broadcasts by local radio pioneer Stephen Dunifer. 
In 1995, Judge Wilken rejected the government's first motion for a 
preliminary injunction against Dunifer's broadcasts. At that time the
Court found merit in Dunifer's argument that the FCC's ban on low power,
affordable FM broadcasting was a violation of the First Amendment's
guarantee of free speech to all in the United States. 
In a blatant attempt to avoid facing its First Amendment obligations the 
FCC then urged Wilken to permanently enjoin Dunifer from Broadcasting
and at the same time argued that she could not even consider the issue
whether its rules, which prevent him from getting a license, are 
unconstitutional. In a Kafkaesqe argument, the Commission argued that 
Wilken had jurisdiction to issue an injunction, but no jurisdiction to
Dunifer's constitutional arguments. The government claimed that only the 
higher federal courts could consider the constitutional question. 
In her November 12 decision rejecting the Government's position, Judge 
Wilken pointed to the fact that the FCC had taken exactly the opposite 
position in the 1994 case of Dougan vs FCC. In that case, an Arizona
micro radio broadcaster had appealed an FCC fine (for broadcasting
without a license) to the 9th Circuit Federal Court of Appeal, and the
FCC had argued that the Court of Appeal had no jurisdiction over the
case, and that it had to be heard by the District Court. The Court of
Appeals agreed with the FCC and sent the case back to the District
Judge Wilken noted that the Arizona broadcaster had raised the same 
constitutional arguments in the Court of Appeals that Dunifer is
The Court ruled that in sending all of the issues in the Arizona case to 
the District Court, the Appeals Court recognized that the District Court 
had jurisdiction over all aspects of the case. 
In denying the Government's motion for an injunction "without
prejudice," Judge Wilken ordered the Government to file a further brief
on the question of whether the unconstitutionality of the FCC's ban on
micro radio is a valid legal defense to an injunction against
broadcasting at low power without a license. Dunifer's attorneys, Louis
Hiken and Allen Hopper of San Francisco, will have an opportunity to
rebut the government's arguments on this point. 
In response to pressure from the commercial broadcaster's lobby, the 
National Association of Broadcasters (N.A.B.), the FCC has in recent
months been stepping up its campaign of harassment against the thousands
of micro radio stations now on the air in this country. Hiken commented
"The broadcast industry is clearly afraid of these little community
stations which are speaking truth to its power. In trying to do the
N.A.B.'s bidding, the FCC demonstrates that it is nothing but an
enforcement arm of  the commercial broadcast industry and the
multi-national corporations which own it." 
The National Lawyers Guild's Committee onDemocratic Communications has
represented the Lawyers Guild, San Francisco's Media Alliance, and the
Women's International News Gathering Services as a "Friend of the Court"
(Amicus) in this case. In its Friend of the Court brief the Lawyers
Guild pointed out that FCC regulations make it impossible for all but
the very wealthy to even apply for a broadcast license. This, they told
the Court, is the equivalent of saying anyone could speak from a soap
box in the park, but the box had to be made of gold. Guild attorney
Peter Franck commented "In an era when Disney owns ABC, the world's
largest defense contractor owns NBC and CNN merges with Time which
merges with Warner, and when 'public' broadcasting is told to get its
money from corporations, micro 
radio may be our last best hope for democracy on the air ways." He 
continued "Judge Wilken's decision is a courageous rejection of the 
Government's attempt to use a legal Catch-22 to avoid facing the fact
that its ban on micro radio flies in the face of the Constitution." 
The legal team representing Dunifer and the Amicae are very pleased with
Judge Wilken's reasoned and thorough decision denying the FCC's motion
to have the case resolved without a trial on the merits. For almost 70
years, the FCC has catered solely to the interests of commercial
corporate giants, through their mouthpiece, the National Association of
Broadcasters. These are the pirates, who have stolen the airwaves from
the American people, and who represent corporate interests valued at
more than 60 billion dollars. 
Only the Pentagon, the Silicon Valley and the transportation industries 
possess the financial wallop represented by the NAB and its
Judge Wilken's decision represents a vision of what it would be like for 
the American people to be given back their own voice. The decision 
suggests the likely unconstitutionality of the entire regulatory
underlying the FCC's ban on low power radio. It forewarns of the total 
failure of that agency to carry out its statutory obligation to regulate 
the airwaves in the public interest -- that is, in the interest of the 
American people, rather than the media monopolies that control our 
The legal team welcomes the opportunity to have a court identify the
pirates of the airwaves -- not the thousands of microradio broadcasters
who seek to communicate with the people of their communities,but rather
the billionaire commercial interests that control the airwaves as if
they own them. Is it General Electric, Westinghouse and the Disney
Corporation that have the right to control local community radio, or is
that a right that belongs to all of the American people, regardless of
economic status? 
Stephen Dunifer, Free Radio Berkeley 
Louis Hiken 
Counsel for Stephen Dunifer 
Allen Hopper 
Counsel for Stephen Dunifer 



By this action, the United States, on behalf of its agency, the Federal
Communications Commission ("FCC"), seeks declaratory and injunctive
relief against Defendant Stephen P. Dunifer for operating a radio
station, "Free Radio Berkeley," without a license in violation of 47
U.S.C.S 301 of the Communications Act of 1934, as amended, 47 U.S.C. S
151 et seq. Several amici curiae have filed a brief supporting the FCC.
Mr. Dunifer does not dispute that he is broadcasting without a license
and that he has never applied for a license. Mr. Dunifer does not
question the 
constitutionality ot the statute that requires broadcasters to obtain a
license. Mr. Dunifer asserts, however, that relief should not be granted
to the FCC because he cannot obtain a license to broadcast under the
FCC'S regulations, which he claims are unconstitutional. The FCC
regulations do not allow for the licensing of micro radio broadcasters,
that is, radio broadcasters who, like Mr. Dunifer, use ten watts or less
to power their 
signals.(1) Presently before the Court is the FCC'S motion for summary
judgement which Mr. Dunifer and several amici curiae oppose. The matter
was heard on April 12, 1996.Having considered all of the papers filed by
the parties and oral argument on the motion, the Court DENIES the FCC's
motion without prejudice and requests further briefing. 

Summary judgment is properly granted when no genuine and disputed issues
of material fact remain, and when, viewing the evidence most favorably
to the non-moving party, the movant is clearly entitled to prevail as a
matter of law. Fed. R. Civ. P. 56; CelotexCorp. v. Catrett, 477 U.S.
317, 322-23 (1986); Eisenberg v. Insurance Co. of North America, 815
F.2d 1285, 1288- 89(9th Cir. 1987). 
The moving party bears the burden of showing that there is no material
factual dispute. Therefore, the Court must regard as true the opposing
party's evidence, if supported by atfidavits or other evidentiary
material.Celotex, 477 U.S. at 324; Eisenberg, 


(1) 47 C.F.R.S 73.512(c) states, in relevant part: 
Except in Alaska, no new Class D [micro radio station] applications nor
major change applications by existing Class D stations are acceptable
for filing except by existing class D stations seeking to change


47 C.F.R.S 73.506(b) provides, in relevant part: 
Any noncommercial educational station except Class D may be 
assigned to any of the channels listed in S 73.501. 
Section 73.501 lists channels available for assignment. 

813 F.2d at 1289. The Court must draw all reasonable inferences 
in favor of the party against whom summary judgment is sought. 
Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 
587 (1986); Intel Corp. v. Hartford Accident and Indem. Co., 952 
F.2d 1551, 1558 (9th Cir. 1991). 

The FCC challenges this court'sjurisdiction to entertain Mr. Dunifer's
constitutional defenses to this action. The FCC invoked the
jurisdictional grant of 47 U.S.C. S 401 (a) in filing the instant
action. Section 401(a) provides that: 

The district courts of the United states shall have jurisdiction, upon
application of the Attorney General at the request of the [Federal
Communications] Commission, alleginq a failure to comply with or a 
violation of any of the provisions of this chapter by any person, to
issue a writ or writs of mandamus commanding such person to comply with
the provisions of  this chapter. 

The court thus has jurisdiction to enjoin any violation by Mr. Dunifer
47 U.S.C.S 3Ol, which, simply put, prohibits operating a radio station 
without a license. The FCC argues, however, that the jurisdictional
of 47 U.S.C.S 401(a) is not broad enough to encompass Mr. Dunifer's 
constitutional defenses which challenge the regulations that make it 
impossible for a micro radio broadcaster to obtain a license. The FCC 
argues that any court challenge to the FCC's regulations regarding 
licensing must be brought either: (1) as an appeal to the United States 
Court of Appeals for the District of Columbia under 47 U.S.C.ß 402(b)
[2] of the FCC's denial of a request for a waiver of the regulation 
prohibiting low power stations to apply for a license; or (2) as an
to the court of appeals for any circuit of the FCC's denial of a
for rule-making under 47 U.S.C. ß 402(a) [3] and 28 U.S.C. ß 2342[4]. In
support or its position, the FCC principally relies on Sable 
Communications of Californiav. FCC, 827 F.2d 640 (9th Cir. 1987). In
Sable Communications, the plaintiff provider of sexually suggestive
telephone services sought declaratory and injunctive relief against the
FCC claiming that a statute and the FCC regulation implementing that
statute violated its First Amendment rights.Id. at 641. Relying on 28
U.S.C. ß 2342, the Ninth circuit affirmed the district court's dismissal
of the plaintiff's challenge to the regulation, finding that the court
or appeals had exclusive jurisdiction over claims regarding the 
[2] section 402(b) (1) provides: 
Appeals may be taken from decisions and orders of the 
Commission to the United States Court of Appeals for the 
District of Columbia in any of the following cases: 
(1)By any applicant for a construction permit or station license, whose
application is denied by the Commission. 

[3]Section 402 (a) provides: 
Any proceeding to enjoin, set aside. annul, or suspend any order of the
commission under this chapter (except those appealable under subsection
(b) of this section) shall be brought as providea by and in the manner
prescribed in chapter l58 cf Title 28 [28 U.S.C. ß 2342J] 

[4] section 2342(1) provides: 
The court of appeals (other than the United States Court of Appeals for
the Federal Circuit) has exclusive jurisdiction to enjoin, set aside,
suspend (in whole or in part), or to determine the validity of-- 
(1) all final orders of the Federal Communications Commission made
reviewable by section 402 (a) of title 47. 

constitutionality of regulations made reviewable by 47 U.S.C. 

S 402 (a). Id. at 642-43. The FCC also relies on Moser v. FCC, 46 
F.3d 970, 973 (9th Cir.), cert. denied, 515 U.S. 1161 (1995). In Moser,
the FCC questioned the district court's jurisdiction to hear the
plaintiff's challenge to a statute on the ground that the plaintiff was
actually challenging FCC regulations. Id. at 973. The Ninth Circuit
determined that the district court had jurisdiction over the case
because the plaintiff's challenge did not reach the regulations. Id. The
Ninth circuit noted in dicta that a challenge to the regulations would
have been outside the 
jurisdiction of the district court. Id. Both of these cases were brought
by plaintiffs who arguably sought to challenge FCC regulations in a
district court. Neither involved a situation like that here, in which a
defendant seeks to defend himself against a claim brought against him by
the FCC in a district court. [5] 
Mr. Dunifer argues that while 47 U.S.C. S 402 (a) establishes the
general rule that FCC actions are to be reviewed in the court of
appeals, 47 U.S.C. 5 401(a) trumps this statute by specifically
providing that the district courts have jurisdiction over writ
proceedings filed by the FCC. He argues that this section grants
jurisdiction to the district court to consider any defenses to such
proceedings as well. For support, Mr. Dunifer cites Dougan v. FCC, 21
F.3d 1488 (9th cir. 1994). 

[5] Wilson v. A.H. Belo Corp., 87 F.3d 393 (9th Cir. 1996), a 
recent Ninth Circuit case cited by the FCC, likewise did not 
involve a defendant's attempt to defend itself in district court by 
challenging an FCC action. 


In Dougan, the petitioner, an unlicensed operator of a micro radio
station, sought review in the Ninth circuit of an FCC notice of
forfeiture under 47 U.S.C. ß 504 (a) [6]. Id. at 1489. The FCC had
issued the notice of forfeiture after it found that Mr. Dougan had
violated 47 U.S.C. S 301 by operating a radio station without a license
and had violated 47 C.F.R. S l5.29 by refusing to permit an FCC
representative to inspect his station. [7] Id. Mr. Dougan disputed that
he had violated 47 C.F.R. S 15.29 and challenged "the jurisdiction of
the FCC over his intrastate broadcasts and the constitutionality of the
licensing regulations." Id. at 1489- 90. Mr. Dougan's complaint
apparently challenged the 
constitutionality of the same FCC regulation, prohibiting the issuance
of a license to micro radio broadcasters, that is challenged here by Mr.
Dunifer. Id. at 1489. Because a notice of forfeiture is a final order of
the FCC, under 47 U.S.C. S 402 (a) and 28 U.S.C. 5 2342 such a
proceeding would properly he brought in a court of appeals. At the FCC's
urging, however, the court dismissed Mr. Dougan's case in favor of
district court 
jurisdiction. Id. at 1489, 1491. The court of appeals did not retain its
jurisdiction over the constitutional defenses that it 

[6]Section 504 (a) provides in pertinent part: 
The forfeitures provided for in this chapter shall be payable into the
Treasury of the United States, and shall be recoverable, . . ., in a
civil suit in the name of the United States brouqht in the district
where the person or carrier has its principal operating office....
Provided, that any suit for the recovery of a forfeiture imposed
pursuant to the provisions of the chapter shall be a trial de novo. 

[7] Section 15.29 provides, in relevant part, that any equipment 
or device subject to FCC regulations must be made available for 
inspection by a Commission representative upon reasonable request. 


Specifically noted Mr. Dougan had raised. Id. Following the decision of
the District of Columbia Circuit in Pleasant Broadcasting Co. v. FCC,
564 F.2d 496 (D.C. Cir. 1977), the Ninth Circuit reasoned that "Congress
did not intend to give petitioners two bites at the apple by allowing
them to challenge the forfeiture in the appellate court, and if they
lost, to sit back and await an enforcement action, at which time they
would be entitled to a trial de novo in the district court."Dougan, 21
F.3d at 1491. The court concluded that 47 U.S.C. S 504 (a) is a special
review statute which vests jurisdiction over forfeiture actions in the
district courts. Id. The court held that this special review statute
cuts off the simultaneous jurisdiction created in the court of appeals
by 47 U.S.C. S 402 (a), the general review provision. Id. The FCC
argued, and the court found, that this jurisdictional grant encompasses
both actions filed by the 
government to enforce a forfeiture and those filed by individuals 
seeking to avoid enforcement. 
The instant case was brought under 47 U.S.C. S 401 (a) rather than 47
U.S.C. S 504 (a). Unlike The situation in Dougan, in this case
Mr.Dunifer has not filed a complaint to avoid enforcement of the FCC's
forfeiture order, nor hasthe FCC filed an action to enforce its
forfeiture order.[8]Thus, There is no final order of the FCC before this
court that is also reviewable by the appellate 


[8] In 1995, the FCC assessed a forfeiture against Mr. Dunifer in the
amount of $10,000. See In the Matter of Stephen Paul Dunifer, FCC
95-333, August 2, 1995. Mr. Dunifer requests, in a footnote in his
opposition, that the Court stay these proceeding for two weeks to permit
him to file a complaint for declaratory relief seeking review of the
FCC's forfeiture order. The Court will not stay these proceedings. Mr.
Dunifer may file the complaint to which he refers at any time, if he
wishes to do so. 

Court under 47 U.S.C. S 402 (a). This means that only the district 
court has jurisdiction over this action; this is not a situation where
two courts have simultaneous jurisdiction. Therefore, the Ninth
Circuit's concern in Dougan about Mr. Dougan having two bites of the
apple is not applicable. However, like 47 U.S.C. S 504(a), 47 U.S.C. S
401(a) provides that the FCC may initiate a specific type of enforcement
action in the district court. The Ninth Circuit in Dougan determined
that 47 U.S.C.S 504 (a) required Mr. Dougan to bring his lawsuit,
including his 
constitutional challenges to the FCC regulation, in the district court.
By analogy, it would appear that 47 U.S.C. S 401 (a) provides the
district court with jurisdiction to hear not only the FCC's charge of
broadcasting without a license, but also any valid defense to the
charge. If the unconstitutionality of the FCC 

regulatory scheme that does not permit Mr. Dunifer to obtain a license
would be a valid defense to a charge of broadcasting without a license,
then that defense would be encompassed within the grant of jurisdiction
to the district court provided in 47 U.S.C. S 401(a). 
The FCC has submitted a recent case decided in the District of Minnesota
which, under facts similar to those in the case at bar, held that
district courts do not have jurisdiction over constitutional challenges
to FCC regulations raised as defenses in an FCC action to enforce a
forfeiture order. United States v. Any and All Radio Station
Transmission Equipment, et al., _ F. Supp. _, 1997 WL 591127 (D. Minn.)
("Transmission Equipment"). In Transmission Eqipment, the FCC filed suit
in district court to enforce a forfeiture order against a micro radio
station on the ground that it was broadcasting without a license. Id. at
The defendant admitted to broadcasting without a license but raised
affirmative defenses challenging the constitutionality of the FCC
regulatory scheme that did not allow the licensing of micro radio
stations. Id. at *2. The court distinguished Pleasant Broadcasting on
the grounds
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