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U.S. v. ANY AND ALL RADIO STATION EQUIP.

March 31, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
ANY AND ALL RADIO STATION EQUIPMENT, RADIO FREQUENCY POWER AMPLIFIERS, RADIO FREQUENCY TEST EQUIPMENT AND ANY OTHER EQUIPMENT ASSOCIATED WITH OR USED IN CONNECTION WITH ANY RADIO TRANSMISSIONS ON THE FREQUENCY OF 95.1 MHZ LOCATED AT 2151 JEROME AVENUE, 2ND FLOOR BRONX, NEW YORK 10453, DEFENDANT-IN-REM, REVEREND FERNANDITO ALEJANDRO, RADIO MISSION EVANGELISTICA, AND INGLESIA PENTECOSTAL EL FIN SE ACERCA, INC., CLAMAINTS.



The opinion of the court was delivered by: Pauley, District Judge.

MEMORANDUM AND ORDER

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.

For the reasons set forth below, claimants' motions to dismiss the complaint and quash the in rem arrest warrant are denied, and the Government's motion for summary judgment is granted.

FACTS

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. ¶¶ 14-19, 21.)

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 judgment.*fn2

DISCUSSION

I. FCC Statutory and Regulatory Licensing Scheme for Radio Broadcast Transmissions
[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 predictably heard.

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 ...


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