e.g. Federal Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 268 (E.D. Cal. 1987) (concluding that defendant must have Article III standing to pursue affirmative defense). Therefore, the Court concludes that Mr. Dunifer must establish standing to assert his constitutional defenses.
Mr. Dunifer admits that he has not applied for a license or a waiver pursuant to the Class D regulations. Thus, the Class D regulations have not been applied to him and he has no standing to bring an as-applied challenge to them.
Mr. Dunifer argues that he should be excused from applying for a license because doing so would be futile. Some circuits have excused on grounds of futility the threshold standing requirement that the plaintiff submit to the policy being challenged by applying for the benefit regulated by that policy. See e.g. Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2nd Cir. 1997). Futility can be established only where an adverse decision by the agency is a certainty. See Randolph-Sheppard Vendors of America v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90, 105 (D.C. Cir. 1986). An adverse decision is certain if the agency lacks, or believes itself to lack jurisdiction, or if an agency has "articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider." Id. ; accord Clouser v. Espy, 42 F.3d 1522, 1532-33 (9th Cir. 1994) (regarding administrative exhaustion requirement of Administrative Procedures Act).
Mr. Dunifer argues that his application to the FCC for a license would be futile because the FCC lacks jurisdiction to determine the constitutionality of regulations it has promulgated, because the FCC has clearly stated in other proceedings that it will not decide the constitutional issues he raises, and because the FCC has never granted a waiver to a micro radio station.
Mr. Dunifer's contention that the FCC does not have jurisdiction to determine the constitutionality of its regulations is incorrect. See e.g. Meredith Corp. v. FCC, 258 U.S. App. D.C. 22, 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 the constitutionality of FCC's fairness doctrine on its face and as applied to plaintiff); WAIT Radio v. FCC, 135 U.S. App. D.C. 317, 418 F.2d 1153, 1156 (D.C. Cir. 1969) (remanding FCC's denial of an applicant's waiver request to FCC to reconsider the First Amendment issue raised therein). The cases cited by Mr. Dunifer are inapposite because they refer to agencies other than the FCC, see e.g. Gilbert v. Nat'l Transp. Safety Bd., 80 F.3d 364 (9th Cir. 1996), or address an agency's jurisdiction to determine the constitutionality of governing statutes, see e.g. Liu v. Waters, 55 F.3d 421, 425 (9th Cir. 1995) (explaining prior cases incorrectly stated that the Board of Immigration Appeals lacked jurisdiction to adjudicate constitutional issues and that Board lacks jurisdiction only to determine constitutionality of governing statutes and regulations).
Mr. Dunifer's next contention is that applying for a license would be futile because he has fairly presented the constitutional issues to the FCC in his Application for Review of the Forfeiture Order and the FCC has clearly indicated in its decision on the Application that it would not address these issues. The United States counters that Mr. Dunifer's presentation of the constitutional issues in his forfeiture proceeding is not the equivalent of applying for a license and requesting a waiver.
A correctly plead application for a license to broadcast on an FM noncommercial educational radio station must show compliance with many rules, and a request for a waiver of any of the rules must be included with the license application. See Declaration of Linda Blair, Acting Chief, Audio Services Division, Mass Media Bureau, FCC at 3:10-14; 47 C.F.R. § 73.3533(5). The premise of a waiver application is that the rule to be waived is valid, but that the rule is not in the "'public interest' if extended to [the] applicant who proposes a new service that will not undermine the policy, served by the rule, that has been adjudged in the public interest." WAIT Radio, 418 F.2d at 1157. FCC regulations do not limit which rules may be waived, upon a proper showing. See Blair Decl. at 3; 47 C.F.R. § 1.3. In response to a properly presented waiver application which includes factual material to support a non-frivolous First Amendment claim, the agency must address the constitutional issues raised by the applicant. See WAIT Radio, 418 F.2d at 1156. See also Rio Grande Family Radio Fellowship, Inc. v. FCC, 132 U.S. App. D.C. 128, 406 F.2d 664, 666 (D.C. Cir. 1968) (to be considered, an application for a waiver must "plead with particularity the facts and circumstances which warrant such action"); United States v. Storer Broadcasting Co., 351 U.S. 192, 205, 100 L. Ed. 1081, 76 S. Ct. 763 (1956) (FCC need not grant waiver unless application sets out "adequate reasons why the rules should be waived").
Based upon the documents Mr. Dunifer has filed with the Court, it appears that Mr. Dunifer's arguments to the FCC in his forfeiture proceeding were that the Class D rules generally are not valid because they violate the First Amendment and are not in the public interest. See Dunifer Decl. in Support of Opposition to Plaintiff's Motion for Preliminary Injunction, Exs. A and B. It does not appear that Mr. Dunifer argued or presented evidence to support the position that the Class D regulations, as applied to his new service, are not in the public interest. For this reason, the fact that the FCC declined to address the constitutional issues in the context of the forfeiture proceeding does not mean the FCC will also decline to address the constitutional issues when properly raised in an application for a license and a request for a waiver. See also Writers Guild of America, West, Inc. v. American Broadcasting Co., Inc., 609 F.2d 355, 364 (9th Cir. 1979) (dismissing claim of futility because FCC's position in a proper future administrative proceeding could not be inferred from the FCC's position in an adversarial context).
In response to Mr. Dunifer's claim that the FCC has never granted a waiver to a Class D broadcaster, the United States cites Turro v. FCC, 859 F.2d 1498, 1500 n.1 (D.C. Cir. 1988), in which the court noted that the FCC had granted two such waivers.
Finally, Mr. Dunifer makes an effort, in a footnote at the end of his supplemental brief, to overcome the consequences of his failure to apply for a license by stating that he is "in effect, challenging the statutes [ 47 U.S.C. § 301, prohibiting broadcasting without a license, and 47 U.S.C. § 401, authorizing the government to enjoin anyone who broadcasts without a license], as applied to him via the regulations. " This argument fails because only the statutes, not the regulations, have been applied to Mr. Dunifer. Throughout his opposition to the United States' original summary judgment motion, Mr. Dunifer stated that it is not the statutes, but the FCC Class D regulations that he is challenging. If Mr. Dunifer were challenging the constitutionality of the statutes he would fail because the statutes have been found to be constitutional by the Supreme Court. See Nat'l Broadcasting Co. v. United States, 319 U.S. 190, 227, 87 L. Ed. 1344, 63 S. Ct. 997 (1943) ("The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce."); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969); see also, Action for Children's Television v. FCC, 313 U.S. App. D.C. 261, 59 F.3d 1249, 1260, 1262 (D.C. Cir. 1995), cert. denied, 516 U.S. 1072, 133 L. Ed. 2d 726, 116 S. Ct. 773 (1996) (statutory scheme authorizing the FCC to enforce forfeitures is constitutional on its face, does not lack appropriate safeguards and was not unconstitutional as applied).
Because Mr. Dunifer has never applied for a broadcasting license or a waiver of the regulations disallowing applications by Class D broadcasters, he does not have standing to challenge those regulations.
II. Standing Under First Amendment Jurisprudence
Mr. Dunifer argues that he has standing to raise a facial challenge to the Class D regulations because, in First Amendment cases, the Supreme Court has relaxed the general rules of standing.
In a recent case, the Ninth Circuit explained that there are two ways in which legislation can be challenged on the ground that it is unconstitutional on its face. See Foti v. City of Menlo Park, 146 F.3d 629, 1998 U.S. App. LEXIS 8415, 1998 WL 211733, *2 (9th Cir. 1998) (citing Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796-98, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984)). The first type of challenge seeks to establish that the legislation is unconstitutional in every conceivable application. See Vincent, 466 U.S. at 796. This type of facial challenge does "not involve any departure from the general rule that a litigant only has standing to vindicate his own constitutional rights." Id.
As discussed above, Mr. Dunifer lacks standing to bring an as-applied challenge to the Class D regulations. Therefore, he lacks standing to claim that the Class D regulations are unconstitutional in every conceivable application. In fact, Mr. Dunifer acknowledges that requiring micro radio broadcasters to be licensed is necessary and constitutional. Even with advanced technology, not all micro radio stations could broadcast without causing interference with other radio stations. Therefore, application of the Class D regulations, in conjunction with considering waiver requests, is not unconstitutional in every conceivable instance.
The Supreme Court has recognized a doctrine in First Amendment cases that does relax the usual standing requirement. The overbreadth doctrine allows a litigant to claim that the legislation in question prohibits such a broad range of protected speech that it may chill the speech of third parties, even if the litigant's own speech is not protected. See id. at 798; Foti, 146 F.3d 629, 1998 U.S. App. LEXIS 8415, 1998 WL 211733 at *2. In Mr. Dunifer's Supplemental Brief filed in response to the Court's request for further briefing, he argues that the Class D regulations are overbroad and act as an impermissible prior restraint on speech.
Claims of facial overbreadth have been allowed against statutes that regulate the time, place and manner of communicative conduct, including licensing statutes that delegate standardless discretionary power to administrators resulting in unreviewable prior restraints on First Amendment rights. See Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990). The overbreadth doctrine was enunciated by the Supreme Court in Thornhill v. Alabama, 310 U.S. 88, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). In that case, Thornhill was convicted of violating a statute prohibiting a person without just cause or legal excuse to go near or to picket business premises. Thornhill defended himself on the ground that the statute was unconstitutional on its face. Id. at 91. The Court explained that Thornhill need not have applied for a license to challenge the statute because "the character of the evil inherent in a licensing system . . . is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.' One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it." Id.
In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150, 152, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969), the Court invalidated a city ordinance that granted to the City Commission unbridled power to prohibit any parade, procession or demonstration in the city's streets, stating that "a person faced with . . . an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license". In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988), the Court permitted a facial attack on a city ordinance that gave the mayor "unfettered discretion to deny annual newsrack applications and unbounded authority to condition the permit on any additional terms he deems 'necessary and reasonable'".
The United States argues that the First Amendment cases addressing overbroad licensing schemes do not apply here because the First Amendment right of freedom of speech does not include the right to broadcast over radio frequencies without a license. Although the right to broadcast is not as broad as the right to speak, write or publish, it does implicate the First Amendment. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969) ("Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them").
Therefore, if the regulatory scheme that Mr. Dunifer challenges were unconstitutionally overbroad on its face, the fact that Mr. Dunifer has not applied for a license would not deprive him of standing to challenge it.
Mr. Dunifer proffers two theories in support of his argument that the regulations constitute an overbroad licensing scheme creating a prior restraint on speech. First, citing Shuttlesworth, 394 U.S. at 150 and City of Lakewood, 486 U.S. at 772, Mr. Dunifer argues that because no written rules or regulations exist regarding waiver of the Class D regulations, the FCC has unbridled discretion to decide who will be granted a waiver and permitted to operate a Class D radio station. Mr. Dunifer reasons that the FCC does not have standards for granting waivers because in his Application for Review of the FCC's Forfeiture Order he requested that the FCC provide him with such standards, and the FCC did not respond. The United States asserts that Mr. Dunifer's request for standards, appearing in a footnote in his Application for Review, is not equivalent to filing a license application with a waiver request. Although the United States does not provide to the Court any evidence of what guidelines the FCC uses to determine who will be granted a waiver, it cites WAIT Radio, 418 F.2d at 1159.
As noted above, in WAIT Radio, the D.C. Circuit remanded the FCC's denial of an applicant's waiver request to the FCC for a clearer statement of reasons for its denial. Id. at 1156. The court explained that the FCC must give serious consideration to meritorious applications for waiver, including non-frivolous First Amendment claims when supported by adequate factual material. Id. at 1156-57. Pursuant to WAIT Radio, the FCC is bound to consider seriously any correctly plead application for a waiver that Mr. Dunifer files. If the FCC denies Mr. Dunifer's application for a waiver, it must "articulate with clarity and precision its findings and the reasons for its decisions." Id. at 1156. The Court finds that these judicial guidelines, within the context of the FCC's mandate to administer for the public interest, convenience and necessity, provide sufficient standards for the FCC's decision whether to grant or deny a waiver application filed by Mr. Dunifer or any other aspiring Class D broadcaster.
Second, Mr. Dunifer argues, citing Bernstein v. United States Dep't of State, 974 F. Supp. 1288 (N.D. Cal. 1997) and Freedman v. Maryland, 380 U.S. 51, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965), that the FCC licensing scheme is overbroad and acts as a prior restraint on speech because it lacks procedural safeguards. In Bernstein, the court stated, "The danger inherent in prior restraints is largely procedural, in that they bypass the judicial process and locate in a government official the delicate responsibility of passing on the permissibility of speech." Bernstein, 974 F. Supp. at 1304 (citing Freedman v. Maryland, 380 U.S. at 58). In Freedman, the Court established that three procedural safeguards were essential for a licensing scheme to pass constitutional scrutiny: (1) the licensor must decide whether to issue the license within a specified and reasonable time; (2) prompt judicial review must be available in the event the license is erroneously denied; and, (3) the censor must bear the burden of going to court and must bear the burden of proof in court. Freedman, 380 U.S. at 58-60; see also FW/PBS, 493 U.S. 215 at 227, 107 L. Ed. 2d 603, 110 S. Ct. 596 (discussing Freedman requirements). The third safeguard, however, is only necessary in licensing schemes that act as a censorship system. See id., at 228-229. Because the Class D regulations do not act as a censorship system, only the first two Freedman safeguards are required.
The FCC regulatory scheme sets forth adequate procedures for processing applications for a license and requests for a waiver, thus fulfilling the first Freedman requirement. See 47 C.F.R. § 73.3573 (providing procedures for processing FM broadcast station applications); 47 C.F.R. § 1.3 (waiver provision). By statute, a denial of an application for a license or request for a waiver is appealable to the Court of Appeals for the District of Columbia, fulfilling the second Freedman requirement. See 47 U.S.C. § 402(b)(1). Moreover, any party may submit a petition for the issuance, amendment or repeal of any FCC rule or regulation. See 47 C.F.R. § 1.401(a). A petition for rule-making is subject to the procedures set forth in 47 C.F.R. Part 1 Subpart C. Any denial of a petition for the issuance, amendment or repeal of a rule or regulation is a final order of the FCC subject to appeal in any court of appeals. See 47 U.S.C. § 402(a); 28 U.S.C. § 2342. The Court finds that the regulatory scheme here withstands constitutional scrutiny because it specifies procedures which the FCC must follow and it provides for judicial review of any improper FCC ruling.
Thus, Mr. Dunifer's claims that the regulations are unconstitutional in every conceivable application and that they are overbroad must fail.
For the foregoing reasons, the United States' motion for summary judgment must be GRANTED. Accordingly, Mr. Dunifer, and all persons in active concert or participation with him, are hereby ENJOINED:
(a) From making radio transmissions within the United States unless and until they first obtain a license from the FCC;
(b) From doing any act, whether direct or indirect, to cause unlicensed radio transmissions or to enable such radio transmissions to occur.
Judgment shall enter for Plaintiff. Each party shall bear its own costs.
IT IS SO ORDERED.
Dated: June 16, 1998
United States District Judge