Usa. v. Peninsula Commun.
| Decision Date | 22 April 2002 |
| Docket Number | 01-35965,9 |
| Parties | UNITED STATES OF AMERICA,, v. PENINSULA COMMUNICATIONS, INC.,UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT |
| Court | U.S. Court of Appeals — Ninth Circuit |
D.C. No. CV-01-207-JWS District of Alaska Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding
Counsel Kenneth P. Jacobus, Anchorage, Alaska, for the defendant-appellant. Richard L. Pomeroy, Assistant United States Attorney for the District of Alaska, Anchorage, Alaska, and Gregory M. Christopher, Assistant United States Attorney for the District of Columbia, for the plaintiff-appellee.
Before: Arthur L. Alarcon and Barry G. Silverman, Circuit Judges, and Rudi M. Brewster,(FN1) Senior District Judge.
OPINION
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.
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. (FN2) The Government 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. (FN3) 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).
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. (FN4)
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). 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. (FN5) Peninsula did not terminate 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), (FN6) 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. (FN7)
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 is 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.
[1] 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. (FN8)
[2] 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 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) (). 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 court lacked jurisdiction to decide that specific issue, then it was error to issue the injunction against Peninsula below.
[3] Peninsula contends that the language of Section 402(c) supports its position. That provision reads, in relevant part, that upon filing a notice of appeal with the D.C. Circuit, the D.C. Circuit "shall have jurisdiction of the proceedings and of the questions determined therein . . . ." 47 U.S.C. 402(c) (emphasis added). Peninsula argues that this statutory langauge should be interpreted to mean that once a question is raised before the D.C. Circuit, a district court acting under Section 401 loses jurisdiction to consider that question. The overlapping question here, according to Peninsula, is whether the FCC's order--that is, the May 2001 decision--is valid because it was issued without a hearing. (FN9) Peninsula claims that once it brought this issue before the D.C....
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