U.S. v. Dunifer, C 94-03542 CW.

Citation997 F.Supp. 1235
Decision Date16 June 1998
Docket NumberNo. C 94-03542 CW.,C 94-03542 CW.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesUNITED STATES of America, Plaintiff, v. Stephen Paul DUNIFER, Defendant.
997 F.Supp. 1235
UNITED STATES of America, Plaintiff,
Stephen Paul DUNIFER, Defendant.
No. C 94-03542 CW.
United States District Court, N.D. California.
June 16, 1998.

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Mark St. Angelo, Patricia A. Duggan, U.S. Attorney's Office, San Francisco, CA, David Silberman, F.C.C., Office of the General Counsel, Washington, DC, for U.S.

Louis N. Hiken, San Francisco, CA, M. Allen Hopper, San Francisco, CA, for Stephen Paul Dunifer.

Alan Alan Korn, Berchenko & Korn, San Francisco, CA, amicus curiae.

Peter Franck, Peter Franck Law Offices, San Francisco, CA, pro se.


WILKEN, District Judge.


This case first came before the Court in 1994 on Plaintiff United States' motion for injunctive and declaratory relief against Defendant Stephen Paul Dunifer for violation of 47 U.S.C. § 301, which prohibits the operation of a radio station without a license. In opposition to the United States' motion, Mr. Dunifer did not dispute that he was operating a micro radio station, "Free Radio Berkeley", without having applied for a license.1 Instead, Mr. Dunifer raised several affirmative defenses challenging Federal Communication Commission ("FCC") regulations governing the licensing of micro radio broadcasting.

Mr. Dunifer claimed that new technology enables micro radio stations such as his to broadcast locally, on frequencies between those of higher-powered stations, without causing interference with those stations. According to Mr. Dunifer, small, local, poorly-financed stations would offer program content different from that provided by larger,

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necessarily well-financed, stations. Mr. Dunifer argued that he should not be enjoined from broadcasting because the FCC's refusal to license micro radio stations amounts to a content-based restriction on speech that violates the First Amendment and is not justified under the FCC statutory mandate to regulate in the public convenience, interest and necessity.2

The United States did not respond directly to Mr. Dunifer's constitutional attack on the regulations, but instead argued that the FCC's statutory authority to regulate and license broadcasters is constitutional.

The Court ruled that, on the limited record before it, the United States had shown probable success on the merits on the issue that Mr. Dunifer had broadcast without a license, but that the United States had failed to show a probability of success on the constitutional issues raised by Mr. Dunifer. See Memorandum and Order Denying Plaintiff's Motion For Preliminary Injunction and Staying This Action at 3-4. For that reason, the Court denied the motion for a preliminary injunction. Under the doctrine of primary jurisdiction, the Court stayed the case so that the issue of the constitutionality of the Class D regulations could first be addressed by the FCC either in the context of Mr. Dunifer's pending forfeiture proceeding3 or in the context of the FCC's rule-making powers. Id. at 10.

On August 2, 1995, the FCC issued its Memorandum Opinion and Order in Mr. Dunifer's forfeiture proceeding ("Forfeiture Order"). In the Forfeiture Order, the FCC concluded that the Class D regulations do not violate the First Amendment or the FCC's mandate to regulate in the public interest.

After the FCC issued the Forfeiture Order, the United States filed a motion for summary judgment in this case. In the summary judgment motion, the United States still did not discuss the merits of Mr. Dunifer's constitutional claims. Instead it argued that, by statute, this Court lacks jurisdiction to hear Mr. Dunifer's challenge to the Class D regulations because exclusive jurisdiction over any challenge to FCC regulations is vested in the courts of appeals.4 Mr. Dunifer responded that the Court had jurisdiction over his affirmative defenses and renewed his First Amendment arguments.5

The Court entered an Order Denying Plaintiff's Motion for Summary Judgment Without Prejudice and Requesting Further Briefing, ruling that 47 U.S.C. § 401(a), which provides the district court with jurisdiction over the United States' charge of broadcasting without a license, also provides the Court with jurisdiction over any valid defense to the charge. However, the Court noted that neither party had addressed the issue of whether Mr. Dunifer's claim that the

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Class D regulations are unconstitutional is a valid defense in an action brought by the United States to enjoin him from broadcasting without a license, given that he has never applied for a license. The Court ordered further briefing on this issue, which both parties have filed. Having considered all the papers filed by the parties, the Court GRANTS the United States' motion for summary judgment and ENJOINS Mr. Dunifer from broadcasting without a license. This ruling is not based on the merits of Mr. Dunifer's criticisms of the FCC's refusal to license micro broadcasters. As discussed below, Mr. Dunifer does not have standing as required by Article III of the United States Constitution to challenge the Class D regulations as they have been applied to him; they have not been applied to him because he has never applied for a license. Mr. Dunifer also lacks standing to assert a challenge to the regulatory scheme on the ground that it is unconstitutional in every conceivable application. Mr. Dunifer does have standing to raise his claim that the regulations are over-broad, but this claim fails.


I. Article III Standing

Article III of the Constitution of the United States limits the jurisdiction of federal courts to deciding cases and controversies. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The doctrine of standing is a core component of the case-or-controversy requirement. See id. 504 U.S. at 560. The litigant invoking federal jurisdiction must establish the three minimum requirements of standing: (1) a litigant must have suffered an actual and concrete injury consisting of "an invasion of a legally protected interest"; (2) there must be a causal connection between the injury and the conduct of which the litigant complains; and, (3) there must be a likelihood that the injury will be redressed by a favorable judicial decision. See id. at 560-61.

Mr. Dunifer argues that he need not establish standing because standing must be shown by plaintiffs who invoke federal court jurisdiction, not by defendants like himself. It is true that the doctrine of standing is usually raised by the defendant, because the plaintiff is the party who is invoking the jurisdiction of the court. The Seventh Circuit has stated that the standing doctrine applies only to plaintiffs. See Wynn v. Carey, 599 F.2d 193, 196 (7th Cir.1979). The Ninth Circuit, however, in at least two cases, has analyzed whether defendants have standing to raise, as an affirmative defense, the unconstitutionality of the statute and regulations that form the basis of the government's case-in-chief. See United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997); United States v. Thirty Eight (38) Golden Eagles or Eagle Parts, 649 F.Supp. 269, 274, 276 (D.Nev. 1986), aff'd, 829 F.2d 41 (9th Cir.1987).

In Hugs, the defendants were convicted of taking and purchasing eagles in violation of the Bald and Golden Eagle Protection Act ("BGEPA"). Id. at 1377. Regulations allowed enrolled Native Americans to obtain eagles or eagle parts for religious use through a permit system. Id. The defendants had not applied for a permit. Id. The defendants admitted they had trapped and killed eagles, but defended their actions by arguing that their right to the free exercise of their religion was infringed upon by the existence of the BGEPA and by the difficulty of obtaining a permit. Id. The Ninth Circuit ruled that the defendants could bring a facial challenge to the BGEPA and its regulations, but because they had failed to apply for a permit, they lacked standing to defend themselves based on an as-applied challenge. Id. at 1378-79. Similarly, in Golden Eagles, a forfeiture action brought by the government, the court ruled that a claimant who had failed to apply for a permit as required by the BGEPA did not have standing to defend against the forfeiture with an as-applied challenge to the BGEPA or its implementing regulations, but did have standing to bring a facial challenge. 649 F.Supp. at 274, 276.

Where the defendant asserts an affirmative defense requiring the litigation of issues not encompassed in the plaintiff's case-in-chief, the defendant is in a similar situation on those issues to a plaintiff who is invoking the jurisdiction of the court. See

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e.g. Federal Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp. 259, 268 (E.D.Cal. 1987) (concluding that defendant must have Article III standing to pursue affirmative defense). Therefore, the Court concludes that Mr. Dunifer must establish standing to assert his constitutional defenses.

Mr. Dunifer admits that he has not applied for a license or a waiver pursuant to the Class D regulations. Thus, the Class D regulations have not been applied to him and he has no standing to bring an as-applied challenge to them.

Mr. Dunifer argues that he should be excused from applying for a license because doing so would be futile. Some circuits have excused on grounds of futility the threshold standing requirement that the plaintiff submit to the policy being challenged by applying for the benefit regulated by that policy. See e.g. Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2nd Cir.1997). Futility can be established only where an adverse decision by the agency is a certainty. See Randolph-Sheppard Vendors of America v. Weinberger, 795 F.2d 90, 105 (D.C.Cir. 1986). An adverse decision is certain if the agency lacks, or believes itself to lack jurisdiction, or if an agency has "articulated a very...

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