Prayze FM v. Fed. Communications Comm.

• Decision Date: 01 August 1999
• Docket Number: Docket No. 98-6246
• Parties: (2nd Cir. 2000) PRAYZE FM, also known as Incom, L.L.C., MARK BLAKE and LORETTA SPIVEY, Plaintiffs-Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 245

214 F.3d 245 (2nd Cir. 2000)

PRAYZE FM, also known as Incom, L.L.C., MARK BLAKE and LORETTA SPIVEY, Plaintiffs-Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant-Appellee.

Docket No. 98-6246

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: March 29, 2000

Decided: June 05, 2000

Appeal from an order of the United States District Court for the District of Connecticut (Warren W. Eginton, Judge) granting defendant-appellee Federal Communications Commission's motion for a preliminary injunction prohibiting plaintiff-appellant Prayze FM from broadcasting without a license.

Affirmed.

ROBERT T. PERRY, Center for Constitutional Rights, New York, N.Y. (Barbara J. Olshansky and William Goodman, Center for Constitutional Rights, and Richard S. Order, Robert R. Simpson, and Craig Lyle Perra, Updike, Kelly & Spellacy, P.C., Hartford, Conn., on the brief), for Plaintiffs-Appellants.

JACOB M. LEWIS, Department of Justice, Civil Division, Washington, D.C. (Stephen C. Robinson, United States Attorney, and Alan M. Soloway, Assistant United States Attorney, New Haven, Conn.; David W. Ogden, Acting Assistant Attorney General, and Susan L. Pacholski, Attorney, Department of Justice, Civil Division, Washington D.C., on the brief), for Defendant-Appellee.

Before: JACOBS, CALABRESI, and STRAUB, Circuit Judges.

CALABRESI, Circuit Judge:

Plaintiffs-appellants Prayze FM (also known as Incom, L.L.C.), Mark Blake, and Loretta Spivey (collectively, "Prayze") appeal from an order of the United States District Court for the District of Connecticut (Warren W. Eginton, J.), granting the motion of defendant-appellee Federal Communications Commission ("FCC") for a preliminary injunction barring Prayze FM, an unlicensed radio station, from broadcasting. We affirm.

BACKGROUND

Prayze FM is an unlicensed commercial gospel radio station operating out of Bloomfield, Connecticut, a suburb of Hartford. Its asserted goal is to bring gospel music and Christian programming to the African-American community in the greater Hartford area.

Federal law requires that radio broadcasters be licensed by the FCC. See 47 U.S.C. § 301. Until very recently, the FCC licensing regulations precluded licensing of stations, like Prayze, that operated at less than 100 watts (also known as "microbroadcasters"). See 47 C.F.R. §§ 73.211(a), 73.511(a), 73.512(c) (1999). The FCC's rules, however, may be waived on petition if good cause is shown. See id. § 1.3.

It is undisputed that Prayze has never applied for a conventional broadcast license or for a waiver of the regulation prohibiting microbroadcasting. Prayze claims that it investigated the licensing process and had discussions with the FCC regarding its plans prior to broadcasting, but was stymied by the FCC's assertion that there was no vacant space on the airwaves for a new FM station in the Hartford area, and also by its policy of not granting licenses to stations operating at less than 100 watts. Prayze began broadcasting without a license on November 23, 1996. Shortly thereafter, the FCC began receiving correspondence and newspaper clippings that alerted it to Prayze FM's existence. In March 1997, the FCC sent a letter to counsel for Prayze stating that no request for a waiver of the regulations was on file and that Prayze should submit an application for a license and waiver. In January 1998, after no waiver request had been received, the FCC, through the United States Attorney's Office, wrote to Prayze and requested that it cease broadcasting.

In February 1998, Prayze filed suit in district court, alleging, inter alia, that by requiring a license to broadcast but failing to provide a process for applying for a license for a low-power station, the FCC's licensing scheme violated Prayze's rights under the First Amendment and constituted an impermissible prior restraint. Prayze asked for a declaratory judgment to that effect and an injunction barring the FCC from taking any action to prevent Prayze from broadcasting.

In March 1998, the FCC filed suit in district court against Prayze, and the two cases were consolidated. The FCC sought a preliminary injunction prohibiting Prayze from broadcasting without a license, in violation of § 301. In response, Prayze contended that the regulations barring microbroadcasting unconstitutionally precluded it from obtaining a license and complying with § 301.

On September 11, 1998, the district court "provisionally granted" the FCC's motion for a preliminary injunction "until such time as this case becomes legally justiciable by the filing by Prayze FM of an appropriate application and waiver, fully documented, with the FCC and by proceedings thereupon." The district court's order contained no findings of fact, and revealed conclusions of law only through a citation to United States v. Dunifer, 997 F. Supp. 1235 (N.D. Cal. 1998). Nor did it specify the particular acts enjoined.

Prayze moved for a stay of the preliminary injunction, and the district court referred Prayze's motion to a magistrate. A hearing was held on the motion for a stay, at which time the meaning of the district court's order was disputed. On October 13, 1998, the magistrate issued a report and recommendation finding that "Judge Eginton's signature on the September 11, 1998 order stands as a finding that PRAYZE was broadcasting without a license in violation of 47 U.S.C. § 301, that it was likely to continue broadcasting in the event an injunction did not enter, and that the FCC had demonstrated, at least in part on the basis of Dunifer, a strong probability of success on the merits in these cases." The magistrate recommended denying Prayze's motion for a stay.

On October 27, 1998, Prayze filed an application with the FCC for an experimental broadcast license to operate a commercial low-power FM station in Bloomfield, pursuant to an FCC regulation that allows such licenses "for the purposes of carrying on research and experimentation for the development and advancement of new broadcast technology, equipment, systems or services." 47 C.F.R. § 74.102. Prayze requested expedited consideration of its application and a waiver of the FCC's rule requiring experimental stations to be noncommercial, see id. § 74.182(b). Notably, Prayze did not apply for a conventional broadcast license and a waiver of the rule against microbroadcasting, but sought only an experimental station license.

On November 2, 1998, the district court adopted the findings of fact and conclusions of law contained in the magistrate's report and recommendation, denied Prayze's motion for a stay, and once again enjoined Prayze from broadcasting. The district court's order did not mention Prayze's application for an experimental broadcast license.

Prayze appealed to this Court. On October 13, 1999, we vacated the injunction and remanded the matter to the district court for the limited purpose of supplementing the record with findings of fact and conclusions of law that would enable informed appellate review, as required by Federal Rules of Civil Procedure 52(a) and 65(d).¹ See Prayze FM v. FCC, 199 F.3d 1323, 1999 WL 1012679 (2d Cir. Oct. 13, 1999) (unpublished disposition). The panel retained jurisdiction so that after receiving the district court's additional findings, we could dispose of the appeal.

On November 8, 1999, the district court once again granted the FCC's motion for a preliminary injunction, but this time in an order including findings of fact and conclusions of law. See Prayze FM v. United States, 83 F. Supp. 2d 293 (D. Conn. 1999). The court first noted that "[w]here the government seeks injunctive relief for a statutory violation, there is a presumption of irreparable harm," id. at 294-95, but agreed with Prayze that the presumption did not apply where the constitutionality of the statute allegedly violated was at issue, see id. at 295. It concluded, however, that "this issue is not before the Court," because Prayze, having never applied for a license,² lacked standing to challenge the FCC's licensing regulations. Id. As a result the court found that the FCC was entitled to the presumption of irreparable harm. See id.

Turning to the FCC's likelihood of success on the merits, the court simply noted that "[t]here is no dispute that Prayze FM is operating and continues to operate an unlicensed radio station in violation of 47 U.S.C. sec. 301," so that the FCC had demonstrated a likelihood of success. Id. at 296. Accordingly, the court enjoined Prayze from broadcasting until it had obtained a license or other authorization in accordance with § 301. See id.

Prayze took the position that the district court had acted outside its jurisdiction in issuing a new preliminary injunction, and resumed broadcasting on November 23, 1999. On November 29, the FCC moved in the district court for an order clarifying the district court's jurisdiction to grant a new injunction and holding Prayze in contempt for violating the new injunction. On December 3, Prayze filed a Petition for Writ of Prohibition in this court asking us to stop the district court from holding contempt proceedings. On December 6, the district court found Prayze in contempt. It nevertheless delayed the penalty phase of the contempt proceedings pending our ruling on the writ of prohibition. On January 18, 2000, we granted the writ of prohibition, noting that the district court was without jurisdiction to enter the renewed injunction. See Prayze FM v. FCC, No. 98-6246 (2d Cir. Jan. 18, 2000) (unpublished order). We ordered further briefing and oral argument on the merits of Prayze's appeal. See id.

On January 20, 2000, the FCC promulgated regulations creating two new classes of low-power radio stations with power levels of 10 and 100 watts. See Creation of Low Power Radio Service, 65 Fed. Reg. 7616 (to be codified at 47 C.F.R. pts. 11, 73, 74) (Feb. 15, 2000). The new low-power stations must be operated on a...