court2.txt

[Jim Choate <ravage@ssz.com>]

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.

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 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