U.S. v. Any and All Radio Station Equipment

• Decision Date: 07 August 1998
• Docket Number: No. 97-CV-73527.,97-CV-73527.
• Parties: UNITED STATES of America, Plaintiff, v. ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, ET AL., LOCATED AT 2903 BENT OAK HIGHWAY, ADRIAN, MICHIGAN, Defendant, Rick Strawcutter, Claimant.
• Court: U.S. District Court — Eastern District of Michigan

19 F.Supp.2d 738

UNITED STATES of America, Plaintiff, v. ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT, ET AL., LOCATED AT 2903 BENT OAK HIGHWAY, ADRIAN, MICHIGAN, Defendant, Rick Strawcutter, Claimant.

No. 97-CV-73527.

United States District Court, E.D. Michigan, Southern Division.

August 7, 1998.

Kathryn A. McCarthy, Office of the United States Attorney, Detroit, Michigan, for plaintiff.

Hugh M. Davis, Jr., Patrick M. Edwards, Constitutional Litigation Associates, Detroit, Michigan, for defendant.

ORDER

JULIAN ABELE COOK, Jr., District Judge.

On June 9, 1998 the Plaintiff, the United States of America (the Government), filed a motion for a summary judgment under Fed. R.Civ.P. 56 in this in rem asset forfeiture action that had been filed pursuant to the Communications Act of 1934 (Communications Act),¹ as amended, 47 U.S.C. §§ 157-614. For the reasons that will be set forth below, the Government's motion is denied and this cause of action is dismissed without prejudice.

I.

The present cause of action involves an unlicensed FM micro-broadcasting station, known as Radio Free Lenawee, in Adrian, Michigan. The Claimant, Rick Strawcutter, is the owner and operator of the radio station, as well as the pastor of the Church of the Lord Jesus Christ, in Adrian, Michigan. Strawcutter describes the format of his radio station as being primarily Christian and politically oriented, asserting that he encourages the presentation of divergent religious and political opinions by inviting persons with opposite viewpoints to appear on the radio broadcasts.

The existence and operation of Radio Free Lenawee was brought to the attention of the Federal Communications Commission (FCC) office in Detroit, Michigan between November 4, 1996 and November 13, 1996 as the result of numerous telephone calls, several newspaper clippings, and letters from approximately seven persons. On November 12, 1996, the FCC received a telephone call from the manager of a licensed FM broad-cast translator station in Toledo, Ohio² who complained that his translator's signal was receiving interference from a station which identified itself as Radio Free Lenawee. Two days later, the FCC sent a field agent and an engineer to investigate the complaint. As a result, the FCC determined that an FM station (to wit, Radio Free Lenawee) was broadcasting on a 97.7 MHZ frequency from a building at 2903 Bent Oak Highway, Adrian, Michigan³ without authorization.⁴

On November 18, 1996 Strawcutter informed the FCC, inter alia, that he had a constitutional right to conduct his radio broadcasts without interference from the federal government. On November 22, 1996, the FCC determined that Strawcutter's radio station was operating at a level which exceeded the broadcast strength that was allowable under the law for an unlicensed radio station.⁵ The FCC agents' efforts to inspect the premises of the radio station were rebuffed by Strawcutter, who was served notice by letter that his Radio Free Lenawee broadcasts were in violation of the Communications Act.⁶ At the same time, Strawcutter provided the FCC agents with a letter which provided in part that "[a]fter diligent research, [he] has come to a sincerely held conclusion that the [FCC] in reality has no Constitutional [sic] regulatory power over FM stations which run a power level less than 100 watts."

Thereafter, the FCC conducted six field tests between November 25, 1997 and February 28, 1997, which established that Strawcutter's radio station continued to operate in excess of the strength allowed by 47 C.F.R. § 15.329 despite remaining unlicensed.

On July 22, 1997, the Government commenced this in rem forfeiture action against the radio transmission equipment at 2903 Bent Oak Highway, Adrian, Michigan, the site of the Radio Free Lenawee broadcasts. According to Strawcutter, he first learned of the claimed interference with the Toledo translator station on the following day (July 23, 1997),⁷ after which he immediately shut off his radio transmission. Two days later, Strawcutter advised the FCC that he (1) had ceased all transmissions upon learning of the interference, (2) would not commence rebroadcasting until a directional antenna, which would assure no future interference, had been installed, (3) would allow a conditional inspection of Radio Free Lenawee, and (4) believed that his rights under the First Amendment were paramount to the authority of the federal government to deny all non-educational broadcasts under 100 watts.

In response to the FCC's Complaint, Strawcutter filed a claim of ownership on August 5, 1997,⁸ which was followed by his answer approximately two weeks later. Since the subject property was never arrested, he and the Government entered into a stipulated Order waiving seizure of the property as a predicate for in rem forfeiture, which was entered by the Court on December 19, 1997.

In his answer to the Complaint, Strawcutter maintains that the FCC's regulation which prohibits unlicensed micro-broadcasting of the type he is engaging in is invalid because it violates (1) the First Amendment, (2) the Equal Protection principles of the Fifth Amendment, (3) the Due Process Clause, (4) the FCC's statutory mandate "to encourage the larger and more effective use of radio in the public interest," 47 U.S.C. § 303(g), and (5) Article XIX of the United Nations Declaration of Human Rights and Article XIX of the International Covenant on Civil and Political Rights.

II.

Federal Rule of Civil Procedure 56 governs summary judgment motions. Subsection 56(c) provides, in part, that:

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The moving party has the burden of demonstrating that there is no genuine issue as to any material fact, and summary judgment is to be entered if the evidence is such that a reasonable jury could find only for the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 250, 106 S.Ct. 2505.

In assessing a summary judgment motion, the court must examine any pleadings, depositions, answers to interrogatories, admissions, and affidavits in a light that is most favorable to the non-moving party. Fed. R.Civ.P. 56(c); see United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984). It is not the court's role to weigh the facts. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435-36 (6th Cir.1987). Rather, the judge's responsibility is to determine "whether ... there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

III.

The Communications Act created the FCC and gave it licensing authority over radio broadcasts. 47 U.S.C. §§ 151, 301. It is unlawful to "use or operate any apparatus" that transmits radio signals without a license granted by the FCC.⁹ 47 U.S.C. § 301. Additionally, one of the FCC's mandates is to "[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest." 47 U.S.C. § 303(g).

Commensurate with the FCC's licensing responsibility, the Communications Act gives it statutory authority to issue regulations that it deems to be necessary to prevent interference between stations and to carry out the provisions of the Communications Act. 47 U.S.C. §§ 302(a), 303(f). Under these regulations, the FCC grants FM broadcast licenses under four separate classifications (Class A, B, C, and D) which depend upon factors such as transmission power, antenna height, and the area or place from the broadcast is emanating. 47 C.F.R. § 73.210 et seq. Class D licenses were allocated to micro broadcast stations that operated at a power level of less than 100 watts and retained an approximate reception area of between two to twelve miles radius from the point of transmission. However, in 1978 the FCC forbade the issuance of all future Class D licenses, 47 C.F.R. §§ 73.211(a), .511(a), .512(c), effectively eliminating all micro broadcast transmissions. "Except in Alaska, no new Class D applications nor major change applications by existing Class D stations are acceptable for filing except by existing Class D stations seeking to change frequencies." 47 C.F.R. § 73.512(c).

The FCC provides a procedure for seeking a waiver or an amendment of its regulations, as well as for reconsideration of its decisions. 47 C.F.R. §§ 1.3, 1.106. However, Strawcutter contends that those provisions are meaningless to micro broadcasters who seek to obtain an FCC broadcast license because it has not, and will not, grant a license or waive the regulations inhibiting new micro broad-cast transmissions. In support of this conclusion, Strawcutter states in his affidavit:

[p]rior to founding Radio Free Lenawee, I have made three previous attempts to establish low power radio and/or UHF television stations through the FCC guidelines, including utilizing the help of engineers experienced with FCC applications. However, I found it bureaucratically impossible to obtain such licenses from the FCC, even after submitting at least one application for license.

The Government, in its challenge to Strawcutter, has four options to choose from in pursuing those persons who engage in radio broadcasts in...