The opinion of the court was delivered by: Pauley, District Judge.
The United States brings this in rem action, pursuant to the
Federal Communications Act ("FCA"), 47 U.S.C. § 510, seeking
forfeiture of radio transmission equipment it seized from
Inglesia Pentecostal El Fin Se Acera, Inc., a Pentacostal church
in the Bronx, New York ("the Church"). The Government alleges
that the defendants were using the seized equipment to operate
Radio Mission Evangelistica, a Spanish-language Christian radio
station, without a broadcast license, in violation of the FCA.
Presently before this Court are claimants' motions to dismiss the
complaint and to quash the in rem arrest warrant and the
Government's motion for summary judgment.
Radio Mission Evangelistica is owned and operated by the
Church. Reverend Fernando Alejandro is the president of the
Church and the manager of Radio Mission Evangelistica. Radio
Mission Evangelistica operates on the frequency 95.1 MHz.*fn1
The Federal Communications Commission (the "FCC") has not issued
a license to anyone in the Bronx, New York, to operate on the
95.1 MHz frequency. (Gov't Rule 56.1 Stmt. ¶ 2.)
On July 15, 1998, the FCC received an anonymous complaint that
someone was operating on the 95.1 MHz frequency. (Loginow Aff. ¶
7.) The next day, the FCC investigated the complaint and
discovered that the source of the transmission was the Church.
The FCC determined that the field strength of the transmissions
exceeded the level permitted for a non-licensed broadcaster under
47 C.F.R. § 15.239(b). (Loginow Aff. ¶¶ 4, 15, 17, 21.) The same
day, FCC agents informed Rev. Alejandro that his operation of
Radio Mission Evangelistica without a license violated
47 U.S.C. § 301, and that if he continued to operate the radio station he
would be penalized. (Loginow Aff. ¶ 11.)
On July 21, 1998, the FCC sent a warning letter to Rev.
Alejandro advising him that he was required to obtain a license
before operating a radio station. The letter also set forth the
penalties for operating an unlicensed radio station. (Loginow
Aff. ¶ 12 & Ex. A.) The FCC told Rev. Alejandro to stop
broadcasting and warned him that if he continued to operate
without a license, the equipment might be seized. (Loginow Aff. ¶
12 & Ex. A.)
Despite the warning letter, the broadcasts continued. (Gov't
56.1 Stmt. ¶ 13.) On August 4, 1998, FCC agents determined that
Radio Mission Evangelistica was still broadcasting on 95.1 MHz.
Later that day, the FCC agents met with Rev. Alejandro and told
him to stop operating his station because he was violating
47 U.S.C. § 301. (Loginow Aff. ¶ 13.) The agents again warned Rev.
Alejandro of the penalties for operating an unlicensed radio
station and gave him a second warning letter. (Loginow Aff. ¶ 13
& Ex. B.)
From August 1998 to January 1999, the FCC periodically
monitored 95.1 MHz and determined that Rev. Alejandro was
continuing to broadcast without a license. (Loginow Aff. ¶¶
On February 12, 1999, United States Marshals, acting pursuant
to an arrest warrant and writ of entry signed by District Judge
Alvin K. Hellerstein, seized the radio equipment at the Church.
Claimants subsequently filed a motion to dismiss the complaint
and to quash the arrest warrant on the grounds that FCC
Regulation 47 C.F.R. § 73.512 prohibiting micro-broadcasting
violates the Religious Freedom Restoration Act,
42 U.S.C. § 2000bb ("RFRA"), and their rights under the First, Fourth and
Fifth Amendments. In response, the Government moved for summary
I. FCC Statutory and Regulatory Licensing Scheme for Radio
[i]t quickly became apparent that broadcast
frequencies constituted a scarce resource whose use
could be regulated and rationalized only by the
Government. Without government control, the medium
would be of little use because of the cacophony of
competing voices, none of which could be clearly and
Red Lion Broad. Co. v. FCC, 395 U.S. 367, 376, 89 S.Ct. 1794,
23 L.Ed.2d 371 (1969). The substantial number of would-be
broadcasters makes federal regulation of the broadcast spectrum
as necessary today as it was in 1927. See, e.g., Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 637-38, 114 S.Ct. 2445, 129
L.Ed.2d 497 (1994).
Until 1978, the FCC licensed low-power "Class D" educational FM
stations that could broadcast at less than 100 watts. In 1978,
the agency revoked this policy, and changed its rules to provide
that "no new noncommercial educational station will be authorized
with less power than minimum power requirements for commercial
Class A facilities" — that is, 100 watts. 47 C.F.R. § 73.511(a);
and see 47 C.F.R. § 73.211(a). As a corollary, the FCC provided
that no new Class D applications would ...