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U.S. v. ANY AND ALL RADIO

United States District Court, S.D. New York


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 United States v. Any and All Radio Station Transmission Equipment, etc., Located at 2151 Jerome Avenue ("Jerome Avenue"), 93 F.Supp.2d 414 (S.D.N.Y. 2000) (finding that upon a showing of probable cause, the burden shifts to the claimant to establish by a preponderance of the evidence of a defense to the forfeiture).

  Claimants posit several affirmative defenses on their behalf. These arguments can essentially be divided into two groups: one challenging the seizure and forfeiture of the equipment on Constitutional and statutory grounds; the other challenging the FCC's regulations regarding low power broadcasting. Claimants argue that the seizure and forfeiture violated their rights under the Religious Freedom Restoration Act ("RFRA") and under the First, Fourth and Fifth Amendments of the Constitution. Claimants also assert that the FCC's regulations prohibiting low power or micro-broadcasting violate their rights under the First Amendment and under RFRA and 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.

  A. The Seizure and Forfeiture

  Claimants first challenge the constitutionality of the seizure and forfeiture under the First Amendment. This claim is without merit. Claimants concede that they do not possess a First Amendment right to broadcast. Their attempt to premise their First Amendment claim on the notion that the FCC's regulations and the associated licensing requirements prevent them from expressing their ideas through the airwaves can be read as nothing more than a claim that their speech is being impeded because they cannot obtain a license and, therefore, cannot broadcast their message through the airwaves. Their argument that the FCC "has allowed radio to be consolidated into the hand of fewer and fewer, yet more powerful entities" and that this "general failure to bring diverse views to the airwaves, allow others to obtain licenses and hold them without having to share them and its failure to allow a mechanism for those like Reverend Custodio and Perea to have access to the airwaves have violated [claimants'] First Amendment rights" rings similar to other claims by other parties that have been argued and adjudicated by numerous courts throughout the country and found to be without merit. See La Voz Radio De La Communidad, 223 F.3d 313, 315 (6th Cir. 2000); see also United States v. Any and All Radio Station Transmission Equip. (Strawcutter), 204 F.3d 658, 662 (6th Cir. 2000); see also Any and All Radio Station Transmission Equip, (2151 Jerome Avenue), 93 F.Supp.2d 414 (S.D.N.Y. 2000).

  This argument cannot be construed as anything more than a claim that they possess a First Amendment right to a license, a claim which they concede is unsupported. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (holding that no one has a First Amendment right to a license); see also NBC v. United States, 319 U.S. 190, 227 (1943) (holding that the right to free speech does not include the right to use the facilities of a radio without a license); see also Free Speech v. Ruggiero, 200 F.3d 63 (2d Cir. 1999) (holding that the allocation of the radio spectrum under the Communications Act is not subject to public forum analysis under the First Amendment). Courts in this district have also held that the FCC's broadcast licensing scheme as well as the FCC's regulations regarding Class D licenses do not violate the First Amendment. See Free Speech v. Reno, 200 F.3d 63, 64 (2d Cir. 1999); see also 2151 Jerome Avenue, 93 F.Supp.2d at 420. Claimants' First Amendment claim is therefore dismissed.*fn2

  Claimants also assert that the forfeiture of their radio equipment violated their due process rights under the Fifth Amendment. Specifically, claimants argue that they were entitled to a pre-seizure hearing and had a right to notice and an opportunity to be heard. They cite the Supreme Court's decision in United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) for the proposition that, with respect to real property, an ex parte seizure was not required to protect the government's interest in ensuring that the property was not sold, destroyed or used for further illegal activity prior to a forfeiture judgment. Id. at 58. The property in James Daniel Good, however, was real property, which cannot be easily moved or concealed. Indeed in Any and All Radio Station Transmission Equip. etc., Located at 9613 Madison Avenue ("Madison Avenue"), 218 F.3d 543, 550 (6th Cir. 2000), the Sixth Circuit found that the Supreme Court's holding in James Daniel Good does not apply to forfeiture actions involving easily movable property. Rather, when the property is movable personal property, as is the case with radio transmission equipment, immediate seizure was necessary "to establish the district court's jurisdiction over the equipment. . . . Therefore, in light of these exigencies due process did not require notice and a hearing before seizure." Madison Avenue at 550. As the property in question was not real property, but rather, easily movable radio transmission equipment, due process did not require a hearing before seizure. Indeed, claimants received notice that they property was subject to seizure during the FCC Agent's initial visit, when he informed claimants that if unauthorized and unlicensed broadcasting did not stop, the property used could be subject to seizure and forfeiture.

  Both parties agree that the standard established by the Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976) should be applied. They disagree about the weight to be given to those factors. The Fifth Amendment provides that "No person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. In Matthews, the Supreme Court established a standard to analyze an alleged due process violation. Specifically, the Court held that the finding of a due process violation is dependent on the balancing of three factors: a private interest that will be affected by government action; the risk of an erroneous deprivation of that interest through the procedures utilized and the probable value of such additional safeguards; and the government's interest in avoiding the burdens entailed in providing the additional procedures claimed. See Matthews, 424 U.S. at 319. Clearly, claimants have a private interest in the property that was seized by the government. The government concedes as much by stating that "[c]laimants have an ownership interest in the equipment itself." Government's brief at 25.

  As to the second Matthews factor, the risk of erroneous deprivation was minimal. The Second Circuit has found that an ex parte probable cause determination before a judicial officer reduces the possibility of an erroneous deprivation. See United States v. All Assets of Statewide Auto Parts, 971 F.2d 896, 903 (2d Cir. 1992). In a case with similar facts, District Judge William H. Pauley of this Court found that their was little risk of erroneous deprivation in light of the fact, as is present here, that the government seized the equipment pursuant to a warrant signed by a judicial officer. See 2151 Madison Avenue, 93 F.Supp.2d 414, 423 (S.D.N.Y. 2000). In the present case, Judge Denny Chin made an independent determination based on the FCC Agent's affidavit, and the government's verified complaint in rem, that probable cause existed to seize the radio transmission equipment being used to violate the law.

  The third Matthews factor seems to be the main source of disagreement between the parties. Claimants argue that the government's interest in ensuring that the property was not sold, destroyed or used for further illegal activity could have been served by seeking an injunction. They assert that an injunction ordering the claimants to cease broadcasting would have had the same effect but been less burdensome to the claimants. Indeed, during oral argument, claimants' attorney stated "[a]nd we from the beginning have offered to enter into an injunction that we will not broadcast further. . . . I'll offer right now, we are offering to enter an injunction." Transcript of oral argument dated November 17, 2000 at 34. This offer, however, rings of a hollow promise, as the very reason the government seized the equipment is because claimants failed, after several written and oral warnings, to stop broadcasting without a license.

  Even less convincing is claimants' argument that they did not have notice of the seizure. Claimants were aware of the possibility that their equipment would be seized as early as May 11, 1999, when the FCC Agent visited their radio station and warned them that if they continued to broadcast without a license, their property could be seized. Although it is clear that claimants initially obtained an attorney and visited the FCC seeking guidance, it is also clear that they were aware that continuing to broadcast would constitute a violation subject to seizure and forfeiture. Their argument that an injunction would have served the same purpose as the government's eventual seizure is without merit and not credible in light of the history of these proceedings.

  Claimants also contend that exigent circumstances did not exist to warrant an ex parte seizure. They point to the fact that nearly nine months passed between the time the government became aware of the violation and the time it seized the property. This argument is unconvincing in light of the government's unwavering stance and the claimants' uncontested knowledge and understanding, during the interval, that continued broadcasting without a license was in violation of the law. In 2151 Madison Avenue, that court after reviewing the presence of exigent or extraordinary circumstances, held that the government maintained a strong interest in obtaining pre-notice seizure and found that the government's seizure of the claimants' radio equipment did not violate their due process rights. See 2151 Madison Avenue, 93 F.Supp.2d at 423-24. Despite the claimants' interest in the equipment, therefore, the totality of the Matthews factors weigh heavily in the government's favor.

  B. Religious Freedom Restoration Act

  Claimants also argue that Sections 301 and 510 violate the Religious Freedom Restoration Act. RFRA provides that the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. § 2000bb-1(a). However, the federal government "may substantially burden a person's exercise of religion" if it "demonstrates that application of the burden to the person is in furtherance of a compelling government interest" and "is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000bb-1(b)(1) and (2); see also Jolley v. Coughlin, 76 F.3d 468, 474-75 (2d Cir. 1996).*fn3

  In order to establish a prima facie case under RFRA, claimants must first demonstrate that their right to the free exercise of religion has been substantially burdened. A substantial burden is one that puts "pressure on an adherent to modify his behavior and to violate his beliefs." Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). Claimants assert that Sections 301 and 510 of the Communications Act substantially burdens the exercise of their religion. Section 301 of the Communications Act prohibits radio broadcasting without a license unless specifically exempted under the Act. 47 C.F.R. § 15.1. Section 510 allows the FCC, when a broadcaster knowingly and willfully violates the licensing requirement, to seek the seizure and forfeiture of broadcast equipment that is used in unlicensed radio broadcasting. See 47 U.S.C.510(a). Claimants argue that "[c]entral to their belief is that they have chosen to undertake the work of God in convincing those in their community to turn towards God, and by supporting those who have turned to God in their journey closer to Him. . . . Experience has shown that radio preaching is the most effective means to reach both congregants and those who have not turned towards God." Claimants' Brief at 27. The gravamen of their RFRA challenge is that "by prohibiting the Reverends from spreading their faith via radio, the government has substantially burdened their direction for God to reach the masses." Id. at 28.

  These facts are insufficient to find that claimants' right to the free exercise of their religion has been substantially burdened. Claimants clearly do not have a constitutional right to a broadcast license and do not have the right to broadcast without one. They remain free, however, to apply for a license. Although the micro-broadcasting license they seek may not be available to them, they are not precluded from applying for a different license. Indeed, it appears that prior to broadcasting Radio Nuevo Amanecer, claimant Custodio hosted various other religious programs through licensed radio stations. He apparently stopped doing so because "[n]ot only were the rental fees triple what the Reverend had been paying, but the station refused to rent him any air time." Claimants' Brief at 6. Lack of financial wherewithal, however, is an insufficient basis to find that the practice of their religion has been substantially burdened. See 2151 Jerome Avenue, 93 F.Supp.2d at 419 (finding that "[u]nder claimants' theory, their inability to afford television, satellite, or cable licenses, or even commercials during the Super Bowl, would also substantially burden their religion"). The internet or other lower cost alternatives may provide claimants with a forum to spread their message. Claimants are free to communicate their religious message and are even free to do so through the radio, but they have not shown that they should be relieved of their duty, like every other citizen, to obtain a license and broadcast according to the law. Claimants have failed to demonstrate that the free exercise of their religion has been substantially burdened. It is therefore unnecessary to review whether the government had a compelling interest in enforcing the law, a fact which claimants concede. It is also unnecessary to consider whether the government sought the least restrictive means to enforcing their compelling.*fn4 C. Micro-Broadcasting and the FCC's LPFM Regulations

  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 100 watts, the minimum power requirements for commercial Class A facilities. See United States of America v. Any and All Radio Station Equipment at 2151 Jerome Avenue, 93 F.Supp.2d 414, 417 (S.D.N.Y. 2000) (citing 47 C.F.R. § 73.511(a) and 47 C.F.R. § 73.211(a)). This moratorium on low power licenses created an underground movement of unlicensed micro-broadcasters that operated their radio stations in open defiance of the FCC's ban on LPFM broadcasts. The problem grew through the 1980s and the 1990s, hitting its peak in the late 1990s. In 1998 and 1999 and the first two months of 2000, the FCC shut down, on average, more than a dozen unlicensed radio stations each month. See Ruggiero v. FCC, 317 F.3d 239, 241-42 (citing 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 the House Comm. on Commerce, 106th Cong. 85 (2000)).

  On January 27, 2000, the FCC adopted new rules regarding low-power broadcasting. See Creation of Low Power Radio Serv., 15 F.C.C.R. 2205, ¶ 11, 2000 WL 85304 (2000). Pursuant to these rules, two new classes of noncommercial educational FM radio stations were created, one at a maximum of 10 watts and another at a maximum of 100 watts. The FCC stated that it would accept applications for low-power licenses from an applicant who had broadcast in the past if the applicant certified under penalty of perjury that it had ceased operations within 24 hours of being directed to do so by the FCC and no later than the deadline (February 26, 1999) set out in the Low Power Proposal. See id.

  In their papers and during oral argument, claimants argued that the FCC regulations prohibiting low power or micro-broadcasting violate the First Amendment and RFRA. Furthermore, claimants assert that the FCC's regulations prohibiting alleged violators from applying for a low power or micro-broadcasting license violate the First and Fifth Amendments.

  After claimants' papers were filed, Congress enacted the Radio Broadcast Preservation Act of 2000 ("RBPA"), Pub.L. No. 106-553, 114 Stat. 2762, § 632. The RBPA directed the FCC to modify its 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 Communications Act. See RBPA § 632(a)(1)(B). The FCC soon thereafter modified its rules to implement the RBPA's more stringent character qualification as required by Congress. Creation of Low Power Radio Serv., 16 F.C.C.R. 8026, ¶ 10, 2001 WL 310997 (2001). This regulation provides that "[n]o 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 Communication Act of 1934." 47 C.F.R. § 73.854.

  The government contends that this court lacks jurisdiction to hear these challenges, arguing that pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. § 2342, the review of the validity of FCC regulations is confined to the court of appeals and not the district courts. Section 2342 of Title 28 states, in pertinent part, that the Court of Appeals has exclusive jurisdiction to enjoin, set aside, suspend, or determine the validity of all final orders of the FCC made reviewable by 47 U.S.C. § 402(a). 28 U.S.C. § 2342 (emphasis added). The Second Circuit, in Prayze FM v. FCC, 214 F.3d 245, 250 (2d Cir. 2000), stated "[w]hether the district court has jurisdiction to consider the constitutionality of FCC regulations in an enforcement proceeding is unclear," and reserved decision on the jurisdictional question for another day. Courts in this district that have faced the jurisdictional question have either assumed, without deciding, that the claimants have standing and denied their motion on their merits, see 2151 Jerome Avenue, 93 F.Supp.2d at 416 n. 2, or found that the district court possessed original jurisdiction pursuant to 28 U.S.C. § 1331. See Prayze FM v. FCC, 2001 WL 34118028, *5 (D.Conn. 2001) (finding that "[h]ad Congress intended for the court of appeals to determine the constitutionality of all final orders of the FCC, this Court presumes Congress would have added that specific language to the other actions falling under the exclusive jurisdiction of the court of appeals in 28 U.S.C. § 2342").*fn5

  The government, however, has presented no case law to support their proposition that FCC regulations are "final orders" under 28 U.S.C. § 2342. Indeed, when Congress wanted to grant the Court of Appeals exclusive jurisdiction over regulations or rules, it has stated so. Compare 28 U.S.C. § 2342(1) (granting the United States Court of Appeals for the Federal Circuit exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47) (emphasis added) with 28 U.S.C. § 2342(3) (granting exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of "all rules, regulations, or final orders of the Secretary of Transportation. . . .") (emphasis added). Had Congress intended to confer exclusive jurisdiction to the Court of Appeals over FCC regulations and rules in addition to final orders, as it did with other agencies, Congress would have stated so. There is no basis to find, therefore, that this Court lacks jurisdiction to adjudicate plaintiff's constitutional challenges of FCC regulations.

  In any event, claimants fifth and sixth affirmative defenses challenging the FCC's prohibition on low power or micro-broadcasting as violating RFRA and the First Amendment are moot in light of the FCC's lifting of this prohibition.*fn6 Quite simply, those affirmative defenses challenge a moratorium on low power licenses that is no longer in place.

  Claimants' seventh and eighth affirmative defenses challenge the FCC's regulations prohibiting "alleged pirates from applying for a low power or micro-broadcasting license" in violation of the First and Fifth Amendment. Claimants, however, are precluded from offering these challenges as an affirmative defense. The low power FM regulations in effect at that time did not preclude all previous violators from applying for a license. The provisions required applicants who had broadcast in the past to certify, under penalty of perjury, that they ceased broadcasting within 24 hours of being directed to do so by the FCC and no later that the deadline (February 26, 1999) set out in the Low Power Proposal. See Creation of Low Power Radio Serv., 15 F.C.C.R. 2205, ¶ 11, 2000 WL 85304 (2000). An affirmative defense is defined as "[a] defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all allegations in the complaint are true." Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (citing Black's Law Dictionary 430 (7th ed. 1999)). As the regulations cited by claimants were not in effect at the time of this suit, they are precluded from offering a challenge to them as an affirmative defense. See U.S. v. U.S. Steel Corp., 356 F.Supp. 556, 560 (D.C. Ill. 1973) (finding that an affirmative defense that was not yet ripe for decision cannot be used to dismiss a claim in a complaint).*fn7 III. Conclusion

  For the reasons stated above, the government's motion for summary judgment is granted.*fn8

  SO ORDERED.


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