Rocky Mountain Radar, Inc. v. F.C.C., 97-9579

• Decision Date: 19 October 1998
• Docket Number: No. 97-9579,97-9579
• Citation: 158 F.3d 1118
• Parties: ROCKY MOUNTAIN RADAR, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1118

158 F.3d 1118

ROCKY MOUNTAIN RADAR, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent.

No. 97-9579.

United States Court of Appeals, Tenth Circuit.

Oct. 19, 1998.

Kim J. Seter and Tamara K. Gilida of Ankele, Icenogle, Norton & Seter, P.C., Greenwood Village, CO, for Petitioner.

Joel I. Klein, Assistant Attorney General, Robert B. Nicholson and John P. Fonte, Attorneys, United States Department of Justice, and Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, and Joel Marcus, Counsel, Federal Communications Commission, Washington, DC, for Respondent.

Before BRORBY, McKAY, and BRISCOE, Circuit Judges.

McKAY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Rocky Mountain Radar, Inc. (RMR) appeals the determination of the Federal Communications Commission (FCC) that the marketing and sale of RMR's product, a radar jammer, is prohibited by FCC rules interpreting the Communications Act of 1934, as amended. We determine that we have jurisdiction over this appeal, and affirm the FCC order.

I. SUMMARY OF THE FACTS

RMR manufactures and distributes the Spirit II radar jammer, a device advertised as making the user's automobile "electronically invisible" to "all radar bands used by police." Appellant's App. at 144. In an advertisement, consumers were advised that the Spirit II "receives a radar signal," then "blends the signal with white noise," and "confuses the computer inside the radar gun." Id. ¹

The FCC issued a public notice stating that the intentional use of jammers constitutes "malicious interference" with radar units used by FCC-licensed police and public safety agencies to measure vehicle speeds. Appellant's App. at 96-97 (informing the public that the FCC regulates radar jammers, which are designed to interfere with radar, but not radar detectors, which "are radio receivers tuned to receive radar signals and are used by motorists to provide a warning of any radar activity in the vicinity"). The agency warned that "[a]nyone using a jammer risks such penalties as losing an FCC license[ ], paying a fine, or facing criminal prosecution." Id.

On February 13, 1997, the Compliance and Information Bureau of the FCC issued an official citation to RMR prohibiting the marketing, manufacturing, or importing of the Spirit II. Id. at 13-14. RMR complied with the directive, but also contested the validity of the bureau's findings. It claimed, among other things, that the Spirit II is not covered by FCC rules regulating radiators of radio frequency energy because the device merely reflects a police radar signal and, by itself, cannot produce radio frequency energy. ² See id. at 16, 21. In support of its theory, RMR provided test reports from independent laboratories. See id. at 40 (report of Diversified T.E.S.T. Technologies, Inc. opining that the Spirit II itself emits no radio frequency energy, and that without the use of a radar gun, the laboratory could not determine whether the device reflects RF energy); id. at 57-58 (report of HVB Consulting, Inc., stating that the Spirit II has no parts that "generate" radio frequency energy, but has the capability to reflect back "RF radiation"); id. at 105 (report of Ronald R. DeLyser, Ph.D., stating that the device mixes the radar signal "with either white noise or an FM chirp signal," then transmits back a "composite signal").

The Compliance and Information Bureau and the FCC Office of Engineering Technology reviewed the RMR submissions and rejected its arguments. In terms of FCC rules, the agency determined that the Spirit II is an "intentional radiator" that generates and emits radio frequency energy, as defined in 47 C.F.R. § 15.3(o). ³ Accordingly, the product cannot be marketed without FCC certification, because it is designed to "receive, modulate and emit a modulated signal." Appellant's App. at 36-37; see also 47 C.F.R. § 15.201(b). ⁴ The FCC, however, could not certify the device, in that its intended purpose is interference with police communications, a violation of 47 C.F.R. § 15.5(b). ⁵

RMR applied for full Commission review of this determination, see 47 C.F.R. § 1.115, again contending that the Spirit II may not be prohibited under FCC rules because it is not an "intentional radiator" that "generates" radio frequency energy. Appellant's App. at 28-31. In an order on review dated December 10, 1997, the Commission recognized that the Spirit II is "designed to function only when it is illuminated by a police radar signal," but reasoned that it uses "the radar signal as a source of RF [ (radio frequency) ] energy, modulates the signal electronically to generate a different RF signal, and emits that RF signal to cause interference to police radars." Appellant's App. at 100. Thus, the Commission concluded, "[t]he fact that the original source of the radio frequency energy is external to the device does not place [it] beyond the Commission's jurisdiction." Id.

The Commission also observed that, "irrespective of the definitional issues addressed above, Section 15.5 of the Commission's Rules, 47 C.F.R. § 15.5, expressly states that operation of an intentional, unintentional, or incidental radiator is subject to the condition that it may not cause harmful interference," and that the Spirit II "interferes with police radars which are devices properly authorized by the Commission." Appellant's App. at 101.

For both the above reasons, the FCC denied RMR's application for review. See id. at 102. In addition, its chairman issued a press statement announcing that the RMR decision "sends a message to all manufacturers that the FCC will strictly enforce its rules to prevent harmful interference to police radar." Id. at 104. RMR filed a timely petition for review of the FCC determination.

II. JURISDICTION

Initially, we must address the FCC's claim that, at this stage in the proceedings, we lack jurisdiction to review its order. According to the FCC, judicial review is unavailable until and unless RMR continues to market the Spirit II, and the FCC imposes a penalty after completing the administrative process.

The general rule is that an agency action is reviewable. See Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). There are, however, exceptions to this rule. Judicial review is unavailable when (1) review is precluded by the agency's organic statute, see Block v. Community Nutrition Inst., 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984); or (2) the matter is not ripe for court consideration, see Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507. Contrary to the FCC's contentions, neither exception applies to this appeal.

A. STATUTORY PRECLUSION

The Supreme Court has "often noted" that courts should "restrict access to judicial review" only upon " 'a showing of clear and convincing evidence of a contrary legislative intent.' " Lindahl v. Office of Personnel Management, 470 U.S. 768, 778, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) (quoting Abbott Labs., 387 U.S. at 141, 87 S.Ct. 1507). The reviewing court examines the statute as a whole, together with its legislative history, in order to determine whether judicial review of a particular agency action would frustrate the statutory scheme devised by Congress. See Lindahl, 470 U.S. at 779, 105 S.Ct. 1620 (citing Block, 467 U.S. at 345, 104 S.Ct. 2450).

The statutory scheme for the FCC generally vests the courts of appeals with jurisdiction over appeals from final orders. See 47 U.S.C. § 402(a). ⁶ The district courts, however, have "a sliver of the jurisdictional pie" for enforcement of FCC orders imposing a monetary forfeiture penalty. Action for Children's Television v. FCC, 827 F.Supp. 4, 10 (D.D.C.1993), aff'd, 59 F.3d 1249 (D.C.Cir.1995); see also 47 U.S.C. § 503(b) (providing for forfeiture procedures); § 503(b)(3)(B) (establishing district court as forum for government collection actions); § 504 (same). In the "maze of jurisdictional rules governing the review of FCC matters," Action for Children's Television, 827 F.Supp. at 10, we discern no Congressional design to bar our consideration of RMR's appeal. ⁷

The FCC has no explicit legislative or judicial authority for its argument that the establishment of a multi-step enforcement mechanism for FCC enforcement actions, standing alone, demonstrates an intent to forestall review unless and until the forfeiture process is completed. The legislative history cited by the FCC sheds no light on the issue. In 1978, Congress amended the Communications Act "to unify, simplify, and enlarge the scope of the forfeiture provisions," but made no attempt to limit judicial review. S.Rep. No. 95-580, at 1 (1978), reprinted in 1978 U.S.C.C.A.N. 109. It simply added an alternative approach, giving the FCC the option of holding an adjudicatory hearing in "the exceptional forfeiture case, where urgency, precedent value, or convenience of the Commission warrants a proceeding exclusively under the Commission's control until a final judgment on appeal is obtained." Id. at 4, 1978 U.S.C.C.A.N. at 112. We fail to see how this background information demonstrates a Congressional intent to bar our review under the circumstances existing in this case.

Furthermore, the case law on appellate review of FCC determinations contradicts the agency's argument. For instance, in Straus Communications, Inc. v. FCC, 530 F.2d 1001 (D.C.Cir.1976), the court found jurisdiction to review an FCC letter ruling which held that a broadcast licensee had violated a rule but, at the same time, rescinded the monetary sanction based on the violation. The court determined that review was appropriate, in spite of the lack of a forfeiture, because the existence of...