U.S. v. Peninsula Communications, Inc., No. 01-35965.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBrewster
Citation287 F.3d 832
Decision Date22 April 2002
Docket NumberNo. 01-35965.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. PENINSULA COMMUNICATIONS, INC., Defendant-Appellant.
287 F.3d 832
UNITED STATES of America, Plaintiff-Appellee,
v.
PENINSULA COMMUNICATIONS, INC., Defendant-Appellant.
No. 01-35965.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 6, 2002.
Filed April 22, 2002.

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Kenneth P. Jacobus, Anchorage, AL, for the defendant-appellant.

Richard L. Pomeroy, Assistant United States Attorney for the District of Alaska, Anchorage, AL, and Gregory M. Christopher, Counsel, Federal Communications Commission, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding. D.C. No. CV-01-207-JWS.

Before: ALARCON and SILVERMAN, Circuit Judges, and BREWSTER,* Senior District Judge.

BREWSTER, Senior District Judge.


Peninsula Communications, Inc. ("Peninsula"), owner of several Alaska radio stations, appeals the district court's orders denying its motions to dismiss for lack of subject matter jurisdiction, denying its motions to stay, and issuing a preliminary injunction ordering it to cease operation of certain of its stations. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm.

I.
Factual and Procedural Background

The United States sued Peninsula below for an injunction requiring Peninsula to comply with an order by the Federal Communications Commission ("FCC") that Peninsula cease operating seven FM translator radio stations.1 The Government

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filed its suit under the authority of Section 401 of the Communications Act of 1934, 47 U.S.C. § 151 et seq., which permits the United States Attorney General to apply to federal district courts for injunctions to enforce orders of the FCC.

Peninsula is an Alaskan broadcasting company that owns nine translators as well as the translators' two primary FM stations.2 Until 1990, Peninsula's ownership of both the translators and their primary stations was permitted by FCC licensing rules. In that year, however, the FCC revised 47 C.F.R. § 74.1232(d) to provide that "[a]n authorization for an FM translator whose coverage contour extends beyond the protected contour of the commercial primary station will not be granted to the licensee or permittee of a commercial FM radio broadcast station." 55 Fed. Reg. 50,690, 50,696 (December 10, 1990). The new rule was effective June 1, 1991, with previously licensed translators required to comply no later than June 1, 1994. See id. at 50,690 and see 6 FCC Rcd. 2334, 2334, 1991 WL 640093 (1991).

In November of 1995, Peninsula filed renewal license applications with the FCC for its nine translator stations and two primary stations. In September 1996, the FCC determined that because Peninsula owned both the translators and their primary stations, the licenses for the translator stations could not be renewed unless Peninsula assigned them to another entity. The FCC also concluded at that time that Peninsula had been operating the translators in violation of 47 C.F.R. § 74.1232(d) since June 1, 1994, the date by which all translators were to be in compliance with the new rule.3

Peninsula then filed assignment applications so it could transfer the translators to a different owner and thereby bring them into compliance with section 74.1232(d). The FCC approved the proposed assignments. In November 1997, the FCC granted the 1995 license renewal applications conditioned on consummation of the assignments, stating that failure to meet the divestiture condition would render the grants null and void.

Thereafter, the proceedings before the FCC took a rather complex procedural turn, the details of which are not relevant here. In short, Peninsula filed petitions with the FCC and an appeal to the United States Circuit Court of Appeals for the District of Columbia ("D.C. Circuit") objecting to the conditions attached to renewal of Peninsula's translator licenses. The FCC denied Peninsula's petitions, and because of procedural complications, the D.C. Circuit dismissed Peninsula's appeal.

Ultimately, Peninsula's petitions to the FCC resulted in the FCC's issuance in May 2001 of a Memorandum Opinion and Order and Order to Show Cause ("May 2001 decision"). In re Peninsula Communications, Inc., 16 F.C.C. Rcd. 11,364, 2001 WL 526732 (2001). In the May 2001 decision, the FCC determined that it was unlikely that Peninsula would ever consummate transfer of the translator licenses. Based on this conclusion, it rescinded the conditional grants of Peninsula's renewal applications with respect to seven of the translators, and ordered that Peninsula cease operating them by midnight on May 19, 2001.4 Peninsula did not terminate

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operation of the seven translators as ordered and has continued to operate them to date. On June 15, 2001, Peninsula filed an appeal of the May 2001 decision to the D.C. Circuit as permitted by 47 U.S.C. § 402.

In July 2001, pursuant to the procedure for enforcing FCC orders set forth in 47 U.S.C. § 401(b),5 the United States filed the action below in the United States District Court for the District of Alaska seeking an injunction to enforce the terms of the FCC's May 2001 order. The district court denied Peninsula's motions to dismiss for lack of subject matter jurisdiction, denied its motions to stay, and on October 17, 2001, issued a preliminary injunction ordering Peninsula to "immediately cease operating" the seven FM translator stations.6

II.

Peninsula argues the district court erred in denying its motions to dismiss for lack of subject matter jurisdiction. The existence of subject matter jurisdiction is a question of law reviewed de novo. Harden v. Roadway Package Sys., Inc., 249 F.3d 1137, 1140 (9th Cir.2001). A district court's findings of fact relevant to its determination of subject matter jurisdiction are reviewed for clear error. La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir.2001).

Peninsula submits two arguments in support of its contention that the district court lacks subject matter jurisdiction over this action. First, Peninsula argues that a federal district court lacks jurisdiction over a complaint to enforce an order under 47 U.S.C. § 401 where that same order has been appealed to the D.C. Circuit under 47 U.S.C. § 402.

Under Section 401(b), if any person fails to obey an order of the FCC, the United States Attorney General may "apply to the appropriate district court" for an injunction to enforce the order. Under Section 402(b), an aggrieved party may appeal an order of the FCC to the D.C. Circuit. According to Peninsula, we should understand these statutes to operate so that the fact of filing of an appeal of an FCC order to the D.C. Circuit divests a district court of jurisdiction to enforce the same order. Peninsula's arguments are based almost entirely on its reading of the statutory language of 47 U.S.C. §§ 401 and 402.7

We reject Peninsula's interpretation of the interplay between Sections 401 and 402 of the Communications Act of 1934. Nothing in the language of Sections 401 or 402 suggests that concurrent suits such as the ones Peninsula was involved with here were not envisioned by the Act. Rather than creating a system of conflicting jurisdiction, the two provisions operate

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to permit parallel concurrent suits in the district court and the D.C. Circuit. We are persuaded in reaching this conclusion by the Sixth Circuit's view that "[u]nder the scheme envisioned by the Act, the district court's powers and the D.C. Circuit's powers are complementary rather than contradictory." United States v. Szoka, 260 F.3d 516, 525 (6th Cir.2001). We also note that FCC orders are effective on the date of their release unless noted otherwise. See id. at 530, citing 47 C.F.R. §§ 1.103(a), 1.4(b)(2). Filing an appeal under Section 402 does not excuse a broadcaster from complying with the FCC order absent a decision by the D.C. Circuit to stay the order. See 47 U.S.C. § 402(c) (giving D.C. Circuit power to enjoin enforcement of the FCC order if it finds such relief just and proper). It is consistent with the Act's scheme of complementary powers that a broadcaster choosing to disobey an FCC order, while the order is on appeal but has not been stayed, might simultaneously be subjected to an enforcement suit in a district court. Peninsula offers no convincing reason why we should conclude that the appeal of an FCC order to the D.C. Circuit under Section 402 divests a district court of jurisdiction to enforce the order under Section 401.

Peninsula's second subject matter jurisdiction argument is, like the first one, based on the interaction between Sections 401 and 402. Peninsula urges that even if the court below generally has subject matter jurisdiction over this enforcement action, it lacks subject matter jurisdiction to decide the specific issue of whether the order was "regularly made" under Section 401(b). Because the finding that an FCC order was "regularly made" is necessary to issuance of an injunction under Section 401(b), if Peninsula is correct, and the district...

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43 practice notes
  • Raich v. Ashcroft, No. 03-15481.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 16, 2003
    ...court's order regarding preliminary injunctive relief is subject to limited review. United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir.2002). The grant or denial of a preliminary injunction will be reversed only where the district court abused its discretion or base......
  • Demery v. Arpaio, No. 03-15698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2004
    ...a district court order granting a preliminary injunction is "subject to limited review." United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir.2002). We can reverse the district court only if it abused its discretion. Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir.2000)......
  • The Lands Council v. McNair, No. 07-35000.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 2, 2008
    ...its decision on an erroneous legal standard or on clearly erroneous findings of fact'" (quoting United States v. Peninsula Commc'ns, Inc., 287 F.3d 832, 839 (9th Cir.2002) (emphasis added))). Under this standard, "[a]s long as the district court got the law right, it will not be reversed si......
  • Savage v. Glendale Union High School, No. 02-15743.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2003
    ...of subject matter jurisdiction is a question of law which we also review de novo. United States v. Peninsula Communications, Inc., 287 F.3d 832, 836 (9th Cir.2002). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a). Although the denial of a motion to dismiss is ord......
  • Request a trial to view additional results
43 cases
  • Raich v. Ashcroft, No. 03-15481.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 16, 2003
    ...court's order regarding preliminary injunctive relief is subject to limited review. United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir.2002). The grant or denial of a preliminary injunction will be reversed only where the district court abused its discretion or base......
  • Demery v. Arpaio, No. 03-15698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2004
    ...a district court order granting a preliminary injunction is "subject to limited review." United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir.2002). We can reverse the district court only if it abused its discretion. Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir.2000)......
  • The Lands Council v. McNair, No. 07-35000.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 2, 2008
    ...its decision on an erroneous legal standard or on clearly erroneous findings of fact'" (quoting United States v. Peninsula Commc'ns, Inc., 287 F.3d 832, 839 (9th Cir.2002) (emphasis added))). Under this standard, "[a]s long as the district court got the law right, it will not be reversed si......
  • Savage v. Glendale Union High School, No. 02-15743.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2003
    ...of subject matter jurisdiction is a question of law which we also review de novo. United States v. Peninsula Communications, Inc., 287 F.3d 832, 836 (9th Cir.2002). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a). Although the denial of a motion to dismiss is ord......
  • Request a trial to view additional results

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