UNITED STATES of America, Plaintiff–Appellee, v. ANY AND ALL RADIO STATION TRANSMISSION EQUIPMENT; Radio Frequency Power Amplifiers, Radio Frequency Test Equipment, and any other equipment associated with or used in connection with the transmission at 97.7 MHZ, located at 1400 Laurel Avenue, Apartment 1109, Minneapolis, MN 55403; Defendants. Alan Fried, Claimant–Appellant, National Association of Broadcasters, Amicus on Behalf of Appellee.
No. 97-3972.
United States Court of Appeals, Eighth Circuit.
Decided Feb. 26, 1999.
169 F.3d 548
Before McMILLIAN, NOONAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Joan D. Humes, Assistant United States Attorney, Minneapolis, MN, argued (David L. Lillehaug, on the brief), for Appellee.
McMILLIAN, Circuit Judge.
Alan Fried appeals from a final order entered in the United States District Court2 for the District of Minnesota granting judgment on the pleadings in favor of the United States of America, pursuant to
The government asserted that the district court had jurisdiction over the in rem forfeiture action pursuant to
BACKGROUND FACTS
Most of the facts are not disputed, and the following statement of facts is taken in large part from the district court‘s memorandum opinion and order.
This in rem forfeiture action involves the seizure of certain radio equipment owned and used by Fried to operate BEAT, an unlicensed radio station, out of his apartment in downtown Minneapolis. BEAT broadcast at a level of about 20 watts, at a frequency of 97.7 MHZ, in an area with a radius of about 6 miles from Fried‘s apartment. According to Fried, BEAT‘s broadcast signal did not interfere with any other radio stations.
Fried is a “microbroadcaster.” Microbroadcasters operate low-wattage radio stations without licensing approval from the FCC. Microbroadcasters generally use 1 to 95 watts of power to broadcast their FM radio signals. (Extremely low-wattage broadcasts do not need to be licensed by the FCC. See
This litigation began in July 1996, when the FCC received a complaint from an FM radio station in Rochester, MN, about an unlicensed station broadcasting on 97.7 MHZ. FCC agents investigated and confirmed unauthorized radio transmissions from Fried‘s apartment. In August 1996 the FCC mailed a warning letter to Fried, informing him that broadcasting unauthorized radio transmissions was unlawful in violation of
Fried responded to the warning letter by challenging the constitutionality of the microbroadcasting regulations and requested a waiver of the FCC licensing requirement, but he did not cease operation of BEAT. (The government disputed whether or not Fried requested a waiver, but the district court assumed he had done so. 976 F.Supp. at 1256 n. 1.)
PROCEEDINGS IN DISTRICT COURT
The government then brought this in rem forfeiture action in federal district court. The in rem forfeiture complaint asserted the district court had jurisdiction under
The government filed a motion for judgment on the pleadings in its favor pursuant to
The district court noted, however, that Fried‘s affirmative defenses raised constitutional and other challenges to the microbroadcasting regulations. The government argued that it was entitled to judgment on the pleadings because, pursuant to
Fried argued that the district court, not the court of appeals, had exclusive jurisdiction over the forfeiture action, including the merits of his constitutional challenges to the microbroadcasting regulations. Fried argued that
The forfeitures provided for in this chapter shall be payable into the Treasury of the United States, and shall be recovera
ble, ... in a civil suit in the name of the United States brought 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 this chapter shall be a trial de novo ....
Although federal district courts have exclusive jurisdiction to hear forfeiture suits brought by the government and suits by individuals seeking to avoid enforcement of forfeiture, the court of appeals has exclusive jurisdiction to determine the validity of all final orders of the FCC. The present case involved both an effort to avoid enforcement of the forfeiture (and thus a matter for the district court) and a constitutional challenge to the microbroadcasting regulations (and thus a matter for the court of appeals). The district court decided that Fried was really challenging the constitutionality of the microbroadcasting regulations, rather than the forfeiture order itself, and thus the case was properly one within the exclusive jurisdiction of the court of appeals pursuant to
STANDARD OF REVIEW
We review a motion for judgment on the pleadings de novo. We accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party. Judgment on the pleadings is not properly granted unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.
EXCLUSIVE JURISDICTION IN DISTRICT COURT
The threshold issue is which court has exclusive jurisdiction—the district court (as Fried argues) or the court of appeals (as the government argues). The parties raise essentially the same arguments on appeal as they did in the district court. For reversal, Fried argues that the district court erred in holding that the court of appeals has exclusive jurisdiction over the in rem forfeiture action and his constitutional defenses. Fried argues that the district court has exclusive jurisdiction because the forfeiture provision,
The government argues that the courts of appeals have exclusive jurisdiction to review all final orders of the FCC, including orders deciding applications for broadcast licenses and requests for waivers. See
This is a difficult issue, and the cases are not easy to reconcile. Nonetheless, we think Fried‘s argument is persuasive. In particular, we are persuaded by the statutory analysis in Dougan v. FCC, 21 F.3d 1488. In that case, the FCC had issued a final forfeiture order against Dougan for operating a radio station without a license and for refusing to permit FCC engineers to inspect the station. Dougan filed a petition for review in the court of appeals, citing
The Dougan court relied on the analysis in an earlier case, Pleasant Broadcasting, which involved consolidated petitions by two broadcast licensees who had requested that forfeiture orders entered against them by the FCC be set aside. In the first petition, the FCC had imposed a $500 forfeiture on Pleasant Broadcasting for “repeatedly” violating the over-power regulation. The sole contention was the FCC‘s interpretation of the word “repeatedly” was erroneous as a matter of law. The second petition involved the FCC finding that WIYN Radio was in “repeated” violation of the Personal Attack Rule,
The D.C. Circuit held that
it is unlikely that Congress intended for persons in the position of the licensees to have two bites at the apple, that is, to be able to challenge the forfeiture order in a court of appeals on the basis of the administrative record and, if unsuccessful, to litigate all issues de novo in the district court, with a right of appeal to the court of appeals.... [W]e would be reluctant to give litigants a choice of forums for review, without some support in the language or history of the forfeiture statute, or some showing that the special procedure enacted by Congress is unavailable or inadequate.
564 F.2d at 501 (noting that review of legislative history indicated that Congress was operating under assumption that any review would occur through trial de novo in the district court).
Another decision involving an unlicensed microbroadcaster also supports the position that the district courts have exclusive jurisdiction over forfeiture actions, including any constitutional affirmative defenses raised by the person seeking to avoid enforcement. In United States v. Dunifer, 997 F.Supp. 1235 (N.D.Cal.1998), the government brought an action for injunctive and declaratory relief in federal district court against Stephen Paul Dunifer, the owner and operator of an unlicensed microbroadcasting radio station, Radio Free Berkeley. The government sought a ruling that Dunifer was violating
After the FCC issued its forfeiture order holding the microbroadcasting regulations did not violate the First Amendment (or the FCC‘s statutory mandate to regulate in the public interest), the government filed a motion for summary judgment in the declaratory judgment action, arguing that the district court lacked jurisdiction because exclusive jurisdiction over any challenge to FCC regulations is vested in the court of appeals. The district court rejected that argument, ruling that
We find the analysis in these cases to be persuasive and hold that the district court has exclusive jurisdiction over the in rem forfeiture action, including Fried‘s constitutional affirmative defenses.
ISSUES ON REMAND
For purposes of this appeal, we have assumed, as did the district court, that Fried filed a request for a waiver of the microbroadcasting rules in which he raised his arguments challenging their constitutionality. The FCC does have jurisdiction to determine the constitutionality of its regulations. See id. at 1240, citing Meredith Corp. v. FCC, 809 F.2d 863, 872, 874 (D.C.Cir.1987) (holding that FCC was required to respond to plaintiff‘s constitutional arguments and remanding case to FCC to consider constitutionality of FCC fairness doctrine on its face and as applied), and WAIT Radio v. FCC, 418 F.2d 1153, 1156 (D.C.Cir.1969) (remanding FCC‘s denial of applicant‘s waiver request to FCC to reconsider First Amendment issue raised therein). See also United States v. Evergreen Media Corp., 832 F.Supp. 1183, 1185–86 (N.D.Ill.1993) (district court held it had jurisdiction to hear defendant‘s counterclaims challenging facial constitutionality of FCC regulation barring obscene, indecent or profane language). However, the record does not indicate that the FCC has acted upon Fried‘s request for waiver.
Having determined that the district court has exclusive jurisdiction to adjudicate the in rem forfeiture action, we reverse the judgment of the district court and remand the case to the district court with directions to consider whether to invoke the doctrine of primary jurisdiction, because the issue of the constitutionality of the microbroadcasting regulations has yet to be addressed by the FCC, at least in the context of the present litigation. (As noted above, the FCC in the Dunifer forfeiture proceeding held the microbroadcasting regulations did not violate the First Amendment.) See Bent Oak, 19 F.Supp.2d at 744–48 (applying doctrine of primary jurisdiction and dismissing case without prejudice because no administrative proceeding currently pending); United States v. Dunifer, 997 F.Supp. at 1238 (noting earlier stay of litigation under doctrine of primary jurisdiction in light of then-pending FCC forfeiture proceeding); cf. Rosenthal & Co. v. Bagley, 581 F.2d 1258, 1260 (7th Cir.1978) (holding exhaustion of administrative remedies doctrine retains its validity even when the collateral judicial action challenges the constitutionality of the basic statute under which agency functions); see also Turro v. FCC, 859 F.2d 1498 (D.C.Cir.1988) (court of appeals review of FCC order denying request for waiver of FCC rules); WAIT Radio v. FCC, 418 F.2d 1153 (same; remanding matter to FCC for statement of reasons for denial of waiver).
We hold that the district court has exclusive jurisdiction to adjudicate the in rem forfeiture action, including Fried‘s constitutional affirmative defenses. Accordingly, we reverse the judgment of the district court and remand the case to the district court for further proceedings. On remand, the district court should consider the issue of primary jurisdiction.
MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring in the result.
I would reverse the order of the district court, but for reasons different from those elaborated in Judge McMillian‘s opinion. I do not believe that the defendant in this case is seeking to “enjoin, set aside, annul, or suspend any order of the Commission,” see
Congress knows how to give exclusive jurisdiction to determine the validity of a regulation when it wants to. Indeed,
FCC v. ITT World Communications, Inc., 466 U.S. 463, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984), on which Judge Noonan relies, is not to the contrary, for that was a suit to enjoin a denial of a rulemaking petition. No such petition is at issue here, and the fact that Mr. Fried could file one and have his defenses adjudicated is of no moment. What we have is the case before us, and in it I see no statutory or other impediment to the consideration of Mr. Fried‘s defenses.
I therefore join in the order reversing and remanding the case to the district court for further proceedings.
NOONAN, Circuit Judge, dissenting.
This case is an important one for the statutory scheme created by Congress for the regulation of broadcasting. No binding authority is a precise precedent, with the result that the court has a certain leeway in its interpretation of the jurisdictional provisions of the Federal Communications Act. However, by close analogy with decided cases, by out-of-circuit precedent, and by the terms of the statutory scheme, the district court is without jurisdiction to entertain a challenge to FCC regulations.
The FCC has brought a forfeiture action against a broadcaster without a license. The broadcaster‘s only defense is the “the FCC prohibition against low power broadcasting” is contrary to the Constitution of the United States, the statutory mandate of
The statute provides: “Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission ... shall be brought as provided by and in the manner prescribed in chapter 158 of Title 28.”
The Supreme Court has authoritatively determined that the exclusive jurisdiction of the Court of Appeals over rulemaking by the FCC may not be evaded by seeking to enjoin a final order of the FCC in the district court. FCC v. ITT World Communications, Inc., 466 U.S. 463, 468, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984). A defensive attack on the FCC regulations is as much an evasion of the exclusive jurisdiction of the Court of Appeals as is a preemptive strike by seeking an injunction. Whichever way it is done, to ask the district court to decide whether the regulations are valid violates the statutory requirements. As this court said in applying ITT: “Where exclusive jurisdiction is mandated by statute, a party cannot bypass the procedure by characterizing its position as a defense to an enforcement action.” Southwestern Bell Telephone v. Ark. Pub. Serv., 738 F.2d 901, 906 (8th Cir.1984), vacated and remanded on other grounds, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 973 (1986). “The exclusive jurisdiction of the courts of appeals cannot be evaded simply by labeling the pro
The two cases relied on by the majority are not to the contrary. These cases, won by the FCC, merely hold that the district court is the exclusive forum for a forfeiture. The cases say nothing as to where the regulations of the FCC may be challenged. See Dougan v. FCC, 21 F.3d 1488 (9th Cir.1994); Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C.Cir.1977). As the court notes, its interpretation of the Ninth Circuit case of Dougan is directly contrary to Moser v. FCC, 46 F.3d 970, 973 (9th Cir.), cert. denied, 515 U.S. 1161, 115 S.Ct. 2615, 132 L.Ed.2d 857 (1995).
The statutory scheme makes sense (1) to ensure review based on an administrative record made before the agency charged with implementation of the statute; (2) to ensure uniformity of decisionmaking because of uniform factfinding made by the agency; (3) to bring to bear the agency‘s expertise in engineering and other technical questions. If Fried had no way of obtaining judicial review of the regulations his case might be different. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212–13, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). But he could have obtained review by applying for a license and asking for a waiver of the regulations; rejection of his request would be permitted appeal to the circuit. Rather than follow the procedures established by law, he has attempted an end run.
I would affirm the district court.