# Opposition Brief — Ruggiero v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 813

## Text

D,

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

v3

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)

IV

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.
FB IRS ot SC Rceconernamsernnei nent ene LnE te ese Pr oe nD
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

i)

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+

oO

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)

2

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.

3

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

4

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.

5

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

6

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

7

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

8

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

9

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.

10

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.

11

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

12

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

r

‘ 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-

14

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. :

16

CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.

THEODORE B. OLSON
Solicitor General

PETER D. KEISLER
Assistant Attorney General

ROBERT S. GREENSPAN
MARKS. DAVIES

Attorneys

JOHN A. ROGOVIN
General Counsel

DANIEL M. ARMSTRONG
Associate General Counsel
C. GREY PASH, JR.
Counsel

Federal Communications
Commission

‘

JULY 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1528%3A3. Public record. Not legal advice.