Johnson v. Fed. Commc'ns Comm'n

• Decision Date: 29 November 2022
• Docket Number: Civil Action 1:21-cv-2050 (CKK)
• Parties: WILLIAM JOHNSON, et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.
• Court: U.S. District Court — District of Columbia

WILLIAM JOHNSON, et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.

Civil Action No. 1:21-cv-2050 (CKK)

United States District Court, District of Columbia

November 29, 2022

MEMORANDUM OPINION

COLLEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

Plaintiffs William Johnson and Urban One Broadcasting Network proceeding pro se, allege that Defendant Federal Communications Commission (“Defendant” or “FCC”) wrongfully revoked their FCC permit to construct an FM radio station. Plaintiffs seek injunctive relief barring Defendant from reselling Plaintiffs' construction permit and to restore their ownership of this property interest. Because the Court lacks subject matter jurisdiction over this action, and upon review of the pleadings,^[1]the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's motion to dismiss.

I. BACKGROUND

Plaintiff Johnson is a managing member of Plaintiff Urban One Broadcasting Network, LLC. ECF No. 1 at 13. On March 1, 2013 Plaintiffs bought a construction permit for FM radio Channel 249, located in Cross City, Florida. Petition for Declaratory Ruling, DA 21-1561, 2021 WL 6050418, at *1 & n.1 (Dec. 15, 2021) (“2021 Order”). The construction permit was set to expire on July 21, 2014. Id. at *1. Plaintiffs applied first to modify their construction permit and, then, to toll its expiration after a third party objected to Plaintiffs' proposed modifications. Id. Defendant's Media Bureau staff denied Plaintiffs' application for tolling and modification proposal. Id. After the expiration date of the construction permit had passed, Plaintiffs moved for reconsideration of the denial of their modification and tolling applications. Id. at *1-2. The Media Bureau rejected both petitions for reconsideration and upheld the staff's determination that the construction permit had automatically expired and been forfeited on July 21, 2014. Id. at *2.

Plaintiffs sought review by the full FCC Commission, which affirmed the Media Bureau's decision. Urban One Broad. Network, L.L.C. (2016 Order), 31 F.C.C. Rcd. 4186, 4189 (2016). Once again, Plaintiffs petitioned for reconsideration, which the Commission dismissed “pursuant to Section 1.106(p) of the FCC's rules.” Urban One Broad. Network, L.L.C., 31 F.C.C. Rcd. 7680, 7680 & n.3 (2016) (citing 47 C.F.R. § 1.106(p) (2021) (“Petitions for reconsideration of a Commission action that plainly do not warrant consideration by the Commission may be dismissed or denied by the relevant bureau(s) or office(s).”)).

Subsequently, Plaintiffs appealed the Commission's decision and sought review in the U.S. Court of Appeals for the District of Columbia Circuit. 2021 Order, 2021 WL 6050418, at *2. Before the D.C. Circuit had ruled on Plaintiffs' petition for review, Plaintiffs filed another pleading before the Commission titled, “Petition for Reinstatement of Permittee's Construction Permit Based on the Reinstatement of the FCC's Eligible Entity Policy” (“2016 Petition”). Id.; see ECF No. 1 at 8. Plaintiffs allege in their Complaint that this 2016 Petition remains pending before the Commission. Compl. 3. As to Plaintiff's petition for review before the D.C. Circuit, the court dismissed the action for Plaintiffs' lack of prosecution on August 11, 2017. See Order, Urban One Broad. Network, L.L.C. v. FCC, No. 16-1292 (D.C. Cir. Aug. 11, 2017).

Plaintiffs filed another petition with Defendant on June 14, 2021 (“2021 Petition”), requesting a “declaratory ruling concerning the plaintiff's [sic] pending” 2016 Petition. Compl. 3. It seems Plaintiffs renewed their efforts when Defendant allegedly placed Plaintiffs' construction permit up for auction, to be sold on July 27, 2021, instead of “addressing the plaintiffs [sic] pending” 2016 Petition. See Compl. 4. Plaintiffs allege in their Complaint that their 2021 Petition also remains pending. Compl. 3. However, since the filing of Plaintiffs' Complaint, Defendant's Media Bureau denied Plaintiffs' 2021 Petition on December 15, 2021. 2021 Order, WL 6050418, at *5.

Although difficult to follow, liberally construed, Plaintiffs' pro se complaint appears to allege various statutory and constitutional causes of action arising out of the events concerning the “two petition[s] [allegedly] pending before the defendant's agency.” Compl. 3. First, Plaintiffs argue Defendant “wrongfully decided that the plaintiff's [sic] construction permit expired on July 21, 2014.” Compl. 3. Plaintiffs allege this decision “was contrary to law” because Defendant “failed to add an additional 18 months to plaintiff's [sic] construction permit.” Compl. 2-3. Plaintiffs request that the Court issue an injunction to prevent Defendant from auctioning off the disputed construction permit. Compl. 5.

Relatedly, Plaintiffs invoke “substantive due process rights, and the equal protection of the law.” See Compl. 3. It appears Plaintiffs mean to suggest a violation of a substantive due process right to property and a violation of procedural due process rights in the underlying administrative proceedings. Although Plaintiffs summarily invoke the language of the Equal Protection Clause, it does not appear that equal-protection actually animates their complaint. To remedy these “wrongful acts and omissions,” Compl. 2, Plaintiffs request that the Court issue an injunction ordering “the defendant to make a decision” on Plaintiffs' pending petitions and to stay the auction. Compl. 5.

On March 4, 2022, Defendant filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim as a matter of law. Def.'s Mot. 8. Defendant argues, among other things, that this Court lacks jurisdiction over Plaintiffs' claims because FCC actions are exclusively reviewable by the United States Courts of Appeals. As to the 2021 Petition, Defendant argues Plaintiff has not exhausted their administrative remedies, and even if they did, this Court would still lack jurisdiction. Moreover, Defendant claims Plaintiffs' complaint does not plausibly allege any statutory or constitutional violations. With Defendant's motion fully briefed, the Court turns to the resolution of the motion.

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

Upon consideration of a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss, “[a] court must dismiss a case when it lacks subject matter jurisdiction.” Sykes v. Dudas, 573 F.Supp.2d 191, 198 (D.D.C. 2008). In doing so, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”).

At the motion to dismiss stage, the court “must accept as true all factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be drawn from the facts alleged.” Henry v. Azar, 518 F.Supp.3d 520, 525 (D.D.C. 2021) (citing Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005)). This is especially true of pro se litigants, who are held “to less stringent standards than formal pleadings drafted by lawyers.” Hains v. Kerner, 404 U.S. 519, 520-21 (1972); Settles, 429 F.3d at 1106 (“At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.”). “Despite the favorable inferences[,] . . . it remains the plaintiff's burden to prove subject-matter jurisdiction by a preponderance of the evidence.” Henry, 518 F.Supp.3d at 525.

B. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). The factual allegations within a complaint, if accepted as true, must be sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Courts “do not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

III. DISCUSSION

As an initial matter, Plaintiff Urban One Broadcasting Network, a limited liability company, cannot proceed pro se in federal court. See Greater Se. Cmty. Hosp. Found., Inc. v. Potter, 586 F.3d 1, 4 (D.C. Cir. 2009) (“It has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel.” (quoting Rowlandv. Cal. Men 's Colony, 506 U.S. 194, 201-02 (1993))). Therefore, the Court dismisses Plaintiff Urban One Broadcasting Network as a party.

As to the remaining issues, for a variety of reasons addressed below, the Court lacks jurisdiction over his action. As such the Court need not address whether the Complaint...