U.S. v. Any and All Radio Station Trans. Equip.

• Decision Date: 10 December 1999
• Docket Number: DEFENDANT-APPELLEE,Nos. 98-2129,CLAIMANT-APPELLEE,INTERVENORS-COUNTERPLAINTIFFS-APPELLANTS,V,PLAINTIFF-APPELLE,PLAINTIFF-APPELLAN,CLAIMANT-APPELLANT,98-2396,DEFENDANT-APPELLANT,s. 98-2129
• Citation: 204 F.3d 658
• Parties: (6th Cir. 2000) UNITED STATES OF AMERICA,ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, RADIO FREQUENCY POWER AMPLIFIERS, RADIO FREQUENCY TEST EQUIPMENT AND ANY OTHER EQUIPMENT ASSOCIATED WITH OR USED IN CONNECTION WITH THE TRANSMISSION AT 97.7 MHZ, LOCATED AT 2903 BENT OAK HIGHWAY, ADRIAN, MICHIGAN,, RICK STRAWCUTTER, UNITED STATES OF AMERICA,ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, RADIO FREQUENCY POWER AMPLIFIERS, RADIO FREQUENCY TEST EQUIPMENT AND ANY OTHER EQUIPMENT ASSOCIATED WITH OR USED IN CONNECTION WITH THE RADIO TRANSMISSIONS ON FREQUENCY 95.9 MHZ, LOCATED AT 3968 WEST VERNOR HIGHWAY, DETROIT, MICHIGAN 48216,, MAQUINA MUSICAL, INCORPORATED,, JUAN V. MARINEZ, CATALINA MARTINEZ, IGNACIO CAMPOS, JORGE CANCHOLA, SERGIO VALLEJO, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 658

204 F.3d 658 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

V.

ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, RADIO FREQUENCY POWER AMPLIFIERS, RADIO FREQUENCY TEST EQUIPMENT AND ANY OTHER EQUIPMENT ASSOCIATED WITH OR USED IN CONNECTION WITH THE TRANSMISSION AT 97.7 MHZ, LOCATED AT 2903 BENT OAK HIGHWAY, ADRIAN, MICHIGAN, DEFENDANT-APPELLEE,

RICK STRAWCUTTER, CLAIMANT-APPELLEE.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, RADIO FREQUENCY POWER AMPLIFIERS, RADIO FREQUENCY TEST EQUIPMENT AND ANY OTHER EQUIPMENT ASSOCIATED WITH OR USED IN CONNECTION WITH THE RADIO TRANSMISSIONS ON FREQUENCY 95.9 MHZ, LOCATED AT 3968 WEST VERNOR HIGHWAY, DETROIT, MICHIGAN 48216, DEFENDANT-APPELLANT,

MAQUINA MUSICAL, INCORPORATED, CLAIMANT-APPELLANT,

JUAN V. MARINEZ, CATALINA MARTINEZ, IGNACIO CAMPOS, JORGE CANCHOLA, SERGIO VALLEJO, INTERVENORS-COUNTERPLAINTIFFS-APPELLANTS.

Nos. 98-2129, 98-2396

U.S. Court of Appeals, Sixth Circuit

Argued: December 10, 1999

Decided and Filed: February 25, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 97-73527; 98-74368--Julian A. Cook, Jr. and Patrick J. Duggan, District Judges. [Copyrighted Material Omitted] Jacob M. Lewis (argued and briefed), Robert S. Greenspan (briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for United States of America.

Patrick M. Edwards (argued and briefed), Constitutional Litigation Association, Detroit, Michigan, for Claimants.

Kevin S. Ernst (briefed), Detroit, Michigan, Katharine M. Omansiek (briefed), Detroit, Michigan, for Appellants.

Before: Jones, Cole, and Gilman, Circuit Judges.

OPINION

Ronald Lee Gilman, Circuit Judge.

The principal question presented by these consolidated appeals is whether, under the doctrine of primary jurisdiction, district courts may decline to adjudicate in rem forfeiture actions brought by the United States against persons who operate radio stations without licenses. For the reasons set forth below, we conclude that the answer is no. We therefore REVERSE the judgment of the district court in No. 98-2129 (Strawcutter), which dismissed the government's forfeiture case sua sponte pursuant to the doctrine of primary jurisdiction, and REMAND the case for further proceedings. We also REMAND No. 98-2396 (Maquina Musical) to the district court for reconsideration in light of its determination that the doctrine of primary jurisdiction precluded it from considering Maquina Musical's "constitutional defenses" to the government's forfeiture action. Concerning Maquina Musical's appeal from the district court's denial of its motion to dismiss the government's forfeiture complaint, we DISMISS the appeal as premature.

I. BACKGROUND

A. No. 98-2129 (Strawcutter)

On November 12, 1996, the manager of a licensed FM radio station in Toledo, Ohio telephoned the Federal Communications Commission (FCC) and complained that the signal from a radio station identifying itself as "Radio Free Lenawee" was interfering with his station's signal. During the preceding two weeks, a number of other persons had also complained to the FCC's Detroit office about Radio Free Lenawee's transmissions.

On November 14, 1996, the FCC sent a field agent to investigate the complaints. An unlicensed radio station identifying itself as Radio Free Lenawee was found to be broadcasting from a building at 2903 Bent Oak Highway, in Adrian, Michigan, at a frequency of 97.7 megahertz. The FCC later determined that Radio Free Lenawee was broadcasting at a strength of 29,625 microvolts per meter at a distance of over half a mile, far exceeding that permitted for unlicensed radio stations (a maximum of 250 microvolts per meter at a distance of three meters). See 47 C.F.R. § 15.239(b).

Rick Strawcutter, Radio Free Lenawee's owner and operator, took the position that he had a constitutional right to continue his radio broadcasts without interference from the government. FCC inspectors sought to inspect Radio Free Lenawee's premises. Strawcutter refused them permission to do so. The FCC notified Strawcutter by letter that he was violating the Communications Act of 1934, 47 U.S.C. §§ 151-614. Specifically, the letter stated that (1) the station's broadcast strength exceeded the maximum allowed by 47 C.F.R. § 15.239(b), (2) the station was violating 47 U.S.C. § 301 because it was operating an unlicensed transmitter, and (3) operating a transmitter without a license subjects the operator to the criminal penalties described in 47 U.S.C. § 501. Strawcutter responded with a letter in which he explained that he had "come to a sincerely held conclusion that the [FCC] in reality has no Constitutional regulatory power over FM stations which run a power level less than 100 watts."

Between the end of November of 1996 and the end of February of 1997, the FCC conducted six field tests. Those tests established that Radio Free Lenawee, which was still unlicensed, was continuing to transmit, and was doing so in excess of the permissible signal strength.

On July 22, 1997, the government filed in the United States District Court for the Eastern District of Michigan a complaint in which it sought, pursuant to 47 U.S.C. § 510(a), the civil in rem forfeiture of the radio transmission equipment located at 2903 Bent Oak Highway, the source of Radio Free Lenawee's broadcasts. Strawcutter filed a claim of ownership on August 5, 1997, and an answer approximately two weeks later. In his answer, Strawcutter asserted that the FCC regulation that prohibits unlicensed "microbroadcasting" was invalid because it violated his rights under the First Amendment, the Equal Protection and Due Process Clauses of the Fifth Amendment, Article XIX of the United Nations Declaration of Human Rights, and Article XIX of the International Covenant on Civil and Political Rights. He also argued that the FCC regulation is inconsistent with its statutory mandate to "encourage the larger and more effective use of radio in the public interest," as set forth in 47 U.S.C. § 303(g).

Strawcutter's arguments centered around the FCC regulations found at 47 C.F.R. Part 73. Those regulations classify FM radio broadcast licenses as Class A, Class B, Class C, or Class D, depending on the station's transmission power, antenna height, and the area or place from which the broadcasts emanate. See 47 C.F.R. §§ 73.210-.211. The FCC once granted Class D licenses to "microbroadcasters," but in 1978 adopted a regulation effectively preventing new Class D stations from operating, except in Alaska. See 47 C.F.R. § 73.512(c) (providing that no new Class D applications would be accepted, except in Alaska or by existing Class D stations seeking to change frequency).

We note that during the pendency of this appeal, the FCC has changed its position on microbroadcasting. See In the Matter of Creation of a Low Power Radio Service, FCC 99-6, 14 FCCR 2471, at ¶ 1 (released Feb. 3, 1999) (proposing the creation of two new classes of low-power FM radio stations, and seeking comment "on whether to establish a third, 'microradio' class of low power radio service that would operate in the range of 1 to 10 watts."); In the Matter of Creation of Low Power Radio Service, FCC 00-19, -- FCCR --, 2000 WL 85304, at ¶ 1 (released January 27, 2000) (authorizing, among other things, the licensing of low-power FM stations operating at a maximum of 10 watts). Notwithstanding this change in policy, however, Strawcutter apparently will still not be eligible for a broadcasting license. See In the Matter of Creation of Low Power Radio Service, 2000 WL 85304, at ¶¶ 51-55 (announcing that microbroadcasters who had broadcast without licenses in the past will now be eligible for low-power broadcast licenses, but only if they voluntarily ceased broadcasting no later than February 26, 1999 "without specific direction to terminate by the FCC," or ceased broadcasting within 24 hours after being advised to do so by the FCC).

On June 9, 1998, the government moved for summary judgment, taking the position that it was entitled to summary judgment as a matter of law because there was no material issue of fact--indeed, the facts were essentially uncontroverted--as to whether Strawcutter had broadcast without a license despite being warned by the FCC that it was unlawful for him to do so. The only disputed issues were the validity of the regulations that Strawcutter concededly violated, and whether the authorizing statutes were unconstitutional or in conflict with a treaty. Those issues, the government argued, were part of a "regulatory challenge" that was "not justiciable" in the district court, because "Congress vested exclusive jurisdiction in the United States Courts of Appeals, whether that review involves FCC regulations generally or specific licensing decisions."

The government claimed that in challenging the legal basis of the statutes or regulations with which he disagreed, Strawcutter's sole options were to apply to the FCC for a broadcast license or to petition the FCC either to amend its regulations or to waive their application to him. Strawcutter argued that those administrative remedies offered him no realistic prospect of relief, because the FCC had an unyielding policy not to waive the regulations that bar microbroadcasters from transmitting. As many other microbroadcasters around the country have done, Strawcutter argued that the FCC was "being used as the tool of powerful broadcast corporations" that wished to maintain cartel-like control over the airwaves, at the cost of suppressing potential competitors and depriving the listening public of "low-cost broadcasting on community issues as an alternative to mainstream perspectives."

The district court, in a memorandum and order dated August 7, 1998, denied the government's motion and, invoking sua sponte the doctrine of primary jurisdiction,...