U.S. v. Any Radio Station Transmission Equip.

• Decision Date: 13 June 2000
• Docket Number: No. 99-3991,99-3991
• Citation: 218 F.3d 543
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, 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 Transmissions Within the FM Broadcast Band, Located at 9613 Madison Avenue, Cleveland, Ohio, 44102, Defendant, William Perez, Claimant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 543

218 F.3d 543 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, 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 Transmissions Within the FM Broadcast Band, Located at 9613 Madison Avenue, Cleveland, Ohio, 44102, Defendant, William Perez, Claimant-Appellant.

No. 99-3991

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: June 13, 2000

Decided and Filed: July 6, 2000

Appeal from the United States District Court for the Northern District of Ohio at Cleveland; No. 98-01937--Donald C. Nugent, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Robert S. Greenspan, Jacob M. Lewis, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Appellee.

Paul Mancino, Jr., MANCINO, MANCINO & MANCINO, Cleveland, Ohio, for Appellant.

Before: JONES, BOGGS, and MOORE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

The United States brought this civil in rem forfeiture action under the Communications Act of 1934 against radio transmission equipment used by claimant William Perez for unlicensed radio broadcasting. In response, Perez did not deny that he had been broadcasting from a radio station without a license but instead raised several constitutional and statutory objections to the forfeiture. The district court granted summary judgment to the government after concluding that the government had satisfied its burden of establishing probable cause and that Perez had failed to present a valid defense to the forfeiture action. On appeal, Perez argues that the government did not satisfy its burden for forfeiture and that he is entitled to summary judgment because such forfeiture would violate his constitutional and statutory rights. For the reasons stated below, we AFFIRM the district court's judgment.

I.

On January 20, 1998, the Detroit field office of the Federal Communications Commission ("FCC") received a complaint that a radio station, identified as "WPRC-FM," was broadcasting without a license at the frequency 91.9 MHz in Cleveland, Ohio. The next day, two FCC agents were dispatched to locate the source of WPRC-FM's signal with an FCC mobile automatic direction finding vehicle. The agents determined that the signal was being transmitted from a commercial building displaying a sign for "Belinda's Bar," located at 9613 Madison Avenue, Cleveland, Ohio, 44102. The signal strength was measured at 114,702 microvolts per meter at distance of approximately 60.3 meters from the source. Because a license is required for a signal of this strength, the agents investigated the building. They spoke with William Perez, who admitted responsibility for operating the station. The agents inspected the equipment and found a radio transmitter connected to an antenna on top of the building. They then gave Perez a verbal warning that he was operating a radio transmitter without a license in violation of the Communications Act of 1934 and thus was subject to forfeiture penalties. The following day, the two FCC agents again checked the source of the radio station signal operating at 91.9 MHz frequency and discovered that it still was being transmitted from an antenna on the roof of Belinda's Bar. At a distance of approximately 60.3 meters, the strength of the signal was measured at 89,212 microvolts per meter.

Based on these findings, on July 29, 1998, the FCC Detroit field office sent a letter by certified mail, return receipt requested, to Perez informing him that the operation of his radio station at 91.9 MHz without a license was a violation of the Communications Act, 47 U.S.C. § 301, and that continued operation could result in penalties such as fines or imprisonment or both. The return receipt indicates that the letter was delivered on August 3, 1998. On August 17, 1998, David A. Viglione, another FCC agent, was sent to the site to investigate. He located the signal of the radio station broadcasting at 91.9 MHz and determined that it still was being transmitted from an antenna on the roof of Belinda's Bar. The antenna was located at the back of the roof area, while it had been located near the front when the first set of agents had investigated the scene. At approximately 198 meters from the source, Viglione measured the signal at 7,902 microvolts per meter.

On the basis of these findings, the United States filed a complaint under 47 U.S.C. § 510 seeking forfeiture of all equipment used for the unlicensed transmission of radio station WPRC-FM at the frequency 91.9 MHz from the building located at 9613 Madison Avenue, Cleveland, Ohio, 44102. The government also filed an application for a seizure warrant, with an affidavit from Viglione setting forth the facts stated above, and a warrant was issued by a magistrate judge. In response, Perez filed a claim of ownership in the seized property. Perez also filed a motion to dismiss arguing that seizure and forfeiture of the property would violate his constitutional rights under the First, Fourth, and Fifth Amendments and also would violate his rights under the First Amendment Privacy Protection Act. The district court denied this motion by marginal order.

The government then filed a motion for summary judgment arguing that because it had established probable cause to seize the radio transmission equipment and Perez did not have a valid defense to forfeiture, it was entitled to forfeit the equipment as a matter of law. Perez filed a brief in opposition to the government's motion and also filed a motion for summary judgment based on the same arguments set forth in his motion to dismiss.

The district court concluded that the government established probable cause for the forfeiture and that Perez did not present a valid defense to forfeiture, and therefore it granted the government's motion for summary judgment. The district court also denied Perez's cross-motion for summary judgment on the ground that these arguments already had been rejected when the district court denied Perez's motion to dismiss. It then entered an order of forfeiture.

II.

We review de novo a grant of summary judgment. See EEOC v. Northwest Airlines, Inc., 188 F.3d 695, 701 (6th Cir. 1999). Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). In the context of forfeiture, we have instructed:

Summary judgment procedures under Rule 56, Fed. R. Civ. P., must necessarily be construed in the light of the statutory law of forfeitures, and particularly the procedural requirements set forth therein. Those procedures themselves are quite summary, especially when compared to normal civil actions.

United States v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir. 1978).

The Communications Act of 1934 was enacted "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. It prohibits radio broadcasting without a license unless specifically exempted under the Act. See id¹; 47 C.F.R. § 15.1. Regulations promulgated by the FCC under the Act provide that certain low-power radio transmissions may be exempt from licensing. For transmissions falling within the frequency range of 88-108 MHz on the FM broadcast band to be exempted, the strength must not exceed 250 microvolts per meter at 3 meters. 47 C.F.R. § 15.239(b).

When a broadcaster violates the § 301 licensing requirement with willful and knowing intent, the United States is authorized to seize and forfeit the equipment used in connection with the unlicensed radio broadcasting. 47 U.S.C. § 510(a).² The procedures for seizing such equipment shall be the same as those provided by "the supplemental rules for certain admiralty and maritime claims by any district court of the United States having jurisdiction over the property." 47 U.S.C. § 510(b). In addition, seizure and forfeiture under this provision are governed by the laws relating to the seizure and forfeiture of property for violation of the customs laws. 47 U.S.C. § 510 (c)(1).

In bringing a forfeiture action under § 510, the government must show probable cause to support the forfeiture. See 19 U.S.C. § 1615; United States v. Any and All Radio Station Transmission Equip., 204 F.3d 658, 666 (6th Cir. 2000); United States v. One(1) 1966 Beechcraft Baron, 788 F.2d 384, 387 (6th Cir. 1986). If the government establishes probable cause, then the burden shifts to the claimant to prove by a preponderance of the evidence that the equipment is not subject to forfeiture. See One(1) 1966 Beechcraft Baron, 788 F.2d at 387. "It is well settled that the government is entitled to a judgment of forfeiture upon an unrebutted showing of probable cause." United States v. 566 Hendrickson Boulevard, 986 F.2d 990, 995 (6th Cir. 1993).

In this case, the government established probable cause for the forfeiture of radio transmission equipment used in broadcasting by the radio station WPRC-FM at 91.9 MHz from Belinda's Bar. Agent Viglione's affidavit shows that the FCC found on three separate occasions that the radio station was operating at this frequency from a signal whose strength greatly exceeded the maximum level allowed for non-licensed transmissions. A review of the FCC's records showed that no license had ever been issued for this radio station. It is undisputed that the radio station was broadcasting in violation of § 301 of the Communications Act.

Perez, however, argues that the government did not establish willful and knowing intent to violate this provision as required for forfeiture of transmission equipment under § 510. Intent is a factual issue, he contends, that must be determined by a...