Appendix — Ruggiero v. Federal Communications Commission

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 00-1100

September Term, 2002

Filed: January 31, 2003

GREG RUGGIERO,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA,

Respondents.

On Petition for Review of an Order of

the Federal Communications Commission

Before: GINSBURG, Chief Judge, and

EDWARDS, SENTELLE, HENDERSON, RANDOLPH,

ROGERS, TATEL, and GARLAND, Circuit Judges,

sitting en banc.

JUDGMENT

This cause was reconsidered by the court en banc on the

record compiled before the Federal Communications Com-

mission, the briefs of the parties, and the arguments by

counsel. On consideration thereof, it is

ORDERED AND ADJUDGED that the decision in Ruggiero v.

FCC, 1323 (D.C. Cir. 2002), be adopted insofar as it

upholds the jurisdiction of the court and vacated insofar

as it holds unconstitutional the character qualification of

§ 632(a)(1)(B) of the Radio Broadcasting Preservation Act

of 2000. It is

‘FURTHER.ORDERED AND ADJUDGED that the petition for

review be denied for the reasons set forth in the opinion

issued this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/_MICHAEL C, MCGRAIL

Michael C. McGrail

Deputy Clerk

Date: January 31, 2002

Opinion for the court en banc filed

by Chief Judge Ginsburg.

Concurring opinion filed by Circuit Judge Randolph.

Concurring opinion filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Tatel.

[STAMP:]

MANDATE

Pursuant to the provisions of Fed. R. App.Pro.41(a)

ISSUED: 2.19.03

BY: /s/ MICHAEL C. MCGRAIL Deputy Clerk

ATTACHED: __ Amending Order

__. Opinion

__. Order on Costs

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 00-1100

Argued En Banc September 17, 2002

a Decided January 31, 2003

GREG RUGGIERO,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA,

Respondents.

On Petition for Review of an Order of

the Federal Communications Commission

ROBERT T. PERRY argued the cause and filed the briefs for

petitioner. With him on the brief was BARBARA J.

OLSHANSKY.

JACOB M. LEwis, Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the brief

were ROBERT S. GREENSPAN and MARK S. DAVIES, Attor-

neys, and JANE E. MAGO, General Counsel, Federal

Communications Commission, and C. GREY PASH, JR.,

Counsel.

Before: GINSBURG, Chief Judge, and

EDWARDS, SENTELLE, HENDERSON, RANDOLPH,

ROGERS, TATEL, and GARLAND, Circuit Judges,

sitting en banc.

Opinion for the Court by Chief Judge GINSBURG, with

whom Circuit Judges EDWARDS, SENTELLE, HENDERSON,

RANDOLPH, ROGERS, and GARLAND join.

Concurring opinion filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge TATEL.

GINSBURG, Chief Judge:

- This petition for review challenges the constitutionality

of the character qualification provision of the Radio

Broadcasting Preservation Act of 2000, which makes inel-

igible for a low-power FM (LPFM) radio license anyone

who engaged in “the unlicensed operation of any station

in violation of .. . the Communications Act of 1934.” Pub.

L. No. 106-553, 114 Stat. 2762, § 632(a)(1)(B). The peti-

tioner raises a facial challenge to the statute and to the

regulations that implement it, asserting that they are over-

inclusive or, alternatively, underinclusive, in violation of

the First Amendment to the Constitution of the United

States. A divided panel granted the petition. The full court

then vacated the judgment issued by the panel and reheard

the case en banc. We now uphold the constitutionality

of the character qualification and deny the petition for

review.

I. Background

Since 1927 the Congress has prohibited any person from

operating a radio station without a license issued by the

Federal Communications Commission (or its predecessor,

the Federal Radio Commission). See 47 U.S.C. § 301. The

Commission is to grant a broadcast license only if the

“public interest, convenience, and necessity would be

served,” 47 U.S.C. § 309(a), and only if the applicant

“set[s] forth such facts as the Commission by regulation

may prescribe as to the citizenship, character, and finan-

cial, technical, and other qualifications of the applicant to

operate the station.” 47 U.S.C. §308(b).

In 1948, the Commission first licensed noncommercial

LPFM stations operating at a maximum of ten watts. Some

30 years later, when the Commission determined that high-

power FM stations could use the channels more efficiently

by “serv[ing] larger areas, and bring[ing] effective non-

commercial educational radio service to many who...

lack[ed] it,” Changes in the Rules Relating to Noncom-

mercial Educ. FM Broad. Stations, 69 F.C.C.2d 240, 924

(1978), modified, 70 F.C.C.2d 972 (1979) (codified at scat-

tered sections of 47 C.F.R.), the Commission stopped

licensing LPFM stations and required most existing LPFM

stations to move to commercial frequencies or to upgrade

to at least 100 watts. /d. at 9911-32.

Thereafter, numerous individuals and entities began

operating LPFM stations without a broadcast license. In

many cases these so-called “pirate” broadcasters operated

their stations in open defiance of the Commission’s ban on

LPFM broadcasts. In response, the Commission dedicated

considerable resources to enforcing the license require-

ment. Notwithstanding, however, the array of powers the

Commission had to combat unlicensed broadcasting,

including the authority to seek an injunction, 47 U.S.C.

§ 401(b), to issue a cease-and-desist order, 47 U.S.C.

§ 312(b), to seize equipment used in unlicensed broadcast-

ing, 47 U.S.C. § 510(a), and to impose a monetary forfei-

ture, 47 U.S.C. § 503(b), the problem persisted and indeed

grew worse in the 1990s. In 1998, 1999, and the first two

months of 2000 the Commission shut down, on average,

more than a dozen unlicensed radio stations each month.

FCC's Low Power FM: A Review of the FCC's Spectrum

Management Responsibilities: Hearing on H.R. 3439

Before the Subcomm. on Telecomm., Trade, and Consumer

Protection of the House Comm. on Commerce, 106th

Cong. 85 (2000). In that same period unlicensed radio

operations using uncertified equipment disrupted air traf-

fic control communications at Sacramento and interfered

with such communications at the Miami and West Palm

Beach airports. Creation of a Low Power Radio Serv., 14

F.C.C.R. 2471, 965 (1999) (Notice of Proposed Rule Mak-

ing) (hereinafter Low Power Proposal). Therefore, it was

clear to the Commission that action needed to be taken to

stop unlicensed broadcasting.

In 1999 the Commission proposed to modify its low-

power radio rules and sought public comment upon

whether it should “create two classes of low power radio

service, both of which would operate in the existing FM

radio band: a 1000-watt primary service and a 100-watt

secondary service.” /d. at 41. The Commission also sought

comment upon whether it should establish “a third, ‘micro-

radio’ class of low power radio service that would operate

in the range of | to 10 watts.” Jd. at 1.

After receiving many comments concerning the Low

Power Proposal, the Commission issued an order creating

new 100-watt and 10-watt classes of LPFM stations. Cre-

ation of Low Power Radio Serv., 15 F.C.C.R. 2205, 411,

2000 WL 85304 (Report and Order). The Commission also

stated that it would accept a low-power application from

an applicant who had broadcast without a license in the

past if the applicant certified under penalty of perjury that

it had ceased such operations within 24 hours of being

directed to do so by the Commission and no later than the

deadline (February 26, 1999) set out in the Low Power

Proposal. Jd. at 953-54. This licensing condition for

broadcast pirates was applicable both to individuals and to

corporate applicants, including the applicant’s officers and

directors. Jd. at 954.

The Commission’s proposal conditionally to license

former pirates was received with dismay in the Congress.

Senator Gregg, who introduced a bill to repeal the LPFM

rules in toto, argued against the Commission’s charac-

ter qualification in particular: “mak[ing] formerly unli-

censed, pirate radio operators eligible for LPFM licenses,”

he said, would “reinforce[ |] their unlawful behavior and

encourage|[ | future illegal activity by opening the door to

new unauthorized broadcasters.” 146 Cong. Rec. $613-02

(daily ed. Feb. 10, 2000). Congressman Oxley made the.

same argument at a House committee hearing on a similar

bill. See House Hearing, 106th Cong. at 4. See also H.R.

Rep. No. 106-567, 106th Cong., at 8 (2000) (House Com-

mittee on Commerce concluded “that the operation of an

unlicensed station demonstrates a lack of commitment to

follow the basic rules and regulations which are essential

to having a broadcast service that serves the public, and

those individuals or groups should not be permitted to

receive licenses in the LPFM service”). _

The Congress ultimately responded to the Commission’s

decision by enacting the Radio Broadcast Preservation Act

of 2000 (RBPA), Pub. L. No. 106-553, 114 Stat. 2762,

§ 632, which among other things directed the Commission

to modify its rules to “prohibit any applicant from obtain-

ing a low-power FM license if the applicant has engaged in

any manner in the unlicensed operation of any station in

viokation of section 301 of the Communications Act of

1934.” Id. § 632(a)(1)(B). In contrast to the Commission,

that is, the Congress barred all low-power pirates from

obtaining an LPFM license regardless whether or when

they had ceased to operate unlawfully.

As directed, the Commission modified its rules to —

implement the more stringent character qualification

required by the Congress. Creation of Low Power Radio

Serv., 16 F.C.C.R. 8026, 910, 2001 WL 310997 (2001)

(Second Report and Order). The resulting regulation pro-

vides that “[n]o application for an LPFM station may be

granted unless the applicant certifies, under penalty of per-

jury, that neither the applicant, nor any party to the appli-

cation, has engaged in any manner including individually

or with persons, groups, organizations or other entities, in

the unlicensed operation of any station in violation of Sec-

tion 301 of the Communications Act of 1934.” 47 C.F.R. §

73.854.

Ruggiero, an admitted former pirate, sought review in

this court of the Second Report and Order, arguing that the

character qualification on its face violates the First

Amendment. A divided panel of this court held the RBPA

and the implementing regulation unconstitutional. Rug-

giero v. FCC, 278 F.3d 1323 (D.C. Cir. 2002). We granted

the Commission’s petition for rehearing en banc and

vacated the prior judgment. Having now reheard the case

en banc, we adopt the decision of the panel concerning the

jurisdiction of the court, id. at 1327-29, but on the merits

hold that the character qualification provision is neither

overinclusive nor underinclusive in violation of the First

Amendment.

Il. Analysis

Before we turn to the merits of the constitutional ques-

tion, we must identify the level of first amendment

scrutiny appropriate to the nature of the statute being chal-

lenged.

A. Stardard of Review

Ruggiero asserts that under FCC v. League of Women

Voters, 468 U.S. 364, 399,104 S.Ct. 3106, 3127, 82

q L.Ed.2d°278 (1984), we are to apply “intermediate scrutiny”

E to all broadcast reguiations other than those that are purely

“structural,” that is, those involving the “where” and*-—

“when” of broadcasting. Under the rubric of intermediate

scrutiny we would have to determine whether the LPFM

character qualification is “narrowly tailored to further a

substantial governmental interest.” /d. at 380, 104 S.Ct.at

3118. Alternatively, Ruggiero asserts the court should

apply the “heightened rational basis scrutiny” to which we

alluded, but had no occasion to apply, in News America

Publishing Inc. v. FCC, 844 F.2d 800, 814 (D.C. Cir.

1988). For its part, the Commission argues we should

apply the “rational basis standard” associated with mini-

mal scrutiny and hence need only determine whether the

character qualification is “a reasonable means of promot-

ing the public interest.” FCC v. National Citizens Comm.

10a

for Broad., 436 U.S. 775, 802, 98 S.Ct. 2096, 2115, 56

L.Ed.2d 297 (1978) (NCCB).

We conclude, as did the panel that first heard this case,

that the appropriate standard of review occupies a ground

somewhere between the minimal scrutiny advocated by the

Commission and the intermediate scrutiny proposed by

Ruggiero. First, we reject Ruggiero’s principal argument,

namely, that the character qualification is content-based

and therefore, pursuant to League of Women Voters, sub-

ject to intermediate scrutiny. At issue in that case was a

statute prohibiting noncommercial educational stations

from editorializing, 47 U.S.C. § 399, a ban “defined solely

on the basis of the content of the suppressed speech.” 468

U.S. at 383, 104 S.Ct. at 3119. Because the object of the

anti-editorial statute was content, the Supreme Court gave

it intermediate scrutiny, asking whether the restriction was

narrowly tailored to advance a substantial government

interest. The ban on editorials failed that test twice over: it

was both overinclusive and underinclusive. The ban was

overinclusive in that it prohibited speech “on topics that

[did] not take a directly partisan stand or that ha[d] noth-

ing whatever to do with ... government,” id. at 395, 104

S.Ct. at 3125, and thus did not implicate the Government’s

stated interests in (a) protecting broadcasters from govern-

ment interference and (b) preventing the public from

assuming the editorials represented the view of the Gov-

ernment. The statute was underinclusive in that broadcast-

ers could still present controversial or partisan views in

news and other programming. /d. at 396,104 S.Ct. at 3125-

26. See also Greater New Orleans Broad. Ass’n v. United

States, 527 U.S. 173, 119 S.Ct.2d 161 (1999) (applying

intermediate scrutiny to ban on broadcast advertising of

lla

private casino gambling as restriction on conteni of com-

mercial speech).

In contrast, as the Commission correctly points out, the

character qualification at issue in this case applies without

regard to any content the applicant may have broadcast

unlawfully or might be expected to broadcast if a license

were issued to him. The character qualification is triggered

solely by the applicant’s conduct, specifically, having

“engaged ... in the unlicensed operation of any station in

violation of section 301 of the Communications Act.” Pub.

L. No. 106-553, 114 Stat. 2762, § 632(a)(1)(B). Contrary

to Ruggiero’s brief, the character qualification is not

directed at the alleged “viewpoint espoused by many

pirates” that “civil disobedience in the form of unlicensed

broadcasting [was] ... necessary to prod the FCC to

rescind its longstanding ban on low power FM radio

broadcasting.” Rather, the statute on its face is based

solely upon the applicant’s prior lack of compliance with

the licensing requirement; the character qualification

applies equally to all unlicensed broadcasters regardless of

the motivation for, or the message disseminated by, their

illegal broadcasting. See Employment Div. v. Smith, 494

U.S. 872, 878, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876

(1990) (“[I]f prohibiting the exercise of religion ... is not

the object of the tax but merely the incidental effect of a

generally applicable and otherwise valid provision, the

First Amendment has not been offended”). See also Kahn

v. United States, 753 F.2d 1208, 1216 (3d Cir. 1985) (pros-

ecution of taxpayer for filing fraudulent tax return, as act

of civil disobedience, did not violate First Amendment;

“penalty was imposed because the taxpayer’s conduct

failed to comply with the requirement of the tax laws that

she properly report her tax liability, not because she

12a

expressed unpopular political views”) (emphasis in origi-

nal).

Though we reject Ruggiero’s assertion that intermediate

scrutiny applies, we do not embrace the Commission’s

position that only minimal scrutiny is warranted. Minimal

scrutiny is appropriate to the indirect effect upon speech

that may attend “structural” regulation of the broadcast

industry. See Leflore Broad. Co. v. FCC, 636 F.2d 454, 458

n.26 (D.C. Cir. 1980) (structural regulations “insure diver-

sity in broadcasting while minimizing government atten-

tion to broadcast content”). In NCCB, upon which the

Commission relies, the Supreme Court gave only minimal

scrutiny to and upheld the Commission’s newspaper-

broadcast cross-ownership rule, which prohibited common

ownership of a broadcast station and a daily newspaper in

the same community. 436 U.S. at 779, 98 S.Ct. at 2104.

The cross-ownership rule, however, merely constrained

the newspaper publisher’s choice of the community in

which to own a radio or television station; it did not

prohibit the publisher from broadcasting altogether. /d.

at 800, 98 S.Ct. at 2115 (“Under the regulations ...a

newspaper owner need not forfeit anything in order to

acquire a license for a station located in another commu-

nity”). The RBPA, in contrast, makes the pirate broad-

caster ineligible to obtain an LPFM license—the only type

of license practicably available to most individuals—in

any community. It is the would-be speaker’s inability to

broadcast at all that takes this case outside the “structural”

framework and makes minimal scrutiny insufficiently rig-

orous to protect the freedom of speech protected by the

First Amendment.

Having rejected each party’s favored standard of review,

we, like the panel that first heard this case, “find ourselves

l3a

in a middle ground, sure only that the appropriate standard

is neither NCCB’s minimal scrutiny nor League of Women

Voters’ intermediate scrutiny.” 278 F.3d at 1331. Clearly,

as Ruggiero suggests in his alternative argument, some-

thing more than minimal rationality is required to uphold

the statute. /d.; News America, 844 F.2d at 814. We need

not be more precise, however, because we conclude that

the character qualification provision is reasonably tailored

to satisfying a substantial government interest, and that is

surely enough to uphold a prohibition upon broadcast

speech that, although complete within its limited sphere, is

in no respect content-based.

B. Under- and Overinclusiveness

As the Commission points out, unlicensed LPFM trans-

missions can not only prevent the public from receiving

the signals of licensed broadcasters, see, e.g., United

States v. Any and All Radio § ition Transmission Equip.,

204 F.3d 658 (6th Cir. 2000) (interference complaint

against pirate by licensed FM station); they can also, as we

have seen, interfere with “public safety communications

and aircraft frequencies.” Low Power Proposal, 14

F.C.C.R. 2471, at 765. Because the Government has cho-

sen to address the problem of interference through social-

ization and administrative allocation of the right to

broadcast, rather than relying upon the common law, see

Thomas W. Hazlett, The Rationality of U.S. Regulation of

the Broadcast Spectrum, 33 J.L. & ECON. 133, 148-52

(1990); and Ronald H. Coase, The Federal Communica-

tions Commission, 2 J.L. & ECON. 1, 14 (1959) (treating

problem of interference as he would later treat other

incompatible uses in The Problem of Social Cost, 3 J.L. &

l4a

ECON. | (1959)), there can be no doubt it has a substantial

interest in ensuring compliance with the Communications

Act and in particular with its central requirement of a

license to broadcast.

Ruggiero argues, nonetheless, that the character qualifi-

cation is impermissibly underinclusive because it does not

disqualify persons guilty of “serious misconduct other than

piracy—murder, rape, child abuse, bribery, fraud, illegal

wiretapping, antitrust violations, [and] lying to the FCC, to

give but a few examples.” He continues in the same vein:

Because Congress has ignored a broad range of mis-

conduct “giving rise to precisely the same harm that

supposedly motivated it to [enact the character quali-

fication provision],” Sanjour v. EPA, 56 F.3d [85,] 95

[(D.C. Cir. 1995) (en banc)], it is “serious[ly] doubt-

[ful]” that the character qualification provision sub-

stantially advances the governmental interest in

increasing compliance with broadcast laws and regu-

lations in a meaningful way.

This is nonsense on stilts.

First, Ruggiero’s factual premise is incorrect, not to say

absurd. The Congress has not “ignored” misconduct “giv-

ing rise to precisely the same harm” that caused it to

impose the character qualification. Not only are murderers,

rapists, child molesters, and the like not particularly asso-

ciated with the harms caused by unlicensed broadcasting,

the harms that these malefactors do cause are not without

other and more severe penalties (state or federal) than inel-

igibility for an LPFM license.

Second, it was entirely reasonable for the Congress to

make the policy judgment that all broadcast pirates, and

only broadcast pirates, should be disqualified categorically

15a

from holding an LPFM license while leaving to the Com-

mission the discretion to evaluate on a case-by-case basis

the myriad other ways an applicant’s character can be

drawn into question. All broadcast pirates, by definition,

have violated already the requirement of obtaining a

broadcast license. As Judge Henderson pointedly asked in

her dissent from the decision of the panel, “[w]hat could

be more reasonable or logical than to suspect that those

who ignored the Commission’s LPFM broadcast regula-

tions in the past are likely to do so in the future and there-

fore to head them off][?]” 278 F.3d at 1335. Indeed, even as

it adopted its own more forgiving approach to pirates

before the Congress enacted the RBPA, the Commission

acknowledged that “past illegal broadcast operations

reflect on that entity’s proclivity to deal truthfully with the

Commission and to comply with our rules and policies,

and thus on its basic qualifications to hold a license.” 15

F.C.C.R. 2205, at 754. Thus the Congress could reasonably

conclude that other violations of law simply do not reflect

as directly upon the offender’s qualification to hold an

LPFM license. Moreover, insofar as such criminals may

seek LPFM (or indeed any type of broadcast) licenses,

they are, as the Commission notes, “subject to the FCC’s

[general] character qualification policy, under which they

are likely to be disqualified for such serious crimes in any

event.” See Policy Regarding Character Qualifications in

Broad. Licensing, 102 F.C.C.2d 1179, 9934-44, 1986 WL

292574 (1986); see also, e.g., In re Contemporary Media,

Inc., 12 F.C.C.R. 14254, 1997 WI 473323 (1997) (revoca-

tion of license and denial of application for new license

because principal had been convicted of sexual abuse of

children), aff’d, Contemporary Media, Inc. v. FCC, 214

F.3d 187, 193 (D.C. Cir. 2000). Therefore, we can hardly

l6a

say the Congress was prohibited by the First Amendment

from responding to the discrete problem of broadcast

piracy—which goes to the heart of the Communications

Act, namely, preventing interference caused by unlicensed

broadcasting—with a categorical ban.

Third, even if it could be thought that categorically dis-

qualifying murderers and the like from getting an LPFM

license would deter some unlicensed broadcasting, “a reg-

ulation is not fatally underinclusive simply because an

alternative regulation, which would restrict ... the speech

of more people, could be more effective.” Blount v. SEC,

61 F.3d 938, 946 (D.C. Cir. 1995) (emphasis in original).

In sum, we agree with the Commission’s position that the

character qualification provision of the RBPA is not under-

inclusive but is, rather, because it targets those who have

already violated the broadcast license requirement, reason-

ably tailored to further the Government’s substantial inter-

est in minimizing unlicensed LPFM broadcasting.

We reject also Ruggiero’s claim that the character qual-

ification is overinclusive because it prohibits all pirates,

including those good pirates who stopped broadcasting

illegally when ordered to do so, and those “former pirates

[who] subsequently have become model citizens,” from

obtaining a license. All unlicensed LPFM broadcasters

violated the Communications Act. Any unlicensed broad-

casting demonstrates a willful disregard of the most basic

rule of federal broadcasting regulation. See H.R. Rep. No.

106-567, at 8 (2000); Creation of Low Power Radio Ser-

vice, 15 F.C.C.R. 19208, 996, 2000 WL 1434686 (2000)

* Although necessarily couched in terms of under—and overin-

clusiveness, our dissenting colleague’s concern seems really to be with

what he sees as the disproportionality of disqualifying LPFM pirates

from holding an LPFM license, as compared with the consequences

17a

(Opinion and Order). The Congress did not hit wide of the

mark, therefore, when it treated all pirates alike.*

C. Equal Protection

Ruggiero also claims that because the character qualifi-

cation “imposes special burdens on the First Amendment

rights of a single class of speakers (pirates),” and is not “

‘narrowly tailored’ to serve a ‘substantial’ governmental

interest,” it violates the Equal Protection guarantee of the

Fifth Amendment. This claim fails for the same reasons the

first amendment claims fail: the legislative classification,

which treats former pirates differently from others, is rea-

visited upon other unlicensed broadcasters and other offenders against

the broadcast regulatory regime. See dissent at 245, asking “why does

the RBPA’s automatic and permanent ban not extend to unlicensed full

power broadcasters”; and at 246, where he “agree[s] that deterrence is

a substantial governmental interest, but [asks] why impose a lifetime

ban?,” which he refers to as “a broadcasting ‘mark of Cain.’”

The judgment that one offense is more serious than another, like the

judgment that a punishment of a certain severity is warranted for a par-

ticular offense, is not for the judiciary to make. Cf. Hutchins v. Dis-

trict of Columbia, 188 F.3d 531, 543 (D.C. Cir. 1999) (noting that

under intermediate scrutiny, “the [Government] is not obliged to prove

a precise fit between the nature of the problem and the legislative rem-

edy,” and rejecting claim that curfew was unconstitutional because it

did not include 17-year-olds); Schleifer v. City of Charlottesville, 159

F.3d 843, 850 (4th Cir. 1998) (applying intermediate scrutiny and

rejecting claim that city’s decision to exclude 17-year-olds from cur-

few was unconstitutional, because “[i]t is not the function of a court to

hypothesize independently on the desirability or feasibility of any pos-

sible alternative[s] to the statutory scheme” (quoting Lalli v. Lalli, 439

U.S. 259, 274, 99 S.Ct. 518, 528, 58 L.Ed.2d 503 (1978))). Our con-

cern in this case is limited to whether the Congress has reasonably tai-

lored the character qualification to fit the substantial government

interest it is intended to serve.

18a

sonably tailored to the government’s substantial interest in

protecting the broadcast spectrum.

Although equal protection analysis focuses upon the

validity of the classification rather than the speech restric-

tion, “the critical questions asked are the same.” Commu-

nity-Service Broad. of Mid-America, Inc. v. FCC, 593 F.2d

1102 (D.C. Cir. 1978) (en banc). We believe that the same

level of scrutiny, heightened rational basis, is therefore

appropriate in both contexts, and that the policy withstands

such scrutiny.

Ill. Summary and Conclusion

The character qualification of the RBPA is a targeted

response to the problem of pirate broadcasting, affects

only those who violated the license requirement, and does

so utterly without regard to the content of, or any view

expressed by, their unlicensed broadcasts. There is a rea-

sonable fit between the character qualification and the

Government’s substantial interests in deterring unlicensed

broadcasting and preventing further violations of the regu-

lations applicable to broadcasters. Accordingly, we hold

that § 632(a)(1)(B) of the RBPA and the. regulation imple-

menting it do not on their faces violate the First Amend-

ment. The petition for review is, accordingly,

Denied.

RANDOLPH, Circuit Judge, concurring:

Ruggiero has two First Amendment arguments. The first

is that the statutory and regulatory bar against granting a

low-power FM broadcast license to anyone who illegally

operated without one is overbroad. The second is that the

bar is underinclusive. I write separately because, in my

Ral

19a

view, he is not entitled to make the first argument; and his

-second argument misconceives First Amendment doctrine.

Ruggiero has not applied to the FCC for a low-power

license. He does not claim that his particular circum-

stances would warrant any special treatment. His attack is

on the face of the statute and the implementing regula-

tions. The lifetime bar is overbroad, he claims, because

there may be applicants who “briefly or long ago engaged

in unlicensed broadcast operations” and who now have

become “model citizens.” Petitioner’s Br. at 26. The court

rejects Ruggiero’s claim on the ground that Congress

rationally treated all pirates alike. Maj. op. at 12. Although

| agree with the court, I believe another rationale leads to

the same result.

Litigants ordinarily do not have standing to raise the

rights of others. But in arguing about hypothetical third

parties, Ruggiero is in effect invoking the familiar over-

breadth doctrine, a staple of First Amendment jurispru-

dence. The doctrine, which may be traced to Thornhill v.

Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940),

permits facial challenges brought on the ground that the

statute or regulation reaches constitutionally protected

speech of parties not before the court. If the statute is sub-

stantially overbroad—that is, if it abridges protected

speech of others in a good number of cases—the statute is

unconstitutional. See Broadrick v. Oklahoma, 413 U.S.

601, 612-15, 93 S.Ct. 2908, 2915-18, 37 L.Ed. 830 (1973).

Overbreadth is sometimes viewed as an exception to tradi-

tional standing rules. See Bd. of Trustees of the State Univ.

of New York v. Fox, 492 U.S. 469, 482-84,109 S.Ct. 3028,

3035-37, 106 L.Ed.2d 388 (1989); Los Angeles Police

Dept v. United Reporting Publ’g Corp., 528 U.S. 32, 38,

120 S.Ct. 483, 488, 145 L.Ed.2d 451 (1999). The doctrine

20a

rests on the assumption that if a statute could not be chal-

lenged for overbreadth, those not before the court would

be chilled and would refrain from exercising their First

Amendment rights. See generally New York v. Ferber, 458

U.S. 747, 766-73, 102S.Ct. 3848, 3359-63, 73 L.Ed.2d

1113 (1982). The “principal advantage of the overbreadth

doctrine for a litigant is that it enables him to benefit from

the statute’s unlawful application to someone else.” Fox,

492 U.S. at 483, 109 S.Ct. at 3036. The Supreme Court has

treated the doctrine as “‘strong medicine’” to be employed

“*only as a last resort.’” Ferber, 458 U.S. at 769, 102

S.Ct.at 3361 (quoting Broadrick, 413 U.S. at 613, 93 S.Ct.

at 2916-17).

The assumption underlying the overbreadth doctrine is

inapplicable here. There is no possibility that third parties

could be chilled in the exercise of their First Amendment

rights. See Bates v. State Bar of Ariz., 433 U.S. 350, 380-

81,97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977). We are

not dealing with a criminal provision. All that is involved

is filing an application with the FCC. Many pirates have

done so. Creation of a Low Power Radio Serv., 16 F.C.C.R.

8026, 8030, 8060, 2001 WL 310997 (2001). If they file

applications in the future no harm will befall them. Their

applications will simply be denied.

There is in short no chilling effect and Ruggiero there-

fore cannot invoke the overbreadth doctrine. See Los

Angeles Police Dept, 528 U.S. at 38-41, 120 S.Ct. at 488-

90; United States v. Hsia, 176 F.3d 517, 523 (D.C. Cir.

1999). Without the benefit of the doctrine, he can succeed

in his facial challenge only if he establishes “that no set of

circumstances exists under which the Act [and the imple-

menting regulations] would be valid,” United States v.

~ Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95

“

a a

‘

2la

L.Ed.2d 697 (1987); see Amfac Resorts, L.L.C. v. U.S.

Dept of Interior, 282 F.3d 818, 826 (D.C. Cir.), cert

granted sub nom. Nat’l Park Hospitality Ass'n v. Dept of

Interior, __ U.S. ___,123 S. Ct. 549, 154 L.Ed.2d 424

(2002); James Madison Ltd., by Hecht v. Ludwig, 82 F.3d

1085, 1101 (D.C. Cir. 1996); Chem. Waste Mgmt., Inc. v.

EPA, 56 F.3d 1434, 1437 (D.C. Cir. 1995); Steffan v. Perry,

41 F.3d 677, 693 (D.C. Cir. 1994) (en banc); but see INS v.

Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183, 188, 112

S.Ct. 551, 116 L.Ed.2d 546 (1991). This is a burden Rug-

giero admits he cannot meet. He has conceded that “some

former pirates may lack the requisite character traits to

hold [low-power] licenses.” Petitioner’s Reply Br. at 11.

Ruggiero himself committed “three-year-long, nearly con-

tinuous violations of the licensing requirement,” 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), and hardly qualifies as a pirate who “briefly” oper-

ated without a license. ;

As against this, the dissent has two responses. The first

is that Ruggiero is not really mounting an overbreadth

challenge; the second is that he is entitled to mount an

overbreadth challenge because others may be chilled from

applying for a license since this requires disclosing past

broadcasting violations. Dissent at 14-16. Neither reply is

correct. As to the nature of Ruggiero’s argument, his attack

is on the face of the statute and his claim is that the char-

acter qualification provision may not be applied to him

because it would be unconstitutional to apply it to others

not before the court. E.g., Petitioner’s Br. at 25-27; Peti-

tioner’s Reply Br. at 11. To put the matter more specifi-

cally, his argument—and the argument of the dissent—is

22a

that the statute cannot be validly applied to Ruggiero or

anyone else, no matter how egregious their past violations,

because there may be others whose violations were not so

egregious. Ruggiero never claims that his past violations

were not egregious; we know that they were. This then is a

classic statement of an overbreadth claim. See, e.g., Fox,

492 U.S. at 482-84, 109 S.Ct. at 8085-87 The dissent says

that Ruggiero is contending the statute “cannot constitu-

tionally be applied to anyone because the statute automat-

ically bars unlicensed microbroadcasters. .. .” Dissent at

14. That indeed is his contention. But what the dissent fails

to grasp is that in every overbreadth attack, the plaintiff

claims the statute is unconstitutional with respect to every-

one; that is the very nature of this sort of attack and of the

reiief it seeks—invalidaticn of the statute on its face. See,

e.g., KATHLEEN M. SULLIVAN & GERALD GUNTHER, FIRST

AMENDMENT LAW 322 (1999). The dissent also suggests

that in order to make a successful overbreadth attack, the

plaintiff must concede that the statute can validly be

applied to him. Dissent at 14. The Supreme Court has

never imposed any such requirement. The Court simply

assumes that even if the statute is constitutional as applied

to the plaintiff, or even if another provision could be

drawn with greater specificity, the statute might neverthe-

less be invalid because of its effect on others. Ferber, 458

U.S. at 769.

In the alternative, the dissent claims there is a chilling

effect on others because unlicensed broadcasters, in apply-

ing for a license, will be reluctant to disclose their past

violations under penalty of perjury. Dissent at 15. The

trouble for the dissent is that this particular chilling effect

exists regardless whether the statute is upheld or struck

down. Anyone applying for a license must be prepared to

‘

23a

divulge past violations of Commission rules. Not even the

dissent contends that unlicensed broadcasting is irrelevant

to the Commission’s decision whether to grant a license.

The Commission’s 1986 comprehensive policy statement

on character qualifications for licensees states that “as a

general matter any violations of the Communications Act,

Commission rules or Commission policies can be said to

have a potential bearing on character qualifications.” Pol-

icy Regarding Character Qualifications in Broadcast

Licensing, 102 F.C.C.2d 1179, 1209, 1986 WL 292574

(1986). And even before Congress passed the statutory bar

we are considering, the Commission required applicants

for low-power licenses to certify that they had not operated

a station without a license. Creation of a Low Power Radio

Serv., 16 F.C.C.R. at 8030. The question here—a question

the dissent does not address—is whether the statutory dis-

qualification, by its very existence, deters more speech

than did the preceding regime. And the answer to that

question is clearly no. In short, the statute imposes no new

“chilling effect” on the First Amendment rights of others,

and as I have discussed, for that reason Ruggiero cannot

bring an overbreadth challenge. Besiaes, the question here

is not just whether there is some chilling effect—the claim

must be that protected speech is being deterred. Yet there

is no chilling effect on speech. “No one has a First Amend-

ment right to a license,” Red Lion Broad. Co. v. FCC, 395

U.S. 367, 389, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371

(1969), and it follows that no one has a First Amendment

right to apply for a license.

As to underinclusive:ess,-Ruggiero’s claim is that the

bar violates the First Amendment because persons who

have engaged in other sorts of serious misconduct are not

automaticaily banned from obtaining a low-power license.

24a

The court dispatches this argument on the ground that

Congress’s judgment was reasonable. Maj. op. at 10-11.

| agree, but believe there is an alternative answer. The First

Amendment does not impose “an ‘underinclusiveness’ iim-

itation[,] but a ‘content discrimination’ limitation upon a

State’s prohibition of proscribable speech.” R.A.V. v. City

of St. Paul, 505 U.S. 377, 387, 112 S.Ct. 2538, 2545, 120

L.Ed.2d 305 (1992)—+rother words, the relevance of a

statute’s underinclusiveness is that it may reveal discrimi-

nation on the basis of viewpoint or content, or may under-

cut the statute’s purported non-discriminatory purpose. See

id.; Republican Parity of Minn. v. White, 536 U.S. 765, 122

S.Ct. 2528, 2537, 153 L.Ed.2d 694 (2002); City of Ladue

v. Gilleo, 512 U.S. 43, 52-53, 114 S.Ct. 2038, 2043-44,

L.Ed.2d 36 (1994). States could not, for instance, ban only

fighting werds that criticize a certain race. But the Court

pointed out in R.A.V. that there would be no First Amend-

ment problem whatever with a State’s prohibiting obscen-

it in only certain media, although that would be

underinclusive. 505 U.S. at 387, 112 S.Ct. at 2545. Here,

there is no colorable claim that the statute and the regula-

tion ban speech on the basis of content. As the court points

out, the ban is based entirely on past violations, not on

what the broadcaster said in the past or would say in the

future if he were allowed to take to the airwaves again.

Maj. op. at 244-245. | would therefore reject Ruggiero’s

underinclusiveness argument on this ground. For this rea-

sen I also view the dissent’s discussion of underinclusive-

ness—which notes that not even murderers and rapists are

automatically barred from obtaining a license—as beside

the point.

ar EPSRC REEL N TE NE ad iat Le. pea

25a

ROGERS, Circuit Judge, concurring:

Upon consideration of this appeal by the en banc court,

| generally join Judge Randolph’s concurring opinion.

Based on the standard established in News America Pub-

lishing, Inc. v. FCC, 844 F.2d 800 (D.C. Cir. 1988), as

applied and explained in that case, | initially was per-

suaded 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 fur-

ther consideration, | 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

reads me to a different result.

The court is in agreement that the News America stan-

dard of something “more than minimal scrutiny,” 844 F.2d

at 813, is the appropriate standard to be applied in Rug-

giero’s case, rejecting the rational basis test urged by the

government. The court does not further define 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 underinclusiveness of the statutory pro-

vision 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

26a

News America standard in part because it “covers circum-

stances only marginally related to the purpose of increas-

ing 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 overbreadth 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 Dept 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 Ruggiero is a proper party to challenge

the overbroad nature of the statute and rule, see New York

v. Ferber, 458 U.S. 747, 767-68 & n.20, 102 S.Ct. 3348,

3349-61 & n.20 73 L.Ed.2d 1113 (1982), it behooves the

court to address the threshold question of whether the doc-

trine 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).

VP a Spe aa

Se WS. LON PE

27a

For the reasons generally set forth in Judge Randolph’s

concurring opinion, | would deny the petition for review.

In light of Los Angeles Police Department, the overbreadth

doctrine does not apply. Although the dissent treats Rug-

giero’s challenge to the ban as based on underinclusive-

ness 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 overbreadth challenge. Con-

curring 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. Rug-

giero 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.

28a

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 Ruggiero

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 fur-

ther 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. 8026m 2001 WL 310997 (2001); Maj. Op. at

245-246. In other words, the question is whether Con-

gress’s method is “substantially related to the Govern-

ment’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.

]

LON EREDAR LEE TERA ND

» ANS ORT A Ot

29a

TATEL, Circuit Judge, dissenting:

No one doubts, as this court and the Commission repeat-

edly emphasize. that broadcasting without a license is a

serious offense. Severe penalties, including fines, forfei-

tures, and even imprisonment, have long existed for unli-

censed broadcasting. Moreover, the Commission has

ample authority, 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 automat-

ically and forever bars them—unlike any other violator of

the Communications Act or regulations—from applying

for low power licenses regardless of either the circum-

stances of their offenses or evidence that they can never-

theless 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 mini-

mal scrutiny reserved for non-First Amendment cases,

I respectfully dissent.

The Radio Broadcasting Preservation Act’s character

qualification “prohibit[s] 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 viola-

tion of section 301 of the Communications Act of 1934.”

Pub. L. No. 106-553, 114 Stat. 2762, § 632(a)(1)(B) (2000)

30a

(RBPA). The court glosses over the statute’s unusual

harshness. No other violations of the Communications Act

or broadcasting regulations result in automatic disqualifi-

cation nor are punishable by this broadcasting equivalent

of the death penalty. Except in the case of unlicensed

microbroadcasters, the Commission “treat[s] violations of

the Communications Act, Commission rules or Commis-

sion policies as having a potential bearing on character

qualification.” Policy Regarding Character Qualifications

in Broadcast Licensing, 102 F.C.C.2d 1179, 956, 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 “rais[ing] immediate con-

cerns over the licensee’s ability to be truthful in any future

dealings with the Commission,” no Commission rule sub-

jects full power applicants to automatic, lifetime disquali-

fication. Jd. 757. In addition, the Commission allows full

power applicants with unclean records to demonstrate

rehabilitation. /d. 4105. 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.” Jd. Moreover, any

misconduct, communications-related or otherwise, occur-

ring more than ten years prior to the filing of a full power

application is completely disregarded. Jd.

The RBPA treats unlicensed microbroadcasters quite

differently, however. Instead of having past offenses eval-

uated as just one factor in assessing their qualifications,

instead of having an opportunity to demonstrate rehabilita-

tion, and instead of having their sins forgiven after ten

years, they are automatically and forever barred from low

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power frequencies. This capital sanction has been imposed

not just on Petitioner Greg Ruggiero, but also on educa-

tion- and church-related organizations that, in response to

the Commission’s RBPA implementing regulation, con-

fessed to some prior acts of unlicensed broadcasting:

Foundation for California State University, San Bernar-

dino; 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 WL 310997 (2001)

(“Second Low Power Report and Order”) (amending Cre-

ation 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 unusu-

ally 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 §.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.

Il.

The court gets off to a good start: It says it rejects the

Commission’s position that in reviewing the RBPA’s con-

stitutionality, we should apply only minimal scrutiny. Maj.

Op. at 245. I have two concerns with what follows, how-

ever. First, | think the First Amendment values at stake

here are weightier than the court’s opinion suggests. Sec-

32a

ond, in sustaining the RBPA’s constitutionality, the court

actually applies the same minimal scrutiny standard it pur-

ports to reject.

First, the values at stake: Although 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 constitu-

tionally 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, more-

over, 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. 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 pur-

poses of the First Amendment. ... It is the purpose of

the First Amendment to preserve an uninhibited mar-

ketplace of ideas in which truth will ultimately pre-

vail, 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 broad-

casting is especially important, for it is the source of the

_Commission’s authority to limit broadcast ownership and

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33a

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 gen-

erally 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. 2986, 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 Commission 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, 41.

Our decision in News America Publishing, Inc. v. FCC,

844 F.2d 800 (D.C. Cir. 1988), identifies still another rea-

son 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 “I[ay] at the intersec-

tion of the First Amendment’s protection of free speech

and the Equal Protection Clause’s requirement that gov-

ernment afford similar treatment to similarly situated per-

sons.” Jd. at 804. Reviewing the case law, we identified a

34a

“spectrum” of possible broadcast restrictions, “from the

purely content-based (e.g., ‘No one shall criticize the Pres-

ident’) 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. /d. 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 pub-

lisher broadcaster.” Jd. Concerned that “[t]he safeguards of

a pluralistic political system are often absent when the leg-

islature 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 ration-

ality.’” Jd. 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-television cross-ownership rules—rather

than, for example, extensions of future waivers or exten-

sions of waivers of the newspaper-radio cross ownership

rules—rendered the prohibition unconstitutionally under-

inclusive. /d. at 814-15.

Like the prohibition at issue in News America, the

RBPA’s character qualification raises not just First Amend-

ment concerns (it restricts future lawful speech), but equal

protection concerns as well because it applies to a limited

class of unlicensed microbroadcasters. Jd. 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 microbroadcasters and applies only to those

frequencies reserved for local voices—and the character

qualification focuses on the class “with the precision of a

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LSE PEELE RR ORT RS

35a

laser beam.” /d. at 814. Indeed, the RBPA prohibition is far

more severe than the rule at issue in News America: Unli-

censed microbroadcasters 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 control[led] a daily

newspaper.” /d. 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 mini-

mal 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 Cemmunications, 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 rea-

soned 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) (“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 Amend-

ment rights.

36a

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 gov-

ernmental objectives. But this does not end our analysis.

We must determine “how well [the RBPA’s] aim corre-

sponds 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 reg-

ulatory compliance, id. at 805, or because it covers con-

duct 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.” Jd.; see Petitioner’s Br. at 30-32 (arguing that

Congress passed the RBPA to punish microbroadcasters’

message). One need neither endorse the microbroadcast-

ers’ tactics, see Grid Radio v. FCC, 278 F.3d 1314 (D.C.

Cir. 2002) (rejecting an argument that penalizing micro-

broadcasting 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.

Ill.

I begin with the statute’s underinciusiveness. 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 underinclu-

Siveness in speech regulations may suggest a content or

37a

viewpoint. discriminatory motive and cast doubt on the

government’s asserted justification for restricting speech).

If banning unlicensed microbroadcasters is vital to ensur-

ing 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 Commis-

sion free to evaluate applications from anyone else under

its non-automatic, more permissive general character qual-

ification policy. See supra at pp. 253-54. Inveterate regu-

latory 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 misrepresenta-

tion, long considered by the Commission to be among the

most serious indicators of unreliability, are not automati-

cally ineligible. See 1986 Character Policy Statement, 102

F.C.C.2d 1179, 457. They may apply for licenses, and the

Commission will consider their misdeeds in evaluating

their fitness to hold a license, or even disregard their mis-

behavior altogether if it occurred more than ten years ago.

Of course, Congress need not address a “perceived prob-

lem”—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

underinclusiveness 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 treat-

ment of full power broadcasters. The Commission does not

38a

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 689287 (1992).

In Weiner, the Commission revoked the “incorrigible

Weiner|[‘s]” broadcast license as a result of his numerous

alleged violations of Commission rules-—including broad-

casting without a license, evading a court injunction pro-

hibiting his unlicensed broadcasting, and misrepresenting

his true intentions in construction permit and license appli-

cations filed with the Commission—but only after consid-

ering Weiner’s evidence of rehabilitation. Jd. at 833.

“Should a ‘decent interval’ ensue without notable delict,”

the Commission even offered, “Weiner is not estopped

from applying again.” /d. 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 sena-

torial 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 rela-

tively 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

39a

in cases involving unlicensed microbroadcasters who seek

LPFM licenses. /d. 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 misrepre-

sentation or who perpetrated the “most amoral skein of

detected villainy in domestic broadcast history.” If any-

thing, the Weiners of the world should be of greater con-

cern. Nor do I| think it inherently obvious that former

unlicensed microbroadcasters necessarily present a higher

risk of frequency interference than do Weiner or the

Modesto general manager. Whether caused by unlicensed

microbroadcasters or by licensed broadcasters operating

on someone else’s frequency, frequency interference is fre-

quency interference. Indeed, unauthorized full power

broadcasters, whose range and power far exceed that of

microbroadcasters, would seem to present a greater risk of

interference. Of course, such observations would be irrel-

evant were we applying rational basis review, see Beach

Communications, 508 U.S. at 313-16, 113 S.Ct. at 2100-

08, but our more than minimal scrutiny standard requires

us to determine whether Congress’s means are appropri-

ately tailored to achieve its goals.

40a

The court’s second explanation for the RBPA’s single-

minded focus on unlicensed microbroadcasters is this:

“There is a reasonable fit between the character qualifica-

tion and the Government’s substantial interests in deter-

ring 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 unli-

censed 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 broad-

casting,” the Commission explained, “must now be pre-

sumed 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 penal-

ties.” First Low Power Report and Order, 15 F.C.C.R. at

2227, 455. Neither the court nor the Commission explains

why banning all former unlicensed broadcasters would fur-

ther deter unlicensed broadcasting, and for good reason: If

the threat of automatic and lifetime disqualification is

insufficient to deter someone from broadcasting, that per-

son is unlikely to experience a sudden change of heart sim-

4la

ply 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 underinclu- ~

siveness 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 ror the judiciary to make.” Maj. Op. at 247 n.*. In

support of this proposition, the court cites two cases hold-

ing that juvenile curfews, both of which included numer-

ous 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. /d. (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 dispropor-

tionate 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 evidence documents a serious prob-

lem 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

42a

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 proposi-

tion 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 microbroadcasters 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 over-

inclusive); 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 imme-

diately 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 Ruggiero, see Wangaza Decl.) seek

only to serve as members of a multi-member board, rather

43a

than as president or CEO of an applicant station; and, most

tellingly, from operators who were unaware of the licens-

ing requirement at the time of their violation. I do not

understand how a restriction that ignores such factors can

accurately target those former unlicensed microbroadcast-

ers 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 imme-

diately upon being told to do so. In any event, why impose

a lifetime ban even for willful violators? Statutory and reg-

ulatory violations by full power broadcasters are consid-

ered 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? | 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 a// unlicensed micro-

broadcasters should be automatically and forever banned.

In fact, the Commission rejected a total ban, applying

automatic disqualification to only those unlicensed micro-

broadcasters who refused to stop either after being told to

do so or within ten days of the 1999 NPRM. See Creation

of Low Power Radio Serv., 15 F.C.C.R. 19,208, 996, 2000

WL 1434686 (2000) (Opinion and Order on Reconsidera-

44a

tion). And nothing in the House Report’s one-sentence dis-

cussion of the RBPA’s character qualification explains why

all former unlicensed microbroadcasters, regardless of the

circumstances of their violations or evidence of rehabilita-

tion, 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 Dis-

trict, 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 permit-

ted (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.” /d. at 324, |

122 S.Ct. at 780-81. Holding that the First Amendment

45a

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 accompa-

nying senseless prohibition of speech ... by organiza-

tions 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 per-

mits to persons who had violated park district rules; here,

Congress adopted a “rigid, no-waiver” rule that automati-

cally denies low power licenses to all former unlicensed

microbroadcasters. To use Thomas’s words, then, the “pro-

phylaxis achieved by” the RBPA’s character standard is

“far outweighed ... by the accompanying senseless prohi-

bition of speech” by applicants who once broadcast ille-

gally “but for one reason or another pose no risk of the

evils that those requirements are designed to avoid.”

46a

The concurring opinion, relying on Los Angeles Police

Department v. United Reporting, Inc., 528 U.S. 32, 120

S.Ct. 483, 145 L.Ed.2d 451 (1999), argues that Ruggiero

“cannot invoke the [First Amendment] overbreadth doc-

trine.” 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 “‘challeng[ing] that statute on the ground that it may

conceivably be applied unconstitutionally to others in sit-

uations 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 1118

(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 microbroadcasters (unlike

all other Communications Act violators) from future

speech without an opportunity to demonstrate to the Com-

mission that notwithstanding their offenses, they can func-

tion 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

47a

in the public interest. Ruggiero thus has no need to take

advantage of the overbreadth doctrine’s “ ‘departure from

traditional rules of standing,’ “ designed “to enable per-

sons who are themselves unharmed by the defect in a

statute nevertheless ‘to challenge that statute on the

ground that it may conceivably be applied unconstitution-

ally 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. Okla-

homa, 413 U.S. 601, 613, 93 S.Ct. 2968, 1916-17, 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 chill-

ing 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, 4 11—must either (1)

admit to a prior act of unlicensed broadcasting, an admis-

sion 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. at249.

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 microbroad-

48a

casters may find it far safer to forego applying for licenses

and simply remain silent. See Nat’] 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).

It is true that under the Commission’s general character

policy, applicants must disclose any unlicensed broadcast-

ing. See Randolph Op. at 250. But the question here is

whether the RBPA, not the Commission’s general character

policy, has a chilling effect. 1 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. Jd. 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 overbroad” and unconstitutional

under overbreadth doctrine).

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 Com-

mission already has authority under its long-existing char-

acter qualification policy to deny licenses to unlicensed

microbroadcasters who, in the Commission’s considered

judgment, have demonstrated an inability “‘to deal truth-

fully with the Commission and to comply with [its] rules

49a

and policies.’” First Low Power Report and Order, 15

F.C.C.R. at 2226, 954 (internal citation omitted). In view

of this circuit’s heightened rational basis standard, how-

ever, the court has no basis for sanctioning an automatic,

lifetime ban on future lawful speech that applies, indefen-

sibly, to only a limited class of unlicensed microbroadcast-

ers and to just the portion of the spectrum created for new

voices.

50a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 00-1100

September Term, 2001

Filed: May 2, 2002

GREG RUGGIERO,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA,

Respondents.

On Petition for Review of an Order of

the Federal Communications Commission

Before: GINSBURG, Chief Judge;

EDWARDS, SENTELLE, HENDERSON, RANDOLPH,

ROGERS, TATEL, and GARLAND, Circuit Judges

ORDER

Upon consideration of the respondents’ ‘petition for

rehearing en banc, the response thereto, and the vote by a

majority of the judges of the court in regular, active serv-

ice in favor of the petition, it is

Sla

ORDERED that the petition be granted. This case will be

heard by the court sitting en banc. The judgment filed on

February 8, 2002 is hereby vacated. It is

FURTHER ORDERED that an order governing further pro-

ceedings will issue separately.

Per Curiam

FOR THE COuRT:

Mark J. Langer, Clerk

By: /s/_NANCY G. DUNN

Nancy G. Dunn

Deputy Clerk

52a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 00-1100

Argued September 6, 2001

Decided February 8, 2002

GREG RUGGIERO,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA,

Respondents.

On Petition for Review of an Order of

the Federal Communications Commissioii

ROBERT T. PERRY argued the cause and filed the briefs for

petitioner. With him on the brief was BARBARA J.

OLSHANSKY.

JACOB M. LEwis, Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the brief

were ROBERT S. GREENSPAN, Attorney, JANE E. MAGO,

Acting General Counsel, Federal Communications Com-

53a

mission, DANIEL M. ARMSTRONG, Associate General

Counsel, JOHN F. INGLE, Deputy Associate General

Counsel, C. GREY PASH, JR. and LISA F. BOEHLEY Coun-

sel.

Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge:

In this case, an unlicensed microbroadcaster—a “pirate”

—challenges the constitutionality of the Radio Broadcast-

ing Preservation Act of 2000’s character qualification pro-

vision, which permanently prohibits anyone who ever

“engaged in any manner in the unlicensed operation of any

station in violation of ... the Communications Act of

1934” from obtaining a low-power FM radio license. To

survive First and Fifth Amendment challenges in this Cir-

cuit, restrictions limiting the future lawful speech of a

well-defined class of broadcasters must be more than

“minim[ally] rational[ }.” News Am. Publ’g, Inc. v. FCC,

844 F.2d 800, 812, 814 (D.C. Cir. 1988) (“News Amer-

ica”). Finding nothing in the Act, its legislative history, or

the record before us to justify the character qualification

provision’s unique and draconian sanction for broadcast

piracy, nor to explain why a more limited restriction would

not achieve Congress’s objective, we hold that the provi-

sion and its implementing regulation fail to meet this stan-

dard and are therefore unconstitutional.

Section 301 of the Communications Act of 1934 makes

it unlawful to operate a radio station without a license

54a

issued by the Federal Communications Commission. 47

U.S.C. § 301. When the Commission began licensing FM

radio stations in the 1940s, it licensed both high-power sta-

tions and low-power, or “‘Class D,” educational stations

operating with a maximum of ten watts of power. In 1978,

however, the Commission concluded that the Class D sta-

tions were impeding expansion of more efficient high-

power operations. Opting to “str[ike] the balance in favor

of licensing higher powered stations to ensure that large

audiences were served,” the Commission stopped licens-

ing low-power stations and required most existing stations

to upgrade to at least 100 watts. Creation of Low Power

Radio Serv., 15 F.C.C. Red. 19,208, 19,236 (2000) (“First

Low-Power Reconsideration”) (recons.) (discussing the

1978 rule, Changes in the Rules Relating to Noncommer-

cial Educ. FM Broad. Stations, 70 F.C.C.2d 972, 983

(1979) (codified at 47 C.F.R. § 73.512(d))).

Over the next two decades, often in open defiance of this

rule, individual pirates began operating unlicensed low-

power stations that broadcast local news, music, and com-

mentary. Known as “microradio,” this phenomenon

expanded significantly in the late 1990s after Congress

amended the Telecommunications Act to eliminate restric-

tions on the number of radio stations any one person or

entity could own. Telecommunications Act of 1996, Pub.

L. No. 104-104, § 202(a), (b), 110 Stat. 56, 110-12 (1996).

Following the amendment, ownership of licensed radio

stations became increasingly concentrated, leading—

according to microradio proponents—to a “marked decline

- in serious local radio news reporting” and a corresponding

increase in the perceived importance and, in turn, number

of unlicensed low-power stations. Pet’r’s Br. at 6-7. In

response to this microradio expansion, the Commission

5Sa

cracked down on pirates, ordering them to cease broad-

casting and taking legal action against those who refused.

See, e.g., Grid Radio v. FCC, 278 F.3d 1314 (D.C. Cir.

Feb. 8, 2002); United States v Dunifer, 219 F.3d 1004 (9th

Cir. 2000).

In 1999, the Commission again changed course, seeking

public comment on proposed rules that would allow licens-

ing of low-power stations. The Commission observed that

in contrast to 1978, when it first adopted the microbroad-

casting ban, “[nJow, ... radio service is widely available

throughout the country and very little spectrum remains

available for new full-powered Stations,” so licensing low-

power stations could “fill .. . gaps in the spectrum that

would otherwise go unused,” First Low-Power Reconsid-

eration, 15 F.C.C. Rcd. at 19,236, providing a “low-cost

means of serving” both urban and rural areas, Creation of

Low Power Radio Serv., 14 F.C.C. Red. 2471, 2471 (1999)

(“Low-Power Proposal”) (notice of proposed rulemaking).

Many groups submitted comments, with students, religious

groups, and labor unions generally supperting the low-

power program, and the established broadcasting industry

(including National Public Radio and other noncommer-

cial broadcasters) Opposing it. ;

In January 2000, the Commission issued an order

authorizing two new classes of low-power stations: 100-

watt stations, reaching a radius of roughly 3.5 miles, and

10-watt stations, reaching a radius of less than 2 miles.

Creation of Low Power Radio Serv., 15 F.C.C. Red. 2205,

2205, 2210-12 (2000) (“First Low-Power Rulemaking”).

The order encouraged local ownership of low-power sta-

tions, limited the number of such Stations any single entity

could own, required the stations to operate on a noncom-

mercial, educational basis, and prohibited existing media

~ 56a

entities from holding interests in them. /d. at 2215-25. The

order also included a provision addressing license applica-

tions by broadcast pirates. Concerned that those who had

flouted the licensing process in the past could not be

trusted “to deal truthfully with the Commission and to

comply with [its] rules and policies,” the Commission pro-

vided that it would only accept low-power applications

from individuals who certified (under penalty of perjury)

that if they had operated illegally in the past, they ceased

all such operations either within twenty-four hours of

being directed by the Commission to do so or within ten

days of publication-of the Low-Power Proposal. /d. at

2225-26. The Commission also extended this requirement

to all parties to any corporate applicant, including the

applicant’s “parents, its subsidiaries, their officers and

members of their governing boards.” Jd. at 2223-26.

This version of the low-power rules was short-lived.

Less than a year after the rules’ promulgation, Congress,

responding to broadcast industry lobbying, see, e.g., 146

Cong. Rec. $8197-8211 (statement of Sen. Grams) (dis-

cussing licensed broadcasters’ concerns about the low-

power rules), passed the Radio Broadcasting Preservation

Act of 2000 (“RBPA”), Pub. L. No. 106-553, 114 Stat.

2762 (2000). The RBPA directs the Commission to amend

the low-power rules to limit the frequencies available for

low-power stations, thus reducing the risk of interference

to existing stations. Central to this case, the Act also

directs the Commission to deny licenses to all applicants

whose officers or board members ever “engaged in any

manner in the unlicensed operation of any station in viola-

tion” of the Communications Act. Jd. § 632(a)(1)(B). This

“character qualification provision” thus eliminates the

distinction the Commission had drawn between those erst-

57a

while broadcast pirates who voluntarily ceased broad-

Casting within a specified period and those who refused.

The provision also rescinds the Commission’s discretion to

waive the character qualification requirement in cases in

which, despite an applicant’s—or a Party to an appli-

reason to question the applicant’s potential reliability as a

licensee. Jd. § 632(a)(2)(B).

Following Passage of the RBPA, the Commission issued

rules implementing the Act’s character qualification provi-

sion. Creation of Low Power Radio Serv., 16 F.C.C. Red.

8026, 2001 FCC LEXIS 1760 (2001) (“Second Low-Power

Rulemaking”) (amending First Low-Power Rulemaking).

Under the new rules—described by the Commission as

“minor amendment{[s]” that merely “codifly] a Congres-

sional requirement”—al] Pirates and former Pirates are

automatically and permanently disqualified from applying

for low-power licenses. /d., 200] FCC LEXIS 1760, at

*15. Moreover, an applicant is deemed “ineligible to hold

ation regardless of whether the C ommission has made a

specific finding that the Party has engaged in such con-

duct.” Id., 2001 FCC LEXIS 1760, at *14 (emphasis

added).

IT.

Petitioner Greg Ruggiero, an acknowledged former

Pirate affiliated with microbroadcasting Stations in New

York City and elsewhere, argues that facially and as

applied to him, the character qualification Provision and

implementing regulation violate the First and Fifth

Amendments to the United States Constitution. Before

considering the merits of Ruggiero’s challenge, we must

58a

deal with the Commission’s argument that we lack juris-

diction for two independent reasons: because Ruggiero

failed to file a petition for review, and because he lacks

Article III] standing. We consider each in turn.

Petition for Review

Resolving the Commission’s first argument requires an

understanding of the history of this case. Ruggiero origi-

nally filed a petition for review of the Commission’s First

Low-Power Rulemaking, in which he argued that the then-

current version of the licensing restriction violated both

the Administrative Procedure Act and the First Amend-

ment. Following passage of the RBPA, we remanded the

record to the Commission and directed the parties to file

supplemental briefs addressing Ruggiero’s standing to pur-

sue his First Amendment claim, as well as the merits of

that claim as applied “to the Act and any implementing

orders or regulations the Commission may issue.” Order of

the United States Court of Appeals for the District of

Columbia Circuit at 1 (Jan. 8, 2001) (No. 00-1054)

(“Order of Jan. 8, 2001”). After the Commission issued the

Second Low-Power Rulemaking, the parties submitted the

requested supplemental briefs, and we heard oral argument

on Ruggiero’s constitutional claims—expanded by a foot-

note in Ruggiero’s Supplemental Brief to include a claim

under the Fifth Amendment—as applied to the RBPA and

the new rules.

The Commission now argues that because Ruggiero

never filed a petition for review of the Second Low-Power

Rulemaking, this court lacks jurisdiction to hear his con-

stitutional challenge. We disagree. Although it is true that

Ruggiero did not file a second petition for review, he did,

59a

as we directed, file a brief addressing the constitutionality

of the RBPA and the Commission’s implementing regula-

tion, and that brief, in all but title, satisfies the four statu-

tory requirements for a petition for review of the Second

Low-Power Rulemaking. Specifically, as required by 28

U.S.C. § 2344, Ruggiero filed the brief within sixty days of

the rulemaking; stated “the nature of the proceedings as to

which review is sought, ... the facts on which venue is

based, ... the grounds on which relief is sought, and... the

relief prayed”; attached a copy of the challenged rulemak-

ing; and served the brief on the Commission and the

United States Department of Justice. See generally Pet’r’s

Supp. Br. at 1-10, App. B, Certificate of Service. Accord-

ingly, we may treat the brief as the “functional equivalent”

of a petition for review. See Smith v. Barry, 502 U.S. 244,

248-49, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992) (inter-

nal citations omitted) (construing pro se brief as notice of

appeal and noting that “[i]f a document filed within the

time specified by Rule 4 gives the notice required by Rule

3, it is effective as a notice of appeal”): Moore v. United

States Dept of Transp., 3 Fed. Appx. 508, 512 (7th Cir.

2001) (unpublished disp.) (citing Smith v. Barry and con-

Sstruing brief as “functional equivalent of a timely petition

for review” of agency action).

This liberal construction of 28 U.S.C. §2344 makes par-

ticular sense in this case. For one thing, as we learned at

oral argument, Ruggiero filed no second petition for

review solely because we had directed him to file a sup-

plemental brief addressing the applicability of his First

Amendment claims to the RBPA and any subsequent

implementing regulations. See Order of Jan. 8, 2001, at 1;

cf Moore v. South Carolina Labor Bd., 100 F.3d 162, 163

(D.C. Cir. 1996) (discussing “the unique circumstances

60a

doctrine, under which appellate courts will excuse an

untimely notice of appeal where the appellant could have

filed a timely notice but was misled to delay filing by a

court order or ruling which purportedly extended or tolled

the appeal deadline” (citing, inter alia, Thompson v. INS,

375 U.S. 384, 387, 84 S.Ct. 397, 398-99, 11 L.Ed.2d 104

(1964) (applying the doctrine))). Moreover, we maintained

jurisdiction of Ruggiero’s claims throughout the Commis-

sion’s implementation of the RBPA, remanding only the

record for further Commission action. Order of Jan. 8,

2001, at 1; see also D.C. Cir. R. 41(b). Finally, Ruggiero’s

original contentions, made in his brief challenging the

First Low-Power Rulemaking, are sufficiently broad to

cover at least his First Amendment challenge to the char-

acter qualification provision and implementing regulation.

His original brief asserted that the Commission “violated

[his] First Amendment rights in disqualifying [him] from

holding a low power FM radio station license” and that

“It]he [aJutomatic [d]isqualification [p]olicy [l]acks the

[njarrow [t]lailoring [r]equired by the First Amendment.” —

Pet’r’s Br. at 2, 23. These broadly worded objections to the

First Low-Power Rulemaking are equally valid as objec-

tions to the amended rules, as Ruggiero continues to argue

primarily that the Commission violated his First Amend-

ment rights by automatically disqualifying him and other

unlicensed microbroadcasters from holding low-power

licenses. Cf. Tenn. Gas Pipeline Co. v. FERC, 871 F.2d

1099, 1109 (D.C. Cir. 1989) (finding jurisdiction to review

claims despite appellant’s failure to file new FERC peti-

tion for rehearing because most of appellant’s objections

to agency’s first decision, raised in timely petition for

review, were “equally valid” as objections to agency’s

amended decision).

6la

Standing

cede, no spectrum Space is available for low-power sta-

tions. In response, Ruggiere claims that but for the RBPA’s

character qualification Provision, he would associate with

a low-power applicant. To support this assertion, he sub-

3. Because the Commission challenges none of the decla-

ration’s factual assertions, we think Ruggiero has estab-

lished the Prerequisites for Article II] Standing: a personal

injury (inability to become a director of the Greenville sta-

tion), fairly traceable to the challenged action (the charac-

tional). See Lujan v. Defenders of Wildlife, 504 U.S. nM

560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 35] (1992).

We are equally unpersuaded by the Commission’s sec-

ondary Standing argument: that Ruggiero is a “poor candi-

date” to challenge the character qualification provision

because, given his history of deliberate and willful licens-

ing violations, the Commission would be unlikely to grant

him a license even in the absence of the Provision. This

62a

may be true, but it is irrelevant. Ruggiero alleges only that

the RBPA’s per se ban deprives him of the right to compete

in the low-power licensing process, and the Supreme Court

has held that such allegations are sufficient for Article II

standing. See Northeastern Fla. Chapter of the Assocd.

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.

656, 666, 113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993)

(“When the government erects a barrier that makes it more

difficult for members-of one group to obtain a benefit than

it is for members of another group, a member of the former

group seeking to challenge the barrier need not allege that

he would have obtained the benefit but for the barrier in

order to establish standing.”).

Il.

To evaluate the constitutionality of the RBPA’s character

qualification provision—and, in turn, the implementing

regulation—we must first identify the appropriate level of

First and Fifth Amendment scrutiny. The parties agree, as

they must in view of Red Lion Broadcasting Co. v. FCC,

395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), that

the “scarcity of broadcast frequencies” necessitates that

“broadcast regulations receive more lenient [First Amend-

ment] ccrutiny than ones affecting other types of speech.”

News Am., 844 F.2d at 811. Going further, the Commission

asserts that under FCC v. National Citizens Committee for

Broadcasting, we should ask only whether the challenged

character qualification provision “is based on considera-

tion of permissible factors and is otherwise reasonable.”

436 U.S. 775, 793 (1978) (““NCCB”). We disagree.

To begin with, neither NCCB nor any subsequent

Supreme Court case supports the Commission’s position

63a

that all “reasonable” broadcasting restrictions automati-

cally pass constitutional muster. NCCB involved both

Statutory and constitutional] challenges to Commission reg-

ulations governing cross-ownership of broadcast stations

and daily newspapers in the same community (“the cross-

Ownership- rules”). Although the NCCB Court did indeed

observe that the Commission has broad regulatory author-

ity to “issue regulations codifying its view of the public-

interest licensing standard, so long as that view is based on

consideration of permissible factors and is otherwise rea-

sonable,” it made that statement when describing the Com-

mission’s mandate under the Communications Act. 436

U.S. at 793, 98 S.Ct. at 21] 1. Turning to the petitioner’s

First Amendment arguments, the Court indicated only that

regulation of broadcast frequencies is permissible if the

regulation is content-neutral and preserves “the interests of

the ‘people as a whole . . . in free speech.’” Jd. at 800

(quoting Red Lion Broad Co., 395 U.S. at 390, 89 S.Ct. at

1806). Concluding that the challenged cross-ownership

regulations meet both requirements, the Court found the

regulations “a reasonable means of promoting the public

interest in diversified mass communications.” /d. at 802,

98 S.Ct. at 2115. The Court expressly distinguished broad-

cast regulations that turn “on the content of constitution-

ally protected speech,” however, and said nothing about

restrictions—like those at issue here—that permanently

limit the speech of certain specific individuals. /d. at 801,

98 S.Ct. at 2115.

Supreme Court case law since NCCB, moreover, con-

firms that some broadcast regulations merit heightened

scrutiny. In FCC y, League of Women Voters, for example,

the Court used intermediate scrutiny to strike down a

Statute that banned noncommercial educational stations

64a

from “engag[ing] in editorializing.” 468 U.S. 364, 366,

104 S.Ct. 3106, 3110, 82 L.Ed.2d 278 (1984). The Court

observed that although “the broadcasting industry .. .

operates underrestraints not imposed upon other media,”

restrictions that constrain broadcasters’ choices about the

viewpoints presented fail constitutional scrutiny unless

“narrowly tailored to further a substantial governmental

interest.” /d. at 380, 104 S.Ct. at 3118.

Finally, in News America, we expressly rejected rational

basis review as the standard for evaluating the constitu-

tionality of a broadcasting restriction analogous to the one

challenged here. See 844 F.2d at 810-14. 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 challenges to the provision “I[ay] at the inter-

section of the First Amendment’s protection of free speech

and the Equal Protection Clause’s requirement that gov-

ernment afford similar treatment to similarly situated per-

sons.” /d. 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 Pres-

ident’) to the purely structural (e.g., the cross-ownership

rules themselves),” and suggestec 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. /d. at 812. On

this spectrum, we continued, the “prohibition at issue in

League of Women Voters [was] at some remove from pure

content, as it forbade ‘editorializing’ of any kind by the

covered stations[,]” while the challenged prohibition on

extending cross-ownership waivers was “far from purely

65a

Structural ... as it applie[d] to a closed class of one pub-

lisher broadcaster.” Jd. Concerned that “the safeguards of

a pluralistic political System are often absent when the leg-

islature zeroes in on a small class of citizens[,]” but wary

of League of Women Voters’ intermediate-scrutiny Stan-

dard, we concluded, “[w]hat suffices for this case is that

more is required than ‘minimum rationality.”” /d. at 814.

Applying this heightened rational basis Standard to the

challenged provision, we concluded that the provision’s

narrow focus on extensions of existing waivers of the

newspaper-television 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.

See id. at 814-15.

Like the prohibition at issue in News America, the

RBPA’s character qualification provision raises both First

Amendment and Equal Protection concerns, as ‘it restricts

future lawful speech (licensed broadcasting) and applies to

a limited class of pirates and former Pirates. See 844 F.2d

at 812. True, as the dissent points out, Dissent at 1334 n.l,

the class of pirate microbroadcasters is neither “closed”

nor as small as News America’s single-member class, but

the former class is well defined (consisting of all Pirates),

and the character qualification provision focuses on it

“with the precision of a laser beam.” News Am., 844 F.2d

at 814. The character qualification provision, moreover, is

far more severe than the News America prohibition: An

unlicensed broadcaster can never lawfully operate a low-

power station anywhere in the country, whereas even under

the News America prohibition, Rupert Murdoch could law-

fully have operated a television station outside of any com-

munity in which he “own[ed] or control[led] a daily

66a

newspaper.” /d. at 803; cf NCCB, 436 U.S. at 800, 98

S.Ct. at 2115 (holding that the cross-ownership rules do

not “condition receipt of a broadcast license upon forfei-

ture of the right to publish a newspaper” because even

“lujnder the regulations, ... a newspaper owner need not

forfeit anything in order to acquire a license for a station

located in another community”). On the other hand, like

the News America prohibition, the character qualification

provision is not purely content-based, nor does it ban “a

form of speech... that lies at the heart of First Amendment

protection,” as did the prohibition on editorializing at issue

in League of Women Voters. 468 U.S. at 381, 104 S.Ct. at

3118. As in News America, therefore, we find ourselves in

a middle ground, sure only that the appropriate standard is

neither NCCB’s minimal scrutiny nor League of Women

Voters’ intermediate scrutiny. Also as in News America,

however, we need not “exact{ly] characteriz[e]

... the proper standard,” for “any that is appreciably more

stringent than ‘minimum rationality’ requires invalidation

of the challenged [provision].” 844 F.2d at 802.

IV.

The RBPA’s meager legislative history suggests that in

enacting the statute’s character qualification provision,

Congress sought to increase compliance with Commission

regulations in two ways: by deterring future operation of

unlicensed stations and by preventing former pirates—who

Congress evidently believes would violate other Commis-

sion rules if given the opportunity—from obtaining

licenses. See H.R. Rep. No: 106-567, at 8 (2000) (“[O]per-

ation of an unlicensed station demonstrates a lack of com-

mitment to follow the basic rules and regulations which

67a

are essential to-having a broadcast service that serves the

public.”); 146 Cong. Rec. $613-S626 (2000) (statement of

Senator Gregg) (arguing that permitting pirates to obtain

low-power licenses would “reinforce their unlawful behav-

ior and €ncourage[ | future illegal activity by Opening the

door to new unauthorized broadcasters”): see also Resp’ ts’

Br. at 7-8 (“[T]he statute +. IS reasonably designed to

avoid licensing those whose Past conduct portends future

unlawful behavior.”), Accepting the legitimacy of this

broad goal, we nevertheless believe that the character

qualification provision suffers from the same defect that

doomed the statute challenged in News America: The pro-

vision “bears only the most strained relationship to [its

ostensible] purpose.” 844 F.2d at 814.

To begin with, the provision is “astonishingly underin-

Clusive,” id. at 814, excluding some “conduct that seems

indistinguishable in terms of [the] ostensible purpose” of

increasing regulatory compliance, id. at 805. Specifically,

the provision bans low-power license applications only

from broadcasters who have operated without a license,

leaving the Commission free to evaluate applications from

anyone else under its preexisting, more permissive charac-

ter qualification policy. See Policy Regarding Character

Qualifications in Broad. Licensing, 102 F.C.C.2d 1179,

1229 (1986), recon. granted in part and denied in part, |

F.C.C. Red. 42] (1986). As a result, civil wrongdoers,

felons, and even inveterate regulatory violators other than

Pirates, retain the Opportunity to demonstrate that notwith-

standing their offenses, they can reliably operate micro-

broadcast stations in the public interest. In Modesto

Broadcast Group, for example, the Commission consid-

ered a license application filed by a station whose general

manager had operated with relatively high, night-time-

68a

authorized power during the day, risking interference with

other stations. 7 F.C.C. Red. 3404, 3422 (1992). The Com-

mission ultimately rejected the application, but only after

considering such factors as the willfulness, duration, and

timing of the general manager’s violations—factors that

the RBPA prohibits the Commission from considering in

cases involving pirates who seek microbroadcast licenses.

See id.; see also Alessandro Broad. Co., 99 F.C.C.2d 1, 11

n.13 (1984) (refusing to disqualify applicant for new

broadcast station permit even though applicant’s control-

ling shareholder had been convicted of second degree mur-

der because “the crime was an isolated event that occurred

in the remote past and the state authorities . . . [had] deter-

mined officially that [the shareholder was] rehabilitated,”

so there was “no predictive nexus between his past crime

and his current and future fitness to be a Commission

licensee”); Teleprompter Cable Sys., Inc., 40 F.C.C.2d

1027, 1028 (1973) (noting that “violations of Federal

antitrust laws are not absolutely disqualifying, but are a

circumstance from which the Commission may draw infer-

ences as to probable future conduct”). Moreover, the Com-

mission may still grant ful/-power licenses to stations

affiliated with former unlicensed broadcasters. Neither

Congress nor the Commission has articulated any justifi-

cation for this double standard. If former misconduct por-

tends non-compliance with Commission regulations, why

shouldn’t former violators of any relevant federal law or

regulation be ineligible to apply for any broadcast license?

Of course, “Congress ordinarily need not address a per-

ceived problem”—here, the possibility of future regulatory

violations by past wrongdoers— “all at once,” but we have

rejected this “facile one-bite-at-a-time explanation” for

otherwise inexplicable underinclusiveness in “rules affect-

69a

ing important First Amendment values.” News Am., 844

F.2d at 815. Our dissenting colleague omits the latter half

of this quoted Passage, arguing that even in the First

Amendment context, Congress may “permissibly tackle

a single part of a perceived problem . . . through a statute

Ne€Ss as a permissible attempt to address “a single part of a

perceived problem.” Dissent at 1335 n.2.

ment only briefly or long ago; from Operators who have

since exhibited, in whatever manner, an ability to abide by

federal laws and regulations; from operators who plan to

serve only as members of a multi-member board, rather

than as president or CEO of an applicant station: from

Operators who shut down immediately upon receiving a

Commission order to do so; and, most tellingly, from oper-

These examples of the character qualification provi-

sion’s under- and Overinclusiveness are Particularly trou-

bling given the ready availability of a less restrictive and

better aimed alternative: the analogous provision in the

70a

First Low-Power Rulemaking, which allowed for the pos-

sibility of waiver in certain circumstances and applied

only to former pirates who continued to operate in spite of

a Commission request to shut down. Cf NCCB, 436 U.S.

at 802 n.20, 98 S.Ct. at 2116 n.20 (“The reasonableness of

the [challenged cross-ownership] regulations as a means of

achieving diversification is underscored by the fact that

waivers are potentially available from ... [the] rules in

cases in which a broadcast station and a co-located daily

newspaper cannot survive without common ownership.”);

also News Am., 844 F.2d at 814 (questioning Congress’s

chosen approach to the identified problem of “temporary

waivers ‘creeping’ into permanence” and suggesting alter-

native legislative solutions). Though potentially still under-

inclusive, such a limited restriction would not only permit

the Commission to grant a license to rehabilitated former

pirates, but more accurately identify likely future rule-

breakers. Indeed, adopting this limited regulatory restric-

tion in the first place, the Commission rejected the very

per se ban that Congress has now enacted, see First Low-

Power Rulemaking, 15 F.C.C. Red. at 2225-26, reasoning

that “[t]he reliability as licensees of parties who ... ille-

gally operated for a time but . .. ceased operation after

being advised of an enforcement action ... is not neces-

sarily as suspect” as that of “[p]arties who persist[ed] in

unlawful operation after the Commission [took] .. .

enforcement actions,” Low-Power Proposal, 14 F.C.C.

Red. at 2498.

Overall, therefore, we find the character qualification

provision so poorly aimed at maximizing future compli-

ance with broadcast laws and regulations as to “raise[ | a

Suspicion” that perhaps Congress’s “true” objective was

not to increase regulatory compliance, but to penalize

. 7la

microbroadcasters’ “message.” News Am., 844 F.2d at 805.

Indeed, Ruggiero expressly alleges viewpoint discrimina-

tion, pointing to Statements in the record that Suggest many

former pirates violated the licensing requirement solely

because they questioned the constitutionality of the now-

defunct microbroadcasting ban and viewed their Piracy as

“civil disobedience.” See, e.g., Creation of Low Power

Radio Serv., Comment of Civil Rights Orgs., reprinted in

J.A. 325 (“[O]ne who broadcasts openly, willingly accept-

ing that the government will attempt to shut her station

down, is engaging in an act of civil disobedience.”): Cre-

ation of Low Power Radio Serv., Comment of Professor

Robert McChesney, reprinted in J.A. 339 (“The tremen-

dous demand for microradio is demonstrated by the emer-

gence of a national Free Radio Movement, widespread

civil disobedience, . . . as well as the proliferation of unli-

censed community radio Stations .. . whose Operators

broadcast at the risk of financial losses, seizure of prop-

erty, arrest, and in some Cases, imprisonment.”). We need

neither endorse the Pirates’ tactics—in fact, in Grid Radio,

278 F.3d at 1821-22 (also issued today), we reject an argu-

ment that penalizing microbroadcasting Piracy violates the

First Amendment—nor believe the RBPA discriminates

against pirates’ “message” to conclude, as we did in News

America, that the Provision’s inaccurate aim is fatal.

We emphasize that this result does not leave Congress

and the Commission powerless to bar some past pirates

from applying for licenses. While that might well be the

Outcome were we applying intermediate scrutiny, we read

News America’s more permissive standard as leaving

ample room for a carefully aimed licensing restriction.

Indeed, the Commission already has authority under its

general character qualification provision to deny licenses

72a

to individual pirates who, in the Commission s considered

judgment, have demonstrated an inability to “comply with

the Communications Act and [Commission] rules and poli-

cies.” Policy Regarding Character Qualifications in Broad.

- Licensing, 102 F.C.C.2d at 1183. Even under the News

America standard, however, we cannot sanction an auto-

matic and permanent restriction on unlicensed broadcast-

ers’ future lawful speech without understanding why their

misdeeds warrant a penalty so much more severe than that

applied to any other misconduct. Yet neither the RBPA

itself, nor the legislative history, nor the record in this case

provides a satisfactory explanation. We thus have no

choice but to declare the statute and the Commission’s

implementing regulation unconstitutional.

The petition for review is granted, the Second Low-

Power Rulemaking is vacated, and this matter is remanded

to the Commission for further proceedings not inconsistent

with this opinion.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

I dissent from the majority’s holding that the challenged

provision of the Radio Broadcasting Preservation Act

(Act)—withholding future low power FM (LPFM) licenses

from those who have illegally engaged in LPFM broad-

casting in the past—falls short of the “something more

than minimum rationality”standard adopted in News Amer-

ica Publishing, Inc. v. FCC, 844 F.2d 800 (D.C. Cir. 1988).

Quoting News America, the majority charges that the Act’s

license restriction is so “poorly aimed at maximizing

73a

future compliance with broadcast laws and regulations as

to ‘raise[ ] a suspicion’ that perhaps Congress’s true objec-

tive was not to increase regulatory compliance, but to

penalize pirate microbroadcasters’ ‘message.’ ” Maj. Op.

at 1333 (quoting 844 F.3d at 805). This Case, however, is

nothing like News America.

In News America the court Overturned a funding resolu-

tion that barred the FCC from using appropriated funds “

‘to extend the time period of current grants of temporary

waivers to achieve compliance with such rules.’ ” 844 F.2d

at 802 (quoting Pub. L. No. 100-202, 101 Stat. 1329, 34

(1987)). The court found the provision “astonishingly

underinclusive” for two reasons. First, it did not prohibit

extension of waivers granted after its enactment but only

of those already in existence. Second, it forbade only

extensions of existing waivers and not the granting of new

waivers. In fact, because of its narrow focus the restriction

affected only a Single party, News America Publishing,

Inc., a corporation owned by Rupert Murdoch, striking

him, in the court’s words, “with the Precision of a laser

beam.” 844 F.2d at 814. By contrast, the license restriction

here applies to the entire class of those who as of the time

. Of their license applications have unlawfully engaged in

LPFM broadcasting. ! Further, the restriction substantially

furthers the plain intent of the Congress which believed

that “the operation of an unlicensed station demonstrates a -

' This class includes persons who broadcast illegally after the

Act’s passage as well as those who had already done so before enact-

ment. It is therefore not a “closed” class as was the case in News Amer-

ica. See 844 F.2d at 810 & n. 13 (noting that challenged provision

“impinges on a closed class” because “Murdoch is not Only the sole

current member of the class, but is the sole party that can ever be a

74a

lack of commitment to follow the basic rules and regula-

tions which are essential to having a broadcast service that

serves the public, and those individuals or groups should

not be permitted to receive licenses in the LPFM service.”

H.R. Rep. No. 506 at 8 (2000). What could be more rea-

sonable or logical than to suspect that those who ignored

the Commission’s LPFM broadcast regulations in the past

are likely to do so in the future and therefore to head them

off. The majority claims this class is underinclusive

because it excludes a host of other scofflaws such as “civil

wrongdoers, felons, and even inveterate regulatory viola-

tors other than pirates.” Maj. Op. at 1332. As the majority

acknowledges, however, “‘ Congress ordinarily need not

address a perceived problem ... all at once.’” Maj. Op. at

14 (quoting News America, 844 F.2d at 815.).° It is no sur-

2 As the majority points out, the court in News America noted

other courts’ rejection of the “one-bite-at-a-time explanation for rules

affecting important First Amendment values.” News America, 844 F.2d

at 815, quoted in Maj. Op. at 1332. Judging from the examples cited

in News America, the court meant only that a proffered governmental

interest will not suffice if the challenged statute does not reasonably

serve the interest, that is, if the statute is underinclusive or overinclu-

sive or both. See FCC v. League of Women Voters, 468 U.S. 364, 396,

104 S.Ct. 3106, 3126, 82 L.Ed.2d 278 (1984) (striking down statute of

“patent overinclusiveness and underinclusiveness” because it “clearly

‘provide[d] only ineffective or remote support for the government’s

purpose.’”) (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm'n of N.Y., 447 U.S. 557, 564, 100 S.Ct. 2343, 2330, 65 L.Ed.2d

341 (1980)); Community-Serv. Broadcasting v. FCC, 593 F.2d 1102

(D.C. Cir. 1978) (rejecting statute that “[a]t best ... serves as an over-

ly restrictive means” of achieving asserted purpose) (en banc). I see no

reason the legislature cannot permissibly tackle a single part of a per-

ceived problem (including one touching on the First Amendment)

through a statute, such as the one here, which is neither overinclusive

nor underinclusive.

75a

prise that in legislation addressing LPFM licensing the

Congress began with known violators of LPFM regula-

tions. In any event, given that the class’s members here are

many and unidentified, see supra note 1, 1 am at a loss to

understand how we can infer the Congress intended to

punish any particular “message” the way the senators men-

tioned in News America targeted Murdoch’s message.°

> As the News America court recounted, Murdoch was thorough-

ly excoriated in the Senate Shortly after the Act was passed. See News

America, 844 F.2d at 807-10.

76a

APPENDIX E

SECTION 632 OF THE RADIO BROADCASTING

PRESERVATION ACT OF 2000, PUB. L. NO. 106-553,

114 STAT. 2762 |

(a)(1) The Federal Communications Commission shall

modify the rules authorizing the operation of low-power FM

radio stations, as proposed in MM Docket No. 99-25, to—

(A) prescribe minimum distance separations for

third-adjacent channels (as well as for co-channels

and first- and second-adjacent channels); and

(B) prohibit any applicant from obtaining a low-

power FM license if the applicant has engaged in

any manner in the unlicensed operation of any sta-

tion in violation of section 301 of the Communi-

cations Act of 1934 (47 U.S.C. § 301).

(2) The Federal Communications Commission may

~ not—

(A) eliminate or reduce the minimum distance

separations for third-adjacent channels required

by paragraph (1)(A); or

(B) extend the eligibility for application for low-

power FM stations beyond the organizations and

entities as proposed in MM Docket No. 99-25 (47

CFR 73.853),

except as expressly authorized by an Act of Congress

enacted after the date of enactment of this Act.

(3) Any license issued by the Commission to a low-

power FM station prior to the date on which the Com-

mission modifies its rules as required by paragraph

77a

(1) and that does not comply with such modifications

shall be invalid.

(b)(1) The Federal Communications Commission shall

conduct an experimental program to test whether low-

power FM radio stations will result in harmful interference

to existing FM radio stations if such stations-are not sub-

ject to the minimum distance separations for third-adjacent

channels required by subsection (a). The Commission shall

conduct such test in no more than nine FM radio markets,

including urban, suburban, and rural markets, by waiving

the minimum distance separation for third-adjacent chan-

nels for the stations that are the Subject of the experimen-

tal program. At least one of the Stations shall be selected

for the purpose of evaluating whether minimum distance

Separations for third-adjacent channels are needed for FM

translator stations. The Commission may, consistent with

the public interest, continue after the conclusion of the

experimental program to waive the minimum distance sep-

arations for third-adjacent channels for the stations that are

the subject of the experimental program.

(2) The Commission shall select an independent

testing entity to conduct field tests in the markets of

the stations in the experimental program under para-

graph (1). Such field tests shall include—

(A) an opportunity for the public to comment on

interference; and

(B) independent audience listening tests to deter-

mine what is objectionable and harmful interfer-

ence to the average radio listener.

(3) The Commission shall publish the results of the

experimental program and field tests and afford an

—

errr ill

78a

opportunity for the public to comment on such results.

The Federal Communications Commission shall sub-

mit a report on the experimental program and field

tests to the Committee on Commerce of the House of

Representatives and the Committee on Commerce,

Science, and Transportation of the Senate not later

than February 1, 2001. Such report shall include—

(A) an analysis of the experimental program and

. filed tests and of the public comments received by

the Commission;

| (B) an evaluation of the impact of the modification

or elimination of minimum distance separations

for third-adjacent channels on—

(i) listening audiences;

(ii) incumbent FM radio broadcasters in gen-

eral, and on minority and small market

broadcasters in particular, including an

analysis of the economic impact on such

broadcasters;

(iii) the transition to digital radio for terrestrial

radio broadcasters;

(iv) stations that provide a reading service for

the blind to the public; and

(v) FM radio translator stations;

Congress to reduce or eliminate the minimum dis-

tance separations for third-adjacent channels

required by subsection (a); and

(D) such other information and recommendations

as the Commission considers appropriate.

79a

47 U.S.C. § 301. LICENSE FOR RADIO COMMUNI-

CATIONS OR TRANSMISSION OF

ENERGY

It is the purpose of this Act, among other things, to

maintain the control of the United States over all the chan-

nels of radio transmission; and to provide for the use of

such channels, but not the ownership thereof, by persons

for limited periods of time, under licenses granted by Fed-

eral authority, and no such license Shall be construed to

create any right, beyond the terms, conditions, and periods

of the license. No person shall use or operate any appara-

tus for the transmission of energy or communications or

signals by radio (a) from one place in any State, Territory,

Or possession of the United States or in the District of

Columbia to another place in the same State. Territory,

Possession, or District; or (b) from any State, Territory, or

Possession of the United States, or from the District of

Columbia, to any other State, Territory, or possession of

the United States; or (c) from any place in any State, Ter-

ritory, or possession of the United States, or in the District

of Columbia, to any place in any foreign country or to any

vessel; or (d) within any State where the effects of such

use extends beyond the borders of said State, or when

interference is caused by such use or operation with the

transmission of such energy, communications, or signals

from within said State to any place beyond its borders, or

from any place beyond its borders to any place within said

State, or with the transmissions or reception of such

energy, communications, or signals from and/or to places

beyond the borders of said State; or (e) upon any vessel or

aircraft of the United States (except as provided in section

303(t)); or (f) upon any other mobile stations within the

jurisdiction of the United States, except under and in

80a

accordance with this Act and with a license in that behalf

granted under the provisions of this Act.

47 U.S.C. § 308. REQUIREMENTS FOR LICENSE

(a) Writing; exceptions. The Commission may grant

construction permits and station licenses, or modifications

-or renewals thereof, only upon written application therefor

received by it: Provided, That (1) in cases of emergency

found by the Commission involving danger to life or prop-

erty or due to damage to equipment, or (2) during a

national emergency proclaimed by the President or

declared by the Congress and during the continuance of

any war in which the United States is engaged and when

such action is necessary for the national defense or secu-

rity or otherwise in furtherance of the war effort, or (3) in

cases of emergency when the Commission finds, in the

nonbroadcast services, that it would not be feasible to

secure renewal applications from existing licensees or oth-

erwise to follow normal licensing procedure, the Commis-

sion may grant construction permits and station licenses,

or modifications or renewals thereof, during the emer-

gency so found by the Commission or during the continu-

ance of any such national emergency or war, in such

manner and upon such terms and conditions as the Com-

mission shall by regulaiion prescribe, and without the fil-

ing of a formal application, but no authorization so granted

shall continue in effect beyond the period of the emer-

gency or war requiring it: Provided further, That the Com-

mission may issue by cable, telegraph, or radio a permit

for the operation of a station on a vessel of the United

States at sea, effective in lieu of a license until said vessel

shall return to a port of the continental United States.

8la

(b) Conditions. All applications for station licenses, or

modifications or renewals thereof, shall set forth such facts

as the Commission by regulation may prescribe as to the

citizenship, character, and financial, technical, and other

qualifications of the applicant to operate the station; the

Ownership and location of the proposed station and of the

Stations, if any, with which it is proposed to communicate:

the frequencies and the power desired to be used; the hours

of the day or other periods of time during which it is pro-

posed to operate the station: the purposes for which the

Station is to be used: and such other information as it may

require. The Commission, at any time after the filing of

Such original application and during the term of such

license, may require from an applicant or licensee further

written statements of fact to enable it to determine whether

such original application should be granted or denied or

such license revoked. Such application and/or statement of

fact shall be signed by the applicant and/or licensee in any

manner or form, including by electronic means, as the

Commission may prescribe by regulation.

granting any license for a station intended or used for com-

mercial communication between the United States or any

Territory or possession, continental or insular, subject to

the jurisdiction of the United States, and any foreign coun-

try, may impose any terms, conditions, or restrictions

authorized to be imposed with respect to submarine cable

licenses by section 2 of the Act entitled “An Act relating to

the landing and the operation of submarine cables in the

United States”, approved May 27, 1921.

(d) Summary of complaints. Each applicant for the

renewal of a commercial or noncommercial television

82a

license shall attach as an exhibit to the application a sum-

mary of written comments and suggestions received from

the public and maintained by the licensee (in accordance

with Commission regulations) that comment on the appli-

cant’s programming, if any, and that are characterized by

the comment or as constituting violent programming.

83a

APPENDIX F

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

FCC 01-100

MM Docket No. 99-25

RM-9208

RM-9242

In the Matter of

CREATION OF A LOW POWER RADIO SERVICE

SECOND REPORT AND ORDER

Adopted: March 22, 2001 Released: April 2, 2001

By the Commission: Commissioner Furchtgott-Roth

approving in part, dissenting in part

and issuing a statement.

1. On December 21, 2000, President Clinton signed into

law “Making Appropriations for the Government of the

District of Columbia for FY 2001” (the “Act”).' Section

632(a) of the Act requires the Commission to modify its

rules for the low power FM (“LPFM”) service’ to pre-

' Pub. L. No. 106-553, 114 Stat. 2762 (2000).

2 See Report and Order, MM Docket No. 99-25, 15 FCC Red.

2205, recensideration generally denied, Memorandum Opinion and

Order, 15 FCC Red 19,208 (2000).

84a

scribe LPFM station third adjacent channel interference

protection standards and to prohibit any applicant from

obtaining an LPFM station license if the applicant has

engaged in the unlicensed operation of a station in viola-

tion of Section 301 of the Communications Act of 1934, as

amended.’ This Report and Order codifies these require-

ments and disposes of those pending LPFM new station

applications directly impacted by these changes. In addi-

tion, it defines the scope of permissible minor amendments

that may be filed by LPFM applicants outside window fil-

ing periods.

IV. Unlicensed Operations

10. Section 632(a)(1)(B) of the Act requires the Com-

mission to modify its rules to “prohibit 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 (47 USC 301).” The LPFM Report & Order

generally applied the same character qualification require-

ments to LPFM station licensees as the Commission

applies to full power licensees.'? However, the Commis-

sion adopted the proposal set forth in the LPFM NPRM to

permit in certain circumstances the grant of an LPFM sta-

tion application even though a party to the application has

engaged in illegal broadcast operations. Specifically, with

regard to such a party the applicant must certify that it

ceased engaging in the unlicensed operation of any station

3 47 U.S.C. § 301.

19 LPFM R&O, 15 FCC Red at 2226 (para. 53).

85a

within 24 hours of a Commission directive to do so. Alter-

natively, in cases where no specific Commission directive

to terminate was received, the party mus: have voluntarily

ceased engaging in the unlicensed operation of any station

no later than February 26, 1999.20

11. We amend Section 73.854 and cirect the staff to

modify FCC Form 318 to conform to che Statutory lan-

guage. We also will dismiss those applications now on file

that responded “No” to FCC Form 318, Section III, Ques-

tion 8(a). This item requests applicants to certify that nei-

ther the applicant nor any party to the application engaged

in any manner in the unlicensed operation of any station in

violation of Section 301 of the Communications Act of

1934, as amended. The affected applications are listed in

Appendix C. We note that the statutory language is not

limited to applicants and licensees that have been found to

have engaged in unauthorized operations by the Commis-

sion. Accordingly, an applicant will be ineligible to hold

an LPFM license if it has engaged in unlicensed operation

regardless of whether the Commission has made a specific

finding that the party has engaged in such conduct. An

applicant that responds “Yes” to Question 8(a) but which

is subsequently determined to have engaged in unlicensed

Station operations will be dismissed and subject to addi-

tional enforcement actions. An LPFM ststion licensee sub-

sequently found to have violated Secon 30] will be

subject to license revocation and other sanctions.

20 See 47 C.E.R. § 73.854(b); FCC Form 318, Section Ill, ques-

tion 8.

86a

Appendix C

FCC 01-100

Prefix File Number State City Chan. Applicant Name

BNPL 20060531AAW_CA CALIFORNIA 289 KYLE

CETRULO

BNPL 20000531ACH UT Roy 217 STEVE SCOTT

C/O A&B INC. —

BNPL 20000601ABZ CA NIPOMO £300 ASSISTANCE IN

MINISTRIES,

INC.

BNPL 20000602ADX CA WATSON- 284 WATSONVILLE

VILLE HUMAN |

RIGHTS

COMMITTEE

BNPL 20000602AER CA _ SAN 288 FOUNDATION

BERNARDINO FOR CALIFOR-

NIA STATE

UNIVERSITY,

SAN BERNAR-

DINO -

BNPL 20000602AFM MD _ HAVRE 296 STEVEN JAMES

DE GRACE CLENDENIN

BNPL 20000605SAAL CA HUME 267 HUME LAKE

CHRISTIAN

CAMPS

BNPL 20000605SABG CA _ SAN 288 MARK

BERNARDINO WESTWOOD

BNPL20000605SABY LA HARVEY 249 CRUTTI AUDIO

SERVICES,

OM ak

87a

Prefix File Number State City Chan. Applicant Name

BNPL 20000605ACB CA SIM 300 CALVARY

VALLEY CHAPEL OF

SIMI VALLEY,

INC.

BNPL 2000060SAIE CA San 290 PROPHET

DIEGO WORLD BEAT

PRODUCTIONS

BNPL20000605AIL CA ARROYO 300 FRIENDS OF

GRANDE THE SOUTH

COUNTY

LIBRARY

BNPL 20000605AJL CA STOCKTON 239 INVISION

COMMUNICA-

TIONS

BNPL 20000605AJT CA SAN 229 SAN FRAN-

FRANCISCO CISCO LIBERA-

TION RADIO

BNPL 20000608ADA ME AUGUSTA 234 ALL THAT Is

CATHOLIC

MINISTRIES

BNPL 20000828ACC IL TaAyLor- 300 LANGLEY

VILLE PARK TELE-

COMMUNI-

CATIONS

BNPL 20000829ADN IL DECATUR 245 COMMUNITY

POWER JAMS

BNPL 20000829ADT MI DETROIT 229 PENTECOSTAL

CHURCH OF

THE ETERNAL

ROCK

88a

Appendix D

FCC 01-100

Low Power FM Rule Modifications

Part 73 of Title 47 of the U.S. Code of Federal Regula-

tions is amended to read as follows: ;

Part 73—Radio Broadcast Services

3. Section 73.854(b) is deleted and Section 73.854 is mod-

ified as follows:

§ 73.854 Unlicensed operations

No application for an LPFM station may be granted

unless the applicant certifies, under penalty of per-

jury, that neither the applicant, nor any party to the

application, has engaged in any manner including

individually or with persons, groups, organizations or

other entities, in the unlicensed operation of any sta-

tion in violation of Section 301 of the Communica-

tions Act of 1934, as amended, 47 U.S.C. Section 301.

89a

APPENDIX G

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

FCC 99-6

MM Docket No. 99-25

RM-9208

RM-9242

In the Matter of

CREATION OF A LOW POWER RADIO SERVICE

NOTICE OF PROPOSED RULE MAKING

Adopted: January 28, 1999 Released: February 3, 1999

Comment Date: April 12, 1999

Reply Comment Date: May 12, 1999

By the Commission: Chairman Kennard and Commis-

sioner Tristani issuing a joint state-

ment; Commissioners Ness and

Powell issuing separate statements;

and Commissioner Furchtgott-Roth

dissenting and issuing a statement.

90a

I. INTRODUCTION

1. By this Notice, we are proposing to establish rules

authorizing the operation of new, low power FM (LPFM)

radio stations. In particular, we are proposing to create two

classes of low power radio service, both of which would

operate in the existing FM radio band: a 1000-watt primary

service and a 100-watt secondary service. We alsu seek

comment on whether to establish a third, “microradio”

class of low power radio service that would operate in the

range of 1 to 10 watts on a secondary basis. These propos-

als are in response to two petitions for rule making and

related comments indicating substantial interest in, and

public support for, increased citizens’ access to the air-

waves. We believe that these new LPFM stations would

provide a low-cost means of serving urban communities

and neighborhoods, as well as populations living in

smaller rural towns and communities. In creating these

new classes of stations, our goals are to address unmet

needs for community-oriented radio broadcasting, foster

opportunities for new radio broadcast ownership, and pro-

mote additional diversity in radio voices and program

services. We are proposing that LPFM stations not be sub-

ject to certain technical rules currently applied to other

classes of radio service. In particular, we believe that cur-

rent restrictions on third-adjacent channel operations are

not needed for LPFM stations, and we believe it may be

possible to disregard second-adjacent channel interference

for these stations as well. We address below how we may

be able to do this. At the same time, we are also proposing

new technical rules and geographic spacing requirements

to ensure that new LPFM stations do not cause interference

to existing full service FM radio stations. In adopting any

ee a

9la

rules and requirements, we will also be wary of any provi-

sions that would limit the development of future digital

radio services. !

2. In this Notice, we review formal petitions we have

received and the principal arguments of commenters sup-

porting and opposing new low power radio service, and we

provide our initial assessment of those arguments. We

describe three types of low power service of varying power

levels which, in each case or together, could meet local

needs. As a general manner, we seek comment on whether

any new services established should be operated strictly on

a noncommercial basis. The Notice also addrsses related

matters such a service rules, ownership issues, and appli-

cations processing procedures for LPFM services. We also

welcome commenters to bring to our attention any alterna-

tives or additions to our proposals that would serve our

goals of encouraging community participation and the pro-

| We have begun to receive re uests for “experimental” authori-

zations for low power FM service that essentially would be identical

to services now under consideration in this proceeding. We are con-

cerned that many more individuals and entities may react to this

Notice by attempting to “jump the gun” by also filing premature appli-

cations under the guise of requests for experimental stations. We do

not consider it appropriate to prejudge the outcome of this rule mak-

ing or to begin a premature race for authorizations by considering such

requests at this time, and interested parties are advised to await the

outcome of this proceeding to file applications pursuant to whatever ~

rules we may establish if we authorize such service. We do not intend

to process such applications unless they serve a legitimate and useful

specified experimental purpose under controlled conditions for a lim-

ited time period appropriate to record experimental results. We also

note that experimental broadcasts are not for regular program services

and must be conducted on a strictly noncommercial basis. 47 C.F.R.

§ 74.182.

92a

liferation of local voices, while protecting the integrity of

the spectrum.

III. Service Proposals and Issue Analysis

A. Need for Low Power Radio Service

10. As discussed in our 1998 Biennial Review of broad-

cast ownership regulations, liberalization of our local

radio ownership rules over the past few years has led to

increasing ownership consolidation. See Notice of Inquiry

in MM Docket No. 98-35, 13 FCC Red 11276, 11281-83

(1998) (Biennial Review”). The Commission has acknowl-

edged the benefits to the public that may accrue from the

economies of scale made possible by group station owner-

ship. However, we are concerned that consolidation may

have a significant impact on small broadcasters and poten-

tial new entrants into the radio broadcasting business by

driving up station prices, thereby exacerbating the diffi-

culty of entering the broadcast industry and of surviving as

an independent operator.

11. Additionally, the Commission received over 13,000

inquiries in the last year from individuals and groups

showing an interest in starting a low power radio station.*°

Furthermore, as noted above, hundreds of commenters

have urged the Commission to create opportunities for low

power, locaHy oriented radio service. These demonstra-

tions of interest in low power radio service indicate tat

new classifications of service could be outlets for new

For example, the low power radio fact sheet on the Commis-

sion’s World Wide Web site is averaging more than 1,000 “hits” each

month.

93a

voices and program services to serve the public. Moreover,

it appears that the variety of demands may best be met by

more than one station type, as urged by many commenters.

For example, a low power station could be designed to

operate similar to a full-power station but on a smaller

scale, as a service for an ethnic community dispersed

throughout an entire city, as a supplementary commercial

or noncommercial service, or simply as a low cost com-

munity service used principally to convey information to

listeners, without concern for financial support.

12. Accordingly,we seek comment on whether a low

power radio service could provide new entrants the ability

to add their voices to the existing mix of political, social

and entertainment programming, and could address special

interests shared by residents of geographically compact

areas. Numerous commenters state that alternative sources

of information and entertainment are not readily available

to dissatisfied speakers and listeners through the acquisi-

tion of an existing frequency, leased time from full power

Stations, an internet website,’ or internet webcasting,”8

the last three of which do not require a license.2? Com-

menters note that the first alternative is too restrictive and

provides insufficient access and control to the speaker to

meet the demand that has spawned this rule making pro-

*7_ Greater Media, Inc. Comments at 7.

28 Jd. at 7; Press Comments at 8.

An example of broadcast radio programming made available

over the internet is <www.airos.org>; The American Indian Radio on

Satellite (AIROS) network is a national distribution system for Native

programming to Tribal communities and to general audiences through

Native American and other public radio stations as well as the internet.

94a

ceeding. The consistent demand for various forms of low

power radio stations, including microradio stations, indi-

cates that many people interested in community broadcast-

ing cannot afford either their own full power stations or

whatever limited access to established stations may be

available. Moreover, people with non-mainstream interests

or unconventional views would have access to the air-

waves only with the consent of a full power station owner,

which could severely limit their range of expression. We

recognize that the internet offers unprecedented opportuni-

ties to cemmunicate inexpensively to others around the

world and to receive information or programming of inter-

est. However, at this time, internet access is not suffi-

ciently mobile and ubiquitous to be considered a substitute

for radio broadcasting’s capability to reach the public,

despite some opponents’ contentions to the contrary.°?

Thus, it appears that low power radio offers opportunities to

potential broadcasters and listeners for which there are

currently no comparable alternatives. Commenters are

invited to address these issues.

13. The technical parameters and other regulations for a

particular service could affect not only the availability of

frequencies for such stations, but also the nature of the

licensees and listeners attracted to different types of sta-

tions and the resulting service. A higher power LPFM class

with a larger service area would be more likely to attract

more listeners, including listeners in vehicles, who

account for a significant segment of the listeners of full

power radio stations. Authorizing these as primary stations

cold provide stability that could enable licensees to obtain

30 Press Comments at 8.

95a

necessary funding to equip stations of this size and operate

them in a manner that could more effectively serve the

community; for example, perhaps a station could secure

the resources to provide live coverage of high school

sporting events or local civic or community meetings or

events. At the same time,with a relatively small operating

budget and a relatively small coverage area, such LPFM

stations might be able to offer very localized exposure

attractive to local businesses that could not otherwise

afford radio advertising.

14. A lower power, less costly class of LPFM station,

with secondary frequency use status and fewer operating

and other regulatory requirements than full service broad-

casters, might appeal to operators desiring to broadcast to

smaller nonmobile audiences, especially if operated at

locales where there would be little likelihood of channel

displacement. As Skinner notes, such stations could often

be operated by local volunteers. In some cases, stations

.might not be able to operate on a full-time basis or accord-

ing to a regular schedule, but might still offer “niche” pro-

gramming and important community event Cuverage and

news and weather bulletins, such as school closing

announcements.

64. Character Qualifications and Unauthorized Broad-

casters. We propose to apply the same standards for char-

acter qualifications requirements to all LPFM broadcasters

as we do to full power broadcasters. See Policy Statement

and Order, 5 FCC Red 3252 (1990), recon. granted in part

and denied in part, 6 FCC Red 3448. See also Report,

Order, and Policy Statement in Gen. Docket No. 81-500

and BC Docket No. 78-108, 102 FCC 2d 1179 (1986),

96a

recon. granted in part and denied in part, | FCC Red 421

(1986). We do not see any reason to distinguish between

LPFM (or microradio) and other broadcast licensees for

this purpose. Commenters believing otherwise are invited

to explain the rationale for any distinction.

65. We note how this issue relates to the particular issue

of previously and currently unlicensed operators. Unli-

censed radio operators not only violate the longstanding

statutory prohibition against unlicensed broadcasting*® and

our present rules on unlicensed broadcasting,** but they

also use equipment of unknown technical integrity.Such

illegal radio transmissions raise a particular concern

because of the potential for harmful interference to author-

ized radio operations, including public safety communica-

tions and aircraft frequencies. For example, in March,

1998, the Commission closed down an unlicensed radio

operation in Sacramento, California, that had disrupted air

traffic control communications on four separate occa-

sions.*4 We have also shut down illegal broadcast opera-

tions that were causing harmful interference to air traffic

control communications at the Miami and West Palm

Beach, Florida, airports.®°

66. The Commission has repeatedly urged all unlicensed

radio operators to cease broadcasting. When they have not,

we have filed complaints in federal district courts to shut

them down by seeking: (1) injunctive relief pursuant to 47

U.S.C. § 401; (2) seizure and forfeiture of the radio station

47 U.S.C. § 301.

83 See, e.g., Part 15 of the Commission’s rules, 47 C.F.R. Part 15.

84 See News Release Report No. C1 98-3 (March 20, 1998).

85 See News Release Report No. C1 97-12 (October 24, 1997).

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equipment pursuant to 47 U.S.C. § 510; (3) monetary for-

feitures pursuant to 47 U.S.C. § 503; and/or (4) criminal

penalties pursuant to 47 U.S.C. § 501. In addition, we have

issued cease and desist orders pursuant to 47 U.S.C. § 312

to a number of unlicensed broadcasters. Nevertheless,

despite repeated warnings by Commission officials and the

Commission’s successes in federal district court litigation,

see United States vy. Dunifer, 997 F.Supp. 1235 (N.D. Cal.

1998), appeal pending, No. 99-15035 (9th Cir. 1999)

(injunction); United States vy Amy and All Radio Station -

Transmission Equipment, 1998 WL 884468 (E.D. Mich.

1998), appeal pending, No. 98-2396 (6th Cir. 1999)

(seizure and forfeiture of radio station equipment), some

unlicensed broadcasters have persisted in their unlawful

activity.

67. It is well established that the Commission is right-

fully concerned with “misconduct which demonstrates the

proclivity of an applicant or licensee to deal truthfully with

the Commission and to comply with our rules and poli-

cies.” Policy Regarding Character Qualifications in Broad-

cast Licensing, 102 FCC 2d 1179, 1190-91 (1986). Parties

who persist in unlawful operation after the Commission

has taken any of these enforcement actions could be

deemed per se unqualified, and we seek comment as to the

eligibility of such parties for a license j any new radio

service. We seek comment on whether there are circum-

stances under which such a party could be considered reha-

bilitated. The reliability as licensees of parties who may

have broadcast illegally but have promptly ceased opera-

tion when advised by the Commission to do so,®° or who

86 )6Of course, as authorized Commission licensees, LPFM broad-

casters that violate Commission rules would be subject to the enforce-

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voluntarily cease operations within ten days of the pub-

lication of the summary of this Notice in the Federal Reg-

ister.

ment rules (including forfeiture amounts) that apply to other broad-

casters, rather than those that now apply to unlicensed operators.

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APPENDIX H

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

FCC 00-19

MM Docket No. 99-25

RM-9208

RM-9242

In the Matter of

CREATION OF A LOW POWER RADIO SERVICE

REPORT AND ORDER

Adopted: January 20,2000 _— Released: January 27, 2000

By the Commission: Chairman Kennard and Commis-

sioners Ness and Tristani issuing

separate statements; Commissioner

~ Furchtgott-Roth dissenting and issu-

ing a statement; and Commissioner

Powell approving in part, dissenting ,

in part and issuing a statement.

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I. INTRODUCTION

1. With this Report & Order, we authorize the licensing

of two new classes of FM radio stations—one operating at

a maximum power of 100 watts and one at a maximum

power of 10 watts. Both types of stations, known as low

power FM stations (LPFM), will be authorized in a manner

that protects existing FM service. They will be operated on

a noncommercial educational basis by entities that do not

hold an attributable interest in any other broadcast station

or other media subject to our ownership rules. Initially,

only entities located in the communities the stations serve

will be eligible to participate in this service. Even once

this eligibility criterion is relaxed, we will grant a signifi-

cant selection preference to locally-based applicants. We

believe that the LPFM service authorized in this proceed-

ing 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.

17. Decision. We will establish LPFM as a noncommer-

cial educational service. Our goals in establishing this new

service are to create opportunities for new voices on the air

waves and to allow local groups, including schools,

churches and other community-based organizations, to pro-

vide programming responsive to local community needs

and interests. We believe that a noncommercial service is

more likely to fulfill this role effectively than a commer-

cial service. Commercial broadcast stations, by their very

nature, have commercial incentives to maximize audience

size in order to improve their ratings and thereby increase

their advertising revenues. We are concerned that these

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