The opinion of the court was delivered by: WILKEN
This case first came before the Court in 1994 on Plaintiff United States' motion for injunctive and declaratory relief against Defendant Stephen Paul Dunifer for violation of 47 U.S.C. § 301, which prohibits the operation of a radio station without a license. In opposition to the United States' motion, Mr. Dunifer did not dispute that he was operating a micro radio station, "Free Radio Berkeley", without having applied for a license.
Instead, Mr. Dunifer raised several affirmative defenses challenging Federal Communication Commission ("FCC") regulations governing the licensing of micro radio broadcasting.
The United States did not respond directly to Mr. Dunifer's constitutional attack on the regulations, but instead argued that the FCC's statutory authority to regulate and license broadcasters is constitutional.
The Court ruled that, on the limited record before it, the United States had shown probable success on the merits on the issue that Mr. Dunifer had broadcast without a license, but that the United States had failed to show a probability of success on the constitutional issues raised by Mr. Dunifer. See Memorandum and Order Denying Plaintiff's Motion For Preliminary Injunction and Staying This Action at 3-4. For that reason, the Court denied the motion for a preliminary injunction. Under the doctrine of primary jurisdiction, the Court stayed the case so that the issue of the constitutionality of the Class D regulations could first be addressed by the FCC either in the context of Mr. Dunifer's pending forfeiture proceeding
or in the context of the FCC's rule-making powers. Id. at 10.
On August 2, 1995, the FCC issued its Memorandum Opinion and Order in Mr. Dunifer's forfeiture proceeding ("Forfeiture Order"). In the Forfeiture Order, the FCC concluded that the Class D regulations do not violate the First Amendment or the FCC's mandate to regulate in the public interest.
After the FCC issued the Forfeiture Order, the United States filed a motion for summary judgment in this case. In the summary judgment motion, the United States still did not discuss the merits of Mr. Dunifer's constitutional claims. Instead it argued that, by statute, this Court lacks jurisdiction to hear Mr. Dunifer's challenge to the Class D regulations because exclusive jurisdiction over any challenge to FCC regulations is vested in the courts of appeals.
Mr. Dunifer responded that the Court had jurisdiction over his affirmative defenses and renewed his First Amendment arguments.
Article III of the Constitution of the United States limits the jurisdiction of federal courts to deciding cases and controversies. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). The doctrine of standing is a core component of the case-or-controversy requirement. See id. at 560. The litigant invoking federal jurisdiction must establish the three minimum requirements of standing: (1) a litigant must have suffered an actual and concrete injury consisting of "an invasion of a legally protected interest"; (2) there must be a causal connection between the injury and the conduct of which the litigant complains; and, (3) there must be a likelihood that the injury will be redressed by a favorable judicial decision. See id. at 560-61.
Mr. Dunifer argues that he need not establish standing because standing must be shown by plaintiffs who invoke federal court jurisdiction, not by defendants like himself. It is true that the doctrine of standing is usually raised by the defendant, because the plaintiff is the party who is invoking the jurisdiction of the court. The Seventh Circuit has stated that the standing doctrine applies only to plaintiffs. See Wynn v. Carey, 599 F.2d 193, 196 (7th Cir. 1979). The Ninth Circuit, however, in at least two cases, has analyzed whether defendants have standing to raise, as an affirmative defense, the unconstitutionality of the statute and regulations that form the basis of the government's case-in-chief. See United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997); United States v. Thirty Eight (38) Golden Eagles, 649 F. Supp. 269, 274, 276 (D. Nev. 1986), aff'd, 829 F.2d 41 (9th Cir. 1987).
In Hugs, the defendants were convicted of taking and purchasing eagles in violation of the Bald and Golden Eagle Protection Act ("BGEPA"). 109 F.3d 1375 at 1377. Regulations allowed enrolled Native Americans to obtain eagles or eagle parts for religious use through a permit system. Id. The defendants had not applied for a permit. Id. The defendants admitted they had trapped and killed eagles, but defended their actions by arguing that their right to the free exercise of their religion was infringed upon by the existence of the BGEPA and by the difficulty of obtaining a permit. Id. The Ninth Circuit ruled that the defendants could bring a facial challenge to the BGEPA and its regulations, but because they had failed to apply for a permit, they lacked standing to defend themselves based on an as-applied challenge. Id. at 1378-79. Similarly, in Golden Eagles, a forfeiture action brought by the government, the court ruled that a claimant who had failed to apply ...