Ruggiero v. Federal Communications Commission

317 F.3d 239, 354 U.S. App. D.C. 337, 2003 WL 203131

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 31, 2003
• Docket: 00-1100
• Status: Published

Opinions

Opinion for the Court by Chief Judge GINSBURG, with whom Circuit Judges HARRY T. EDWARDS, SENTELLE, KAREN LeCRAFT HENDERSON, RANDOLPH, ROGERS, and GARLAND join.

Concurring opinion filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge TATEL.

GINSBURG, Chief Judge:

This petition for review challenges the constitutionality of the character qualification provision of the Radio Broadcasting Preservation Act of 2000, which makes ineligible for a low-power FM (LPFM) radio license anyone who engaged in “the unlicensed operation of any station in violation of ... the Communications Act of 1934.” Pub.L. No. 106-553, 114 Stat. 2762, § 632(a)(1)(B). The petitioner raises a facial challenge to the statute and to the regulations that implement it, asserting that they are overinclusive or, alternatively, underinclusive, in violation of the First Amendment to the Constitution of the United States. A divided panel granted the petition. The full court then vacated the judgment issued by the panel and reheard the case en banc. We now uphold the constitutionality of the character qualification and deny the petition for review.

I. Background

Since 1927 the Congress has prohibited any person from operating a radio station without a license issued by the Federal Communications Commission (or its predecessor, the Federal Radio Commission). See 47 U.S.C. § 301. The Commission is to grant a broadcast license only if the “public interest, convenience, and necessity would be served,” 47 U.S.C. § 309(a), and only if the applicant “set[s] forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station.” 47 U.S.C. § 308(b).

In 1948, the Commission first licensed noncommercial LPFM stations operating at a maximum of ten watts. Some 30 years later, when the Commission determined that highpower FM stations could use the channels more efficiently by “serv[ing] larger areas, and bringing] effective noncommercial educational radio service to many who ... lack[ed] it,” Changes in the Rules Relating to Noncommercial Educ. FM Broad. Stations, 69 F.C.C.2d 240, ¶ 24, 1978 WL 35965 (1978), modified, 70 F.C.C.2d 972, 1979 WL 44256 (1979) (codified at scattered sections of 47 C.F.R.), the Commission stopped licensing LPFM stations and required most existing LPFM stations to move to commercial frequencies or to upgrade to at least 100 watts. Id. at ¶ ¶ 11-32.

Thereafter, numerous individuals and entities began operating LPFM stations without a broadcast license. In many cases these so-called “pirate” broadcasters operated their stations in open defiance of the Commission’s ban on LPFM broadcasts. In response, the Commission dedicated considerable resources to enforcing the license requirement. Notwithstanding, however, the array of powers the Commission had to combat unlicensed broadcasting, including the authority to seek an injunction, 47 U.S.C. § 401(b), to issue a cease-and-desist order, 47 U.S.C. § 312(b), to seize equipment used in unlicensed broadcasting, 47 U.S.C. § 510(a), and to impose a monetary forfeiture, 47 U.S.C. § 503(b), the problem persisted and indeed grew worse in the 1990s. In 1998, 1999, and the first two months of 2000 the Commission shut down, on average, more than a dozen unlicensed radio stations each month. FCC’s Low Power FM: A Review of the FCC’s Spectrum Management Responsibilities: Hearing on H.R. 34-39 Before the Subcomm. on Telecomm., Trade, and Consumer Protection of the House Comm, on Commerce, 106th Cong. 85 (2000). In that same period unlicensed radio operations using uncertified equipment disrupted air traffic control communications at Sacramento and interfered with such communications at the Miami and West Palm Beach airports. Creation of a Low Power Radio Serv., 14 F.C.C.R. 2471, ¶ 65, 1999 WL 46878 (1999) (Notice of Proposed Rule Making) (hereinafter Low Power Proposal). Therefore, it was clear to the Commission that action needed to be taken to stop unlicensed broadcasting.

In 1999 the Commission proposed to modify its low-power radio rules and sought public comment upon whether it should “create two classes of low power radio service, both of which would operate in the existing FM radio band: a 1000-watt primary service and a 100-watt secondary service.” Id. at ¶ 1. The Commission also sought comment upon whether it should establish “a third, ‘microradio’ class of low power radio service that would operate in the range of 1 to 10 watts.” Id. at ¶1.

After receiving many comments concerning the Low Power Proposal, the Commission issued an order creating new 100-watt and 10-watt classes of LPFM stations. Creation of Low Power Radio Serv., 15 F.C.C.R. 2205, ¶ 11, 2000 WL 85304 (2000) (Report and Order). The Commission also stated that it would accept a low-power application from an applicant who had broadcast without a license in the past if the applicant certified under penalty of perjury that it had ceased such operations within 24 hours of being directed to do so by the Commission and no later than the deadline (February 26,1999) set out in the Low Power Proposal. Id. at ¶ ¶ 53-54. This licensing condition for broadcast pirates was applicable both to individuals and to corporate applicants, including the applicant’s officers and directors. Id. at ¶ 54.

The Commission’s proposal conditionally to license former pirates was received with dismay in the Congress. Senator Gregg, who introduced a bill to repeal the LPFM rules in toto, argued against the Commission’s character qualification in particular: “mak[ing] formerly unlicensed, pirate radio operators eligible for LPFM licenses,” he said, would “reinforce[ ] their unlawful behavior and encourage[ ] future illegal activity by opening the door to new unauthorized broadcasters.” 146 Cong. Rec. S613-02 (daily ed. Feb. 10, 2000). Congressman Oxley made the same argument at a House committee hearing on a similar bill. See House Hearing, 106th Cong, at 4. See also H.R.Rep. No. 106-567, 106th Cong., at 8 (2000) (House Committee on Commerce concluded “that the operation of an unlicensed station demonstrates a lack of commitment to follow the basic rules and regulations which are essential to having a broadcast service that serves the public, and those individuals or groups should not be permitted to receive licenses in the LPFM service”).

The Congress ultimately responded to the Commission’s decision by enacting the Radio Broadcast Preservation Act of 2000 (RBPA), Pub.L. No. 106-553, 114 Stat. 2762, § 632, which among other things directed the Commission to modify its rules to “prohibit any applicant from obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934.” Id. § 632(a)(1)(B). In contrast to the Commission, that is, the Congress barred all low-power pirates from obtaining an LPFM license regardless whether or when they had ceased to operate unlawfully.

As directed, the Commission modified its rules to implement the more stringent character qualification required by the Congress. Creation of Low Power Radio Serv., 16 F.C.C.R. 8026, ¶10, 2001 WL 310997 (2001) (Second Report and Order). The resulting regulation provides that “[n]o application for an LPFM station may be granted unless the applicant certifies, under penalty of perjury, that neither the applicant, nor any party to the application, has engaged in any manner including individually or with persons, groups, organizations or other entities, in the unlicensed operation of any station in violation of Section 301 of the Communications Act of 1934.” 47 C.F.R. § 73.854.

Ruggiero, an admitted former pirate, sought review in this court of the Second Report and Order, arguing that the character qualification on its face violates the First Amendment. A divided panel of this court held the RBPA and the implementing regulation unconstitutional. Ruggiero v. FCC, 278 F.3d 1323 (D.C.Cir.2002). We granted the Commission’s petition for rehearing en banc and vacated the prior judgment. Having now reheard the case en banc, we adopt the decision of the panel concerning the jurisdiction of the court, id. at 1327-29, but on the merits hold that the character qualification provision is neither overinclusive nor underinclusive in violation of the First Amendment.

II. Analysis

Before we turn to the merits of the constitutional question, we must identify the level of first amendment scrutiny appropriate to the nature of the statute being challenged.

A. Standard of Review

Ruggiero asserts that under FCC v. League of Women Voters, 468 U.S. 364, 399, 104 S.Ct. 3106, 3127, 82 L.Ed.2d 278 (1984), we are to apply “intermediate scrutiny” to all broadcast regulations other than those that are purely “structural,” that is, those involving the “where” and “when” of broadcasting. Under the rubric of intermediate scrutiny we would have to determine whether the LPFM character qualification is “narrowly tailored to further a substantial governmental interest.” Id. at 380, 104 S.Ct. at 3118. Alternatively, Ruggiero asserts the court should apply the “heightened rational basis scrutiny” to which we alluded, but had no occasion to apply, in News America Publishing Inc. v. FCC, 844 F.2d 800, 814 (D.C.Cir.1988). For its part, the Commission argues we should apply the “rational basis standard” associated with minimal scrutiny and hence need only determine whether the character qualification is “a reasonable means of promoting the public interest.” FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 802, 98 S.Ct. 2096, 2115, 56 L.Ed.2d 697 (1978) (NCCB).

We conclude, as did the panel that first heard this case, that the appropriate standard of review occupies a ground somewhere between the minimal scrutiny advocated by the Commission and the intermediate scrutiny proposed by Ruggie-ro. First, we reject Ruggiero’s principal argument, namely, that the character qualification is content-based and therefore, pursuant to League of Women Voters, subject to intermediate scrutiny. At issue in that case was a statute prohibiting noncommercial educational stations from editorializing, 47 U.S.C. § 399, a ban “defined solely on the basis of the content of the suppressed speech.” 468 U.S. at 383, 104 S.Ct. at 3119. Because the object of the anti-editorial statute was content, the Supreme Court gave it intermediate scrutiny, asking whether the restriction was narrowly tailored to advance a substantial government interest. The ban on editorials failed that test twice over: it was both overinclusive and un-derinclusive. The ban was overinclusive in that it prohibited speech “on topics that [did] not take a directly partisan stand or that ha[d] nothing whatever to do with ... government,” id. at 395, 104 S.Ct. at 3125, and thus did not implicate the Government’s stated interests in (a) protecting broadcasters from government interference and (b) preventing the public from assuming the editorials represented the view of the Government. The statute was underinclusive in that broadcasters could still present controversial or partisan views in news and other programming. Id. at 396, 104 S.Ct. at 3125-26. See also Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (applying intermediate scrutiny to ban on broadcast advertising of private casino gambling as restriction on content of commercial speech).

. In contrast, as the Commission correctly points out, the character qualification at issue in this case applies without regard to any content the applicant may have broadcast unlawfully or might be expected to broadcast if a license were issued to him. The character qualification is triggered solely by the applicant’s conduct, specifically, having “engaged ... in the unlicensed operation of any station in violation of section 301 of the Communications Act.” Pub.L. No.106-553, 114 Stat. 2762, § 632(a)(1)(B). Contrary to Ruggiero’s brief, the character qualification is not directed at the alleged “viewpoint espoused by many pirates” that “civil disobedience in the form of unlicensed broadcasting [was] ... necessary to prod the FCC to rescind its longstanding ban on low power FM radio broadcasting.” Rather, the statute on its face is based solely upon the applicant’s prior lack of compliance with the licensing requirement; the character qualification applies equally to all unlicensed broadcasters regardless of the motivation for, or the message disseminated by, their illegal broadcasting. See Employment Div. v. Smith, 494 U.S. 872, 878, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876 (1990) (“[I]f prohibiting the exercise of religion ... is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended”). See also Kahn v. United States, 753 F.2d 1208, 1216 (3d Cir.1985) (prosecution of taxpayer for filing fraudulent tax return, as act of civil disobedience, did not violate First Amendment; “penalty was imposed because the taxpayer’s conduct failed to comply with the requirement of the tax laws that she properly report her tax liability, not because she expressed unpopular political views”) (emphasis in original).

Though we reject Ruggiero’s assertion that intermediate scrutiny applies, we do not embrace the Commission’s position that only minimal scrutiny is warranted. Minimal scrutiny is appropriate to the indirect effect upon speech that may attend “structural” regulation of the broadcast industry. See Leflore Broad. Co. v. FCC, 686 F.2d 454, 458 n. 26 (D.C.Cir.1980) (structural regulations “insure diversity in broadcasting while minimizing government attention to broadcast content”). In NCCB, upon which the Commission relies, the Supreme Court gave only minimal scrutiny to and upheld the Commission’s newspaper-broadcast cross-ownership rule, which prohibited common ownership of a broadcast station and a daily newspaper in the same community. 436 U.S. at 779, 98 . The cross-ownership rule, however, merely constrained the newspaper publisher’s choice of the community in which to own a radio or television station; it did not prohibit the publisher from broadcasting altogether. Id. at 800, 98 S.Ct. at 2115 (“Under the regulations ... a newspaper owner need not forfeit anything in order to acquire a license for a station located in another community”). The RBPA, in contrast, makes the pirate broadcaster ineligible to obtain an LPFM license - the only type of license practicably available to most individuals - in any community. It is the would-be speaker’s inability to broadcast at all that takes this case outside the “structural” framework and makes minimal scrutiny insufficiently rigorous to protect the freedom of speech protected by the First Amendment.

Having rejected each party’s favored standard of review, we, like the panel that first heard this case, “find ourselves in a middle ground, sure only that the appropriate standard is neither NCCB’s minimal scrutiny nor League of Women Voters’ intermediate scrutiny.” 278 F.3d at 1331. Clearly, as Ruggiero suggests in his alternative argument, something more than minimal rationality is required to uphold the statute. Id.; News America, 844 F.2d at 814. We need not be more precise, however, because we conclude that the character qualification provision is reasonably tailored to satisfying a substantial government interest, and that is surely enough to uphold a prohibition upon broadcast speech that, although complete within its limited sphere, is in no respect content-based.

B. Under- and Overinclusiveness

As the Commission points out, unlicensed LPFM transmissions can not only prevent the public from receiving the signals of licensed broadcasters, see, e.g., United States v. Any and All Radio Station Transmission Equip., 204 F.3d 658 (6th Cir.2000) (interference complaint against pirate by licensed FM station); they can also, as we have seen, interfere with “public safety communications and aircraft frequencies.” Low Power Proposal, 14 F.C.C.R. 2471, at ¶ 65. Because the Government has chosen to address the problem of interference through socialization and administrative allocation of the right to broadcast, rather than relying upon the common law, see Thomas W. Hazlett, The Rationality of U.S. Regulation of the Broadcast Spectrum, 33 J.L. & Eoon. 133, 148-52 (1990); and Ronald H. Coase, The Federal Communications Commission, 2 J.L. & Eoon. 1, 14 (1959) (treating problem of interference as he would later treat other incompatible uses in The Problem of Social Cost, 3 J.L. & EooN. 1 (1959)), there can be no doubt it has a substantial interest in ensuring compliance with the Communications Act and in particular with its central requirement of a license to broadcast.

Ruggiero argues, nonetheless, that the character qualification is impermissibly un-derinclusive because it does not disqualify persons guilty of “serious misconduct other than piracy - murder, rape, child abuse, bribery, fraud, illegal wiretapping, antitrust violations, [and] lying to the FCC, to give but a few examples.” He continues in the same vein:

Because Congress has ignored a broad range of misconduct “giving rise to precisely the same harm that supposedly motivated it to [enact the character qualification provision],” Sanjour v. EPA 56 F.3d [85,] 95 [ (D.C.Cir.1995) (en banc) ], it is “serious[ly] doubt[ful]” that the character qualification provision substantially advances the governmental interest in increasing compliance with broadcast laws and regulations in a meaningful way.

This is nonsense on stilts.

First, Ruggero’s factual premise is incorrect, not to say absurd. The Congress has not “ignored” misconduct “giving rise to precisely the same harm” that caused it to impose the character qualification. Not only are murderers, rapists, child molesters, and the like not particularly associated with the harms caused by unlicensed broadcasting, the harms that these malefactors do cause are not without other and more severe penalties (state or federal) than ineligibility for an LPFM license.

Second, it was entirely reasonable for the Congress to make the policy judgment that all broadcast pirates, and only broadcast pirates, should be disqualified categorically from holding an LPFM license while leaving to the Commission the discretion to evaluate on a case-by-case basis the myriad other ways an applicant’s character can be drawn into question. All broadcast pirates, by definition, have violated already the requirement of obtaining a broadcast license. As Judge Henderson pointedly asked in her dissent from the decision of the panel, “[w]hat could be more reasonable or logical than to suspect that those who ignored the Commission’s LPFM broadcast regulations in the past are likely to do so in the future and therefore to head them off[?]” 278 F.3d at 1335. Indeed, even as it adopted its own more forgiving approach to pirates before the Congress enacted the RBPA, the Commission acknowledged that “past illegal broadcast operations reflect on that entity’s proclivity to deal truthfully with the Commission and to comply with our rules and policies, and thus on its basic qualifications to hold a license.” 15 F.C.C.R. 2205, at ¶ 54. Thus the Congress could reasonably conclude that other violations of law simply do not reflect as directly upon the offender’s qualification to hold an LPFM license. Moreover, insofar as such criminals may seek LPFM (or indeed any type of broadcast) licenses, they are, as the Commission notes, “subject to the FCC’s [general] character qualification policy, under which they are likely to be disqualified for such serious crimes in any event.” See Policy Regarding Character Qualifications in Broad. Licensing, 102 F.C.C.2d 1179, ¶¶ 34-44, 1986 WL 292574 (1986); see also, e.g., In re Contemporary Media, Inc., 12 F.C.C.R. 14254, 1997 WL 473323 (1997) (revocation of license and denial of application for new license because principal had been convicted of sexual abuse of children), aff'd, Contemporary Media, Inc. v. FCC, 214 F.3d 187, 193 (D.C.Cir.2000). Therefore, we can hardly say the Congress was prohibited by the First Amendment from responding to the discrete problem of broadcast piracy - which goes to the heart of the Communications Act, namely, preventing interference caused by unlicensed broadcasting - with a categorical ban.

Third, even if it could be thought that categorically disqualifying murderers and the like from getting an LPFM license would deter some unlicensed broadcasting, “a regulation is not fatally underinclusive simply because an alternative regulation, which would restrict ... the speech of more people, could be more effective.” Blount v. SEC, 61 F.3d 938, 946 (D.C.Cir.1995) (emphasis in original). In sum, we agree with the Commission’s position that the character qualification provision of the RBPA is not underinclusive but is, rather, because it targets those who have already violated the broadcast license requirement, reasonably tailored to further the Government’s substantial interest in minimizing unlicensed LPFM broadcasting.

We reject also Ruggiero’s claim that the character qualification is overinclusive because it prohibits all pirates, including those good pirates who stopped broadcasting illegally when ordered to do so, and those “former pirates [who] subsequently have become model citizens,” from obtaining a license. All unlicensed LPFM broadcasters violated the Communications Act. Any unlicensed broadcasting demonstrates a willful disregard of the most basic rule of federal broadcasting regulation. See H.R.Rep. No. 106-567, at 8 (2000); Creation of Low Power Radio Service, 15 F.C.C.R. 19208, ¶ 96, 2000 WL 1434686 (2000) (Opinion and Order). The Congress did not hit wide of the mark, therefore, when it treated all pirates alike.

*

C. Equal Protection

Ruggiero also claims that because the character qualification “imposes special burdens on the First Amendment rights of a single class of speakers (pirates),” and is not “ ‘narrowly tailored’ to serve a ‘substantial’ governmental interest,” it violates the Equal Protection guarantee of the Fifth Amendment. This claim fails for the same reasons the first amendment claims fail: the legislative classification, which treats former pirates differently from others, is reasonably tailored to the government’s substantial interest in protecting the broadcast spectrum.

Although equal protection analysis focuses upon the validity of the classification rather than the speech restriction, “the critical questions asked are the same.” Community-Service Broad, of Mid-America, Inc. v. FCC, 593 F.2d 1102 (D.C.Cir.1978) (en banc). We believe that the same level of scrutiny, heightened rational basis, is therefore appropriate in both contexts, and that the policy withstands such scrutiny.

III. Summary and Conclusion

The character qualification of the RBPA is a targeted response to the problem of pirate broadcasting, affects only those who violated the license requirement, and does so utterly without regard to the content of, or any view expressed by, their unlicensed broadcasts. There is a reasonable fit between the character qualification and the Government’s substantial interests in deterring unlicensed broadcasting and preventing further violations of the regulations applicable to broadcasters. Accordingly, we hold that § 632(a)(1)(B) of the RBPA and the regulation implementing it do not on their faces violate the First Amendment. The petition for review is, accordingly,

Denied.

Although necessarily couched in terms of under- and overinclusiveness, our dissenting colleague’s concern seems really to be with what he sees as the disproportionality of disqualifying LPFM pirates from holding an LPFM license, as compared with the consequences visited upon other unlicensed broadcasters and other offenders against the broadcast regulatory regime. See dissent at 245, asking "why does the RBPA’s automatic and permanent ban not extend to unlicensed full power broadcasters"; and at 246, where he "agree[s] that deterrence is a substantial governmental interest, but [asks] why impose a lifetime ban?," which he refers to as "a broadcasting 'mark of Cain.’ "

The judgment that one offense is more serious than another, like the judgment that a punishment of a certain severity is warranted for a particular offense, is not for the judiciary to make. Cf. Hutchins v. District of Columbia, 188 F.3d 531, 543 (D.C.Cir.1999) (noting that under intermediate scrutiny, "the [Government] is not obliged to prove a precise fit between the nature of the problem and the legislative remedy,” and rejecting claim that curfew was unconstitutional because it did not include 17-year-olds); Schleifer v. City of Charlottesville, 159 F.3d 843, 850 (4th Cir.1998) (applying intermediate scrutiny and rejecting claim that city's decision to exclude 17-year-olds from curfew was unconstitutional, because "[i]t is not the function of a court to hypothesize independently on the desirability or feasibility of any possible alternative^] to the statutory scheme” (quoting Lalli v. Lalli, 439 U.S. 259, 274, 99 S.Ct. 518, 528, 58 L.Ed.2d 503 (1978))). Our concern in this case is limited to whether the Congress has reasonably tailored the character qualification to fit the substantial government interest it is intended to serve.