Ruggiero v. Federal Communications Commission

ROGERS, Circuit Judge,

concurring:

Upon consideration of this appeal by the en banc court, I generally join Judge Randolph’s concurring opinion. Based on the standard established in News America Publishing, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988), as applied and explained.in that case, I initially was persuaded by Ruggiero’s argument challenging § 632(a)(1)(B) of the Radio Broadcasting Preservation Act of 2000, Pub.L. No. 106— 553, 114 Stat. 2762 , § 632(a)(1)(B), and its implementing rule, 47 C.F.R. § 73.854 . However, upon further consideration, I am persuaded that Ruggiero does not have standing to raise the question of whether the statutory ban is overbroad. That conclusion, combined with the fact that the en banc court is not constrained by our precedent News America, precedent whose analysis I read to require a determination that the ban was unconstitutional, now leads me to a different result.

The court is in agreement that the News America standard of something “more than minimal scrutiny,” 844 F.2d at 813 , is the appropriate standard to be applied in Ruggiero’s case, rejecting the rational basis test urged by the government. The court does not further defíne the standard and the majority, unlike the dissent, does not adopt the analysis of News America. In News America, the court did not address the question of overbreadth, resting instead on the extraordinary underinclu-siveness of the statutory provision at issue that, in fact, applied to a single licensee. 844 F.2d at 810 . The panel majority in Ruggiero adopted the News America standard because the statutory ban focused on a defined (albeit not closed) group “with the precision of a laser beam,” Ruggiero v. FCC, 278 F.3d 1323, 1331 (D.C.Cir.2002), and concluded that the statute (and its associated rule) was unconstitutional under the News America standard in part because it “covers circumstances only marginally related to the purpose of increasing regulatory compliance,” id. at 1332 . The en banc majority eschews that conclusion and instead decides that because “[a]ll unlicensed LPFM broadcasters violated the Communications Act,” they have “demonstrate[d] a willful disregard of the most basic rule of federal broadcasting regulation” and are properly covered by the statute and implementing rule. Maj. Op. at 247.

The differing applications of the over-breadth doctrine by the en banc majority and the panel majority suggest the importance of considering whether the doctrine properly applies at all to Ruggiero’s appeal. See L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38-41 , 120 S.Ct. 483, 488-90 , 145 L.Ed.2d 451 (1999). The en banc majority does not address this threshold question. Although the parties did not brief the issue of whether the overbreadth doctrine applies, the question was raised by the en banc court during oral argument and the parties’ attention was drawn to the Supreme Court’s decision in Los Angeles Police Department. Each party was afforded an opportunity to respond to the question and neither party sought permission from the court to file a supplemental memorandum on the question. As a jurisdictional issue that the court can raise sua sponte, insofar as the question implicates whether Ruggie-ro is a proper party to challenge the over-broad nature of the statute and rule, see New York v. Ferber, 458 U.S. 747 , 767-68 & n. 20, 102 S.Ct. 3348 , 3359-61 & n. 20 73 L.Ed.2d 1113 (1982), it behooves the court to address the threshold question of whether the doctrine applies here, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 , 118 S.Ct. 1003, 1012-13 , 140 L.Ed.2d 210 (1998).

*252 For the reasons generally set forth in Judge Randolph’s concurring opinion, I would deny the petition for review. In light of Los Angeles Police Department, the overbreadth doctrine does not apply. Although the dissent treats Ruggiero’s challenge to the ban as based on underin-clusiveness and overinclusiveness, and continues to apply the News America analysis, dissenting op. at 256-261, as Judge Randolph makes clear, one of Ruggiero’s First Amendment challenges is an over-breadth challenge. Concurring op. Randolph, J. at 251, 252. There is no evidence that the speech of any pirate has been chilled as a result of the ban, and when counsel for Ruggiero was asked at oral argument what chilling effect the ban might have on other pirates, he was only able to identify the fact that “many of these individuals won’t even bother to go through the process of applying for a broadcast license,” because “[t]hey don’t have a lot of money to hire lawyers.” The financial inability of private parties to file suit to challenge arguably unconstitutional statutes is insufficient to show a chilling effect. Moreover, Ruggiero’s own history with the Commission leaves no room for doubt that such a ban can be constitutionally applied to so flagrant a violator of the Communications Act. See Free Speech v. Reno, No. 98 CIV. 2680(MBM), 1999 WL 147743 , at *11 (S.D.N.Y. Mar.18, 1999), aff'd sub nom. Free Speech ex rel. Ruggiero v. Reno, 200 F.3d 63 (2d Cir.1999); In re Creation of Low Power Radio Serv., 15 F.C.C.R. 19,208, 19,245 & n. 140, 2000 WL 1434686 (2000), amended by 16 F.C.C.R. 8026, 2001 WL 310997 (2001). Indeed, the dissent does not suggest to the contrary, but would void the ban because it is not confined to flagrant violators. Dissenting op. at 259-260. Thus his facial challenge fails. See concurring op. Randolph, J. at 249.

Were the overbreadth doctrine brought to the court by a proper party, our dissenting colleague, admittedly, makes a strong case for why Congress might have done better than to ban all pirates from applying for a broadcast license. See dissenting op. at 259-261. However, because Ruggie-ro may not avail himself of that doctrine, the only remaining question for the court is whether, under something more than minimal scrutiny, Congress reasonably could have concluded that a blanket prohibition of granting low-power licenses to individuals such as Ruggiero would further the purposes underlying what is, essentially, a regulatory system largely reliant on voluntary compliance. See In re Creation of Low Power Radio Serv., 15 F.C.C.R. 2205, 2226, 2000 WL 85304 , on reconsideration 15 F.C.C.R. 19,208, 2000 WL 1434686 (2000), amended by 16 F.C.C.R. 8026, 2001 WL 310997 (2001); Maj. Op. at 245-246. In other words, the question is whether Congress’s method is “substantially related to the Government’s interest — a somewhat higher level of inquiry than mere rational relationship.” News America, 844 F.2d at 821 (Robinson, J., dissenting). The ban, which applies without regard to the content of the pirates’ speech, advances a strong governmental interest by precluding pirates, who have intentionally violated the Communications Act, from applying for a license under a regulatory scheme that depends heavily on voluntary compliance. Maj. Op. at 243-245, 245-246. Hence, Ruggiero fails to show that the ban violates the First Amendment or the Equal Protection Clause.