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U.S. v. ANY AND ALL RADIO

December 8, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
ANY AND ALL RADIO, Station Transmission Equipment et al., Defendant.



The opinion of the court was delivered by: GEORGE DANIELS, District Judge

MEMORANDUM OPINION & ORDER

The United States brought in rem forfeiture action against radio equipment used by Pentecostal church in the operation of an unlicensed radio station. After the equipment was seized, claimant asserted affirmative defenses challenging the constitutionality of the forfeiture action as well as the Federal Communication Commission's ("FCC") regulations governing micro-broadcasting. Plaintiff United States moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the United States motion for summary judgment is granted.

I. Background

  Radio Nuevo Amanecer is a low power FM radio ("LPFM") station that provided Christian programming to the Hispanic-American community in the South Bronx. Its programming consisted of bible readings, sermons, religious music and self-help discussions in Spanish. Financed by claimant Reverend Ernesto Custodio, "Radio New Dawn" began broadcasting in November of 1998.*fn1 On May 10, 1999, an electronics engineer ("FCC Agent" or "Agent") in the New York office of the Federal Communications Commission ("FCC") heard a radio station broadcasting on 87.9 MHz. After further investigation, the FCC Agent determined the radio station to be Radio Nuevo Amanecer and that the signal originated from an apartment located at 1083 East 165th Street in the Bronx. The FCC Agent also determined that the field strength of the transmissions exceeded the level permitted on any FM frequency. On May 11, 1999, the Agent visited the radio station and met Rev. Custodio, the station's operator. After inspecting the equipment, the Agent informed Rev. Custodio that he was operating an unlicensed radio station in violation of federal law and explained to him the penalties associated with unlicensed broadcasting. Such penalties included, inter alia, the seizure and forfeiture of the transmission equipment.

  Further investigation uncovered that the FCC had not licensed any FM broadcast stations to operate on 87.9 MHz in the Bronx, nor had it issued a broadcast license to Rev. Custodio or Radio Nuevo Amanecer. On May 12, 1999, the FCC sent a Notice of Unlicensed Radio Operation letter to Rev. Custodio. The letter advised the radio station to discontinue broadcasting. In response to the visit by the FCC Agent and the letter sent by the FCC, Radio Nuevo Amanecer, through it's counsel, sent a letter to the FCC outlining their position. The letter discussed Radio Nuevo Amanecer's rights under the First Amendment and the Religious Freedom Restoration Act ("RFRA") and argued that the FCC must obtain a cease and desist order as well as provide a hearing before they could seize Radio Nuevo Amanecer's radio transmission equipment.

  On November 17, 1999, Reverend Floresmiro Perea, a colleague of Rev. Custodio and also an operator of Radio Nuevo Amanecer, visited the New York Field Office of the FCC and asked the FCC to waive its rules relating to low power FM service for Radio Nuevo Amanecer. Rev. Perea also requested, in the alternative, that the FCC grant Radio Nuevo Amanecer a broadcast license. The FCC, responding by letter, stated that the New York Field Office did not have the authority to either waive its rules relating to low power FM service for Radio Nuevo Amanecer or to issue a broadcast license to Radio Nuevo Amanecer. The letter advised that applications for broadcast station licenses must be filed with the FCC in Washington, D.C. and included both a copy of an FCC brochure entitled How to Apply for a Broadcast Station and an FCC opinion letter describing the procedures followed by another local religious station that had applied for a waiver.

  Despite ongoing written and oral dialogue between the parties, Radio Nuevo Amanecer continued to broadcast its programs without a license. The Agent conducted separate field tests on May 26, 1999, October 15, 1999 and February 3, 2000. These tests established that Radio Nuevo Amenecer, which was still unlicensed, and had not applied for a license, was continuing to transmit and was doing so in excess of the permissible signal strength. On February 7, 2000, after again detecting unlicensed broadcasts from 1083 East 165th Street on 87.9 MHz, the FCC filed a verified complaint in rem. The FCC sought and received a warrant from District Court Judge Denny Chin to seize Radio Nuevo Amanecer's radio transmission equipment. On February 9, 2000, United States Marshals, acting pursuant to an arrest warrant and writ of entry signed by Judge Chin, seized and arrested Radio Nuevo Amanecer's radio transmission equipment.

  Plaintiff United States of America commenced the instant action in rem to seek the forfeiture of the seized radio equipment pursuant to the Communications Act of 1934. Claimants Rev. Custodio and Perea contest the seizure and the forfeiture action. Although it is undisputed that neither Radio Nuevo Amanecer, Rev. Custodio, nor Rev. Perea possessed a license to broadcast on 89.7 MHz, claimants Rev. Custodio and Rev. Perea assert eight affirmative defenses challenging both the forfeiture and certain FCC regulations. They argue that the seizure violated their rights under the Religious Freedom Restoration Act ("RFRA") and under the First, Fourth and Fifth Amendments of the Constitution. Claimants also argue that the FCC's regulations prohibiting low power or micro-broadcasting violate their rights under the First Amendment and under RFRA. Lastly, claimants maintain that the FCC's "LPFM regulations prohibiting alleged pirates from applying for a low power or micro-broadcasting license" violate their rights under the First and Fifth Amendments. Plaintiff United States moved for summary judgment on each claim.

  II. Discussion

  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 1694, 123 L.Ed.2d 317 (1993). The burden of demonstrating that no factual dispute exists is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In deciding a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.3d.2d 202 (1986). Summary judgment should be granted only when no reasonable trier of fact could find in favor of the nonmoving party. Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994).

  The Federal Communications Commission ("FCC") is a federal regulatory agency charged with regulating intrastate, interstate and foreign radio communications pursuant to the Communications Act of 1934 ("Act"). The Communications Act of 1934 was enacted "to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels . . . by persons for limited periods of time, under licenses granted by Federal authority." 47 U.S.C. § 301. Section 301 prohibits radio broadcasting without a license unless specifically exempted under the Act. See id.; 47 C.F.R. § 15.1.

  When a broadcaster knowingly and willfully violates the licensing requirement set forth in Section 301, the Government can either; institute criminal prosecution under 47 U.S.C. § 501; file a civil action to enjoin noncompliance with statutory requirements under 47 U.S.C. § 401(a); impose monetary forfeitures to penalize statutory violations under 47 U.S.C. § 503; or seek the seizure and forfeiture of broadcast equipment that is used in unlicensed radio broadcasting under 47 U.S.C.510(a). The procedures for seizing such equipment shall be the same as those provided by "the supplemental rules for certain admiralty and maritime claims by any district court of the United States having jurisdiction over the property." 47 U.S.C. § 510(b). In addition, seizure and forfeiture are governed by the laws relating to the seizure and forfeiture of property for violation of the customs laws. 47 U.S.C. § 510(c)(1).

  The relevant facts in this case are undisputed. Claimant Custodio operated Radio Nuevo Amanecer from his apartment at 1083 East 165th Street in the Bronx without a license. He has never applied for a license and a license application was not and is not pending. He did not receive from the FCC any special waiver or exemption that allowed him to broadcast without a license. The FCC conducted numerous field tests, visited the radio station and inspected the radio transmission equipment. The FCC Agent warned him orally during one of these visits that broadcasting without a license could result in the seizure and forfeiture of the radio equipment. Furthermore, the FCC sent claimant a letter advising him of the same. Claimants Custodio and Perea do not argue that they were unaware of their illegal conduct. Despite these repeated warnings, claimants continued to violate the law and refused to cease broadcasting without a license. After numerous field tests to verify a continued violation, the FCC filed a verified complaint in rem seeking to seize the equipment. United States Marshals, acting pursuant to an arrest warrant and writ of entry signed by District Court Judge Denny Chin seized and arrested Radio Nuevo Amanecer's radio transmission equipment.

  The government now seeks forfeiture of this equipment pursuant to 47 U.S.C. § 510. In a civil forfeiture action, the government has the initial burden to demonstrate probable cause to believe that the property was used in violation of the law. Once the government establishes probable cause, the burden shifts to the claimant to prove, by a preponderance of the evidence, that the property was not related to the violation of federal law. Absent such a showing, the government is entitled to a judgment of forfeiture. See United States v. Any and All Radio Station Transmission Equipment, etc., Located at 9613 Madison Avenue ("Madison Avenue"), 218 F.3d 543, 548 (6th Cir. 2000). Given these facts, there is no question that the government had probable cause to arrest claimants' radio equipment. The proof contained in the government's affidavit accompanying the verified complaint as well as the current and undisputed recitation of the facts by the parties further indicate that claimants willfully and knowingly broadcasted without a license. Summary judgment in favor of the government is appropriate, therefore, unless claimants satisfy their burden of showing, pursuant to 19 U.S.C. § 1615, that a defense to forfeiture exists. See ...


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