Opposition Brief — Ruggiero v. Federal Communications Commission

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No. 02-1608 OFFICE OF THE CLERK

In the Supreme Court of the Gnited States

GREG RUGGIERO, PETITIONER

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

JOHN A. ROGOVIN

General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

C. GREY PASH, JR.

Counsel

Federal Communications

Commission

Washington, D.C. 20554

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

ROBERT S. GREENSPAN

MARKS. DAVIES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether Section 632(a)(1)(B) of the Radio Broad-

casting Preservation Act (RBPA), Pub. L. No. 106-553,

114 Stat. 2762, which requires the Federal Communi-

cations Commission to prohibit any person from

obtaining a low power FM radio license if that person

“has engaged in any manner in the unlicensed operation

of any station in violation of section 301 of the

Communications Act of 1934,” is constitutional.

(I)

TABLE OF CONTENTS

Page

I i 1

SSE RESTS Sn lea aD 1

Statement ...... nn sphsinentebeichesetehiansanaiabislibbestdnenthseatbeiareeces 1

UNITY eatin neinetshptscahcmateiecchntereuiintemisemsaianindsomecoasc, 9

INIT Scheie hic shivasbsissinesctbiohe Sensasshachsccecsrssc- 16

TABLE OF AUTHORITIES

Cases:

California v. Rooney, 483 U.S. 807 (1987) cesccsceccccccescsse.... 13

Contemporary Media, Inc. v. FCC, 214 F.3d 187

SET tiicpiniesanenstastbsensntnstccessansndinvanenrnensctossereevemonnecansasouces.ac., 14

FCC v. League of Women Voters, 468 U.S. 364

I seinen acenncttnsssnstnsbhannssescnannnvtisnncesesieresnisouecossen 12, 13

Free Speech ex rel. Greg Ruggiero v. Reno, 200 F.3d :

POPE MO in teeth entettbcycnsinnssecdassseliiusdsasosisidcinces. 6

Greater New Orleans Broad. Ass’n v. United States,

sore ap hejety se cops Ate oe NE ONES CET eT 13

Grid Radio v. FCC, 278 F.3d 1314 (D.C. Cir), cert.

denied, 123 S. Ct. 82 (2002) ........sscscssssssssscsssscesssssessscssenen ' 10,14

La Voz Radio de la Communidad v. FCC, 223 F.3d

I ini csacietsaercibsseeniccianisaisetasis once. 10

Prayze FM v. FCC, 214 F.3d 245 (2d Cir. IT sitesictwtintis 10

Radio Luz v. FCC, 88 F. Supp. 2d 372 (E.D. Pa.

1999), aff’d, 213 F.3d 629 (3d Cir. 2000) corcccccccccccsececcoseeeo... 10

Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ......00000 12

Turner Broad. System, Inc. v. FCC, 512 U.S. 622

TI spressiensiecittiadtiiniesanesbesetiiesohstinigncisacstisovessssnnsss aan 12, 13

United States v. Any & All Radio anaiion Trans-

mission Equip.:

218 F.3d 543 (6th Cir. 2000) o....c.sccscsssssscssscsessssssssesescssses 10

207 F.3d 458 (8th Cir. 2000), cert. denied, 531

I ce 10

204 F.3d 658 (6th Cir. 2000) .......cccsccsecccsssssssssesecoseeesssssece 10

(IIT)

Cases—Continued:

United States v. Dunifer, 219 F.3d 1004 (9th Cir.

BI). wassesecsserererevviversrirnisersaicesuipeienennoracinnneinensisemititinasereniabebinteaicn

SIE: citscasentasosapsnnineitesiosesnceiabsiaieteneniaciiumimpiniiocusmiieeniat

United States v. Neset, 235 F.3d 415 (8th Cir.

2000), cert. denied, 534 U.S. 824 (2001) on... eeeseeeseeees

United States v. Szoka, 260 F.3d 516 (6th Cir.

ED: sinsnssovsnvinschsiosiichaeicastsgaicaiiteiliclbaetitibiciaiiiaiisiaiateestcaieatenlintatiin

CET) easccsssonnie CESSES NET CORON TS eT RO

Constitution, statutes and regulations:

U.S. Const.:

Amend. V (Due Process Clause) ..........ssssssssseeeees need

Radio Broadcasting Preservation Act of 2000, Pub.

L. No. 106-553, 114 Stat. 2762:

§ 632 (App. B), 114 Stat. 2762A-111 .........cccsessssssssesessees

§ 632(a)(1)(B) (App. B), 114 Stat. 2762A-111 ............0.

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GT EF FE I eiciincsecctcticsestitnsicobaeiansitieabitasatiiimiieisainiiantiaibnni

OF UT TAS, FI. wovcinnsccittrndiictegrtereremnnss ;

SF Ua He iio scinctdnnaisedhicdidloecinniecentbnitibadleaiiiini

DE BS Fairs SO i iiievinci cstseceasiaieniliehanihtnipeaisashilitahaiticigsisheehinitsciiataieliaid

BE US FEM BOE sisesincssispecnasetitscatis paca dicheihittidaieashiiccinitalbabinas

OT TE BI oo csi iittsehiitacilinleantntlioaiglaiilain

GE EE, Ga iiss cisiiolsies cichcienabinhipcithaipcibbatiiaeliahalaiciea

47 C.F.R.:

ie TI aisiisiciccetesnsntibicnicecn eons cabiesibennncilberetibaitaaiaeaie

ie TIN aie ess isitinseaiecnasnsctietieieienitacaia

Miscellaneous:

Changes in the Rules Relating to Noncommercial

Educational FM Broadcast Stations, 69 F.C.C. 2d Q

OD CAINE sisvssevnicacictssnicnaniiccineslageitiecacenieliansiicuinaahabnisinjiibaniaiaiticen

Page

NONONNNNNN OO

Miscellaneous—Continued: Page

146 Cong. Rec.:

p. $626 (daily ed. Feb. 10, 2000) .................. inierhapiialacianeniai

p. H2309 (daily ed. Apr. 13, 2000) ...........ccccscscesesesessseeeeeees

Creation of a Low Power Radio Service, In re:

BE Fs Be EE Wititiresapiisietnsithininisvioniticiniemmsnsitinnann

Fe ae ee ee D wianteetiticcinciecnnctnticeahentipnntonionsiiahis

Se I biietininticahrctsiccaiiemnnrocaeaaniilitabsimesnianis

Ee IE Seiticitisneecsicdiilisnintenniipassciiniddndsinin

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 House Comm. on

Commerce, 106th Cong., 2d Sess. (2000) .........sesssessesseeeee

H.R. Rep. No. 597, 106th Cong., 2d Sess. (2000) ...........000+

Ow & Ww

cn OT

In the Supreme Court of the Gnited States

No. 02-1608

GREG RUGGIERO, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION —

—_

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App.

8a-49a) is reported at 317 F.3d 239. The opinion of the

panel of the court of appeals (Pet. App. 52a-75a) is

reported at 278 F.3d 1323.

JURISDICTION

The judgment of the en banc court of appeals (Pet.

App. la-2a) was entered on January 31, 2003. The

petition for a writ-of certiorari was filed on May 1, 2008.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. Federal law has long prohibited persons from

“us[ing] or operat[ing] any apparatus for the transmis-

(1)

sion of energy or communications or signals by radio”

without a license from the Federal Communications

Commission (FCC or Commission). 47 U.S.C. 301.

Broadcast licenses may be granted only if the “public

interest, convenience, and necessity will be served,” 47

U.S.C. 309(a), and only upon applications that “set forth

such facts as the Commission by regulation may pre-

scribe as to the citizenship, character, and financial,

technical, and other qualifications of the applicant to

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

Congress has vested the FCC with a broad array of

powers to prevent persons from broadcasting without a

license. The Commission may seek an injunction, 47

U.S.C. 401, issue a cease-and-desist order, 47 U.S.C.

312(b), or impose a monetary forfeiture, 47 U.S.C.

503(b). Any equipment used “with willful and knowing

intent” to engage in unlicensed broadcasting “may be

seized and forfeited-to the United States.”_ 47 U.S.C.

510(a). In addition, persons who willfuiiy and know-

ingly violate the Communications Act of 1934 are sub-

ject to criminal penalties, including fines and imprison-

ment. 47 U.S.C. 501.

2.a. For many years, the FCC censed a category of

noncommercial educational radio stations, known as

Class D stations, that were permitted to operate with a

maximum of ten watts of power. Pet. App. 5a. Sub-

sequently, in order to promote “the opportunity for

other more efficient operations,” the FCC halted the

further licensing of such radio stations. Changes in the

Rules Relating to Noncommercial Educational FM

Broadcast Stations, 69 F.C.C. 2d 240, 248-249, 44 23-24

(1978); see Pet. App. 5a. Thereafter, noncommercial

educational F'M radio stations were generally required

to operate at a minimum power of 100 watts. 47 C.F.R.

73.511(a); see Pet. App. 5a.

In the ensuing years, a number of persons and enti-

ties began operating low-power FM (LPFM) radio

stations without seeking or obtaining licenses. Pet.

App. 5a. As a result, the FCC was forced to devote

considerable resources to the enforcement of the Com-

munications Act’s basic broadcast licensing require-

ment against unlicensed LPF'M broadcasters. /bid.

b. In 1999, in response to petitions for rulemaking,

the FCC proposed to modify its rules to create, inter

alia, a class of LPFM radio service operating at 100

watts of power. See Notice of Proposed Rule Making,

Creation of a Low Power Radio Service, 14 FCC Red

2471, { 1 (1999) (Pet. App. 89a-98a). After considering

comments, the FCC adopted rules authorizing the

licensing of LPFM radio stations. Report and Order,

Creation of Low Power Radio Service, 15 FCC Red

2205, 2206, { 1 (2000) (Pet. App. 99a-111a).

Those rules disqualified all but a narrow class of

unlicensed broadcasters from the new LPF'M service.

In particular, the rules prohibited unlicensed broad-

casters from obtaining an LPF'M license unless the

applicant “certifie(d], under penalty of.perjury, that:

(1) it voluntarily ceased engaging in the unlicensed

operation of any station no later than February 26,

1999, without specific direction to terminate by the

FCC; or (2) it teased engaging in the unlicensed opera-

tion of any facility within 24 hours of being advised by

the Commission to do so.” 15 FCC Red at 2226, | 54

(Pet. App. 109a). The Commission explained that its

treatment of unlicensed broadcasters reflected a

“middle ground” approach between the position of

“many commenters * * * that anyone who has

operated illegally should not be eligible for a license”

and the position of others who “argue[d] for amnesty

for unlicensed broadcasters.” Jd. at 2225-2226, | 52

(Pet. App. 108a).

On reconsideration, the Commission clarified that, “in

no event will an unlicensed broadcaster be eligible for

an LPFM license if it continued illegally broadcasting

after February 26, 1999.” Memorandum Opinion and

Order on Reconsideration, Creation of Low Power

Radio Service, 15 FCC Red 19208, 19245, { 95 (2000)

(Pet. App. 113a-114a). The Commission also explained

that its “rule on unlicensed broadcasters was based on

our concern that past illegal broadcast operations

reflect on the entity’s proclivity to deal truthfully with

the Commission and to comply with our rules and

policies.” 15 FCC Red at 19245, { 96 (Pet. App. 114a).

Any party ignoring a Commission order to cease

unlicensed broadcasting, the Commission observed,

“has demonstrated an unwillingness to comply with the

Commission’s rules and thus should not be rewarded

with an LPF™M license.” [bid.

c. The Commission’s LPF rules, including its deci-

sion to permit a narrow class of unlicensed broadcasters

to remain eligible for LPFM licenses, engendered

substantial opposition in Congress. Pet. App. 7a. Soon

after the Commission adopted its first Report and

Order, Senator Gregg introduced a bill to repeal the

LPFM rules. Ibid. Among his objections were that the

rules would “make[] formerly unlicensed, pirate radio

operators eligible for LPFM licenses,” which would

“reinforce[] their unlawful behavior and encourage[]

future illegal activity by opening the door to new

unauthorized broadcasters.” 146 Cong. Rec. S626 (daily

ed. Feb. 10, 2000). In his view, the rules therefore “not

only reward{] illegal activity, but * * * undermine the

integrity of the radio spectrum.” Ibid.

A House committee held a hearing on a similar pro-

posal to repeal the LPFM rules. 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 Pro-

tection of House Comm. on Commerce, 106th Cong., 2d

Sess. (2000) (Howse Hearing). At that hearing,

Representative Oxley stated that he “most object[ed]

to the provisions making former unlicensed, pirate

radio operators eligible for low power licenses,” because

that would “reinforc[e] their unlawful behavior and

encourag[e] new unauthorized broadcasts in the

future.” Jd. at 4. In reporting the bill, the committee

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.” H.R. Rep. No.

597, 106th Cong., 2d Sess. 8 (2000) (House Report); see

146 Cong. Rec. H2309 (daily ed. Apr. 13, 2000)

(statement of Rep. Dickey) (“These individuals should

not be rewarded for previous unlawful acts that

interfered with authorized FM broadcasts.”).

Congress’s concerns with the initial LPFM rules

resulted in enactment of the Radio Broadcasting Pres-

ervation Act of 2000 (RBPA or Act), Pub. L. No. 106-

558, § 632, 114 Stat. 2762A-111, App. B (Pet. App. 76a-

82a). Seetion 632(a)(1)(B) of the RBPA, the Act’s _

character qualification provision, required the FCC to

modify its LPFM 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 Com-

munications Act of 1934.” Congress thus bafred all

unlicensed broadcasters from obtaining an LPFM

license regardless whether they have ceased unlawful

operations. Pet. App. 8a. é

The Commission modified its LPFM rules in

accordance with this statutory directive. Second

Report and Order, Creation of a Low Power Radio

Service, 16 FCC Red 8026, 8030 (2001) (Pet. App. 83a).

The Commission’s rules now provide (47 C.F .R. 73.854)

that “(njo application for an LPFM station may be

granted unless the applicant certifies, under penalty of

perjury, 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 station

in violation of Section 301 of the Communications Act of

1934, 47 U.S.C. 301.”

3. Petitioner Greg Ruggiero admits that he has en-

gaged in unlicensed broadcasting. Pet. App. 8a; see

Free Speech ex rel. Greg Ruggiero v. Reno, 200 F.3d 63

(2d Cir. 1999). He initiated this action by filing in the

court of appeals a petition for review of the FCC’s

initial LPFM rules. After the completion of briefing

and argument, Congress enacted the RBPA. The par-

ties then filed supplemental briefs addressing the

RBPA and its implementing rules.

a. A divided panel of the court of appeals found that

the RBPA’s disqualification of unlicensed broadcasters

from LPF™M service violates the First Amendment.

Pet. App. 52a-75a. The panel majority ruled that the

character qualification provision is (i) underinclusive in

failing to apply to full-power broadcast licenses or to

applicants that violated federal laws other than the

license requirement and (ii) overinclusive in applying to

applicants that have ceased violating the license

requirement and have exhibited an ability to comply

with the governing laws. Id. at 67a-69a.

b. The en banc court of appeals vacated the panel

opinion and upheld the constitutionality of the RBPA’s

prohibition against awarding LPF™M licenses to unli-

censed broadcasters. Pet. App. 3a-49a. Applying a

standard that “occupies a ground somewhere between”

rational basis review and intermediate scrutiny, id. at

10a, the court held that the Act’s “character qualifica-

tion provision is reasonably tailored to satisfying a

substantial government interest,” id. at 13a. The court

found that there is a substantial government interest

“in ensuring compliance with the Communications Act

and in particular with its central requirement of a

license to broadcast,” id. at 14a, and that the character

qualification provision is a “targeted response” and a

“reasonable fit,” id. at 18a. In the court’s view, “that is

surely enough to uphold a prohibition upon broadcast

speech that * * * is in no respect content-based.” Id.

at 13a.

The court rejected petitioner’s argument that the

character qualification provision is impermissibly

underinclusive in failing to disqualify applicants guilty

of crimes more serious than broadcasting without a

license. “Not only are murderers, rapists, child moles-

ters, and the like not particularly associated with the

harms caused by unlicensed broadcasting,” the court

observed, but “the harms that these malefactors do

cause are not without other and more severe penalties

(state or federal) than ineligibility for an LPFM

license.” Pet. App. 14a. The court explained that “(alll

broadcast pirates, by definition, have violated already

the requirement of obtaining a broadcast license,” and

that “Congress could reasonably conclude that other

violations of law simply do not reflect as directly upon

the offender’s qualification to hold an LPF™M license.”

Id. at 15a. Because the RPBA’s character qualification

provision “targets those who have already violated the

broadcast license requirement,” the court reasoned, the

statute is “reasonably tailored to further the Govern-

ment’s substantial interest in minimizing unlicensed

LPF broadcasting.” Jd. at 16a.

Moreover, the court rejected the suggestion that the

character qualification provision is constitutionally sus-

pect because it “disqualiffies] LPFM pirates from

holding an LPF'M license, as compared with the con-

sequences visited upon other unlicensed broadcasters

and other offenders against the broadcast regulatory.

regime.” Pet. App. 16a-17a n.*. The court explained

that the “judgment that one offense is more serious

than another * * * is not for the judiciary to make,”

and that the proper inquiry is “limited to whether the

Congress has reasonably tailored the character quali-

fication to fit the suhstantial government interest it is

intended to serve,” i.e., limiting unlicensed LPFM

broadcasting. [bid.

Finally, the court rejected petitioner’s contention

that the character qualification provision is impermissi-

bly overinclusive in applying to unlicensed broadcasters

that have ceased their unlawful operations and become

“model citizens.” Pet. App. 16a. The court explained

that “{aJny unlicensed broadcasting demonstrates a

willful disregard of the most basic rule of federal broad-

casting regulation.” Jbid. As a result, the court con-

cluded, “Congress did not hit wide of the mark * * *

when it treated all pirates alike.” Id. at 17a.’

_—

1 Judge Randolph issued a concurring opinion. Pet. App. 18a-

24a. In his view, petitioner is barred from challenging the charac-

ter qualification provision on overbreadth grounds because the

Judge Tatel dissented, reiterating the conclusion he

had reached in his opinion for the panel majority that

the character qualification provision is both underin-

clusive and overinclusive. Pet. App. 29a-49a.2

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of

any other court of appeals. Further review is unwar-

ranted. |

1. The court of appeals correctly upheld the consti-

tutionality of the RBPA’s prohibition against awarding

LPFM licenses to unlicensed broadcasters. The FCC

has long recognized that unlicensed broadcasting con-

stitutes a serious violation of the Communications Act.

As the Commission explained, “{uJnlicensed radio

operators not only violate the longstanding statutory

{and administrative] prohibition against unlicensed

broadcasting,” but “[iJllegal radio transmissions raise a

particular concern because of the potential for harmful

interference to authorized radio operations, including

public safety communications and aircraft frequencies.”

14 FCC Red at 2497, { 65 (Pet. App. 96a). Accordingly,

the Commission has used the full range of its authority

to ensure that unlicensed broadcasters cease their

provision entails no cognizable chilling effect on free expression.

Id. at 19a-23a. Judge Randolph also rejected petitioner’s underin-

clusiveness claim, reasoning that a law’s alleged underinclusive-

ness raises no First Amendment issue in the absence of content-

based discrimination. Jd. at 23a-24a.

* Judge Tatel’s dissenting opinion was not joined by any other

member of the court. Judge Rogers, who initially had joined the

panel majority opinion, now reached “a different result” and con-

curred in the en bane court’s decision to uphold the constitu-

tionality of the character qualification provision. Pet. App. 25a.

illegal operations. 14 FCC Red at 2497-2498, { 66 (Pet.

App. 96a-97a).°

In promulgating its initial LPFM character qualifica-

tion rule, the FCC emphasized that it had “a critical

need to ascertain whether a licensee will in the future

be forthright in its dealings with the Commission and

operate its station in a manner consistent with the

requirements of the Communications Act and the

Commission’s rules and policies.” 15 FCC Red at 2226,

q 53 (Pet. App. 109a). The Commission explained that

“past illegal broadcast operations reflect on that

entity’s proclivity ‘to deal truthfully with the Commis-

sion and to comply with our rules and policies,’ and thus

on its basic qualifications to hold a license.” 15 FCC

Red at 2226, ¢ 54 (Pet. App. 109a). The Commission

had suggested, however, that “(t]he reliability as

licensees of parties who may have illegally operated for

atime but * * * ceased operation after being advised -

of an enforcement action” was “not necessarily as sus-

pect.” 14 FCC Red at 2498, | 67 (Pet. App. 97a). The

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

denied, 123 S. Ct. 82 (2002); United States v. Szoka, 260 F.3d 516

(6th Cir. 2001); United States v. Neset, 235 F.3d 415 (8th Cir. 2000),

cert. denied, 534 U.S. 824 (2001); La Voz Radio de la Communided

v. FCC, 223 F.3d 313 (6th Cir. 2000); United States v. Dunifer, 219

F.3d 1004 (9th Cir. 2000); United States v. Any & All Radio

Station Transmission Equip., 218 F.3d 543 (6th Cir. 2000); Prayze

FM v. FCC, 214 F.3d 245 (2d Cir. 2000); United States v. Any &

All Radio Station Transmission Equip., 207 F.3d 458 (8th Cr.

2000), cert. denied, 531 U.S. 1071 (2001); United States v. Any &

All Radio Station Transmission Equip., 204 F.3d 658 (6th Cr.

2000); Radio Luz v. FCC, 88 F. Supp. 2d 372 (E.D. Pa. 1999), affd,

213 F.3d 629 (3d Cir. 2000) (Table). The Commission shut down

153 unlicensed radio stations in 1998, 154 such stations in 1999, and

25 such stations in the first two months of 2000. House Hearing

85.

Commission therefore decided not to disqualify

unlicensed broadcasters from obtaining an LPFM

license if, prior to February 26, 1999, they had ceased

their unlawful operations “voluntarily” or “within 24

hours of being directed by the FCC to terminate

unlicensed operation.” 15 FCC Red at 19,263 (Pet. App.

116a).

Congress concluded that it was necessary to go

further, and directed the Commission in the RPBA to

prohibit all unlicensed broad casters from obtaining an

LPF license. Congress, like the FCC, was concerned

“that the operation of an unlicensed station demon-

strates a lack of commitment to follow the basic rules

and regulations which are essential to having a broad-

cast service that serves the public.” House Report 8.

But Congress was also concerned that permitting any

category of unlicensed broadcasters to remain eligible

for LPFM licenses would undermine the integrity of

the federal broadcast licensing system by encouraging

unlawful behavior. See pp. 4-5 supra.

As the court of appeals correctly found, Congress’s

conclusion that all unlicensed broadcasters should be

disqualified from eligibility for an LPFM license was

reasonable and fully constitutional. There is a substan-

tial governmental interest in promoting compliance

with the Communications Act’s basic licensing require-

ment, Pet. App. 18a-14a, and the RPBA constitutes a

valid and “targeted response to the problem of pirate

broadcasting,” affecting “only those who violated the

license requirement, and [doing] so utterly without

regard to the content of, or any view expressed by,

their unlicensed broadcasts,” id. at 18a. The bar against

awarding an LPF’ license to unlicensed broadcasters

encourages compliance with the licensing requirement

and prohibits those with a history of disregarding

broadcast laws from obtaining a license to conduct

LPFM operations. See id. at 15a (What “could be more

reasonable or logical than to suspect that those who

ignored the Commission’s LPF'M broadcast regulations

in the past are likely to do so in the future and therefore

to head them off?”) (internal quotation marks omitted).

2. Petitioner renews his contention (Pet. 15-25) that

the RPBA’s character qualification provision violates

the First Amendment. That claim lacks merit.

a. As a threshold matter, petitioner submits (Pet.

16-17) that the court of appeals should have applied

“intermediate scrutiny” in evaluating the character

qualification provision but that the court instead, “in

effect, applied minimal scrutiny.” That is incorrect.

The court of appeals specifically declined to apply

“minimal scrutiny” and instead applied a form of

heightened scrutiny, assessing whether the character

qualification provision “is reasonably tailored to satisfy- -

ing a substantial government interest.” Pet. App. 12a-

13a. The court characterized that standard as

“occup[ying] a ground somewhere between” rational

basis review and intermediate scrutiny. Jd. at 10a. The

court’s approach was grounded in the recognition that

this Court has generally applied “a less rigorous

standard of First Amendment scrutiny to broadcast

regulation,” Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 637 (1994); see Red Lion Broad. Co. v. FCC, 395

U.S. 367, 388-399 (1969), and that intermediate scrutiny

applies to broadcast regulations only when the restric-

tion on speech is content-based. Pet. App. 10a-11a; see,

e.g., FCC v. League of Women_Voters, 468 U.S. 364

(1984). :

Petitioner does not challenge the court of appeals’

conclusion that the RBPA’s prohibition against award-

ing an LPF™M license to unlicensed broadcasters “is

‘ 13

triggered solely by the applicant’s conduct” and “ap-

plies without regard to any content the applicant may

have broadcast unlawfully or might be expected to

broadcast if a license were issued to him.” Pet. App.

lla. Accordingly, petitioner errs in relying (Pet. 20) on

decisions in which this Court has invalidated content-

based broadcast regulations under intermediate scru-

tiny. See League of Women Voters, 468 U.S. at 388-399;

see also Greater New Orleans Broad. Ass’n v. United

States, 527 U.S. 173, 188 (1999).

In any event, petitioner’s abstract disagreement with

the court of appeals’ characterization of the applicable

constitutional standard does not warrant review. See

California v. Rooney, 483 U.S. 307, 311 (1987) (per

curiam) (“This Court reviews judgments, not state-

ments in opinions.”) (internal quotation marks omitted).

Intermediate scrutiny requires the government to

demonstrate a substantial interest in the challenged

provision, see, ¢.g., Turner Broad., 512 U.S. at 662, and

petitioner does not dispute the court of appeals’ con-

clusion that the government “no doubt” has a substan-

tial interest in promoting compliance with the Com-

munications Act’s licensing requirement, Pet. App. 14a.

Moreover, while intermediate scrutiny requires “nar-

row tailoring,” that requirement only calls for a “rea-

sonable” fit and not does not demand “employ[ing] the

least restrictive means conceivable.” Greater New

Orleans Broad., 527 U.S. at 188; see United States v.

Edge Broad. Co., 509 U.S. 418, 429 (1993); Ward v. Rock

Against Racism, 491 U.S. 781, 798-800 (1989). In this

case, the court of appeals found that “[t]here is a rea-

sonable fit between the character qualification and the

Government’s substantial interests.” Pet. App. 18a.

b. Petitioner errs in arguing that the RBPA is im-

permissibly underinclusive and overinclusive. Peti-

tioner contends (Pet. 21) that the failure of Congress to

include “civil wrongdoers, felons” and the like within

the scope of the RBPA’s ban undermines the validity of

the government’s rationale. As the court of appeals

explained (Pet App. 14a), however, there was no evi-

dence of a pressing problem concerning those catego-

ries of persons seeking to apply for LPFM licenses.

Moreover, persons not covered by the RBPA’s bar are

subject to the FCC’s general character qualification

policy, under which they may be disqualified from ob-

taining a license in any event. Jd. at 15a; see Con-

temporary Media, Inc. v. FCC, 214 F.3d 187, 193 (D.C.

Cir. 2000) (upholding revocation of station license held

by company whose president and sole shareholder had

been convicted of felony child abuse).

Petitioner argues (Pet. 19) that application of the

FCC’s “traditional character qualification policies” to

the new low power licensing scheme would have been

sufficient to achieve “regulatory compliance.” In the

view of the FCC and Congress, however, a character

qualification provision specific to the LPF'M regulatory

scheme was desirable because of the particular long-

standing and persistent problem of unlawful low power

broadcasts. As the extensive litigation and admini-

strative history of the issue had shown, the problem of

unlicensed broadcasting had been directly associated

with the low-power movement. See, e.g., Grid Radio,

278 F.3¢ at 1317; House Hearing 28-29 (prepared

statement of E.O. Fritts and B.T. Reese) (“(TJhe fact is

that the LPFM movement does have roots in pirate

broadcasting.”). Nothing in the Constitution compels a

court to impose petitioner’s suggested regulatory policy

over the judgment of Congress and the expert admin-

istrative agency. See Ward, 491 U.S. at 800.

, 15

Finally, the court of appeals correctly refused to

second-guess Congress’s judgment concerning the need

for a blanket prohibition against awarding LPFM li-

censes to unlicensed broadcasters. See Pet. App. 15a-

16a & n.*. As the court explained, “[a]ny unlicensed

broadcasting demonstrates a willful disregard of the

most basic rule of federal broadcasting regulation.” Jd.

at 16a. In Congress’s view, even if a particular un-

licensed broadcaster could demonstrate a renewed

commitment to adhering to the applicable rules, the

possibility that a category of unlicensed broad¢asters

would remain eligible for LPFM licenses would encour-

age the belief among others that no lasting conse-

quences would ensue from noncompliance with—

indeed, outright defiance of—fundamental regulatory

requirements. The RBPA promotes an understanding

that failure to abide by the Communications Act’s basic

licensing requirement carries serious consequences.

Because the RBPA’s disqualification provision directly

advances the government’s interest in ensuring the

compliance integrity of the federal system of broadcast

regulation, its disqualification of unlicensed broad-

casters is fully constitutional.

* Petitioner also renews his contention (Pet. 26) that the

character qualification provision violates the equal protection

component of the Fifth Amendment’s Due Process Clause. As the

court of appeals correctly explained (Pet. App. 17a-18a), that claim

is subject to the same analysis as petitioner’s FirsteAmendment

claim and fails for the same reasons. :

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.