IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, No. C 94-03542 CW Plaintiff, ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY v. JUDGMENT WITHOUT PREJUDICE AND REQUESTING STEPHEN P. DUNIFER, FURTHER BRIEFING Defendant. By this action, the United States, on behalf of its agency, the Federal Communications Commission ("FCC"), seeks declaratory and injunctive relief against Defendant Stephen P. Dunifer for operating a radio station, "Free Radio Berkeley," without a license in violation of 47 U.S.C.S 301 of the Communications Act of 1934, as amended, 47 U.S.C. S 151 et seq. Several amici curiae have filed a brief supporting the FCC. Mr. Dunifer does not dispute that he is broadcasting without a license and that he has never applied for a license. Mr. Dunifer does not question the constitutionality ot the statute that requires broadcasters to obtain a license. Mr. Dunifer asserts, however, that relief should not be granted to the FCC because he cannot obtain a license to broadcast under the FCC'S regulations, which he claims are unconstitutional. The FCC regulations do not allow for the licensing of micro radio broadcasters, that is, radio broadcasters who, like Mr. Dunifer, use ten watts or less to power their signals.(1) Presently before the Court is the FCC'S motion for summary judgement which Mr. Dunifer and several amici curiae oppose. The matter was heard on April 12, 1996.Having considered all of the papers filed by the parties and oral argument on the motion, the Court DENIES the FCC's motion without prejudice and requests further briefing. LEGAL STANDARD Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; CelotexCorp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288- 89(9th Cir. 1987). The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by atfidavits or other evidentiary material.Celotex, 477 U.S. at 324; Eisenberg, --------------------------------------------------------------- Footnote (1) 47 C.F.R.S 73.512(c) states, in relevant part: Except in Alaska, no new Class D [micro radio station] 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.S 73.506(b) provides, in relevant part: Any noncommercial educational station except Class D may be assigned to any of the channels listed in S 73.501. Section 73.501 lists channels available for assignment. 813 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). DISCUSSION JURISDICTION The FCC challenges this court'sjurisdiction to entertain Mr. Dunifer's constitutional defenses to this action. The FCC invoked the jurisdictional grant of 47 U.S.C. S 401 (a) in filing the instant action. Section 401(a) provides that: The district courts of the United states shall have jurisdiction, upon application of the Attorney General at the request of the [Federal Communications] Commission, alleginq a failure to comply with or a violation of any of the provisions of this chapter by any person, to issue a writ or writs of mandamus commanding such person to comply with the provisions of this chapter. The court thus has jurisdiction to enjoin any violation by Mr. Dunifer of 47 U.S.C.S 3Ol, which, simply put, prohibits operating a radio station without a license. The FCC argues, however, that the jurisdictional grant of 47 U.S.C.S 401(a) is not broad enough to encompass Mr. Dunifer's constitutional defenses which challenge the regulations that make it impossible for a micro radio broadcaster to obtain a license. The FCC argues that any court challenge to the FCC's regulations regarding licensing must be brought either: (1) as an appeal to the United States Court of Appeals for the District of Columbia under 47 U.S.C.§ 402(b) (1) [2] of the FCC's denial of a request for a waiver of the regulation prohibiting low power stations to apply for a license; or (2) as an appeal to the court of appeals for any circuit of the FCC's denial of a petition for rule-making under 47 U.S.C. § 402(a) [3] and 28 U.S.C. § 2342[4]. In support or its position, the FCC principally relies on Sable Communications of Californiav. FCC, 827 F.2d 640 (9th Cir. 1987). In Sable Communications, the plaintiff provider of sexually suggestive telephone services sought declaratory and injunctive relief against the FCC claiming that a statute and the FCC regulation implementing that statute violated its First Amendment rights.Id. at 641. Relying on 28 U.S.C. § 2342, the Ninth circuit affirmed the district court's dismissal of the plaintiff's challenge to the regulation, finding that the court or appeals had exclusive jurisdiction over claims regarding the -------------------------------------------------------------------- Footnotes [2] section 402(b) (1) provides: Appeals may be taken from decisions and orders of the Commission to the United States Court of Appeals for the District of Columbia in any of the following cases: (1)By any applicant for a construction permit or station license, whose application is denied by the Commission. [3]Section 402 (a) provides: Any proceeding to enjoin, set aside. annul, or suspend any order of the commission under this chapter (except those appealable under subsection (b) of this section) shall be brought as providea by and in the manner prescribed in chapter l58 cf Title 28 [28 U.S.C. § 2342J] [4] section 2342(1) provides: The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of-- (1) all final orders of the Federal Communications Commission made reviewable by section 402 (a) of title 47. ------------------------------------------------------------------ constitutionality of regulations made reviewable by 47 U.S.C. S 402 (a). Id. at 642-43. The FCC also relies on Moser v. FCC, 46 F.3d 970, 973 (9th Cir.), cert. denied, 515 U.S. 1161 (1995). In Moser, the FCC questioned the district court's jurisdiction to hear the plaintiff's challenge to a statute on the ground that the plaintiff was actually challenging FCC regulations. Id. at 973. The Ninth Circuit determined that the district court had jurisdiction over the case because the plaintiff's challenge did not reach the regulations. Id. The Ninth circuit noted in dicta that a challenge to the regulations would have been outside the jurisdiction of the district court. Id. Both of these cases were brought by plaintiffs who arguably sought to challenge FCC regulations in a district court. Neither involved a situation like that here, in which a defendant seeks to defend himself against a claim brought against him by the FCC in a district court. [5] Mr. Dunifer argues that while 47 U.S.C. S 402 (a) establishes the general rule that FCC actions are to be reviewed in the court of appeals, 47 U.S.C. 5 401(a) trumps this statute by specifically providing that the district courts have jurisdiction over writ proceedings filed by the FCC. He argues that this section grants jurisdiction to the district court to consider any defenses to such proceedings as well. For support, Mr. Dunifer cites Dougan v. FCC, 21 F.3d 1488 (9th cir. 1994). ---------------------------------------------------------------- Footnote [5] Wilson v. A.H. Belo Corp., 87 F.3d 393 (9th Cir. 1996), a recent Ninth Circuit case cited by the FCC, likewise did not involve a defendant's attempt to defend itself in district court by challenging an FCC action. ------------------------------------------------------------------- In Dougan, the petitioner, an unlicensed operator of a micro radio station, sought review in the Ninth circuit of an FCC notice of forfeiture under 47 U.S.C. § 504 (a) [6]. Id. at 1489. The FCC had issued the notice of forfeiture after it found that Mr. Dougan had violated 47 U.S.C. S 301 by operating a radio station without a license and had violated 47 C.F.R. S l5.29 by refusing to permit an FCC representative to inspect his station. [7] Id. Mr. Dougan disputed that he had violated 47 C.F.R. S 15.29 and challenged "the jurisdiction of the FCC over his intrastate broadcasts and the constitutionality of the licensing regulations." Id. at 1489- 90. Mr. Dougan's complaint apparently challenged the constitutionality of the same FCC regulation, prohibiting the issuance of a license to micro radio broadcasters, that is challenged here by Mr. Dunifer. Id. at 1489. Because a notice of forfeiture is a final order of the FCC, under 47 U.S.C. S 402 (a) and 28 U.S.C. 5 2342 such a proceeding would properly he brought in a court of appeals. At the FCC's urging, however, the court dismissed Mr. Dougan's case in favor of district court jurisdiction. Id. at 1489, 1491. The court of appeals did not retain its jurisdiction over the constitutional defenses that it ------------------------------------------------------------------ Footnotes [6]Section 504 (a) provides in pertinent part: The forfeitures provided for in this chapter shall be payable into the Treasury of the United States, and shall be recoverable, . . ., in a civil suit in the name of the United States brouqht in the district where the person or carrier has its principal operating office.... Provided, that any suit for the recovery of a forfeiture imposed pursuant to the provisions of the chapter shall be a trial de novo. [7] Section 15.29 provides, in relevant part, that any equipment or device subject to FCC regulations must be made available for inspection by a Commission representative upon reasonable request. ----------------------------------------------------------------- specifically noted Mr. Dougan had raised. Id. Following the decision of the District of Columbia Circuit in Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C. Cir. 1977), the Ninth Circuit reasoned that "Congress did not intend to give petitioners two bites at the apple by allowing them to challenge the forfeiture in the appellate court, and if they lost, to sit back and await an enforcement action, at which time they would be entitled to a trial de novo in the district court."Dougan, 21 F.3d at 1491. The court concluded that 47 U.S.C. S 504 (a) is a special review statute which vests jurisdiction over forfeiture actions in the district courts. Id. The court held that this special review statute cuts off the simultaneous jurisdiction created in the court of appeals by 47 U.S.C. S 402 (a), the general review provision. Id. The FCC argued, and the court found, that this jurisdictional grant encompasses both actions filed by the government to enforce a forfeiture and those filed by individuals seeking to avoid enforcement. The instant case was brought under 47 U.S.C. S 401 (a) rather than 47 U.S.C. S 504 (a). Unlike The situation in Dougan, in this case Mr. Dunifer has not filed a complaint to avoid enforcement of the FCC's forfeiture order, nor hasthe FCC filed an action to enforce its forfeiture order.[8]Thus, There is no final order of the FCC before this court that is also reviewable by the appellate ---------------------------------------------------------------- Footnote: [8] In 1995, the FCC assessed a forfeiture against Mr. Dunifer in the amount of $10,000. See In the Matter of Stephen Paul Dunifer, FCC 95-333, August 2, 1995. Mr. Dunifer requests, in a footnote in his opposition, that the Court stay these proceeding for two weeks to permit him to file a complaint for declaratory relief seeking review of the FCC's forfeiture order. The Court will not stay these proceedings. Mr. Dunifer may file the complaint to which he refers at any time, if he wishes to do so. ------------------------------------------------------------------ court under 47 U.S.C. S 402 (a). This means that only the district court has jurisdiction over this action; this is not a situation where two courts have simultaneous jurisdiction. Therefore, the Ninth Circuit's concern in Dougan about Mr. Dougan having two bites of the apple is not applicable. However, like 47 U.S.C. S 504(a), 47 U.S.C. S 401(a) provides that the FCC may initiate a specific type of enforcement action in the district court. The Ninth Circuit in Dougan determined that 47 U.S.C.S 504 (a) required Mr. Dougan to bring his lawsuit, including his constitutional challenges to the FCC regulation, in the district court. By analogy, it would appear that 47 U.S.C. S 401 (a) provides the district court with jurisdiction to hear not only the FCC's charge of broadcasting without a license, but also any valid defense to the charge. If the unconstitutionality of the FCC regulatory scheme that does not permit Mr. Dunifer to obtain a license would be a valid defense to a charge of broadcasting without a license, then that defense would be encompassed within the grant of jurisdictionto the district court provided in 47 U.S.C. S 401(a). The FCC has submitted a recent case decided in the District of Minnesota which, under facts similar to those in the case at bar, held that district courts do not have jurisdiction over constitutional challenges to FCC regulations raised as defenses in an FCC action to enforce a forfeiture order. United States v. Any and All Radio Station Transmission Equipment, et al., _ F. Supp. _, 1997 WL 591127 (D. Minn.) ("Transmission Equipment"). In Transmission Eqipment, the FCC filed suit in district court to enforce a forfeiture order against a micro radio station on the ground that it was broadcasting without a license. Id. at *1. The defendant admitted to broadcasting without a license but raised affirmative defenses challenging the constitutionality of the FCC regulatory scheme that did not allow the licensing of micro radio stations. Id. at *2. The court distinguished Pleasant Broadcasting on the grounds that the petitioners there disputed that they had violated a statute or regulation; the relevant language required "repeated" violations and both petitioners admitted to one, but not to repeated violations. Id. at *3. The court concluded that Pleasant Broadcasting did not apply to the facts before it because the defendant in Transmission Equipment did not dispute that he violated the statute prohibiting broadcasting without a license, but instead raised constitutional challenges to the FCC's regulatory scheme as affirmative defenses. Id. The court could not distinguish Dougan on the same ground because Mr. Dougan admitted that he had broadcast without a license, as did the defendant in Transmission Equipment. Id.at *4. Instead, the court interpreted Dougan as involving only a dispute over whether Mr. Dougan had violated 47 C.F.R. S 15.29 by refusing to permit FCC engineers to inspect his radio station. Id. The court distinguished Dougan on the ground that Mr. Dougan challenged the FCC's forfeiture order and did not challenge the FCC's prohibition against low power broadcasting. Id. However, as discussed above, in Dougan, the Ninth Circuit specifically noted that Mr. Dougan had raised constitutional defenses to the FCC's licensing regulations in addition to a defense based on 47 C.F.R. S 15.29. Dougan, 21 F.3d at 1489. Moreover, in ruling that the district court had exclusive jurisdiction to hear Mr. Dougan's action to avoid enforcement, the Ninth Circuit neither explicitly stated nor implied that the district court could only hear Mr. Dougan's defense based on 47 C.F.R.§ 15~29, and not his constitutional defenses. The court did not retain jurisdiction over Mr. Dougan's constitutional challenge to the regulation. A case cited by neitner party, United States v. Evergreen Media Corp of Chicago, involved an action brought by the government in district court to enforce a forfeiture order issued by the FCC. 832 F. Supp. 1183 (N.D. Ill. 1933). The forfeiture order was issued as a result of the FCC's determination that Evergreen Media, a radio station, had violated 18 U.S.C. § 1464, a criminal statute imposing a fine or imprisonment as punishment for uttering obscene, indecent, or profane language by means of radio communication. Id. at 1184. The defendant filed a counterclaim challenging the constitutionality of IS U.S.C. § 1464. Id. The counterclaim alleged that 18 U.S.C. § 1464 was facially unconstitutional both for vagueness and for overbreadth, and that 18 U.S.C. § 1464 was unconstitutional as applied, on the ground that the FCC's interpretation of the statute was not the least restrictive means of accomplishing the goals of the statute.Id. The defendant also alleged that the FCC's enforcement of the statute constituted a violation of substantive due process and of the Equal Protection Clause. Id. The FCC argued that the court lacked jurisdiction to hear any claims raised by the defendant which attacked the FCC's policies, practices or regulations. Id. at 1186. The court found that it had jurisdiction to hear the defendant's constitutional challenges to the FCC'S regulations interpreting 18 U.S.C. S 1464. Id. at 1184-86. Citing Pleasant Broadcasting, the court found that 47 U.S.C!. § 504(a), which gives district courts jurisdiction to hear forfeiture actions, provides an exception to the general rule that challenges to regulations must be heard in a court of appeal. Id. Evergreen Media provides additional support for the conclusion that this Court has jurisdiction to hear Mr. Dunifer's constitutional claims. Although the FCC and Mr. Dunifer address the issue of whether this Court has jurisdiction to hear Mr. Dunifer'sconstitutional challenges to tho FCC'S regulations, neither party has adequately briefed whether the alleged unconstitutionality of the licensing regulations is a valid defense to a request for an injunction against broadcasting without a license. That is, assuming arguendothat the regulations were unconstitutional, would this justify Mr. Dunifer's action of broadcasting without having, or even attempting to obtain, a license and prevent the FCCfrom obtaining an injuction? Dougan does not address this question. Mr. Dunifer asumes that the alleged unconstitutionality of the regulations would be a valid defense. While it criticizes Mr. Dunifer for failing to seak a license, the FCC largely confines its argument to its view that the Court is without jurisdiction to hear the unconstitutionality defense at all. If the unconstitutionality of the regulations would be a defense under these circumstances, this Court would be reguired to determine whether the regulations are in fact unconstitutional. Otherwise, the Court need not consider the constitutional issue. In support of hts argument, Mr. Dunifer analogizes his situation to that of a criminal defendant seeking to defend himself on the ground that the regulation under which he was being prosecuted was unconstitutional. The FCC responds that in United states v.Alloy, 755 F. Supp. 771, 775 (N.D. Ill. 1990), the court precluded the defendant from raising constitutional challenges to a regulation he was accused of violating. In Alley, however, the defendant did not argue that the regulation was unconstitutional. Rather the defendant argued that the regulation was unlawful because the administrative agency, in promulgating the regulation, had acted outside the scope of authority granted to it by Congress. Id.The court, moreover, noted that the statutory scheme specifically forbade judicial review in any civil or criminal proceeding for enforcement of the regulation under which the defendant was charged. Id. The FCC has not pointed to any provision of the Communications Act which specifically prohibits judicial review cf a licensing regulation in an enforcement proceeding. Furthermore, even if Alley were applicable here, a single district court case from another circuit is slim authority on which to base this decision. Therefore, the Court requests that the parties provide further briefing on the issue of whether the unconstitutionality of the FCC regulatory scheme would be a valid defense in an action brought by the FCC to enjoin broadcasting without a license. The FCC shall file with the Court and serve on Mr. Dunifer its brief on this issue 14 days from the date of this order. Mr. Dunifer's opposition is due 7 days thereafter. If the FCC wishes to file a reply, it may due so 7 days after the opposition is served. CONCLUSION For the foregoing reasons, the FCC's motion for summary judgment is DENIED WITHOUT PREJUDICE. The parties are ordered to comply with the briefing schedule indicated above. IT IS SO ORDERED. Dated November 12, 1997 Claudia Wilken UNITED STATES DISTRICT JUDGE