U.S. v. All Radio Station Transmission Equip.
Decision Date | 06 November 1998 |
Docket Number | No. 98-CV-74368-DT.,98-CV-74368-DT. |
Citation | 29 F.Supp.2d 393 |
Parties | UNITED STATES of America, Plaintiff/Counterdefendant, 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, and Maquina Musical, Inc., a Michigan corporation, Claimant, and Juan V. Marinez, Catalina Martinez, Ignacio Campos, Jorge Canchola and Sergio Vallejo, Intervenor/Counterplaintiffs, v. United States of America, Counterdefendant. |
Court | U.S. District Court — Eastern District of Michigan |
Kathryn A. McCarthy, Detroit, MI, for Plaintiff.
Kevin Ernst, Detroit, MI, for Defendant.
This matter is before the Court on claimant's1 motion for a preliminary injunction, and motion to dismiss complaint for forfeiture and to quash in rem arrest warrant. The government filed a response in opposition stating that claimant's operation of "Radio Maquina" violates provisions of the Communications Act of 1934 ("Communications Act"), as amended, 47 U.S.C. §§ 157-614. The government, pursuant to 47 U.S.C. § 510(a) of the Communications Act, effected an ex parte in rem seizure of the equipment of Radio Maquina. The Court entertained oral argument on claimant's motions on October 29, 1998. For the reasons that follow, the Court denies claimant's motion for a preliminary injunction, motion to dismiss the government's complaint, and motion to quash in rem arrest warrant.2
Radio Maquina is a "Spanish-language radio station which serves approximately 40,000 to 50,000 primarily Hispanic listeners within a six-mile radius of its location in southwest Detroit." (Compl. for TRO at 2). Claimant, Pedro Zamora, is the President of Radio Maquina. According to claimant, the radio station began broadcasting on April 1, 1998, from its location at 3968 West Vernor, Detroit, Michigan. The format of Radio Maquina consists of programming broadcast in Spanish and includes "aspects of Hispanic culture, primarily music, news, politics and what is popularly referred to as `talk-show radio.'" (Compl. for TRO at 4). Radio Maquina broadcasts at 95.9 MHz on the FM dial, and its signal strength, since its inception, has at all times remained below 100 watts. It is undisputed that Radio Maquina does not presently possess, nor has it ever applied for, a license from the Federal Communications Commission ("FCC").3
On April 16, 1998, the Detroit Field office of the FCC received a complaint from an operator of an unlicenced FM broadcast station that another unlicenced broadcast station was operating on the 95.9 MHz frequency. On that date, officials from the FCC visited the station located at 3968 West Vernor Highway, Detroit, Michigan and discerned that the field strength of the FM broadcast signal on the frequency 95.9 MHz exceeded that transmission allowable under non-licensing provisions of the FCC.4 FCC agents again monitored Radio Maquina, using an MADF vehicle, on April 21, 1998 and detected broadcasting at frequencies which exceeded those allowable under non-licensing provisions.5 On that date, agents entered the premises of Radio Maquina and spoke with the station's owner, Pedro Zamora. The agents informed Mr. Zamora that the transmissions from his radio station exceeded those permissible under FCC licensing guidelines and constituted a violation of 47 U.S.C. § 301. FCC agents again conducted an investigation of Radio Maquina on May 4, 1998 at which time it was determined that the station was broadcasting at a frequency exceeding that permissible without a license.6
Following the investigations efforts by FCC agents, the Detroit Field office of the FCC sent a letter to Pedro Zamora on May 12, 1998 informing him that the operation of the unlicenced radio station violated 47 U.S.C. § 301 and requesting that he cease operation or face a panoply of penalties.7 Claimant replied to the FCC's May 12, 1998 communication by demanding a hearing before the FCC prior to the institution of forfeiture proceedings against the radio station. The Detroit Field office of the FCC again dispatched agents on August 19, 1998 to the location of Radio Maquina where the agents determined that the station's broadcast exceeded those levels permissible under non-licensing provisions of the Communications Act.8 On October 7, 1998, the government filed its verified complaint for forfeiture and an affidavit in support. Subsequent to the filing of the complaint, the government executed a writ of entry and warrant of arrest on October 8, 1998 and seized the defendant property. On October 9, 1998, claimant Pedro Zamora filed the instant verified complaint for temporary restraining order ("TRO") and motion to dismiss complaint for forfeiture and to quash in rem arrest warrant. The Court held a hearing on claimant's request for a TRO on October 13, 1998 at which time the Court declined to grant claimant's request but set a hearing on the motion for a preliminary injunction. The matter is currently before the Court on the claimant's motion for a preliminary injunction and claimant's motion to dismiss the verified complaint and to quash the in rem arrest warrant.
Claimant is seeking a preliminary injunction to enjoin the government from pursuing the forfeiture of his radio equipment. Claimant also seeks dismissal of the government's verified complaint for civil forfeiture on the grounds that the FCC failed to avail itself of its own administrative remedies prior to instituting the forfeiture action.9
In response, the government contends that the forfeiture in this case was an appropriate exercise of the remedies available under the Communications Act for a violation of 47 U.S.C. § 301. According to the government, in rem forfeiture is sanctioned by 47 U.S.C. § 510 of the Communications Act. In support of the propriety of forfeiture, the government states that it has set forth probable cause in its pleadings sufficient to subject the property to forfeiture. Therefore, it claims that the burden now shifts to claimant to refute the government's initial showing of probable cause by a preponderance of the evidence. The government contends that claimants have failed, at this early stage of the litigation, to allege the existence of any facts which bear on the issue of probable cause. With respect to the claimant's argument that the regulations prohibiting the issuance of any new Class D licenses constitute an impermissible prior restraint on speech, the government contends that this Court is without jurisdiction to entertain a challenge to FCC regulations. According to the government, jurisdiction to entertain a review of the regulatory provisions of the Communications Act is vested with the United States Courts of Appeals.10 See 47 U.S.C. § 402(a)-(b); 28 U.S.C. § 2342(1). Therefore, the government contends that claimant's request for a preliminary injunction and motion to dismiss should be denied.
The Court will address the propriety of the issuance of a preliminary injunction and then proceed to a determination of the merits of claimant's motion to dismiss pursuant to FED. R.CIV.P. 12(b)(1).
In order to determine whether a party is entitled to the issuance of a preliminary injunction, the district court must consider four factors: (1) the plaintiff's likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) whether a preliminary injunction would be in the public interest. G & V Lounge, Inc. v. Michigan Liquor Comm'n, 23 F.3d 1071, 1076 (1994). "None of the factors, standing alone, is a prerequisite to relief; rather, the court should balance them." Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.1996). The Court will consider the propriety of claimant's request for a preliminary injunction under the criteria set forth by the Sixth Circuit in G & V Lounge, Inc.
Claimant alleges that his First Amendment rights to freedom of speech have been abridged by the government's seizure of his broadcasting equipment. In addition, claimant states that "at issue here is not only the First Amendment right to engage in speech, but also the right to receive speech." (Claimant's Br. at 3). Finally, claimant maintains that other microbroadcasters under the FCC cannot engage in microbroadcasting activities, in connection with or separate from Radio Maquina, without facing imminent risk of confiscations, civil fines and criminal prosecutions.
When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor. With regard to the factor of irreparable injury, for example, it is well-settled that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). The Court will assume, for purposes of this motion, that claimant's alleged deprivation of his First Amendment right to free speech by the government's seizure of his broadcasting equipment is sufficient to demonstrate irreparable injury. Accordingly, the Court will proceed to the likelihood of claimant's success on the merits.
The government contends that claimant's broadcasting of Radio Maquina at frequency 95.9 MHz, without a license from the FCC, is in violation of 47 U.S.C. § 301. 47 U.S.C. § 301 states, in pertinent part:
No person shall use or operate any apparatus for the transmission of energy or communications or signals by...
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U.S. v. Any and All Radio Station Transmission Equipment
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