475 F. App'x 671
9th Cir.2012Background
- District court dismissed Minority's as-applied First Amendment challenges to §399b and to §73.621(e).
- Minority appeals, challenging both the statute §399b and the FCC regulation §73.621(e) implementing it.
- District court granted summary judgment to the government, holding §399b's ban on paid messages promoting for-profit services is not vague.
- Court of appeals has exclusive jurisdiction to review final FCC orders under 28 U.S.C. § 2342(1); district court lacked jurisdiction.
- Court held §399b is not unconstitutionally vague and that FCC rulings narrow ambiguity; affirmed dismissal and judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over FCC orders | Minority argues district court may hear as-applied challenges | Government relies on exclusive appellate jurisdiction for FCC orders | Affirmed: district court lacked jurisdiction over FCC orders; appellate court has exclusive jurisdiction |
| Vagueness of §399b | §399b's term 'promote' could be vague and overbroad | Statute is sufficiently definite; misuse addressed by regulations | Affirmed: §399b is not unconstitutionally vague |
| Regulatory narrowing of vagueness | Administrative guidance cannot save vagueness | Regulations like 47 C.F.R. §1.2 provide narrowing interpretations | Affirmed: FCC declaratory rulings narrow interpretations to avoid vagueness |
Key Cases Cited
- Greater New Orleans Broadcasting Ass'n, Inc. v. United States, 527 U.S. 173 (Supreme Court, 1999) (court did not address district court jurisdiction in that context)
- U.S. v. DuInfer, 219 F.3d 1004 (9th Cir. 2000) (district courts lack jurisdiction over FCC regulations)
- United States v. L.A. Trucker Truck Lines, Inc., 344 U.S. 33 (Supreme Court, 1952) (reaffirmed separation of jurisdiction in agency matters)
- Grayned v. City of Rockford, 408 U.S. 104 (Supreme Court, 1972) (vagueness focused on reasonable breadth rather than meticulous specificity)
- Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (Supreme Court, 1982) (administrative regulations can narrow potentially vague interpretations)