United States v. Seizure Warrant

204 F.3d 658

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0069P (6th Cir.)

File Name: 00a0069p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________

; 

98-2129 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Nos. 98-2129/2396



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 2903 BENT OAK   

HIGHWAY, ADRIAN,



MICHIGAN, 

Defendant-Appellee, 

RICK STRAWCUTTER,   

Claimant-Appellee.

   2 United States v. Nos. 98-2129/2396 Strawcutter, et al.

 

98-2396



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   

RADIO TRANSMISSIONS ON



FREQUENCY 95.9 MHZ,



LOCATED AT 3968 WEST 

VERNOR HIGHWAY, DETROIT, 

MICHIGAN 48216, Defendant-Appellant,   

MAQUINA MUSICAL,



INCORPORATED,



Claimant-Appellant,



JUAN V. MARINEZ, CATALINA 

MARTINEZ, IGNACIO CAMPOS,  

JORGE CANCHOLA, SERGIO



VALLEJO,



Intervenors-



Counterplaintiffs-Appellants.

18 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 3 Strawcutter, et al. Strawcutter, et al.

28 U.S.C. § 1291 in the absence of special factors, none of Appeal from the United States District Court which are present here. Cf. Lickiss v. Drexler, 141 F.3d 1220, for the Eastern District of Michigan at Detroit. 1222 (7th Cir.) (noting that a denial of a motion to dismiss Nos. 97-73527; 98-74368—Julian A. Cook, Jr. and based on qualified immunity is considered a final, appealable Patrick J. Duggan, District Judges. order if there are no material facts in dispute, because part of the harm sought to be averted by the doctrine of immunity is Argued: December 10, 1999 the necessity of standing trial), cert. denied, 119 S. Ct. 513 (1998). The denial is also not an immediately appealable Decided and Filed: February 25, 2000 interlocutory order within the meaning of 28 U.S.C. § 1292(a)(1). Finally, the doctrine of pendent appellate Before: JONES, COLE, and GILMAN, Circuit Judges. jurisdiction does not apply, because the issue of whether Maquina Musical’s motion for a preliminary injunction _________________ should have been granted is not “coterminous with, or subsumed in” the issue of whether its motion to dismiss the COUNSEL government’s complaint should have been granted. See Brennan v. Twp. of Northville, 78 F.3d 1152, 1158 (6th Cir. ARGUED: Jacob M. Lewis, U.S. DEPARTMENT OF 1996). We therefore find no basis to consider Maquina JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Musical’s motion to dismiss as part of the present appeal. Washington, D.C., for United States of America. Patrick M.

E d w a r d s , C O N S T IT U T IO N A L L I T I G A T I O N III. CONCLUSION ASSOCIATION, Detroit, Michigan, for Claimants.

ON BRIEF: Jacob M. Lewis, Robert S. Greenspan, U.S.

For all of the reasons set forth above, we REVERSE the DEPARTMENT OF JUSTICE, CIVIL DIVISION, judgment of the district court in No. 98-2129 (Strawcutter), APPELLATE STAFF, Washington, D.C., for United States which dismissed the government’s forfeiture case sua sponte of America. Kevin S. Ernst, Detroit, Michigan, Katharine M. pursuant to the doctrine of primary jurisdiction, and Omansiek, Detroit, Michigan, for Appellants. Patrick M. REMAND the case for further proceedings. We REMAND E d w a r d s , C O N S T IT U T IO N A L LI T I G A T I O N No. 98-2396 (Maquina Musical) to the district court for ASSOCIATION, Detroit, Michigan, for Claimants. reconsideration in light of its determination that the doctrine of primary jurisdiction precluded it from considering Maquina _________________ Musical’s “constitutional defenses” to the government’s forfeiture action. Concerning Maquina Musical’s appeal from OPINION the district court’s denial of its motion to dismiss the _________________ government’s forfeiture complaint, we DISMISS the appeal for lack of jurisdiction. RONALD LEE GILMAN, Circuit Judge. The principal question presented by these consolidated appeals is whether, under the doctrine of primary jurisdiction, district courts may decline to adjudicate in rem forfeiture actions brought by the United States against persons who operate radio stations without licenses. For the reasons set forth below, we conclude that the answer is no. We therefore REVERSE the 4 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 17 Strawcutter, et al. Strawcutter, et al.

judgment of the district court in No. 98-2129 (Strawcutter), district court’s conclusion. As previously stated in Part which dismissed the government’s forfeiture case sua sponte II.B.1.a. above, nobody has a First Amendment right to hear pursuant to the doctrine of primary jurisdiction, and radio broadcasts from a station that does not have a First REMAND the case for further proceedings. We also Amendment right to broadcast them. REMAND No. 98-2396 (Maquina Musical) to the district court for reconsideration in light of its determination that the d. Public interest doctrine of primary jurisdiction precluded it from considering Maquina Musical’s “constitutional defenses” to the Finally, the district court concluded that the public interest government’s forfeiture action. Concerning Maquina did not favor granting the injunction because the government Musical’s appeal from the district court’s denial of its motion has an interest in the uniform and consistent application of the to dismiss the government’s forfeiture complaint, we Communications Act. Maquina Musical argues that “the DISMISS the appeal as premature. district court erred as a matter law and fact” because the “policy of free speech is the very cornerstone of a democratic I. BACKGROUND society.” This is undoubtedly true, but we think that Maquina Musical avoids the issue by defining the question A. No. 98-2129 (Strawcutter) considerably more abstractly than the Supreme Court has been willing to do. As noted above, the Court has made it On November 12, 1996, the manager of a licensed FM quite clear that unlicensed broadcasting is not considered free radio station in Toledo, Ohio telephoned the Federal speech protected by the First Amendment. See Part II.B.1.a. Communications Commission (FCC) and complained that the above. signal from a radio station identifying itself as “Radio Free Lenawee” was interfering with his station’s signal. During We express no opinion on whether the constitutionality of the preceding two weeks, a number of other persons had also the challenged FCC regulation is an appropriate consideration complained to the FCC’s Detroit office about Radio Free in deciding the merits of this case. The district court may Lenawee’s transmissions. have been right when it concluded that even if the challenged regulation is unconstitutional, the statute is valid, and that On November 14, 1996, the FCC sent a field agent to Maquina Musical’s violation of the statute is the beginning investigate the complaints. An unlicensed radio station and end of the government’s forfeiture case. But before this identifying itself as Radio Free Lenawee was found to be court decides the issue, it should be resolved on the merits by broadcasting from a building at 2903 Bent Oak Highway, in the district court. We will therefore remand this case to the Adrian, Michigan, at a frequency of 97.7 megahertz. The district court so that it can determine whether it wishes to FCC later determined that Radio Free Lenawee was adhere to its reasoning in light of its ability to consider the broadcasting at a strength of 29,625 microvolts per meter at constitutionality of the FCC regulations. a distance of over half a mile, far exceeding that permitted for unlicensed radio stations (a maximum of 250 microvolts per 2. Motion to dismiss meter at a distance of three meters). See 47 C.F.R. § 15.239(b). Maquina Musical is also appealing from the portion of the district court’s order that denied the station’s motion to Rick Strawcutter, Radio Free Lenawee’s owner and dismiss the government’s complaint. An order denying a operator, took the position that he had a constitutional right to motion to dismiss is not a “final decision” appealable under 16 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 5 Strawcutter, et al. Strawcutter, et al.

Currency, 985 F.2d 245, 250 (6th Cir. 1993) (applying the continue his radio broadcasts without interference from the Fourth Amendment exclusionary rule in a forfeiture case). government. FCC inspectors sought to inspect Radio Free We believe that this makes it even less likely that Congress Lenawee’s premises. Strawcutter refused them permission to enacted a statute that allows the government to forfeit a do so. The FCC notified Strawcutter by letter that he was person’s property while denying the owner the right to defend violating the Communications Act of 1934, 47 U.S.C. §§ 151- himself by challenging the legal basis of the government’s 614. Specifically, the letter stated that (1) the station’s forfeiture case. broadcast strength exceeded the maximum allowed by 47 C.F.R. § 15.239(b), (2) the station was violating 47 U.S.C.

Although we conclude that the district court erred in § 301 because it was operating an unlicensed transmitter, and holding that it lacked jurisdiction to adjudicate Maquina (3) operating a transmitter without a license subjects the Musical’s arguments, this does not mean that Maquina operator to the criminal penalties described in 47 U.S.C. Musical is any closer to demonstrating that it is likely to § 501. Strawcutter responded with a letter in which he succeed on the merits. With one exception, the cases explained that he had “come to a sincerely held conclusion Maquina Musical relies upon for the boilerplate propositions that the [FCC] in reality has no Constitutional regulatory that restrictions on First Amendment rights must be “narrowly power over FM stations which run a power level less than 100 tailored” and that “prior restraints” on protected free speech watts.” are presumptively invalid have nothing to do with radio broadcasting, much less with unlicensed radio broadcasting. Between the end of November of 1996 and the end of The one exception is FCC v. League of Women Voters of February of 1997, the FCC conducted six field tests. Those California, 468 U.S. 364 (1984), which concerned the tests established that Radio Free Lenawee, which was still constitutionality of a statute prohibiting licensed broadcasters unlicensed, was continuing to transmit, and was doing so in that accepted federal funding from engaging in excess of the permissible signal strength. “editorializing.” Even in that opinion, the Court repeatedly observed that broadcasting may legitimately be regulated in On July 22, 1997, the government filed in the United States ways that would be unconstitutional in other contexts. See id. District Court for the Eastern District of Michigan a at 374 (“[B]ecause broadcast regulation involves unique complaint in which it sought, pursuant to 47 U.S.C. § 510(a), considerations, our cases have not followed precisely the the civil in rem forfeiture of the radio transmission equipment same approach that we have applied to other media”). located at 2903 Bent Oak Highway, the source of Radio Free Lenawee’s broadcasts. Strawcutter filed a claim of ownership c. Substantial harm to others on August 5, 1997, and an answer approximately two weeks later. In his answer, Strawcutter asserted that the FCC The district court concluded that it did “not believe that the regulation that prohibits unlicensed “microbroadcasting” was absence of Hispanic radio programming outweighs what invalid because it violated his rights under the First would amount to judicial sanction of an unlicensed radio Amendment, the Equal Protection and Due Process Clauses station.” This appears to be more a weighing of the of the Fifth Amendment, Article XIX of the United Nations “substantial harm” factor against the “public interest” factor Declaration of Human Rights, and Article XIX of the than strictly a consideration of whether the inability of International Covenant on Civil and Political Rights. He also Maquina Musical’s audience to hear the station’s broadcasts argued that the FCC regulation is inconsistent with its constitutes substantial harm. We agree, however, with the statutory mandate to “encourage the larger and more effective 6 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 15 Strawcutter, et al. Strawcutter, et al.

use of radio in the public interest,” as set forth in 47 U.S.C. Maquina Musical also contends that the FCC regulation § 303(g). announcing the moratorium on Class D licenses, 47 C.F.R.

§ 73.512(c), was an unconstitutional prior restraint on speech.

Strawcutter’s arguments centered around the FCC In response, the government argues that even if the regulation regulations found at 47 C.F.R. Part 73. Those regulations was ultimately held to be unconstitutional, it would not classify FM radio broadcast licenses as Class A, Class B, matter, because the government’s forfeiture case begins and Class C, or Class D, depending on the station’s transmission ends with Maquina Musical’s violation of 47 U.S.C. § 301. power, antenna height, and the area or place from which the The district court concluded, however, that it lacked broadcasts emanate. See 47 C.F.R. §§ 73.210-.211. The FCC jurisdiction to entertain Maquina Musical’s constitutional once granted Class D licenses to “microbroadcasters,” but in defenses because 28 U.S.C. § 2342 provides that the courts of 1978 adopted a regulation effectively preventing new Class D appeals have exclusive jurisdiction “to enjoin, set aside, stations from operating, except in Alaska. See 47 C.F.R. suspend . . . or to determine the validity of . . . all final orders § 73.512(c) (providing that no new Class D applications of the [FCC] . . . .” would be accepted, except in Alaska or by existing Class D stations seeking to change frequency). We disagree, “for the simple reason that no FCC order is being challenged.” United States v. Any and All Radio We note that during the pendency of this appeal, the FCC Station Transmission Equipment (Laurel Avenue), 169 F.3d has changed its position on microbroadcasting. See In the 548, 554 (8th Cir.) (M. Arnold, J., concurring in the result), Matter of Creation of a Low Power Radio Service, FCC 99-6, reh’g granted, 182 F.3d 1026 (8th Cir. 1999). Indeed, as 14 FCCR 2471, at ¶ 1 (released Feb. 3, 1999) (proposing the Judge Morris Arnold said in his short but well-reasoned creation of two new classes of low-power FM radio stations, opinion in Laurel Avenue: “Until today I had not supposed and seeking comment “on whether to establish a third, that anyone could plausibly maintain that any court of the ‘microradio’ class of low power radio service that would United States, properly seized of jurisdiction of a suit, did not operate in the range of 1 to 10 watts.”); In the Matter of also have jurisdiction to consider constitutional defenses to Creation of Low Power Radio Service, FCC 00-19, — FCCR that suit.” See Laurel Avenue, 169 F.3d at 554 (M. Arnold, J., —, 2000 WL 85304, at ¶ 1 (released January 27, 2000) concurring in the result). Laurel Avenue involved facts that (authorizing, among other things, the licensing of low-power are virtually identical to those of the present case, in that the FM stations operating at a maximum of 10 watts). government sought the in rem forfeiture of an unlicensed Notwithstanding this change in policy, however, Strawcutter microbroadcaster’s radio transmission equipment. apparently will still not be eligible for a broadcasting license. See In the Matter of Creation of Low Power Radio Service, Congress presumably could have created a streamlined 2000 WL 85304, at ¶¶ 51-55 (announcing that forfeiture remedy that excluded certain defenses by giving microbroadcasters who had broadcast without licenses in the claimants the opportunity to raise those defenses in some past will now be eligible for low-power broadcast licenses, other forum. But it did not do so. Forfeiture actions, but only if they voluntarily ceased broadcasting no later than although nominally civil, are quasi-criminal in nature. See February 26, 1999 “without specific direction to terminate by One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 700 the FCC,” or ceased broadcasting within 24 hours after being (1965). As a consequence, some of the protections to which advised to do so by the FCC). criminal defendants are entitled also apply in forfeiture cases.

See, e.g., United States v. $53,082.00 in United States

14 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 7 Strawcutter, et al. Strawcutter, et al.

court erred on the side of overgenerosity to Maquina Musical On June 9, 1998, the government moved for summary in assessing whether it had demonstrated a risk of irreparable judgment, taking the position that it was entitled to summary harm. Cf. Free Speech ex rel. Ruggiero, 200 F.3d at 65 judgment as a matter of law because there was no material (concluding that the government had established that it would issue of fact—indeed, the facts were essentially suffer irreparable harm without an injunction “simply by uncontroverted—as to whether Strawcutter had broadcast establishing that plaintiffs were broadcasting without a without a license despite being warned by the FCC that it was license”). unlawful for him to do so. The only disputed issues were the validity of the regulations that Strawcutter concededly b. Likelihood of success on the merits violated, and whether the authorizing statutes were unconstitutional or in conflict with a treaty. Those issues, the The district court found that Maquina Musical had not government argued, were part of a “regulatory challenge” that demonstrated that it was likely to prevail on the merits. In was “not justiciable” in the district court, because “Congress reaching this conclusion, the district court noted that it was vested exclusive jurisdiction in the United States Courts of undisputed that Maquina Musical had broadcasted without a Appeals, whether that review involves FCC regulations license and, indeed, that it had never applied for a license, a generally or specific licensing decisions.” waiver, or an amendment to the pertinent FCC regulations barring microbroadcasting. This, the district court concluded, The government claimed that in challenging the legal basis was sufficient for the government to establish probable cause of the statutes or regulations with which he disagreed, that Maquina Musical had violated 47 U.S.C. § 301 (which Strawcutter’s sole options were to apply to the FCC for a prohibits radio broadcasting without a license) and, by broadcast license or to petition the FCC either to amend its extension, that its broadcasting equipment was subject to regulations or to waive their application to him. Strawcutter forfeiture under 47 U.S.C. § 510(a), which subjects to argued that those administrative remedies offered him no forfeiture “any electronic, electromagnetic, radio frequency, realistic prospect of relief, because the FCC had an unyielding or similar device, or component thereof . . . used . . . with policy not to waive the regulations that bar microbroadcasters willful and knowing intent to violate [47 U.S.C. §] 301 [or from transmitting. As many other microbroadcasters around FCC regulations promulgated under § 301].” the country have done, Strawcutter argued that the FCC was “being used as the tool of powerful broadcast corporations”

Because Maquina Musical produced absolutely no evidence that wished to maintain cartel-like control over the airwaves, to rebut its violation of a facially valid federal statute, we at the cost of suppressing potential competitors and depriving believe that the district court was correct in its ultimate the listening public of “low-cost broadcasting on community conclusion that the station had failed to demonstrate that it issues as an alternative to mainstream perspectives.” was likely to succeed on the merits. See United States v. Certain Real Property 566 Hendrickson Blvd., Clawson, The district court, in a memorandum and order dated Oakland County, Mich., 986 F.2d 990, 995 (6th Cir. 1993) August 7, 1998, denied the government’s motion and, (noting that in forfeiture cases, the government is entitled to invoking sua sponte the doctrine of primary jurisdiction, a judgment of forfeiture upon an unrebutted showing of dismissed the action for lack of subject matter jurisdiction. probable cause). See United States v. Any and All Radio Station Equipment (Strawcutter), 19 F. Supp. 2d 738 (E.D. Mich. 1998).

8 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 13 Strawcutter, et al. Strawcutter, et al.

B. No. 98-2396 (Maquina Musical) seizure of his broadcasting equipment is sufficient to demonstrate irreparable injury.” See Maquina Musical, 29 F.

On April 16, 1998, the FCC’s Detroit office received a Supp. 2d at 396. complaint about an unlicensed FM radio station broadcasting at a frequency of 95.9 megahertz. That day, FCC agents went It need not have done so. As the Supreme Court has to 3968 West Vernor Highway in Detroit, and detected the observed, “[t]he right of free speech does not include . . . the emission of FM broadcast signals at 95.9 megahertz that were right to use the facilities of radio without a license.” National 146 times the maximum strength permitted by FCC Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943). regulations for unlicensed broadcasts. On April 21, 1998, the In National Broadcasting Co., the Supreme Court broadly agents returned and detected FM broadcast signals that were affirmed the Communications Act and its licensing standard nearly 8,900 times the maximum permitted for unlicensed of “public interest, convenience, or necessity” as valid broadcasts. The agents entered the premises of the station, exercises of congressional power, and held that denying a which was called Radio Maquina, and spoke with Pedro license on that ground, “if valid under the Act, is not a denial Zamora, the president of Maquina Musical, which owns of free speech.” Id. See also Free Speech ex rel. Ruggiero v. Radio Maquina. They told Zamora that Radio Maquina’s Reno, 200 F.3d 63, 64-65 (2d Cir. 1999) (per curiam) broadcasts exceeded the maximum strength permitted by FCC (rejecting the argument of unlicensed microbroadcasters that regulations and that the broadcasts violated 47 U.S.C. § 301. the FCC’s broadcast licensing scheme is subject to public It is undisputed that Maquina Musical did not have a forum analysis and strict judicial scrutiny). broadcast license, and that it had never applied for one.

In the present case, Maquina Musical never applied for a On May 4, 1998, the agents determined that Radio Maquina broadcast license. For that reason, neither it nor Zamora has was continuing to broadcast. That day, the agents determined any First Amendment interest in its broadcasts. We therefore that the broadcast signals were more than 7,600 times the conclude that Maquina Musical lacks any plausible claim to maximum permissible strength. The FCC’s Detroit office the presumption of irreparable harm. Maquina Musical also sent Zamora a letter on May 12, 1998, again informing him asserts that members of its listening audience—who that the broadcasts violated 47 U.S.C. § 301 and demanding intervened in this action and filed affidavits in support of its that he cease broadcasting forthwith, or face numerous motion for injunctive relief—also have a First Amendment potential penalties, including criminal prosecution and civil right “to hear the political, cultural and educational forfeiture of his broadcasting equipment. Zamora replied to information conveyed to their community.” But it follows the FCC’s letter by demanding an administrative hearing that nobody has a First Amendment right to hear radio before any forfeiture proceedings against him were instituted. broadcasts from a station that does not have a First During August of 1998, the FCC determined that Radio Amendment right to broadcast them. Cf. Richmond Maquina was still broadcasting, and was continuing to do so Newspapers, Inc. v. Virginia, 448 U.S. 555, 599 (1980) well in excess of the maximum strength permitted by FCC (Stewart, J., concurring) (observing that the right to listen is regulations. implied by the right to speak).

On October 7, 1998, the government filed a civil complaint In any event, we do not mean to suggest that this is the end in the United States District Court for the Eastern District of of the analysis in determining whether Maquina Musical can Michigan, seeking the forfeiture of Maquina Musical’s possibly prevail in this case. Our point is just that the district 12 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 9 Strawcutter, et al. Strawcutter, et al.

erroneous findings of fact.” E.g., Schenck v. City of Hudson, broadcasting equipment. The next day, the government 114 F.3d 590, 593 (6th Cir. 1997). executed a writ of entry and a warrant of arrest, and proceeded to arrest (that is, seize) the equipment. On October Taken literally, the standard is difficult to understand. The 9, 1998, Maquina Musical—joined by several Radio Maquina idea of discretion connotes a reasoned, properly informed, listeners who were permitted to intervene in the action—filed deliberate choice between legally permissible alternatives. a “verified complaint” in which it applied for a temporary No judge deliberately chooses to apply an incorrect legal restraining order and moved for a preliminary injunction, a standard, misapply a correct legal standard, or rely upon dismissal of the government’s forfeiture complaint for lack of clearly erroneous factual findings. Presumably, the standard subject matter jurisdiction, and an order quashing the in rem as articulated in Schenck and numerous other cases is a arrest warrant. After a hearing, the district court denied the shorthand way of expressing the idea that this court ordinarily application for a temporary restraining order. Subsequently, extends a high degree of deference to the district court’s in a memorandum and order dated November 6, 1998, the decision, but does so only if the district court properly district court denied the remainder of the relief sought by understood the pertinent law and applied it in a defensible Maquina Musical. See United States v. Any and All Radio manner to the facts as they appear in the record. Otherwise, Station Transmission Equipment (Maquina Musical), 29 F. affording deference to the district court makes little sense. Supp. 2d 393 (E.D. Mich. 1998).

With this understanding in mind, reviewing the district In denying Maquina Musical’s motion for a preliminary court’s order denying a preliminary injunction to Radio injunction, the district court assumed for the sake of argument Maquina in light of the pertinent factors—whether the movant that Maquina Musical could demonstrate that it would suffer is likely to succeed on the merits, whether the movant would irreparable harm without the injunction, see Maquina suffer irreparable harm without the injunction, whether an Musical, 29 F. Supp. 2d at 396 (citing Connection injunction would cause substantial harm to others, and Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), whether an injunction would be in the public for the proposition that even brief deprivations of First interest—becomes relatively straightforward. See, e.g., Amendment freedoms constitute irreparable injury), and Connection Distribution Co. v. Reno, 154 F.3d 281, 288 (6th concluded that the risk of substantial harm to others was not Cir. 1998), cert. denied, 119 S. Ct. 1496 (1999) (setting forth great. The district court, however, found that Maquina the pertinent factors for determining whether a preliminary Musical’s likelihood of success on the merits was low and injunction should be granted). that the public interest did not favor allowing it to broadcast without a license during the pendency of the proceedings.

a. Irreparable harm Balancing these factors, the district court concluded that Maquina Musical was not entitled to a preliminary injunction.

Maquina Musical’s argument regarding irreparable harm is based on the premise that barring it from broadcasting would II. ANALYSIS abridge both its First Amendment right to free speech and the First Amendment interests of its listeners to hear Radio A. No. 98-2129 (Strawcutter) Maquina’s broadcasts. The district court assumed for the sake of argument that Zamora’s “alleged deprivation of his The doctrine of primary jurisdiction “arises when a claim First Amendment right to free speech by the government’s is properly cognizable in court but contains some issue within 10 United States v. Nos. 98-2129/2396 Nos. 98-2129/2396 United States v. 11 Strawcutter, et al. Strawcutter, et al.

the special competence of an administrative agency.” United Circuits have noted, a federal agency’s decision to pursue a States v. Haun, 124 F.3d 745, 749 (6th Cir. 1997) (citing judicial remedy rather than an administrative one speaks Reiter v. Cooper, 507 U.S. 258, 268 (1993)). When the volumes about its views regarding the necessity of doctrine applies, court proceedings are stayed so that the administrative expertise. See All-American, Inc., 505 F.2d at agency may bring its special competence to bear on the issue. 1363; ICC v. Maine Central R. Co., 505 F.2d 590, 594 (2d See id. Unfortunately, “[n]o fixed formula exists for Cir. 1974) (“[T]he very institution of suit in the courts by the applying the doctrine[.]” United States v. Western Pacific. R. relevant administrative body represents an exercise of its Co., 352 U.S. 59, 64 (1956)). Rather, “[i]n every case the ‘special competence.’”). question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be In essence, the district court held that a statute expressly aided by its application in the particular litigation.” Id. authorizing the government to initiate a civil action in the district courts cannot be invoked by the government when it Those reasons, broadly speaking, are the desire for sues on behalf of the very agency charged by the statute with uniformity in adjudication and the belief that the special competence over the regulatory issues in question. decisionmaker with the most expertise and broadest See 47 U.S.C. § 510 (providing that the illegal use of perspective regarding a statutory or regulatory scheme will be broadcasting equipment subjects the equipment to seizure and most likely to resolve the issue correctly. See id. The forfeiture if the equipment was used “with willful and doctrine has even been applied to the government itself. See knowing intent” to violate license requirement) and 28 U.S.C. Far East Conference v. United States, 342 U.S. 570 (1952) § 1355 (vesting the district courts with original jurisdiction (ordering an antitrust action brought by the United States as over “any action or proceeding” for forfeiture “incurred under a shipper dismissed pursuant to the doctrine of primary any Act of Congress” other than those within the jurisdiction jurisdiction following the intervention of, and motion to of the Court of International Trade). We cannot agree, and dismiss by, the Maritime Board, the relevant federal agency). therefore reverse the district court’s order dismissing this action for lack of subject-matter jurisdiction.

But the doctrine does not apply when the specially competent agency is itself the plaintiff. See, e.g., United B. No. 98-2396 (Maquina Musical) States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir. 1981) (“[D]eference to an agency’s primary jurisdiction 1. Preliminary injunction makes little sense in the context of an enforcement proceeding initiated by the agency.”); ICC v. All-American, Inc., 505 F.2d Whether a preliminary injunction should be granted is a 1360, 1362 (7th Cir. 1974) (“It has been suggested . . . that, in decision left to the district court’s sound discretion. See, e.g., cases where the appropriate administrative body is before the Allied Systems, Ltd. v. Teamsters Nat’l Automobile court, the doctrine should not apply since a principal function Transporters Industry Negotiating Committee, 179 F.3d 982, of the rule, acquainting the court with the agency’s position 985-86 (6th Cir.), cert. denied, 120 S. Ct. 401 (1999). On concerning the matter, has been satisfied.”); CAB v. appeal, our review focuses on whether the district court Aeromatic Travel Corp., 489 F.2d 251, 254 (2d Cir. 1974) abused that discretion. This court has said that a district (“[W]hen the agency chooses to go to the district court for court, in deciding whether to grant an injunction, abuses its enforcement, it makes little sense to refer the very question at discretion when it “applies the incorrect legal standard, issue to the agency.”). Indeed, as the Second and Seventh misapplies the correct legal standard, or relies upon clearly