# Ruggiero v. Federal Communications Commission

> Court of Appeals for the D.C. Circuit · January 31, 2003 · 317 F.3d 239

URL: https://www.frixlaw.com/law-library/cases/9439325

## Case

- **Full name:** Greg RUGGIERO, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 31, 2003
- **Citations:** 317 F.3d 239; 354 U.S. App. D.C. 337; 2003 WL 203131
- **Precedential status:** Published
- **Opinion:** Dissent by Tatel
- **Judges:** Ginsburg, Edwards, Sentelle, Henderson, Randolph, Rogers, Tatel, Garland
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9439325

## How later opinions describe it (automated extraction)

- noting that “structural” regulation of the broadcast industry receives only minimal scrutiny despite its “indirect effect upon speech”

## Opinion text

TATEL, Circuit Judge,
dissenting:
No one doubts, as this court and the Commission repeatedly emphasize, that broadcasting without a license is a serious offense. Severe penalties, including fines, forfeitures, and even imprisonment, have long existed for unlicensed broadcasting. Moreover, the Commission has ample au *253 thority, which it regularly exercises, to deny licenses to former unlicensed broadcasters who, in the Commission’s judgment, cannot be trusted to function as truthful and reliable licensees. The question presented here is whether unlicensed microbroadcasters, many of whom have already been punished for their misdeeds, may be subjected to a unique and draconian sanction that automatically and forever bars them — unlike any other violator of the Communications Act or regulations— from applying for low power licenses regardless of either the circumstances of their offenses or evidence that they can nevertheless operate in the public interest. Because this double standard is indefensible, because the statute’s automatic lifetime ban restricts speech, and because the court, though purporting to embrace this circuit’s more than minimal scrutiny standard, actually subjects the statute to the minimal scrutiny reserved for non-First Amendment cases, I respectfully dissent.
I.
The Radio Broadcasting Preservation Act’s character qualification “prohibits] 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.” Pub.L. No. 106-553, 114 Stat. 2762, § 632(a)(1)(B) (2000) (RBPA). The court glosses over the statute’s unusual harshness. No other violations of the Communications Act or broadcasting regulations result in automatic disqualification or are punishable by this broadcasting equivalent of the death penalty. Except in the case of unlicensed mi-crobroadcasters, the Commission “treat[s] violations of the Communications Act, Commission rules or Commission policies as having a potential bearing on character qualification.” Policy Regarding Character Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179 , ¶ 56, 1986 WL 292574 (1986) (“1986 Character Policy Statement”) (emphasis added), recon. granted in part and denied in part, 1 F.C.C.R. 421, 1986 WL 292334 (1986). Even as to FCC-related misconduct involving “misrepresentation,” viewed by the Commission as “raisfing] immediate concerns over the licensee’s ability to be truthful in any future dealings with the Commission,” no Commission rule subjects full power applicants to automatic, lifetime disqualification. Id. ¶ 57 . In addition, the Commission allows full power applicants with unclean records to demonstrate rehabilitation. Id. ¶ 105 . In this regard, the Commission considers “the passage of time since the misconduct, the frequency of misconduct, the involvement of management and the efforts to remedy the situation.” Id. Moreover, any misconduct, communications-related or otherwise, occurring more than ten years prior to the filing of a full power application is completely disregarded. Id.
The RBPA treats unlicensed microb-roadcasters quite differently, however. Instead of having past offenses evaluated as just one factor in assessing their qualifications, instead of having an opportunity to demonstrate rehabilitation, and instead of having their sins forgiven after ten years, they are automatically and forever barred from low power ixequencies. This capital sanction has been imposed not just on Petitioner Greg Ruggiero, but also on education- and church-related organizations that, in response to the Commission’s RBPA implementing regulation, confessed to some prior acts of unlicensed broadcasting: Foundation for California State University, San Bernardino; Hume Lake Christian Camps; Calvary Chapel of Simi Valley, Inc.; Friends of the South County Library; All That Is Catholic Ministries; and Pentecostal Church of the Eternal Rock. See Creation of a Low Power Radio Serv., 16 F.C.C.R. 8026, 8060-61, 2001 *254 WL 310997 (2001) (“Second Low Power Report and Order”) (amending Creation of Low Power Radio Serv., 15 F.C.C.R. 2205, 2000 WL 85304 (2000) (“First Low Power Report and Order”) (codified at 47 C.F.R. § 73.854 )).
Not only is the RBPA’s character qualification an unusually harsh broadcasting regulation, but automatic lifetime bans appear rarely in American law. True, the Fourteenth Amendment allows states to ban felons from voting, U.S. Const. Amend. XIV, § 2; see Richardson v. Ramirez, 418 U.S. 24 , 94 S.Ct. 2655 , 41 L.Ed.2d 551 (1974), and the Commission points to a few statutes that authorize lifetime bans, see Respondent’s Br. at 20-21, but none involves restrictions on speech.
II.
The court gets off to a good start: It says it rejects the Commission’s position that in reviewing the RBPA’s constitutionality, we should apply only minimal scrutiny. Maj. Op. at 245. I have two concerns with what follows, however. First, I think the First Amendment values at stake here are weightier than the court’s opinion suggests. Second, in sustaining the RBPA’s constitutionality, the court actually applies the same minimal scrutiny standard it purports to reject.
First, the values at stake: Athough no one has a First Amendment right to broadcast, see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-89 , 89 S.Ct. 1794, 1805-06 , 23 L.Ed.2d 371 (1969), denial of a license unquestionably burdens an applicant’s opportunity for future speech. The purpose of the licensing process is to facilitate constitutionally protected speech, albeit speech somewhat less protected than that occurring outside broadcasting. See FCC v. League of Women Voters, 468 U.S. 364, 378 , 104 S.Ct. 3106, 3116 , 82 L.Ed.2d 278 (1984) (“[W]e have ... made clear that broadcasters are engaged in a vital and independent form of communicative activity.”).
As the Supreme Court made clear in Red Lion, moreover, the public has a First Amendment right “to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broad. Co., 395 U.S. at 390 , 89 S.Ct. at 1807 . The Court further explained:
[T]he people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. ... It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.
Id. The public’s First Amendment right to diverse broadcasting is especially important, for it is the source of the Commission’s authority to limit broadcast ownership and to apportion scarce broadcast spectrum to persons of good moral character. See League of Women Voters, 468 U.S. at 380 , 104 S.Ct. at 3117 (“Thus, although the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern.”); FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 794-95 , 98 S.Ct. 2096, 2111-12 , 56 L.Ed.2d 697 (1978) (“NCCB”); Red Lion Broad. Co., 395 U.S. at 387-90 , 89 S.Ct. at 1805-07 . Indeed, when the Commission authorized the new low power service in its 2000 Report and Order, it did so expressly to increase broadcasting diversity. “We believe that the LPFM service authorized in this proceeding,” the Com *255 mission explained, “will provide opportunities for new voices to be heard and will ensure that we fulfill our statutory obligation to authorize facilities in a manner that best serves the public interest.” First Low Power Report and Order, 15 F.C.C.R. at 2206, ¶ 1.
Our decision in News America Publishing, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988), identifies still another reason for rejecting rational basis analysis. In that case, we confronted a statute that forbade the Commission from extending existing waivers of the cross-ownership rules. The provision affected only two such waivers, both held by a single publisher/broadcaster, Rupert Murdoch. News America’s challenge to the provision “l[ay] at the intersection of the First Amendment’s protection of free speech and the Equal Protection Clause’s requirement that government afford similar treatment to similarly situated persons.” Id. at 804 . Reviewing the case law, we identified a “spectrum” of possible broadcast restrictions, “from the purely content-based (e.g., ‘No one shall criticize the President’) to the purely structural (e.g., the cross-ownership rules themselves),” and suggested that the applicable level of constitutional scrutiny increases with the extent to which a challenged provision relies on the identity of the speaker or the content of the covered speech. Id. at 812 . On this spectrum, the challenged prohibition on extending cross-ownership waivers was “far from purely structural ... as it applie[d] to a closed class of one publisher broadcaster.” Id. Concerned that “[t]he safeguards of a pluralistic political system are often absent when the legislature zeroes in on a small class of citizens,” but wary of intermediate scrutiny, we concluded that “[w]hat suffices for this case is that more is required than ‘minimum rationality.’ ” Id. at 813-14 . Applying this heightened rational basis standard to the challenged provision, we held that the provision’s narrow focus on extension of existing waivers of the newspaper-ieiemsiow cross-ownership rules — rather than, for example, extensions of future waivers or extensions of waivers of the newspaper-radio cross ownership rules — rendered the prohibition unconstitutionally underinclusive. Id. at 814-15 .
Like the prohibition at issue in News America, the RBPA’s character qualification raises not just First Amendment concerns (it restricts future lawful speech), but equal protection concerns as well because it applies to a limited class of unlicensed microbroadeasters. Id. at 812 . Although this class is neither “closed” nor as small as News America’s, the class is well-defined — it consists of all unlicensed mi-crobroadcasters and applies only to those frequencies reserved for local voices — and the character qualification focuses on the class “with the precision of a laser beam.” Id. at 814 . Indeed, the RBPA prohibition is far more severe than the rule at issue in News America: Unlicensed microbroad-casters may never lawfully operate low power stations anywhere in the country, whereas Rupert Murdoch, consistent with the cross-ownership rules, could lawfully have operated television stations outside any community in which he “own[ed] or controlled] a daily newspaper.” Id. at 802 ; cf. NCCB, 436 U.S. at 800 , 98 S.Ct. at 2114-15 .
For all these reasons, the appropriate standard of review is neither NCCB’s minimal scrutiny nor League of Women Voters’ intermediate scrutiny, but rather “more than minimal scrutiny.” News Am. Publ’g, Inc., 844 F.2d at 813 . Although purporting to agree, this court goes on to apply what is effectively minimal rationality review. It treats the RBPA as presumptively valid and disregards the many ways in which the statute is poorly tailored. See FCC v. Beach Communica *256 tions, Inc., 508 U.S. 307, 313-16 , 113 S.Ct. 2096, 2100-03 , 124 L.Ed.2d 211 (1993) (explaining characteristics of rational basis review). It is of course true that this en banc court may overrule News America, but not, as it has effectively done, without providing a reasoned explanation for doing so. See Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 866 , 112 S.Ct. 2791, 2814 , 120 L.Ed.2d 674 (1992) (opinion of O’Connor, Kennedy, Souter, JJ.) (“The need for principled action to be perceived as such is implicated to some degree whenever this, or any other appellate court, overrules a prior case.”). In any event, I know of no decision, either of the Supreme Court or this circuit, that applies rational basis review to a statute limiting important First Amendment rights.
Applying our more than minimal scrutiny standard, I have no doubt that ensuring truthful and reliable low power licensees and deterring future violations of the Communications Act — the reasons Congress enacted the RBPA’s character qualification — represent important governmental objectives. But this does not end our analysis. We must determine “how well [the RBPA’s] aim corresponds with [its] legitimate public purpose.” News Am. Publ'g, Inc., 844 F.2d at 814 . If the statute is poorly aimed — either because its automatic, lifetime mechanism operates to exclude “conduct that seems indistinguishable in terms of the law’s ostensible purpose” of increasing regulatory compliance, id. at 805 , or because it covers conduct only remotely related to that purpose— then it limits more speech than necessary and “raise[s] a suspicion” that perhaps Congress’s “true” objective was not to increase regulatory compliance, but to penalize microbroadcasters’ “message.” Id.-, see Petitioner’s Br. at 30-32 (arguing that Congress passed the RBPA to punish mi-crobroadcasters’ message). One need neither endorse the microbroadcasters’ tactics, see Grid Radio v. FCC, 278 F.3d 1314 (D.C.Cir.2002) (rejecting an argument that penalizing microbroadcasting piracy violates the First Amendment), nor believe the RBPA discriminates against their “message” in order to conclude that the provision’s inaccurate aim — it’s both under- and overinclusive — is fatal.
III.
I begin with the statute’s underinclusiveness. See City of Ladue v. Gilleo, 512 U.S. 43, 51-52 , 114 S.Ct. 2038, 2043-44 , 129 L.Ed.2d 36 (1994) (explaining that un-derinclusiveness in speech regulations may suggest a content or viewpoint discriminatory motive and cast doubt on the government’s asserted justification for restricting speech). If banning unlicensed microb-roadcasters is vital to ensuring truthfulness and reliability, why does the RBPA exclude so much conduct that seems equally or even more related to those objectives? Specifically, the character qualification bans low power license applications only from unlicensed microbroadcasters, leaving the Commission free to evaluate applications from anyone else under its non-automatic, more permissive general character qualification policy. See supra at pp. 253-54. Inveterate regulatory violators, including those full power applicants who broadcast without a license, retain the opportunity to demonstrate that notwithstanding their offenses, they can reliably operate low power stations in the public interest. For example, applicants guilty of fraud or misrepresentation, long considered by the Commission to be among the most serious indicators of unreliability, are not automatically ineligible. See 1986 Character Policy Statement, 102 F.C.C.2d 1179 , ¶ 57. They may apply for licenses, and the Commission will consider their misdeeds in evaluating their fitness to hold a license, or even disregard their misbehavior altogether if it occurred more than ten years ago. Of course, Congress need *257 not address a “perceived problem” — here, the possibility of regulatory violations by other wrongdoers — “all at once,” but we reject that “facile one-bite at-a-time explanation” for otherwise inexplicable underin-clusiveness in “rules affecting important First Amendment values.” News Am. Publ’g, Inc., 844 F.2d at 815 .
The RBPA’s underinclusiveness is quite pronounced, particularly when compared to the Commission’s treatment of full power broadcasters. The Commission does not automatically disqualify full power applicants who have engaged in even “the most atrocious infractions.” Weiner Broad. Co., 7 F.C.C.R. 832, 834, 1992 WL 689298 (1992). In Weiner, the Commission revoked the “incorrigible Weiner[’s]” broadcast license as a result of his numerous alleged violations of Commission rules — including broadcasting without a license, evading a court injunction prohibiting his unlicensed broadcasting, and misrepresenting his true intentions in construction permit and license applications filed with the Commission — but only after considering Weiner’s evidence of rehabilitation. Id. at 833 . “Should a ‘decent interval’ ensue without notable delict,” the Commission even offered, “Weiner is not es-topped from applying again.” Id. at 834 . Likewise, in L.D.S. Enterprises, Inc., 86 F.C.C.2d 283 , 1981 WL 158528 (1981), a case involving “perhaps the most amoral skein of detected villainy in domestic broadcast history,” Weiner Broad. Co., 7 F.C.C.R. at 834, the Commission considered an applicant’s evidence of rehabilitation even though he had deliberately distorted newscasts to favor certain senatorial candidates, made illegal campaign contributions, bribed public officials, and attempted to eavesdrop on and intimidate Commission witnesses. L.D.S. Enter., Inc., 86 F.C.C.2d at 286. Finally, in Modesto Broadcast Group, 7 F.C.C.R. 3404, 1992 WL 689902 (1992), the Commission reviewed a license application filed by a station whose general manager had operated during the day with relatively high, nighttime power, thus risking interference with other stations. Although the Commission ultimately rejected the application, it did so only after considering the willfulness, duration, and timing of the violations — factors that the RBPA prohibits the Commission from considering in cases involving unlicensed microb-roadcasters who seek LPFM licenses. Id. at 3422-23 .
This court offers three unconvincing explanations for the statute’s underinclusiveness. First, it says that “other violations of law simply do not reflect as directly upon the offender’s qualification to hold an LPFM license.” Maj. Op. at 246. Assuming that to be true, why does the RBPA’s automatic and permanent ban not extend to unlicensed full power broadcasters, such as the “incorrigible Weiner”? In any event, I think it not at all obvious that unlicensed microbroadcasters who broadcast briefly and years ago and who shut down promptly when told to do so present any greater risk of unreliable behavior than applicants who recently obtained their licenses through fraud or misrepresentation or who perpetrated the “most amoral skein of detected villainy in domestic broadcast history.” If anything, the Weiners of the world should be of greater concern. Nor do I think it inherently obvious that former unlicensed microb-roadcasters necessarily present a higher risk of frequency interference than do Weiner or the Modesto general manager. Whether caused by unlicensed microbroad-casters or by licensed broadcasters operating on someone else’s frequency, frequency interference is frequency interference. Indeed, unauthorized full power broadcasters, whose range and power far exceed that of microbroadcasters, would seem to *258 present a greater risk of interference. Of course, such observations would be irrelevant were we applying rational basis review, see Beach Communications, 508 U.S. at 313-16 , 113 S.Ct. at 2100-03 , but our more than minimal scrutiny standard requires us to determine whether Congress’s means are appropriately tailored to achieve its goals.
The court’s second explanation for the RBPA’s single-minded focus on unlicensed' mierobroadcasters is this: “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.” Maj. Op. at 247. I agree that deterrence is a substantial governmental interest, but why impose a lifetime ban? Even given the many violations that occurred during the movement to end the low power ban, what is it about unlicensed microbroadcasters, alone among applicants who have committed offenses, that requires a broadcasting “mark of Cain” to deter future offenses? Genesis 4:15.
The weakness of the deterrence rationale is particularly evident in view of the fact that the Commission’s 2000 Report and Order, which the RBPA replaced, made crystal clear that applicants who continue broadcasting without licenses after the 1999 Notice of Proposed Rule Making would be automatically and forever ineligible for any broadcast license. “[T]he illegality of unauthorized broadcasting,” the Commission explained, “must now be presumed to be well-known, and any unlicensed broadcast operation occurring more than 10 days after the Notice was issued will make the applicant ineligible for low power, full power, or any other kind of license and will be subject to fines, seizure of their equipment, and criminal penalties.” First Low Power Report and Order, 15 F.C.C.R. at 2227, ¶55. Neither the court nor the Commission explains why banning all former unlicensed broadcasters would further deter unlicensed broadcasting, and for good reason: If the threat of automatic and lifetime disqualification is insufficient to deter someone from broadcasting, that person is unlikely to experience a sudden change of heart simply because Congress retroactively extended an identical ban to microbroadcasters who operated illegally prior to the NPRM. And even if, as Commission counsel suggested at oral argument, the RBPA’s deterrent effect would be greater because the Commission had authority to waive its more limited bar, Tr. of Oral Arg. at 28:8-32:23, Congress could have corrected that defect simply by making the Commission’s rule nonwaivable.
The court’s final response to the RBPA’s underinclusiveness is that “[t]he 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.” Maj. Op. at 247 n.*. In support of this proposition, the court cites two cases holding that juvenile curfews, both of which included numerous exemptions to protect First Amendment rights, were not unconstitutionally underinclusive because they applied only to juveniles sixteen and under, but not to seventeen-year-olds. Id. (citing Hutchins v. District of Columbia, 188 F.3d 531 (D.C.Cir.1999) (en banc); Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir.1998)). The records in both cases, however, contained evidence of disproportionate criminal activity by juveniles sixteen and under, thus providing an empirical justification for the curfews’ differential treatment of seventeen-year-olds. See Hutchins, 188 F.3d at 543 (“[T]he District brought to our attention more data showing that arrests for youths under 17 have been increasing steadily.”); Schleifer, 159 F.3d at 849-50 (“[T]he City’s *259 evidence documents a serious problem of crime among younger juveniles”)- In Hutchins , moreover, this court recognized a logical justification for excluding seventeen-year-olds from the curfew — their inclusion increased the curfew’s intrusiveness as well as its enforcement burden. Hutchins, 188 F.3d at 543 . Far from holding that we should ignore underinclusiveness in regulations that affect important First Amendment rights, the two curfew cases stand for the unexceptional proposition that legislation is not underinclusive if its differential treatment has empirical or logical justification. Absent any such justification for the RBPA’s differential treatment of microbroadcasters, this court’s disregard of the statute’s underinclusiveness is more characteristic of the rationality review the court says it rejects than of the heightened scrutiny it purports to apply-
IV.
The RBPA’s character qualification is poorly aimed for a second reason: Although the RBPA certainly eliminates any risk that unlicensed microbroadcast-ers will become unreliable or untruthful licensees — after all, they can never become licensees — the statute, because of its automaticity, covers circumstances only marginally if at all related to the purpose of increasing regulatory compliance. See Simon & Schuster v. Crime Victims Bd., 502 U.S. 105 , 112 S.Ct. 501 , 116 L.Ed.2d 476 (1991) (invalidating statute as overinclusive); League of Women Voters, 468 U.S. at 396-99 , 104 S.Ct. at 3125-27 (same). For example, the character qualification bans applications from former unlicensed operators who violated the licensing requirement only briefly or long ago; from operators who shut down immediately upon receiving a Commission order to do so; from operators who have since exhibited, in whatever manner, an ability to abide by federal laws and regulations; from operators who (like Ruggie-ro, see Wangaza Decl.) seek only to serve as members of a multimember board, rather than as president or CEO of an applicant station; and, most tellingly, from operators who were unaware of the licensing requirement at the time of their violation. I do not understand how a restriction that ignores such factors can accurately target those former unlicensed microbroadcasters who do pose real risks of future malfeasance.
According to this court, “[a]ny unlicensed broadcasting demonstrates a willful disregard of the most basic rule of federal broadcasting regulation.” Maj. Op. at 247. Of course that’s not true of operators who were unaware of the licensing requirement and ceased broadcasting immediately upon being told to do so. In any event, why impose a lifetime ban even for willful violators? Statutory and regulatory violations by full power broadcasters are considered as just one element in the licensing process and completely forgiven under certain circumstances. What is it about these little unlicensed microbroadcasters, some of whom are education and church organizations, see supra p. 243-44, that leads this court to exclude any possibility of rehabilitation? I see no rational basis for assuming that all unlicensed microbroadcasters, regardless of either who they are or the circumstances of their violations, can never again be trusted to hold low power licenses.
Contrary to the court’s opinion, moreover, neither the Commission Order on Reconsideration nor the House Report supports the proposition that all unlicensed microbroadcasters should be automatically and forever banned. In fact, the Commission rejected a total ban, applying automatic disqualification to only those unlicensed microbroadcasters who refused to stop either after being told to do so or *260 within ten days of the 1999 NPRM. See Creation of Low Power Radio Serv., 15 F.C.C.R. 19,208, ¶ 96, 2000 WL 1434686 (2000) (Opinion and Order on Reconsideration). And nothing in the House Report’s one-sentence discussion of the RBPA’s character qualification explains why all former unlicensed microbroadcasters, regardless of the circumstances of their violations or evidence of rehabilitation, must be automatically barred in order to ensure licensee truthfulness and reliability. H.R. Rep. No. 106-567, at 8 (2000).
The RBPA’s overinclusiveness is serious. Because the statute covers so much behavior unrelated to regulatory compliance, it limits more speech than necessary to accomplish Congress’s objectives. Moreover, contrary to Red Lion, by unnecessarily denying licenses to potential speakers, the RBPA may be limiting broadcast diversity and doing so in the very portion of the spectrum set aside for new voices. See Ashcroft v. ACLU, 535 U.S. 564 , 122 S.Ct. 1700, 1718 , 152 L.Ed.2d 771 (2002) (Kennedy, J., concurring) (“Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for ‘differences in the characteristics of new media justify ... differences in the First Amendment standards applied to them.’ ” (quoting Red Lion Broad. Co., 395 U.S. at 386 , 89 S.Ct. at 1804-05 )).
Though arising in a different context, the Supreme Court’s recent decision in Thomas v. Chicago Park District, 534 U.S. 316 , 122 S.Ct. 775 , 151 L.Ed.2d 783 (2002), highlights the RBPA’s fatal overinclusiveness. Thomas involved a challenge to an ordinance that permitted (but did not require) denial of an application to parade in a public park when an applicant had, among other things, “violated the terms of a prior permit.” Id. at 324 , 122 S.Ct. at 780-81. Holding that the First Amendment does not preclude discretionary license denials, the Supreme Court explained:
The prophylaxis achieved by insisting upon a rigid, no-waiver application of the ordinance requirements would be far outweighed, we think, by the accompanying senseless prohibition of speech ... by organizations that fail to meet the technical requirements of the ordinance but for one reason or another pose no risk of the evils that those requirements are designed to avoid.
Id. at 325, 122 S.Ct. at 781. The issue in Thomas is quite similar to the one we face here, even though the broadcast spectrum, unlike a public park, is not a public forum. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 , 118 S.Ct. 1633, 1640-41 , 140 L.Ed.2d 875 (1998) (holding that public forum doctrine did not apply to public television broadcast). Both cases involve forums unable to accommodate all speakers, and in both cases the government seeks to avoid chaos and to ensure the forums’ availability for use by as many speakers as possible. In Thomas , the Court discussed the constitutionality of a “rigid, no-waiver” rule that would automatically deny permits to persons who had violated park district rules; here, Congress adopted a “rigid, nowaiver” rule that automatically denies low power licenses to all former unlicensed microbroadcasters. To use Thomas’s words, then, the “prophylaxis achieved by” the RBPA’s character standard is “far outweighed ... by the accompanying senseless prohibition of speech” by applicants who once broadcast illegally “but for one reason or another pose no risk of the evils that those requirements are designed to avoid.”
The concurring opinion, relying on Los Angeles Police Department v. United Reporting Pub. Corp., 528 U.S. 32 , 120 S.Ct. 483 , 145 L.Ed.2d 451 (1999), argues that Ruggiero “cannot invoke the [First *261 Amendment] overbreadth doctrine.” Randolph Op. at 249. I disagree for two reasons. First, unlike United Reporting, the respondent in Los Angeles Police Department , Ruggiero is not “ ‘a person to whom [the RBPA] may constitutionally be applied’ ” who is “ ‘challenging] that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.’ ” L.A. Police Dep’t, 528 U.S. at 38 , 120 S.Ct. at 488 (quoting New York v. Ferber, 458 U.S. 747, 767 , 102 S.Ct. 3348, 3359-60 , 73 L.Ed.2d 1113 (1982)). Ruggiero has never conceded that the RBPA may be applied constitutionally to him, much less to anyone else. Quite to the contrary, he argues that the RBPA cannot constitutionally be applied to anyone because the statute automatically bars unlicensed microbroadcast-ers (unlike all other Communications Act violators) from future speech without an opportunity to demonstrate to the Commission that notwithstanding their offenses, they can function as truthful and reliable licensees.
It is true that Ruggiero concedes that “some former pirates may lack the requisite character traits to hold [low power] licenses,” Petitioner’s Reply Br. at 11, and that he never says that his behavior is “not egregious,” Randolph Op. at 250. But that’s beside the point. Ruggiero argues not that he has a right to serve on the low power station’s board of directors, but that this poorly tailored statute automatically bars him from even trying to demonstrate to the Commission — which under its general character policy automatically disqualifies not even the most “atrocious” violators — that he can nevertheless be trusted to function in the public interest. Ruggie-ro thus has no need to take advantage of the overbreadth doctrine’s “ ‘departure from traditional rules of standing,’ ” designed “to enable persons who are themselves unharmed by the defect in a statute nevertheless ‘to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.’ ” Bd. of Trustees v. Fox, 492 U.S. 469, 484 , 109 S.Ct. 3028, 3037 , 106 L.Ed.2d 388 (1989) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 , 93 S.Ct. 2908, 2916-17 , 37 L.Ed.2d 830 (1973) (emphasis added)).
Second, even if the RBPA could constitutionally be applied to Ruggiero, I believe he would prevail on an overbreadth challenge. To begin with, and contrary to the concurring opinions, the RBPA does present a classic chilling effect. Because the Commission’s RBPA regulations require low power license applicants to disclose all prior unlicensed broadcasting, those applicants whose piracy went undetected — a situation the Commission considers to be covered by the RBPA, see Second Low Power Report and Order, 16 F.C.C.R. at 8030, ¶ 11 — must either (1) admit to a prior act of unlicensed broadcasting, an admission leading not just to permanent ineligibility, but also to possible administrative and/or criminal sanctions, or (2) deny their prior misconduct, risking both prosecution for perjury and “additional enforcement actions,” id. It is thus not accurate to say that “[i]f [unlicensed broadcasters] file applications in the future no harm will befall them. Their applications will simply be denied.” Randolph Op. at 249. Rather than face the Scylla of administrative and criminal prosecution for unlawful broadcasting or the Charybdis of perjury and Commission enforcement actions for failing to disclose such broadcasting, former unlicensed mi-crobroadcasters may find it far safer to forego applying for licenses and simply remain silent. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 , 118 S.Ct. 2168 , 141 L.Ed.2d 500 (1998) (allowing overbreadth challenge based on potential cutoff of government funding).
*262 It is true that under the Commission’s general character policy, applicants must disclose any unlicensed broadcasting. See Randolph Op. at 250. But the question here is whether the RBPA, not the Commission’s general character policy, has a chilling effect. I am unaware of any decision rejecting an overbreadth challenge because the “preceding regime” not actually at issue may have had an equally chilling effect as the challenged provision. Id. And for the same reason the RBPA is unconstitutionally overinclusive, Ruggiero could prevail on an overbreadth challenge. See Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 , 107 S.Ct. 2568, 2571-72 , 96 L.Ed.2d 500 (1987) (finding statute banning all First Amendment activities at airport “substantially over-broad” and unconstitutional under over-breadth doctrine).
V.
Declaring the RBPA unconstitutional would not leave Congress powerless to bar unlicensed microbroadcasters from receiving low power licenses. This circuit’s more than minimal scrutiny standard leaves ample room for carefully aimed licensing restrictions. Moreover, the Commission already has authority under its long-existing character qualification policy to deny licenses to unlicensed microbroadcasters who, in the Commission’s considered judgment, have demonstrated an inability “ ‘to deal truthfully with the Commission and to comply with [its] rules and policies.’ ” First Low Power Report and Order, 15 F.C.C.R. at 2226, ¶ 54 (internal citation omitted). In view of this circuit’s heightened rational basis standard, however, the court has no basis for sanctioning an automatic, lifetime ban on future lawful speech that applies, indefensibly, to only a limited class of unlicensed microbroadcasters and to just the portion of the spectrum created for new voices.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9439325. Public record. Not legal advice.