Ruggiero v. F.C.C.

Decision Date31 January 2003
Docket NumberNo. 00-1100.,00-1100.
Citation317 F.3d 239
PartiesGreg RUGGIERO, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Robert T. Perry argued the cause for petitioner. With him on the briefs was Barbara J. Olshansky.

Jacob M. Lewis, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Robert S. Greenspan and Mark S. Davies, Attorneys, and Jane E. Mago, General Counsel, Federal Communications Commission, and C. Grey Pash, Jr., Counsel.

Before: GINSBURG, Chief Judge, and EDWARDS, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court by Chief Judge GINSBURG, with whom Circuit Judges HARRY T. EDWARDS, SENTELLE, KAREN LeCRAFT HENDERSON, RANDOLPH, ROGERS, and GARLAND join.

Concurring opinion filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge TATEL.

GINSBURG, Chief Judge:

This petition for review challenges the constitutionality of the character qualification provision of the Radio Broadcasting Preservation Act of 2000, which makes ineligible for a low-power FM (LPFM) radio license anyone who engaged in "the unlicensed operation of any station in violation of ... the Communications Act of 1934." Pub.L. No. 106-553, 114 Stat. 2762, § 632(a)(1)(B). The petitioner raises a facial challenge to the statute and to the regulations that implement it, asserting that they are overinclusive or, alternatively, underinclusive, in violation of the First Amendment to the Constitution of the United States. A divided panel granted the petition. The full court then vacated the judgment issued by the panel and reheard the case en banc. We now uphold the constitutionality of the character qualification and deny the petition for review.

I. Background

Since 1927 the Congress has prohibited any person from operating a radio station without a license issued by the Federal Communications Commission (or its predecessor, the Federal Radio Commission). See 47 U.S.C. § 301. The Commission is to grant a broadcast license only if the "public interest, convenience, and necessity would be served," 47 U.S.C. § 309(a), and only if the applicant "set[s] forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station." 47 U.S.C. § 308(b).

In 1948, the Commission first licensed noncommercial LPFM stations operating at a maximum of ten watts. Some 30 years later, when the Commission determined that highpower FM stations could use the channels more efficiently by "serv[ing] larger areas, and bring[ing] effective noncommercial educational radio service to many who ... lack[ed] it," Changes in the Rules Relating to Noncommercial Educ. FM Broad. Stations, 69 F.C.C.2d 240, ¶ 24, 1978 WL 35965 (1978), modified, 70 F.C.C.2d 972, 1979 WL 44256 (1979) (codified at scattered sections of 47 C.F.R.), the Commission stopped licensing LPFM stations and required most existing LPFM stations to move to commercial frequencies or to upgrade to at least 100 watts. Id. at ¶¶ 11-32.

Thereafter, numerous individuals and entities began operating LPFM stations without a broadcast license. In many cases these so-called "pirate" broadcasters operated their stations in open defiance of the Commission's ban on LPFM broadcasts. In response, the Commission dedicated considerable resources to enforcing the license requirement. Notwithstanding, however, the array of powers the Commission had to combat unlicensed broadcasting, including the authority to seek an injunction, 47 U.S.C. § 401(b), to issue a cease-and-desist order, 47 U.S.C. § 312(b), to seize equipment used in unlicensed broadcasting, 47 U.S.C. § 510(a), and to impose a monetary forfeiture, 47 U.S.C. § 503(b), the problem persisted and indeed grew worse in the 1990s. In 1998, 1999, and the first two months of 2000 the Commission shut down, on average, more than a dozen unlicensed radio stations each month. FCC's Low Power FM: A Review of the FCC's Spectrum Management Responsibilities: Hearing on H.R. 3439 Before the Subcomm. on Telecomm., Trade, and Consumer Protection of the House Comm. on Commerce, 106th Cong. 85 (2000). In that same period unlicensed radio operations using uncertified equipment disrupted air traffic control communications at Sacramento and interfered with such communications at the Miami and West Palm Beach airports. Creation of a Low Power Radio Serv., 14 F.C.C.R. 2471, ¶ 65, 1999 WL 46878 (1999) (Notice of Proposed Rule Making) (hereinafter Low Power Proposal). Therefore, it was clear to the Commission that action needed to be taken to stop unlicensed broadcasting.

In 1999 the Commission proposed to modify its low-power radio rules and sought public comment upon whether it should "create two classes of low power radio service, both of which would operate in the existing FM radio band: a 1000-watt primary service and a 100-watt secondary service." Id. at ¶ 1. The Commission also sought comment upon whether it should establish "a third, `microradio' class of low power radio service that would operate in the range of 1 to 10 watts." Id. at ¶ 1.

After receiving many comments concerning the Low Power Proposal, the Commission issued an order creating new 100-watt and 10-watt classes of LPFM stations. Creation of Low Power Radio Serv., 15 F.C.C.R. 2205, ¶ 11, 2000 WL 85304 (2000) (Report and Order). The Commission also stated that it would accept a low-power application from an applicant who had broadcast without a license in the past if the applicant certified under penalty of perjury that it had ceased such operations within 24 hours of being directed to do so by the Commission and no later than the deadline (February 26, 1999) set out in the Low Power Proposal. Id. at ¶¶ 53-54. This licensing condition for broadcast pirates was applicable both to individuals and to corporate applicants, including the applicant's officers and directors. Id. at ¶ 54.

The Commission's proposal conditionally to license former pirates was received with dismay in the Congress. Senator Gregg, who introduced a bill to repeal the LPFM rules in toto, argued against the Commission's character qualification in particular: "mak[ing] formerly unlicensed, pirate radio operators eligible for LPFM licenses," he said, would "reinforce[ ] their unlawful behavior and encourage[ ] future illegal activity by opening the door to new unauthorized broadcasters." 146 Cong. Rec. S613-02 (daily ed. Feb. 10, 2000). Congressman Oxley made the same argument at a House committee hearing on a similar bill. See House Hearing, 106th Cong. at 4. See also H.R.Rep. No. 106-567, 106th Cong., at 8 (2000) (House Committee on Commerce concluded "that the operation of an unlicensed station demonstrates a lack of commitment to follow the basic rules and regulations which are essential to having a broadcast service that serves the public, and those individuals or groups should not be permitted to receive licenses in the LPFM service").

The Congress ultimately responded to the Commission's decision by enacting the Radio Broadcast Preservation Act of 2000 (RBPA), Pub.L. No. 106-553, 114 Stat. 2762, § 632, which among other things directed the Commission to modify its rules to "prohibit any applicant from obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934." Id. § 632(a)(1)(B). In contrast to the Commission, that is, the Congress barred all low-power pirates from obtaining an LPFM license regardless whether or when they had ceased to operate unlawfully.

As directed, the Commission modified its rules to implement the more stringent character qualification required by the Congress. Creation of Low Power Radio Serv., 16 F.C.C.R. 8026, ¶ 10, 2001 WL 310997 (2001) (Second Report and Order). The resulting regulation provides that "[n]o application for an LPFM station may be granted unless the applicant certifies, under penalty of perjury, that neither the applicant, nor any party to the application, has engaged in any manner including individually or with persons, groups, organizations or other entities, in the unlicensed operation of any station in violation of Section 301 of the Communications Act of 1934." 47 C.F.R. § 73.854.

Ruggiero, an admitted former pirate, sought review in this court of the Second Report and Order, arguing that the character qualification on its face violates the First Amendment. A divided panel of this court held the RBPA and the implementing regulation unconstitutional. Ruggiero v. FCC, 278 F.3d 1323 (D.C.Cir.2002). We granted the Commission's petition for rehearing en banc and vacated the prior judgment. Having now reheard the case en banc, we adopt the decision of the panel concerning the jurisdiction of the court, id. at 1327-29, but on the merits hold that the character qualification provision is neither overinclusive nor underinclusive in violation of the First Amendment.

II. Analysis

Before we turn to the merits of the constitutional question, we must identify the level of first amendment scrutiny appropriate to the nature of the statute being challenged.

A. Standard of Review

Ruggiero asserts that under FCC v. League of Women Voters, 468 U.S. 364, 399, 104 S.Ct. 3106, 3127, 82 L.Ed.2d 278 (1984), we are to apply "intermediate scrutiny" to all broadcast regulations other than those that are purely "structural," that is, those involving the "where" and "when" of broadcasting. Under the rubric of intermediate scrutiny we would have to determine whether the LPFM character qualification is "narrowly tailored...

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