U.S. v. Any and All Radio Station Equip., 99 CIV. 0637 WHP.

• Decision Date: 31 March 2000
• Docket Number: No. 99 CIV. 0637 WHP.,99 CIV. 0637 WHP.
• Parties: UNITED STATES of America, Plaintiff, v. ANY AND ALL RADIO STATION EQUIPMENT, Radio Frequency Power Amplifiers, Radio Frequency Test Equipment and Any Other Equipment Associated with Or Used in Connection with Any Radio Transmissions on the Frequency of 95.1 MHZ Located at 2151 Jerome Avenue, 2nd Floor Bronx, New York 10453, Defendant-In-Rem, Reverend Fernandito Alejandro, Radio Mission Evangelistica, and Inglesia Pentecostal El Fin Se Acerca, Inc., Clamaints.
• Court: U.S. District Court — Southern District of New York

93 F.Supp.2d 414

UNITED STATES of America, Plaintiff, v. ANY AND ALL RADIO STATION EQUIPMENT, Radio Frequency Power Amplifiers, Radio Frequency Test Equipment and Any Other Equipment Associated with Or Used in Connection with Any Radio Transmissions on the Frequency of 95.1 MHZ Located at 2151 Jerome Avenue, 2nd Floor Bronx, New York 10453, Defendant-In-Rem Reverend Fernandito Alejandro, Radio Mission Evangelistica, and Inglesia Pentecostal El Fin Se Acerca, Inc., Clamaints.

No. 99 CIV. 0637 WHP.

United States District Court, S.D. New York.

March 31, 2000.

Edward Scarvalone, Office of The United States Attorney, Southern District of New York, New York City, for the Government.

Patrick M. Edwards, Constitutional Litigation Associates, Detroit, MI, for Claimants.

MEMORANDUM AND ORDER

PAULEY, District Judge.

The United States brings this in rem action, pursuant to the Federal Communications Act ("FCA"), 47 U.S.C. § 510, seeking forfeiture of radio transmission equipment it seized from Inglesia Pentecostal El Fin Se Acera, Inc., a Pentacostal church in the Bronx, New York ("the Church"). The Government alleges that the defendants were using the seized equipment to operate Radio Mission Evangelistica, a Spanish-language Christian radio station, without a broadcast license, in violation of the FCA. Presently before this Court are claimants' motions to dismiss the complaint and to quash the in rem arrest warrant and the Government's motion for summary judgment.

For the reasons set forth below, claimants' motions to dismiss the complaint and quash the in rem arrest warrant are denied, and the Government's motion for summary judgment is granted.

FACTS

Radio Mission Evangelistica is owned and operated by the Church. Reverend Fernando Alejandro is the president of the Church and the manager of Radio Mission Evangelistica. Radio Mission Evangelistica operates on the frequency 95.1 MHz.¹ The Federal Communications Commission (the "FCC") has not issued a license to anyone in the Bronx, New York, to operate on the 95.1 MHz frequency. (Gov't Rule 56.1 Stmt. ¶ 2.)

On July 15, 1998, the FCC received an anonymous complaint that someone was operating on the 95.1 MHz frequency. (Loginow Aff. ¶ 7.) The next day, the FCC investigated the complaint and discovered that the source of the transmission was the Church. The FCC determined that the field strength of the transmissions exceeded the level permitted for a non-licensed broadcaster under 47 C.F.R. § 15.239(b). (Loginow Aff. ¶¶ 4, 15, 17, 21.) The same day, FCC agents informed Rev. Alejandro that his operation of Radio Mission Evangelistica without a license violated 47 U.S.C. § 301, and that if he continued to operate the radio station he would be penalized. (Loginow Aff. ¶ 11.)

On July 21, 1998, the FCC sent a warning letter to Rev. Alejandro advising him that he was required to obtain a license before operating a radio station. The letter also set forth the penalties for operating an unlicensed radio station. (Loginow Aff. ¶ 12 & Ex. A.) The FCC told Rev. Alejandro to stop broadcasting and warned him that if he continued to operate without a license, the equipment might be seized. (Loginow Aff. ¶ 12 & Ex. A.)

Despite the warning letter, the broadcasts continued. (Gov't 56.1 Stmt. ¶ 13.) On August 4, 1998, FCC agents determined that Radio Mission Evangelistica was still broadcasting on 95.1 MHz. Later that day, the FCC agents met with Rev. Alejandro and told him to stop operating his station because he was violating 47 U.S.C. § 301. (Loginow Aff. ¶ 13.) The agents again warned Rev. Alejandro of the penalties for operating an unlicensed radio station and gave him a second warning letter. (Loginow Aff. ¶ 13 & Ex. B.)

From August 1998 to January 1999, the FCC periodically monitored 95.1 MHz and determined that Rev. Alejandro was continuing to broadcast without a license. (Loginow Aff. ¶¶ 14-19, 21.)

On February 12, 1999, United States Marshals, acting pursuant to an arrest warrant and writ of entry signed by District Judge Alvin K. Hellerstein, seized the radio equipment at the Church.

Claimants subsequently filed a motion to dismiss the complaint and to quash the arrest warrant on the grounds that FCC Regulation 47 C.F.R. § 73.512 prohibiting micro-broadcasting violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ("RFRA"), and their rights under the First, Fourth and Fifth Amendments. In response, the Government moved for summary judgment.²

DISCUSSION

I. FCC Statutory and Regulatory Licensing Scheme for Radio Broadcast Transmissions

The purpose of the FCA is to "maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels ... by persons for limited periods of time, under licenses granted by Federal authority." 47 U.S.C. § 301. In 1927, Congress enacted the federal statutory licensing scheme in response to the chaotic formative years of radio when the private sector controlled the allocation of frequencies. As the Supreme Court explained:

[i]t quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.

Red Lion Broad. Co. v. FCC, 395 U.S. 367, 376, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The substantial number of would-be broadcasters makes federal regulation of the broadcast spectrum as necessary today as it was in 1927. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637-38, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

Until 1978, the FCC licensed low-power "Class D" educational FM stations that could broadcast at less than 100 watts. In 1978, the agency revoked this policy, and changed its rules to provide that "no new noncommercial educational station will be authorized with less power than minimum power requirements for commercial Class A facilities" — that is, 100 watts. 47 C.F.R. § 73.511(a); and see 47 C.F.R. § 73.211(a). As a corollary, the FCC provided that no new Class D applications would be accepted for filing. See 47 C.F.R. § 73.512(c). These rules were in effect during the period at issue in this case.³

Radio broadcasting in the United States is prohibited without a license from the FCC. See 47 U.S.C. § 301. When a broadcaster knowingly and willfully violates the § 301 licensing requirement, the FCA provides several enforcement options. The Government can: (a) institute a criminal prosecution under 47 U.S.C. § 501; (b) file a civil action to enjoin noncompliance with statutory requirements under 47 U.S.C. § 401(a); (c) impose monetary forfeitures to penalize statutory violations under 47 U.S.C. § 503, and/or (d) as was done in this case, seek the seizure and forfeiture of broadcast equipment that is used in unlicensed radio broadcasting under 47 U.S.C. § 510(a).

The FCA provides that the procedures for seizing radio equipment shall be the same as those provided by the supplemental rules for certain admiralty and maritime claims for the arrest of articles in rem (the "Supplemental Rules"). See 47 U.S.C. § 510(b). The forfeiture of the equipment is governed by the laws applicable to the seizure and forfeiture of property under United States custom laws. See 47 U.S.C. § 510(c)(1).

The Supplemental Rules provide that the Government may obtain a warrant for the arrest and seizure of articles in rem on filing a verified complaint in rem. See Supplemental Rule C(6). In the ensuing forfeiture action, the Government bears the burden of demonstrating probable cause for seizing the property. See 19 U.S.C. § 1615. If the Government can show probable cause, the burden shifts to the claimant to establish by a preponderance of the evidence the existence of a defense to the forfeiture. 19 U.S.C. § 1615.

II. Probable Cause

Here, claimants do not dispute that they were engaged in radio broadcasting and concede that they never obtained a license. (See Ans. at ¶¶ 8-23.) The FCC agents determined that on at least five occasions the station was transmitting at field strength levels exceeding the permissible levels for a station to be exempt from the licensing requirements in place at the time. (Loginow Aff. ¶¶ 15, 17, 21.) Accordingly, there is no dispute that claimants were broadcasting in violation of 47 U.S.C. § 301. In addition, it is not disputed that claimants were given multiple verbal and written warnings advising them that their continued operations violated the law and could subject them to penalties provided by the FCA. (Loginow Aff. Exs. A & B.) Nevertheless, claimants continued broadcasting without a license. Further, there is no indication that claimants consulted an attorney or were informed that there was some legal basis to ignore the FCC's warnings. This evidence is sufficient to establish that claimants willfully and knowingly engaged in unlicensed broadcasting. See, e.g., United States v. Gris, 247 F.2d 860, 864 (2d Cir.1957) (holding defendant acted willfully and knowingly within the meaning of the FCA because he "knew exactly what he was doing ... [h]e intended to do what he did, and that is sufficient"); United States v. Any and All Radio Station Transmission Equip., No. 98-1546-CIV-King, slip. op at 3 (S.D.Fla. Nov. 12, 1998) (holding willful and knowing intent established by defendant's continued operation of broadcast equipment after receiving FCC warning letter). Accordingly, the Government has established probable cause to seize claimants' radio broadcast equipment. The burden thus shifts to claimants to demonstrate a defense to the forfeiture.

III. Religious Freedom Restoration Act and First Amendment Free Exercise Clause

RFRA provides that the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." 42...