Ruggiero v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En BancSeptember 17, 2002
Decided January 31, 2003

No. 00-1100

Greg Ruggiero,
Petitioner

v.

Federal Communications Commission and
United States of America,
Respondents

On Petition for Review of an Order of the
Federal Communications Commission

Robert T. Perry argued the cause and filed the briefs for
petitioner.

Jacob M. Lewis, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
were Robert S. Greenspan and Mark S. Davies, Attorneys,
and Jane E. Mago, General Counsel, Federal Communica-
tions Commission, and C. Grey Pash, Jr., Counsel.

 Before: Ginsburg, Chief Judge, and Edwards, Sentelle,
Henderson, Randolph, Rogers, Tatel, and Garland, Circuit
Judges.

Opinion for the Court by Chief Judge Ginsburg, with whom
Circuit Judges Edwards, Sentelle, Henderson, Randolph,
Rogers, and Garland join.

Concurring opinion filed by Circuit Judge Randolph.

Concurring opinion filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Tatel.

Ginsburg, Chief Judge: This petition for review challenges
the constitutionality of the character qualification provision of
the Radio Broadcasting Preservation Act of 2000, which
makes ineligible for a low-power FM (LPFM) radio license
anyone who engaged in "the unlicensed operation of any
station in violation of ... the Communications Act of 1934."
Pub. L. No. 106-553, 114 Stat. 2762, s 632(a)(1)(B). The
petitioner raises a facial challenge to the statute and to the
regulations that implement it, asserting that they are overin-
clusive or, alternatively, underinclusive, in violation of the
First Amendment to the Constitution of the United States.
A divided panel granted the petition. The full court then
vacated the judgment issued by the panel and reheard the
case en banc. We now uphold the constitutionality of the
character qualification and deny the petition for review.

I. Background

Since 1927 the Congress has prohibited any person from
operating a radio station without a license issued by the
Federal Communications Commission (or its predecessor, the
Federal Radio Commission). See 47 U.S.C. s 301. The
Commission is to grant a broadcast license only if the "public
interest, convenience, and necessity would be served," 47
U.S.C. s 309(a), and only if the applicant "set[s] forth such
facts as the Commission by regulation may prescribe as to
the citizenship, character, and financial, technical, and other
qualifications of the applicant to operate the station." 47
U.S.C. s 308(b).

 In 1948, the Commission first licensed noncommerical
LPFM stations operating at a maximum of ten watts. Some
30 years later, when the Commission determined that high-
power FM stations could use the channels more efficiently by
"serv[ing] larger areas, and bring[ing] effective noncommer-
cial educational radio service to many who ... lack[ed] it,"
Changes in the Rules Relating to Noncommercial Educ. FM
Broad. Stations, 69 F.C.C.2d 240, p 24 (1978), modified, 70
F.C.C.2d 972 (1979) (codified at scattered sections of 47
C.F.R.), the Commission stopped licensing LPFM stations
and required most existing LPFM stations to move to com-
mercial frequencies or to upgrade to at least 100 watts. Id.
at p p 11-32.

Thereafter, numerous individuals and entities began oper-
ating LPFM stations without a broadcast license. In many
cases these so-called "pirate" broadcasters operated their
stations in open defiance of the Commission's ban on LPFM
broadcasts. In response, the Commission dedicated consider-
able resources to enforcing the license requirement. Not-
withstanding, however, the array of powers the Commission
had to combat unlicensed broadcasting, including the authori-
ty to seek an injunction, 47 U.S.C. s 401(b), to issue a cease-
and-desist order, 47 U.S.C. s 312(b), to seize equipment used
in unlicensed broadcasting, 47 U.S.C. s 510(a), and to impose
a monetary forfeiture, 47 U.S.C. s 503(b), the problem per-
sisted and indeed grew worse in the 1990s. In 1998, 1999,
and the first two months of 2000 the Commission shut down,
on average, more than a dozen unlicensed radio stations each
month. 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 Con-
sumer Protection of the House Comm. on Commerce, 106th
Cong. 85 (2000). In that same period unlicensed radio opera-
tions using uncertified equipment disrupted air traffic control
communications at Sacramento and interfered with such com-
munications at the Miami and West Palm Beach airports.
Creation of a Low Power Radio Serv., 14 F.C.C.R. 2471, p 65
(1999) (Notice of Proposed Rule Making) (hereinafter Low

Power Proposal). Therefore, it was clear to the Commission
that action needed to be taken to stop unlicensed broadcast-
ing.

In 1999 the Commission proposed to modify its low-power
radio rules and sought public comment upon whether it
should "create two classes of low power radio service, both of
which would operate in the existing FM radio band: a 1000-
watt primary service and a 100-watt secondary service." Id.
at p 1. The Commission also sought comment upon whether
it should establish "a third, 'microradio' class of low power
radio service that would operate in the range of 1 to 10
watts." Id. at p 1.

After receiving many comments concerning the Low Power
Proposal, the Commission issued an order creating new 100-
watt and 10-watt classes of LPFM stations. Creation of Low
Power Radio Serv., 15 F.C.C.R. 2205, p 11 (2000) (Report and
Order). The Commission also stated that it would accept a
low-power application from an applicant who had broadcast
without a license in the past if the applicant certified under
penalty of perjury that it had ceased such operations within
24 hours of being directed to do so by the Commission and no
later than the deadline (February 26, 1999) set out in the Low
Power Proposal. Id. at p p 53-54. This licensing condition
for broadcast pirates was applicable both to individuals and to
corporate applicants, including the applicant's officers and
directors. Id. at p 54.

The Commission's proposal conditionally to license former
pirates was received with dismay in the Congress. Senator
Gregg, who introduced a bill to repeal the LPFM rules in
toto, argued against the Commission's character qualification
in particular: "mak[ing] formerly unlicensed, pirate radio
operators eligible for LPFM licenses," he said, would "rein-
force[ ] their unlawful behavior and encourage[ ] future illegal
activity by opening the door to new unauthorized broadcast-
ers." 146 Cong. Rec. S613-02 (daily ed. Feb. 10, 2000).
Congressman Oxley made the same argument at a House
committee hearing on a similar bill. See House Hearing,
106th Cong. at 4. See also H.R. Rep. No. 106-567, 106th
Cong., at 8 (2000) (House Committee on Commerce 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").

The Congress ultimately responded to the Commission's
decision by enacting the Radio Broadcast Preservation Act of
2000 (RBPA), Pub. L. No. 106-553, 114 Stat. 2762, s 632,
which among other things directed the Commission 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 of 1934." Id.
s 632(a)(1)(B). In contrast to the Commission, that is, the
Congress barred all low-power pirates from obtaining an
LPFM license regardless whether or when they had ceased to
operate unlawfully.

As directed, the Commission modified its rules to imple-
ment the more stringent character qualification required by
the Congress. Creation of Low Power Radio Serv., 16
F.C.C.R. 8026, p 10 (2001) (Second Report and Order). The
resulting 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 Communications Act of 1934." 47
C.F.R. s 73.854.

Ruggiero, an admitted former pirate, sought review in this
court of the Second Report and Order, arguing that the
character qualification on its face violates the First Amend-
ment. A divided panel of this court held the RBPA and the
implementing regulation unconstitutional. Ruggiero v. FCC,
278 F.3d 1323 (D.C. Cir. 2002). We granted the Commis-
sion's petition for rehearing en banc and vacated the prior
judgment. Having now reheard the case en banc, we adopt
the decision of the panel concerning the jurisdiction of the

court, id. at 1327-29, but on the merits hold that the charac-
ter qualification provision is neither overinclusive nor under-
inclusive in violation of the First Amendment.

II. Analysis

Before we turn to the merits of the constitutional question,
we must identify the level of first amendment scrutiny appro-
priate to the nature of the statute being challenged.

A. Standard of Review

Ruggiero asserts that under FCC v. League of Women
Voters, 468 U.S. 364, 399 (1984), we are to apply "intermedi-
ate scrutiny" to all broadcast regulations other than those
that are purely "structural," that is, those involving the
"where" and "when" of broadcasting. Under the rubric of
intermediate scrutiny we would have to determine whether
the LPFM character qualification is "narrowly tailored to
further a substantial governmental interest." Id. at 380.
Alternatively, Ruggiero asserts the court should apply the
"heightened rational basis scrutiny" to which we alluded, but
had no occasion to apply, in News America Publishing Inc. v.
FCC, 844 F.2d 800, 814 (D.C. Cir. 1988). For its part, the
Commission argues we should apply the "rational basis stan-
dard" associated with minimal scrutiny and hence need only
determine whether the character qualification is "a reason-
able means of promoting the public interest." FCC v. Na-
tional Citizens Comm. for Broad., 436 U.S. 775, 802 (1978)
(NCCB).

We conclude, as did the panel that first heard this case,
that the appropriate standard of review occupies a ground
somewhere between the minimal scrutiny advocated by the
Commission and the intermediate scrutiny proposed by Rug-
giero. First, we reject Ruggiero's principal argument, name-
ly, that the character qualification is content-based and
therefore, pursuant to League of Women Voters, subject to
intermediate scrutiny. At issue in that case was a statute

prohibiting noncommercial educational stations from editori-
alizing, 47 U.S.C. s 399, a ban "defined solely on the basis of
the content of the suppressed speech." 468 U.S. at 383. Be-
cause the object of the anti-editorial statute was content, the
Supreme Court gave it intermediate scrutiny, asking whether
the restriction was narrowly tailored to advance a substantial
government interest. The ban on editorials failed that test
twice over: it was both overinclusive and underinclusive.
The ban was overinclusive in that it prohibited speech "on
topics that [did] not take a directly partisan stand or that
ha[d] nothing whatever to do with ... government," id. at
395, and thus did not implicate the Government's stated
interests in (a) protecting broadcasters from government
interference and (b) preventing the public from assuming the
editorials represented the view of the Government. The
statute was underinclusive in that broadcasters could still
present controversial or partisan views in news and other
programming. Id. at 396. See also Greater New Orleans
Broad. Ass'n v. United States, 527 U.S. 173 (1999) (applying
intermediate scrutiny to ban on broadcast advertising of
private casino gambling as restriction on content of commer-
cial speech).

In contrast, as the Commission correctly points out, the
character qualification at issue in this case applies without
regard to any content the applicant may have broadcast
unlawfully or might be expected to broadcast if a license were
issued to him. The character qualification is triggered solely
by the applicant's conduct, specifically, having "engaged ...
in the unlicensed operation of any station in violation of
section 301 of the Communications Act." Pub. L. No.
106-553, 114 Stat. 2762, s 632(a)(1)(B). Contrary to Ruggie-
ro's brief, the character qualification is not directed at the
alleged "viewpoint espoused by many pirates" that "civil
disobedience in the form of unlicensed broadcasting [was] ...
necessary to prod the FCC to rescind its longstanding ban on
low power FM radio broadcasting." Rather, the statute on
its face is based solely upon the applicant's prior lack of
compliance with the licensing requirement; the character
qualification applies equally to all unlicensed broadcasters

regardless of the motivation for, or the message disseminated
by, their illegal broadcasting. See Employment Div. v.
Smith, 494 U.S. 872, 878 (1990) ("[I]f prohibiting the exercise
of religion ... is not the object of the tax but merely the
incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended"). See
also Kahn v. United States, 753 F.2d 1208, 1216 (3d Cir. 1985)
(prosecution of taxpayer for filing fraudulent tax return, as
act of civil disobedience, did not violate First Amendment;
"penalty was imposed because the taxpayer's conduct failed
to comply with the requirement of the tax laws that she
properly report her tax liability, not because she expressed
unpopular political views") (emphasis in original).

Though we reject Ruggiero's assertion that intermediate
scrutiny applies, we do not embrace the Commission's posi-
tion that only minimal scrutiny is warranted. Minimal scruti-
ny is appropriate to the indirect effect upon speech that may
attend "structural" regulation of the broadcast industry. See
Leflore Broad. Co. v. FCC, 636 F.2d 454, 458 n.26 (D.C. Cir.
1980) (structural regulations "insure diversity in broadcasting
while minimizing government attention to broadcast con-
tent"). In NCCB, upon which the Commission relies, the
Supreme Court gave only minimal scrutiny to and upheld the
Commission's newspaper-broadcast cross-ownership rule,
which prohibited common ownership of a broadcast station
and a daily newspaper in the same community. 436 U.S. at
779. The cross-ownership rule, however, merely constrained
the newspaper publisher's choice of the community in which
to own a radio or television station; it did not prohibit the
publisher from broadcasting altogether. Id. at 800 ("Under
the regulations ... a newspaper owner need not forfeit
anything in order to acquire a license for a station located in
another community"). The RBPA, in contrast, makes the
pirate broadcaster ineligible to obtain an LPFM license - the
only type of license practicably available to most individuals -
in any community. It is the would-be speaker's inability to
broadcast at all that takes this case outside the "structural"
framework and makes minimal scrutiny insufficiently rigorous

to protect the freedom of speech protected by the First
Amendment.

Having rejected each party's favored standard of review,
we, like the panel that first heard this case, "find ourselves in
a middle ground, sure only that the appropriate standard is
neither NCCB's minimal scrutiny nor League of Women
Voters' intermediate scrutiny." 278 F.3d at 1331. Clearly, as
Ruggiero suggests in his alternative argument, something
more than minimal rationality is required to uphold the
statute. Id.; News America, 844 F.2d at 814. We need not
be more precise, however, because we conclude that the
character qualification provision is reasonably tailored to
satisfying a substantial government interest, and that is
surely enough to uphold a prohibition upon broadcast speech
that, although complete within its limited sphere, is in no
respect content-based.

B. Under- and Overinclusiveness

As the Commission points out, unlicensed LPFM transmis-
sions can not only prevent the public from receiving the
signals of licensed broadcasters, see, e.g., United States v.
Any and All Radio Station Transmission Equip., 204 F.3d
658 (6th Cir. 2000) (interference complaint against pirate by
licensed FM station); they can also, as we have seen, inter-
fere with "public safety communications and aircraft frequen-
cies." Low Power Proposal, 14 F.C.C.R. 2471, at p 65. Be-
cause the Government has chosen to address the problem of
interference through socialization and administrative alloca-
tion of the right to broadcast, rather than relying upon the
common law, see Thomas W. Hazlett, The Rationality of U.S.
Regulation of the Broadcast Spectrum, 33 J.L. & Econ. 133,
148-52 (1990); and Ronald H. Coase, The Federal Communi-
cations Commission, 2 J.L. & Econ. 1, 14 (1959) (treating
problem of interference as he would later treat other incom-
patible uses in The Problem of Social Cost, 3 J.L. & Econ. 1
(1959)), there can be no doubt it has a substantial interest in
ensuring compliance with the Communications Act and in
particular with its central requirement of a license to broad-
cast.

 Ruggiero argues, nonetheless, that the character qualifica-
tion is impermissibly underinclusive because it does not dis-
qualify persons guilty of "serious misconduct other than
piracy - murder, rape, child abuse, bribery, fraud, illegal
wiretapping, antitrust violations, [and] lying to the FCC, to
give but a few examples." He continues in the same vein:

Because Congress has ignored a broad range of miscon-
duct "giving rise to precisely the same harm that suppos-
edly motivated it to [enact the character qualification
provision]," Sanjour v. EPA, 56 F.3d [85,] 95 [(D.C. Cir.
1995) (en banc)], it is "serious[ly] doubt[ful]" that the
character qualification provision substantially advances
the governmental interest in increasing compliance with
broadcast laws and regulations in a meaningful way.

This is nonsense on stilts.

First, Ruggiero's factual premise is incorrect, not to say
absurd. The Congress has not "ignored" misconduct "giving
rise to precisely the same harm" that caused it to impose the
character qualification. Not only are murderers, rapists,
child molesters, and the like not particularly associated with
the harms caused by unlicensed broadcasting, the harms that
these malefactors do cause are not without other and more
severe penalties (state or federal) than ineligibility for an
LPFM license.

Second, it was entirely reasonable for the Congress to
make the policy judgment that all broadcast pirates, and only
broadcast pirates, should be disqualified categorically from
holding an LPFM license while leaving to the Commission the
discretion to evaluate on a case-by-case basis the myriad
other ways an applicant's character can be drawn into ques-
tion. All broadcast pirates, by definition, have violated al-
ready the requirement of obtaining a broadcast license. As
Judge Henderson pointedly asked in her dissent from the
decision of the panel, "[w]hat could be more reasonable or
logical than to suspect that those who ignored the Commis-
sion's LPFM broadcast regulations in the past are likely to do
so in the future and therefore to head them off[?]" 278 F.3d
at 1335. Indeed, even as it adopted its own more forgiving

approach to pirates before the Congress enacted the RBPA,
the Commission acknowledged that "past illegal broadcast
operations reflect on that entity's proclivity to deal truthfully
with the Commission and to comply with our rules and
policies, and thus on its basic qualifications to hold a license."
15 F.C.C.R. 2205, at p 54. Thus the Congress could reason-
ably conclude that other violations of law simply do not reflect
as directly upon the offender's qualification to hold an LPFM
license. Moreover, insofar as such criminals may seek LPFM
(or indeed any type of broadcast) licenses, they are, as the
Commission notes, "subject to the FCC's [general] character
qualification policy, under which they are likely to be disquali-
fied for such serious crimes in any event." See Policy Re-
garding Character Qualifications in Broad. Licensing, 102
F.C.C.2d 1179, p p 34-44 (1986); see also, e.g., In re Contem-
porary Media, Inc., 12 F.C.C.R. 14254 (1997) (revocation of
license and denial of application for new license because
principal had been convicted of sexual abuse of children),
aff'd, Contemporary Media, Inc. v. FCC, 214 F.3d 187, 193
(D.C. Cir. 2000). Therefore, we can hardly say the Congress
was prohibited by the First Amendment from responding to
the discrete problem of broadcast piracy - which goes to the
heart of the Communications Act, namely, preventing inter-
ference caused by unlicensed broadcasting - with a categori-
cal ban.

Third, even if it could be thought that categorically disqual-
ifying murderers and the like from getting an LPFM license
would deter some unlicensed broadcasting, "a regulation is
not fatally underinclusive simply because an alternative regu-
lation, which would restrict ... the speech of more people,
could be more effective." Blount v. SEC, 61 F.3d 938, 946
(D.C. Cir. 1995) (emphasis in original). In sum, we agree
with the Commission's position that the character qualifica-
tion provision of the RBPA is not underinclusive but is,
rather, because it targets those who have already violated the
broadcast license requirement, reasonably tailored to further
the Government's substantial interest in minimizing unli-
censed LPFM broadcasting.

 We reject also Ruggiero's claim that the character qualifi-
cation is overinclusive because it prohibits all pirates, includ-
ing those good pirates who stopped broadcasting illegally
when ordered to do so, and those "former pirates [who]
subsequently have become model citizens," from obtaining a
license. All unlicensed LPFM broadcasters violated the
Communications Act. Any unlicensed broadcasting demon-
strates a willful disregard of the most basic rule of federal
broadcasting regulation. See H.R. Rep. No. 106-567, at 8
(2000); Creation of Low Power Radio Service, 15 F.C.C.R.
19208, p 96 (2000) (Opinion and Order). The Congress did
not hit wide of the mark, therefore, when it treated all pirates
alike.*

__________
* Although necessarily couched in terms of under- and overinclu-
siveness, our dissenting colleague's concern seems really to be with
what he sees as the disproportionality of disqualifying LPFM
pirates from holding an LPFM license, as compared with the
consequences visited upon other unlicensed broadcasters and other
offenders against the broadcast regulatory regime. See dissent at
8, asking "why does the RBPA's automatic and permanent ban not
extend to unlicensed full power broadcasters"; and at 9, where he
"agree[s] that deterrence is a substantial governmental interest, but
[asks] why impose a lifetime ban?," which he refers to as "a
broadcasting 'mark of Cain.' "

The judgment that one offense is more serious than another, like
the judgment that a punishment of a certain severity is warranted
for a particular offense, is not for the judiciary to make. Cf.
Hutchins v. District of Columbia, 188 F.3d 531, 543 (D.C. Cir. 1999)
(noting that under intermediate scrutiny, "the [Government] is not
obliged to prove a precise fit between the nature of the problem and
the legislative remedy," and rejecting claim that curfew was uncon-
stitutional because it did not include 17-year-olds); Schleifer v. City
of Charlottesville, 159 F.3d 843, 850 (4th Cir. 1998) (applying
intermediate scrutiny and rejecting claim that city's decision to
exclude 17-year-olds from curfew was unconstitutional, because "[i]t
is not the function of a court to hypothesize independently on the
desirability or feasibility of any possible alternative[s] to the statu-
tory scheme" (quoting Lalli v. Lalli, 439 U.S. 259, 274 (1978))).
Our concern in this case is limited to whether the Congress has

C. Equal Protection

Ruggiero also claims that because the character qualifica-
tion "imposes special burdens on the First Amendment rights
of a single class of speakers (pirates)," and is not " 'narrowly
tailored' to serve a 'substantial' governmental interest," it
violates the Equal Protection guarantee of the Fifth Amend-
ment. This claim fails for the same reasons the first amend-
ment claims fail: the legislative classification, which treats
former pirates differently from others, is reasonably tailored
to the government's substantial interest in protecting the
broadcast spectrum.

Although equal protection analysis focuses upon the validi-
ty of the classification rather than the speech restriction, "the
critical questions asked are the same." Community-Service
Broad. of Mid-America, Inc. v. FCC, 593 F.2d 1102 (D.C. Cir.
1978) (en banc). We believe that the same level of scrutiny,
heightened rational basis, is therefore appropriate in both
contexts, and that the policy withstands such scrutiny.

III. Summary and Conclusion

The character qualification of the RBPA is a targeted
response to the problem of pirate broadcasting, affects only
those who violated the license requirement, and does so
utterly without regard to the content of, or any view ex-
pressed by, their unlicensed broadcasts. There is a rea-
sonable fit between the character qualification and the Gov-
ernment's substantial interests in deterring unlicensed
broadcasting and preventing further violations of the regu-
lations applicable to broadcasters. Accordingly, we hold
that s 632(a)(1)(B) of the RBPA and the regulation imple-
menting it do not on their faces violate the First Amend-
ment. The petition for review is, accordingly,

Denied.

__________
reasonably tailored the character qualification to fit the substantial
government interest it is intended to serve.

 Randolph, Circuit Judge, concurring: Ruggiero has two
First Amendment arguments. The first is that the statutory
and regulatory bar against granting a low-power FM broad-
cast license to anyone who illegally operated without one is
overbroad. The second is that the bar is underinclusive. I
write separately because, in my view, he is not entitled to
make the first argument; and his second argument miscon-
ceives First Amendment doctrine.

Ruggiero has not applied to the FCC for a low-power
license. He does not claim that his particular circumstances
would warrant any special treatment. His attack is on the
face of the statute and the implementing regulations. The
lifetime bar is overbroad, he claims, because there may be
applicants who "briefly or long ago engaged in unlicensed
broadcast operations" and who now have become "model
citizens." Petitioner's Br. at 26. The court rejects Ruggie-
ro's claim on the ground that Congress rationally treated all
pirates alike. Maj. op. at 12. Although I agree with the
court, I believe another rationale leads to the same result.

Litigants ordinarily do not have standing to raise the rights
of others. But in arguing about hypothetical third parties,
Ruggiero is in effect invoking the familiar overbreadth doc-
trine, a staple of First Amendment jurisprudence. The doc-
trine, which may be traced to Thornhill v. Alabama, 310 U.S.
88 (1940), permits facial challenges brought on the ground
that the statute or regulation reaches constitutionally protect-
ed speech of parties not before the court. If the statute is
substantially overbroad--that is, if it abridges protected
speech of others in a good number of cases--the statute is
unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601,
612-15 (1973). Overbreadth is sometimes viewed as an ex-
ception to traditional standing rules. See Bd. of Trustees of
the State Univ. of New York v. Fox, 492 U.S. 469, 482-84
(1989); Los Angeles Police Dep't v. United Reporting Publ'g
Corp., 528 U.S. 32, 38 (1999). The doctrine rests on the
assumption that if a statute could not be challenged for
overbreadth, those not before the court would be chilled and
would refrain from exercising their First Amendment rights.
See generally New York v. Ferber, 458 U.S. 747, 766-73
(1982). The "principal advantage of the overbreadth doctrine

for a litigant is that it enables him to benefit from the
statute's unlawful application to someone else." Fox, 492 U.S.
at 483. The Supreme Court has treated the doctrine as
" 'strong medicine' " to be employed " 'only as a last resort.' "
Ferber, 458 U.S. at 769 (quoting Broadrick, 413 U.S. at 613).

The assumption underlying the overbreadth doctrine is
inapplicable here. There is no possibility that third parties
could be chilled in the exercise of their First Amendment
rights. See Bates v. State Bar of Ariz., 433 U.S. 350, 380-81
(1977). We are not dealing with a criminal provision. All
that is involved is filing an application with the FCC. Many
pirates have done so. Creation of a Low Power Radio Serv.,
16 F.C.C.R. 8026, 8030, 8060 (2001). If they file applications
in the future no harm will befall them. Their applications will
simply be denied.

There is in short no chilling effect and Ruggiero therefore
cannot invoke the overbreadth doctrine. See Los Angeles
Police Dep't, 528 U.S. at 38-41; United States v. Hsia, 176
F.3d 517, 523 (D.C. Cir. 1999). Without the benefit of the
doctrine, he can succeed in his facial challenge only if he
establishes "that no set of circumstances exists under which
the Act [and the implementing regulations] would be valid,"
United States v. Salerno, 481 U.S. 739, 745 (1987); see Amfac
Resorts, L.L.C. v. U.S. Dep't of Interior, 282 F.3d 818, 826
(D.C. Cir.), cert granted sub nom. Nat'l Park Hospitality
Ass'n v. Dep't of Interior, 123 S. Ct. 549 (2002) ; James
Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.
Cir. 1996); Chem. Waste Mgmt., Inc. v. EPA, 56 F.3d 1434,
1437 (D.C. Cir. 1995); Steffan v. Perry, 41 F.3d 677, 693 (D.C.
Cir. 1994) (en banc); but see INS v. Nat'l Ctr. for Immi-
grants' Rights, 502 U.S. 183, 188 (1991). This is a burden
Ruggiero admits he cannot meet. He has conceded that
"some former pirates may lack the requisite character traits
to hold [low-power] licenses." Petitioner's Reply Br. at 11.
Ruggiero himself committed "three-year-long, nearly continu-
ous violations of the licensing requirement," Free Speech v.
Reno, No. 98 Civ. 2680 (MBM), 1999 WL 147743, at *11
(S.D.N.Y. Mar. 18, 1999), aff'd sub nom. Free Speech ex rel.
Ruggiero v. Reno, 200 F.3d 63 (2d Cir. 1999), and hardly
qualifies as a pirate who "briefly" operated without a license.

 As against this, the dissent has two responses. The first
is that Ruggiero is not really mounting an overbreadth
challenge; the second is that he is entitled to mount an
overbreadth challenge because others may be chilled from
applying for a license since this requires disclosing past
broadcasting violations. Dissent at 14-16. Neither reply is
correct. As to the nature of Ruggiero's argument, his at-
tack is on the face of the statute and his claim is that the
character qualification provision may not be applied to him
because it would be unconstitutional to apply it to others
not before the court. E.g., Petitioner's Br. at 25-27; Peti-
tioner's Reply Br. at 11. To put the matter more specifi-
cally, his argument--and the argument of the dissent--is
that the statute cannot be validly applied to Ruggiero or
anyone else, no matter how egregious their past violations,
because there may be others whose violations were not so
egregious. Ruggiero never claims that his past violations
were not egregious; we know that they were. This then is
a classic statement of an overbreadth claim. See, e.g., Fox,
492 U.S. at 482-84. The dissent says that Ruggiero is
contending the statute "cannot constitutionally be applied to
anyone because the statute automatically bars unlicensed
microbroadcasters...." Dissent at 14. That indeed is his
contention. But what the dissent fails to grasp is that in
every overbreadth attack, the plaintiff claims the statute is
unconstitutional with respect to everyone; that is the very
nature of this sort of attack and of the relief it seeks--
invalidation of the statute on its face. See, e.g., Kathleen
M. Sullivan & Gerald Gunther, First Amendment Law 322
(1999). The dissent also suggests that in order to make a
successful overbreadth attack, the plaintiff must concede
that the statute can validly be applied to him. Dissent at
14. The Supreme Court has never imposed any such re-
quirement. The Court simply assumes that even if the
statute is constitutional as applied to the plaintiff, or even if
another provision could be drawn with greater specificity,
the statute might nevertheless be invalid because of its
effect on others. Ferber, 458 U.S. at 769.

 In the alternative, the dissent claims there is a chilling
effect on others because unlicensed broadcasters, in applying
for a license, will be reluctant to disclose their past violations
under penalty of perjury. Dissent at 15. The trouble for the
dissent is that this particular chilling effect exists regardless
whether the statute is upheld or struck down. Anyone
applying for a license must be prepared to divulge past
violations of Commission rules. Not even the dissent con-
tends that unlicensed broadcasting is irrelevant to the Com-
mission's decision whether to grant a license. The Commis-
sion's 1986 comprehensive policy statement on character
qualifications for licensees states that "as a general matter
any violations of the Communications Act, Commission rules
or Commission policies can be said to have a potential bear-
ing on character qualifications." Policy Regarding Character
Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179,
1209 (1986). And even before Congress passed the statutory
bar we are considering, the Commission required applicants
for low-power licenses to certify that they had not operated a
station without a license. Creation of a Low Power Radio
Serv., 16 F.C.C.R. at 8030. The question here--a question
the dissent does not address--is whether the statutory dis-
qualification, by its very existence, deters more speech than
did the preceding regime. And the answer to that question is
clearly no. In short, the statute imposes no new "chilling
effect" on the First Amendment rights of others, and as I
have discussed, for that reason Ruggiero cannot bring an
overbreadth challenge. Besides, the question here is not just
whether there is some chilling effect--the claim must be that
protected speech is being deterred. Yet there is no chilling
effect on speech. "No one has a First Amendment right to a
license," Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389
(1969), and it follows that no one has a First Amendment
right to apply for a license.

As to underinclusiveness, Ruggiero's claim is that the bar
violates the First Amendment because persons who have
engaged in other sorts of serious misconduct are not automat-
ically banned from obtaining a low-power license. The court
dispatches this argument on the ground that Congress's

judgment was reasonable. Maj. op. at 10-11. I agree, but
believe there is an alternative answer. The First Amend-
ment does not impose "an 'underinclusiveness' limitation[,]
but a 'content discrimination' limitation upon a State's prohi-
bition of proscribable speech." R.A.V. v. City of St. Paul, 505
U.S. 377, 387 (1992). In other words, the relevance of a
statute's underinclusiveness is that it may reveal discrimina-
tion on the basis of viewpoint or content, or may undercut the
statute's purported non-discriminatory purpose. See id.; Re-
publican Party of Minn. v. White, 122 S. Ct. 2528, 2537
(2002); City of Ladue v. Gilleo, 512 U.S. 43, 52-53 (1994).
States could not, for instance, ban only fighting words that
criticize a certain race. But the Court pointed out in R.A.V.
that there would be no First Amendment problem whatever
with a State's prohibiting obscenity in only certain media,
although that would be underinclusive. 505 U.S. at 387.
Here, there is no colorable claim that the statute and the
regulation ban speech on the basis of content. As the court
points out, the ban is based entirely on past violations, not on
what the broadcaster said in the past or would say in the
future if he were allowed to take to the airwaves again. Maj.
op. at 7-8. I would therefore reject Ruggiero's underinclu-
siveness argument on this ground. For this reason I also
view the dissent's discussion of underinclusiveness--which
notes that not even murderers and rapists are automatically
barred from obtaining a license--as beside the point.

 Rogers, Circuit Judge, concurring: Upon consideration of
this appeal by the en banc court, I generally join Judge
Randolph's concurring opinion. Based on the standard estab-
lished in News America Publishing, Inc. v. FCC, 844 F.2d
800 (D.C. Cir. 1988), as applied and explained in that case, I
initially was persuaded by Ruggiero's argument challenging
s 632(a)(1)(B) of the Radio Broadcasting Preservation Act of
2000, Pub. L. No. 106-553, 114 Stat. 2762, s 632(a)(1)(B), and
its implementing rule, 47 C.F.R. s 73.854. However, upon
further consideration, I am persuaded that Ruggiero does not
have standing to raise the question of whether the statutory
ban is overbroad. That conclusion, combined with the fact
that the en banc court is not constrained by our precedent
News America, precedent whose analysis I read to require a
determination that the ban was unconstitutional, now leads
me to a different result.

The court is in agreement that the News America standard
of something "more than minimal scrutiny," 844 F.2d at 813,
is the appropriate standard to be applied in Ruggiero's case,
rejecting the rational basis test urged by the government.
The court does not further define the standard and the
majority, unlike the dissent, does not adopt the analysis of
News America. In News America, the court did not address
the question of overbreadth, resting instead on the extraordi-
nary underinclusiveness of the statutory provision at issue
that, in fact, applied to a single licensee. 844 F.2d at 810.
The panel majority in Ruggiero adopted the News America
standard because the statutory ban focused on a defined
(albeit not closed) group "with the precision of a laser beam,"
Ruggiero v. FCC, 278 F.3d 1323, 1331 (D.C. Cir. 2002), and
concluded that the statute (and its associated rule) was uncon-
stitutional under the News America standard in part because
it "covers circumstances only marginally related to the pur-
pose of increasing regulatory compliance," id. at 1332. The
en banc majority eschews that conclusion and instead decides
that because "[a]ll unlicensed LPFM broadcasters violated
the Communications Act," they have "demonstrate[d] a willful
disregard of the most basic rule of federal broadcasting

regulation" and are properly covered by the statute and
implementing rule. Maj. Op. at 12.

The differing applications of the overbreadth doctrine by
the en banc majority and the panel majority suggest the
importance of considering whether the doctrine properly ap-
plies at all to Ruggiero's appeal. See L.A. Police Dep't v.
United Reporting Publ'g Corp., 528 U.S. 32, 38-41 (1999).
The en banc majority does not address this threshold ques-
tion. Although the parties did not brief the issue of whether
the overbreadth doctrine applies, the question was raised by
the en banc court during oral argument and the parties'
attention was drawn to the Supreme Court's decision in Los
Angeles Police Department. Each party was afforded an
opportunity to respond to the question and neither party
sought permission from the court to file a supplemental
memorandum on the question. As a jurisdictional issue that
the court can raise sua sponte, insofar as the question impli-
cates whether Ruggiero is a proper party to challenge the
overbroad nature of the statute and rule, see New York v.
Ferber, 458 U.S. 747, 767-68 & n.20 (1982), it behooves the
court to address the threshold question of whether the doc-
trine applies here, see Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 94-95 (1998).

For the reasons generally set forth in Judge Randolph's
concurring opinion, I would deny the petition for review. In
light of Los Angeles Police Department, the overbreadth
doctrine does not apply. Although the dissent treats Ruggie-
ro's challenge to the ban as based on underinclusiveness and
overinclusiveness, and continues to apply the News America
analysis, dissenting op. at 7-14, as Judge Randolph makes
clear, one of Ruggiero's First Amendment challenges is an
overbreadth challenge. Concurring op. Randolph, J. at 1, 3.
There is no evidence that the speech of any pirate has been
chilled as a result of the ban, and when counsel for Ruggiero
was asked at oral argument what chilling effect the ban might
have on other pirates, he was only able to identify the fact
that "many of these individuals won't even bother to go
through the process of applying for a broadcast license,"
because "[t]hey don't have a lot of money to hire lawyers."

The financial inability of private parties to file suit to chal-
lenge arguably unconstitutional statutes is insufficient to
show a chilling effect. Moreover, Ruggiero's own history
with the Commission leaves no room for doubt that such a
ban can be constitutionally applied to so flagrant a violator of
the Communications Act. See Free Speech v. Reno, No. 98
CIV. 2680(MBM), 1999 WL 147743, at *11 (S.D.N.Y. Mar. 18,
1999), aff'd sub nom. Free Speech ex rel. Ruggiero v. Reno,
200 F.3d 63 (2d Cir. 1999); In re Creation of Low Power
Radio Serv., 15 F.C.C.R. 19,208, 19,245 & n.140 (2000),
amended by 16 F.C.C.R. 8026 (2001). Indeed, the dissent
does not suggest to the contrary, but would void the ban
because it is not confined to flagrant violators. Dissenting
op. at 11-13. Thus his facial challenge fails. See concurring
op. Randolph, J. at 2.

Were the overbreadth doctrine brought to the court by a
proper party, our dissenting colleague, admittedly, makes a
strong case for why Congress might have done better than to
ban all pirates from applying for a broadcast license. See
dissenting op. at 11-14. However, because Ruggiero may not
avail himself of that doctrine, the only remaining question for
the court is whether, under something more than minimal
scrutiny, Congress reasonably could have concluded that a
blanket prohibition of granting low-power licenses to individu-
als such as Ruggiero would further the purposes underlying
what is, essentially, a regulatory system largely reliant on
voluntary compliance. See In re Creation of Low Power
Radio Serv., 15 F.C.C.R. 2205, 2226, on reconsideration 15
F.C.C.R. 19,208 (2000), amended by 16 F.C.C.R. 8026 (2001);
Maj. Op. at 10-11. In other words, the question is whether
Congress's method is "substantially related to the Govern-
ment's interest -- a somewhat higher level of inquiry than
mere rational relationship." News America, 844 F.2d at 821
(Robinson, J., dissenting). The ban, which applies without
regard to the content of the pirates' speech, advances a
strong governmental interest by precluding pirates, who have
intentionally violated the Communications Act, from applying
for a license under a regulatory scheme that depends heavily
on voluntary compliance. Maj. Op. at 6-8, 10-11. Hence,

Ruggiero fails to show that the ban violates the First Amend-
ment or the Equal Protection Clause.

 Tatel, Circuit Judge, dissenting: No one doubts, as this
court and the Commission repeatedly emphasize, that broad-
casting without a license is a serious offense. Severe penal-
ties, including fines, forfeitures, and even imprisonment, have
long existed for unlicensed broadcasting. Morever, the Com-
mission has ample authority, which it regularly exercises, to
deny licenses to former unlicensed broadcasters who, in the
Commission's judgment, cannot be trusted to function as
truthful and reliable licensees. The question presented here
is whether unlicensed microbroadcasters, many of whom have
already been punished for their misdeeds, may be subjected
to a unique and draconian sanction that automatically and
forever bars them--unlike any other violator of the Commu-
nications Act or regulations--from applying for low power
licenses regardless of either the circumstances of their of-
fenses or evidence that they can nevertheless operate in the
public interest. Because this double standard is indefensible,
because the statute's automatic lifetime ban restricts speech,
and because the court, though purporting to embrace this
circuit's more than minimal scrutiny standard, actually sub-
jects the statute to the minimal scrutiny reserved for non-
First Amendment cases, I respectfully dissent.

I.

The Radio Broadcasting Preservation Act's character quali-
fication "prohibit[s] 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 of 1934." Pub. L. No. 106-553,
114 Stat. 2762, s 632(a)(1)(B) (2000) (RBPA). The court
glosses over the statute's unusual harshness. No other viola-
tions of the Communications Act or broadcasting regulations
result in automatic disqualification nor are punishable by this
broadcasting equivalent of the death penalty. Except in the
case of unlicensed microbroadcasters, the Commission
"treat[s] violations of the Communications Act, Commission
rules or Commission policies as having a potential bearing on
character qualification." Policy Regarding Character Quali-
fications in Broadcast Licensing, 102 F.C.C.2d 1179, p 56
(1986) ("1986 Character Policy Statement") (emphasis added),
recon. granted in part and denied in part, 1 F.C.C.R. 421

(1986). Even as to FCC-related misconduct involving "mis-
representation," viewed by the Commission as "rais[ing] im-
mediate concerns over the licensee's ability to be truthful in
any future dealings with the Commission," no Commission
rule subjects full power applicants to automatic, lifetime
disqualification. Id. p 57. In addition, the Commission allows
full power applicants with unclean records to demonstrate
rehabilitation. Id. p 105. In this regard, the Commission
considers "the passage of time since the misconduct, the
frequency of misconduct, the involvement of management and
the efforts to remedy the situation." Id. Moreover, any
misconduct, communications-related or otherwise, occurring
more than ten years prior to the filing of a full power
application is completely disregarded. Id.

The RBPA treats unlicensed microbroadcasters quite dif-
ferently, however. Instead of having past offenses evaluated
as just one factor in assessing their qualifications, instead of
having an opportunity to demonstrate rehabilitation, and in-
stead of having their sins forgiven after ten years, they are
automatically and forever barred from low power frequencies.
This capital sanction has been imposed not just on Petitioner
Greg Ruggiero, but also on education- and church-related
organizations that, in response to the Commission's RBPA
implementing regulation, confessed to some prior acts of
unlicensed broadcasting: Foundation for California State
University, San Bernardino; Hume Lake Christian Camps;
Calvary Chapel of Simi Valley, Inc.; Friends of the South
County Library; All That Is Catholic Ministries; and Pente-
costal Church of the Eternal Rock. See Creation of a Low
Power Radio Serv., 16 F.C.C.R. 8026, 8060-61 (2001) ("Sec-
ond Low Power Report and Order") (amending Creation of
Low Power Radio Serv., 15 F.C.C.R. 2205 (2000) ("First Low
Power Report and Order") (codified at 47 C.F.R. s 73.854)).

Not only is the RBPA's character qualification an unusually
harsh broadcasting regulation, but automatic lifetime bans
appear rarely in American law. True, the Fourteenth
Amendment allows states to ban felons from voting, U.S.
Const. Amend. XIV, s 2; see Richardson v. Ramirez, 418

U.S. 24 (1974), and the Commission points to a few statutes
that authorize lifetime bans, see Respondent's Br. at 20-21,
but none involves restrictions on speech.

II.

The court gets off to a good start: It says it rejects the
Commission's position that in reviewing the RBPA's constitu-
tionality, we should apply only minimal scrutiny. Maj. Op. at
8. I have two concerns with what follows, however. First, I
think the First Amendment values at stake here are weighti-
er than the court's opinion suggests. Second, in sustaining
the RBPA's constitutionality, the court actually applies the
same minimal scrutiny standard it purports to reject.

First, the values at stake: Although no one has a First
Amendment right to broadcast, see Red Lion Broad. Co. v.
FCC, 395 U.S. 367, 388-89 (1969), denial of a license unques-
tionably burdens an applicant's opportunity for future speech.
The purpose of the licensing process is to facilitate constitu-
tionally protected speech, albeit speech somewhat less pro-
tected than that occurring outside broadcasting. See FCC v.
League of Women Voters, 468 U.S. 364, 378 (1984) ("[W]e
have ... made clear that broadcasters are engaged in a vital
and independent form of communicative activity.").

As the Supreme Court made clear in Red Lion, moreover,
the public has a First Amendment right "to receive suitable
access to social, political, esthetic, moral, and other ideas and
experiences." Red Lion Broad. Co., 395 U.S. at 390. The
Court further explained:

[T]he people as a whole retain their interest in free
speech by radio and their collective right to have the
medium function consistently with the ends and
purposes of the First Amendment.... It is the
purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will
ultimately prevail, rather than to countenance mo-
nopolization of that market, whether it be by the
Government itself or a private licensee.

Id. The public's First Amendment right to diverse broad-
casting is especially important, for it is the source of the
Commission's authority to limit broadcast ownership and to
apportion scarce broadcast spectrum to persons of good mor-
al character. See League of Women Voters, 468 U.S. at 380
("Thus, although the broadcasting industry plainly operates
under restraints not imposed upon other media, the thrust of
these restrictions has generally been to secure the public's
First Amendment interest in receiving a balanced presenta-
tion of views on diverse matters of public concern."); FCC v.
Nat'l Citizens Comm. for Broad., 436 U.S. 775, 794-95 (1978)
("NCCB"); Red Lion Broad. Co., 395 U.S. at 387-90. In-
deed, when the Commission authorized the new low power
service in its 2000 Report and Order, it did so expressly to
increase broadcasting diversity. "We believe that the LPFM
service authorized in this proceeding," the Commission ex-
plained, "will provide opportunities for new voices to be heard
and will ensure that we fulfill our statutory obligation to
authorize facilities in a manner that best serves the public
interest." First Low Power Report and Order, 15 F.C.C.R.
at 2206, p 1.

Our decision in News America Publishing, Inc. v. FCC, 844
F.2d 800 (D.C. Cir. 1988), identifies still another reason for
rejecting rational basis analysis. In that case, we confronted
a statute that forbade the Commission from extending exist-
ing waivers of the cross-ownership rules. The provision
affected only two such waivers, both held by a single publish-
er/broadcaster, Rupert Murdoch. News America's challenge
to the provision "l[ay] at the intersection of the First Amend-
ment's protection of free speech and the Equal Protection
Clause's requirement that government afford similar treat-
ment to similarly situated persons." Id. at 804. Reviewing
the case law, we identified a "spectrum" of possible broadcast
restrictions, "from the purely content-based (e.g., 'No one
shall criticize the President') to the purely structural (e.g., the
cross-ownership rules themselves)," and suggested that the
applicable level of constitutional scrutiny increases with the
extent to which a challenged provision relies on the identity of
the speaker or the content of the covered speech. Id. at 812.

On this spectrum, the challenged prohibition on extending
cross-ownership waivers was "far from purely structural ...
as it applie[d] to a closed class of one publisher broadcaster."
Id. Concerned that "[t]he safeguards of a pluralistic political
system are often absent when the legislature zeroes in on a
small class of citizens," but wary of intermediate scrutiny, we
concluded that "[w]hat suffices for this case is that more is
required than 'minimum rationality.' " Id. at 813-14. Apply-
ing this heightened rational basis standard to the challenged
provision, we held that the provision's narrow focus on exten-
sion of existing waivers of the newspaper-television cross-
ownership rules--rather than, for example, extensions of
future waivers or extensions of waivers of the newspaper-
radio cross ownership rules--rendered the prohibition uncon-
stitutionally underinclusive. Id. at 814-15.

Like the prohibition at issue in News America, the RBPA's
character qualification raises not just First Amendment con-
cerns (it restricts future lawful speech), but equal protection
concerns as well because it applies to a limited class of
unlicensed microbroadcasters. Id. at 812. Although this
class is neither "closed" nor as small as News America's, the
class is well-defined--it consists of all unlicensed microbroad-
casters and applies only to those frequencies reserved for
local voices--and the character qualification focuses on the
class "with the precision of a laser beam." Id. at 814.
Indeed, the RBPA prohibition is far more severe than the
rule at issue in News America: Unlicensed microbroadcast-
ers may never lawfully operate low power stations anywhere
in the country, whereas Rupert Murdoch, consistent with the
cross-ownership rules, could lawfully have operated television
stations outside any community in which he "own[ed] or
control[led] a daily newspaper." Id. at 802; cf. NCCB, 436
U.S. at 800.

For all these reasons, the appropriate standard of review is
neither NCCB's minimal scrutiny nor League of Women
Voters' intermediate scrutiny, but rather "more than minimal
scrutiny." News Am. Publ'g, Inc., 844 F.2d at 813. Although
purporting to agree, this court goes on to apply what is
effectively minimal rationality review. It treats the RBPA as

presumptively valid and disregards the many ways in which
the statute is poorly tailored. See FCC v. Beach Communi-
cations, Inc., 508 U.S. 307, 313-16 (1993) (explaining charac-
teristics of rational basis review). It is of course true that
this en banc court may overrule News America, but not, as it
has effectively done, without providing a reasoned explanation
for doing so. See Planned Parenthood of Southeastern Penn.
v. Casey, 505 U.S. 833, 866 (1992) (opinion of O'Connor,
Kennedy, Souter) ("The need for principled action to be
perceived as such is implicated to some degree whenever this,
or any other appellate court, overrules a prior case."). In any
event, I know of no decision, either of the Supreme Court or
this circuit, that applies rational basis review to a statute
limiting important First Amendment rights.

Applying our more than minimal scrutiny standard, I have
no doubt that ensuring truthful and reliable low power licen-
sees and deterring future violations of the Communications
Act--the reasons Congress enacted the RBPA's character
qualification--represent important governmental objectives.
But this does not end our analysis. We must determine
"how well [the RBPA's] aim corresponds with [its] legitimate
public purpose." News Am. Publ'g, Inc., 844 F.2d at 814. If
the statute is poorly aimed--either because its automatic,
lifetime mechanism operates to exclude "conduct that seems
indistinguishable in terms of the law's ostensible purpose" of
increasing regulatory compliance, id. at 805, or because it
covers conduct only remotely related to that purpose--then it
limits more speech than necessary and "raise[s] a suspicion"
that perhaps Congress's "true" objective was not to increase
regulatory compliance, but to penalize microbroadcasters'
"message." Id.; see Petitioner's Br. at 30-32 (arguing that
Congress passed the RBPA to punish microbroadcasters'
message). One need neither endorse the microbroadcasters'
tactics, see Grid Radio v. FCC, 278 F.3d 1314 (D.C. Cir.
2002) (rejecting an argument that penalizing microbroadcast-
ing piracy violates the First Amendment), nor believe the
RBPA discriminates against their "message" in order to
conclude that the provision's inaccurate aim--it's both under-
and overinclusive--is fatal.

 III.

I begin with the statute's underinclusiveness. See City of
Ladue v. Gilleo, 512 U.S. 43, 51-52 (1994) (explaining that
underinclusiveness in speech regulations may suggest a con-
tent or viewpoint discriminatory motive and cast doubt on the
government's asserted justification for restricting speech). If
banning unlicensed microbroadcasters is vital to ensuring
truthfulness and reliability, why does the RBPA exclude so
much conduct that seems equally or even more related to
those objectives? Specifically, the character qualification
bans low power license applications only from unlicensed
microbroadcasters, leaving the Commission free to evaluate
applications from anyone else under its non-automatic, more
permissive general character qualification policy. See supra
at p. 2. Inveterate regulatory violators, including those full
power applicants who broadcast without a license, retain the
opportunity to demonstrate that notwithstanding their of-
fenses, they can reliably operate low power stations in the
public interest. For example, applicants guilty of fraud or
misrepresentation, long considered by the Commission to be
among the most serious indicators of unreliability, are not
automatically ineligible. See 1986 Character Policy State-
ment, 102 F.C.C.2d 1179, p 57. They may apply for licenses,
and the Commission will consider their misdeeds in evaluat-
ing their fitness to hold a license, or even disregard their
misbehavior altogether if it occurred more than ten years ago.
Of course, Congress need not address a "perceived prob-
lem"--here, the possibility of regulatory violations by other
wrongdoers--"all at once," but we reject that "facile one-bite-
at-a-time explanation" for otherwise inexplicable underinclu-
siveness in "rules affecting important First Amendment val-
ues." News Am. Publ'g, Inc., 844 F.2d at 815.

The RBPA's underinclusiveness is quite pronounced, par-
ticularly when compared to the Commission's treatment of
full power broadcasters. The Commission does not automati-
cally disqualify full power applicants who have engaged in
even "the most atrocious infractions." Weiner Broad. Co., 7
F.C.C.R. 832, 834 (1992). In Weiner, the Commission re-
voked the "incorrigible Weiner['s]" broadcast license as a

result of his numerous alleged violations of Commission
rules--including broadcasting without a license, evading a
court injunction prohibiting his unlicensed broadcasting, and
misrepresenting his true intentions in construction permit
and license applications filed with the Commission--but only
after considering Weiner's evidence of rehabilitation. Id. at
833. "Should a 'decent interval' ensue without notable delict,"
the Commission even offered, "Weiner is not estopped from
applying again." Id. at 834. Likewise, in L.D.S. Enterprises,
Inc., 86 F.C.C.2d 283 (1981), a case involving "perhaps the
most amoral skein of detected villainy in domestic broadcast
history," Weiner Broad. Co., 7 F.C.C.R. at 834, the Commis-
sion considered an applicant's evidence of rehabilitation even
though he had deliberately distorted newscasts to favor cer-
tain senatorial candidates, made illegal campaign contribu-
tions, bribed public officials, and attempted to eavesdrop on
and intimidate Commission witnesses. L.D.S. Enter., Inc., 86
F.C.C.2d at 286. Finally, in Modesto Broadcast Group, 7
F.C.C.R. 3404 (1992), the Commission reviewed a license
application filed by a station whose general manager had
operated during the day with relatively high, nighttime pow-
er, thus risking interference with other stations. Although
the Commission ultimately rejected the application, it did so
only after considering the willfulness, duration, and timing of
the violations--factors that the RBPA prohibits the Commis-
sion from considering in cases involving unlicensed micro-
broadcasters who seek LPFM licenses. Id. at 3422-23.

This court offers three unconvincing explanations for the
statute's underinclusiveness. First, it says that "other viola-
tions of law simply do not reflect as directly upon the
offender's qualification to hold an LPFM license." Maj. Op.
at 11. Assuming that to be true, why does the RBPA's
automatic and permanent ban not extend to unlicensed full
power broadcasters, such as the "incorrigible Weiner"? In
any event, I think it not at all obvious that unlicensed
microbroadcasters who broadcast briefly and years ago and
who shut down promptly when told to do so present any
greater risk of unreliable behavior than applicants who re-
cently obtained their licenses through fraud or misrepresenta-

tion or who perpetrated the "most amoral skein of detected
villainy in domestic broadcast history." If anything, the
Weiners of the world should be of greater concern. Nor do I
think it inherently obvious that former unlicensed microb-
roadcasters necessarily present a higher risk of frequency
interference than do Weiner or the Modesto general manag-
er. Whether caused by unlicensed microbroadcasters or by
licensed broadcasters operating on someone else's frequency,
frequency interference is frequency interference. Indeed,
unauthorized full power broadcasters, whose range and power
far exceed that of microbroadcasters, would seem to present a
greater risk of interference. Of course, such observations
would be irrelevant were we applying rational basis review,
see Beach Communications, 508 U.S. at 313-16, but our more
than minimal scrutiny standard requires us to determine
whether Congress's means are appropriately tailored to
achieve its goals.

The court's second explanation for the RBPA's single-
minded focus on unlicensed microbroadcasters is this: "There
is a reasonable fit between the character qualification and the
Government's substantial interests in deterring unlicensed
broadcasting and preventing further violations of the regula-
tions applicable to broadcasters." Maj. Op. at 13. I agree
that deterrence is a substantial governmental interest, but
why impose a lifetime ban? Even given the many violations
that occurred during the movement to end the low power ban,
what is it about unlicensed microbroadcasters, alone among
applicants who have committed offenses, that requires a
broadcasting "mark of Cain" to deter future offenses? Gene-
sis 4:15.

The weakness of the deterrence rationale is particularly
evident in view of the fact that the Commission's 2000 Report
and Order, which the RBPA replaced, made crystal clear that
applicants who continue broadcasting without licenses after
the 1999 Notice of Proposed Rule Making would be automati-
cally and forever ineligible for any broadcast license. "[T]he
illegality of unauthorized broadcasting," the Commission ex-
plained, "must now be presumed to be well-known, and any

unlicensed broadcast operation occurring more than 10 days
after the Notice was issued will make the applicant ineligible
for low power, full power, or any other kind of license and will
be subject to fines, seizure of their equipment, and criminal
penalties." First Low Power Report and Order, 15 F.C.C.R.
at 2227, p 55. Neither the court nor the Commission explains
why banning all former unlicensed broadcasters would fur-
ther deter unlicensed broadcasting, and for good reason: If
the threat of automatic and lifetime disqualification is insuffi-
cient to deter someone from broadcasting, that person is
unlikely to experience a sudden change of heart simply
because Congress retroactively extended an identical ban to
microbroadcasters who operated illegally prior to the NPRM.
And even if, as Commission counsel suggested at oral argu-
ment, the RBPA's deterrent effect would be greater because
the Commission had authority to waive its more limited bar,
Tr. of Oral Arg. at 28:8-32:23, Congress could have corrected
that defect simply by making the Commission's rule nonwaiv-
able.

The court's final response to the RBPA's underinclusive-
ness is that "[t]he judgment that one offense is more serious
than another, like the judgment that a punishment of a
certain severity is warranted for a particular offense, is not
for the judiciary to make." Maj. Op. at 12 n.*. In support of
this proposition, the court cites two cases holding that juve-
nile curfews, both of which included numerous exemptions to
protect First Amendment rights, were not unconstitutionally
underinclusive because they applied only to juveniles sixteen
and under, but not to seventeen-year-olds. Id. (citing Hutch-
ins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999) (en
banc); Schleifer v. City of Charlottesville, 159 F.3d 843 (4th
Cir. 1998)). The records in both cases, however, contained
evidence of disproportionate criminal activity by juveniles
sixteen and under, thus providing an empirical justification
for the curfews' differential treatment of seventeen-year-olds.
See Hutchins, 188 F.3d at 543 ("[T]he District brought to our
attention more data showing that arrests for youths under 17
have been increasing steadily."); Schleifer, 159 F.3d at 849-50
("[T]he City's evidence documents a serious problem of crime

among younger juveniles."). In Hutchins, moreover, this
court recognized a logical justification for excluding seven-
teen-year-olds from the curfew--their inclusion increased the
curfew's intrusiveness as well as its enforcement burden.
Hutchins, 188 F.3d at 543. Far from holding that we should
ignore underinclusiveness in regulations that affect important
First Amendment rights, the two curfew cases stand for the
unexceptional proposition that legislation is not underinclu-
sive if its differential treatment has empirical or logical
justification. Absent any such justification for the RBPA's
differential treatment of microbroadcasters, this court's disre-
gard of the statute's underinclusiveness is more characteristic
of the rationality review the court says it rejects than of the
heightened scrutiny it purports to apply.

IV.

The RBPA's character qualification is poorly aimed for a
second reason: Although the RBPA certainly eliminates any
risk that unlicensed microbroadcasters will become unreliable
or untruthful licensees--after all, they can never become
licensees--the statute, because of its automaticity, covers
circumstances only marginally if at all related to the purpose
of increasing regulatory compliance. See Simon & Schuster
v. Crime Victims Bd., 502 U.S. 105 (1991) (invalidating stat-
ute as overinclusive); League of Women Voters, 468 U.S. at
396-99 (same). For example, the character qualification bans
applications from former unlicensed operators who violated
the licensing requirement only briefly or long ago; from
operators who shut down immediately upon receiving a Com-
mission order to do so; from operators who have since
exhibited, in whatever manner, an ability to abide by federal
laws and regulations; from operators who (like Ruggiero, see
Wangaza Decl.) seek only to serve as members of a multi-
member board, rather than as president or CEO of an
applicant station; and, most tellingly, from operators who
were unaware of the licensing requirement at the time of
their violation. I do not understand how a restriction that
ignores such factors can accurately target those former unli-

censed microbroadcasters who do pose real risks of future
malfeasance.

According to this court, "[a]ny unlicensed broadcasting
demonstrates a willful disregard of the most basic rule of
federal broadcasting regulation." Maj. Op. at 12. Of course
that's not true of operators who were unaware of the licensing
requirement and ceased broadcasting immediately upon being
told to do so. In any event, why impose a lifetime ban even
for willful violators? Statutory and regulatory violations by
full power broadcasters are considered as just one element in
the licensing process and completely forgiven under certain
circumstances. What is it about these little unlicensed mi-
crobroadcasters, some of whom are education and church
organizations, see supra p. 2, that leads this court to exclude
any possibility of rehabilitation? I see no rational basis for
assuming that all unlicensed microbroadcasters, regardless of
either who they are or the circumstances of their violations,
can never again be trusted to hold low power licenses.

Contrary to the court's opinion, moreover, neither the
Commission Order on Reconsideration nor the House Report
supports the proposition that all unlicensed microbroadcast-
ers should be automatically and forever banned. In fact, the
Commission rejected a total ban, applying automatic disquali-
fication to only those unlicensed microbroadcasters who re-
fused to stop either after being told to do so or within ten
days of the 1999 NPRM. See Creation of Low Power Radio
Serv., 15 F.C.C.R. 19,208, p 96 (2000) (Opinion and Order on
Reconsideration). And nothing in the House Report's one-
sentence discussion of the RBPA's character qualification
explains why all former unlicensed microbroadcasters, re-
gardless of the circumstances of their violations or evidence of
rehabilitation, must be automatically barred in order to en-
sure licensee truthfulness and reliability. H.R. Rep. No.
106-567, at 8 (2000).

The RBPA's overinclusiveness is serious. Because the
statute covers so much behavior unrelated to regulatory
compliance, it limits more speech than necessary to accom-

plish Congress's objectives. Moreover, contrary to Red Lion,
by unnecessarily denying licenses to potential speakers, the
RBPA may be limiting broadcast diversity and doing so in the
very portion of the spectrum set aside for new voices. See
Ashcroft v. ACLU, 535 U.S. 564, ___, 122 S. Ct. 1700, 1718
(2002) (Kennedy, J., concurring) ("Indeed, when Congress
purports to abridge the freedom of a new medium, we must
be particularly attentive to its distinct attributes, for 'differ-
ences in the characteristics of new media justify ... differ-
ences in the First Amendment standards applied to them.' "
(quoting Red Lion Broad. Co., 395 U.S. at 386)).

Though arising in a different context, the Supreme Court's
recent decision in Thomas v. Chicago Park District, 534 U.S.
316 (2002), highlights the RBPA's fatal overinclusiveness.
Thomas involved a challenge to an ordinance that permitted
(but did not require) denial of an application to parade in a
public park when an applicant had, among other things,
"violated the terms of a prior permit." Id. at 324. Holding
that the First Amendment does not preclude discretionary
license denials, the Supreme Court explained:

The prophylaxis achieved by insisting upon a rigid,
no-waiver application of the ordinance requirements
would be far outweighed, we think, by the accompa-
nying senseless prohibition of speech ... by organi-
zations that fail to meet the technical requirements
of the ordinance but for one reason or another pose
no risk of the evils that those requirements are
designed to avoid.

Id. at 325. The issue in Thomas is quite similar to the one
we face here, even though the broadcast spectrum, unlike a
public park, is not a public forum. See Arkansas Educ.
Television Comm'n v. Forbes, 523 U.S. 666, 676 (1998) (hold-
ing that public forum doctrine did not apply to public televi-
sion broadcast). Both cases involve forums unable to accom-
modate all speakers, and in both cases the government seeks
to avoid chaos and to ensure the forums' availability for use
by as many speakers as possible. In Thomas, the Court
discussed the constitutionality of a "rigid, no-waiver" rule that

would automatically deny permits to persons who had violated
park district rules; here, Congress adopted a "rigid, no-
waiver" rule that automatically denies low power licenses to
all former unlicensed microbroadcasters. To use Thomas's
words, then, the "prophylaxis achieved by" the RBPA's char-
acter standard is "far outweighed ... by the accompanying
senseless prohibition of speech" by applicants who once
broadcast illegally "but for one reason or another pose no risk
of the evils that those requirements are designed to avoid."

The concurring opinion, relying on Los Angeles Police
Department v. United Reporting, Inc., 528 U.S. 32 (1999),
argues that Ruggiero "cannot invoke the [First Amendment]
overbreadth doctrine." Randolph Op. at 2. I disagree for
two reasons. First, unlike United Reporting, the respondent
in Los Angeles Police Department, Ruggiero is not " 'a per-
son to whom [the RBPA] may constitutionally be applied' "
who is " 'challeng[ing] that statute on the ground that it may
conceivably be applied unconstitutionally to others in situa-
tions not before the Court.' " L.A. Police Dep't, 528 U.S. at
38 (quoting New York v. Ferber, 458 U.S. 747, 767 (1982)).
Ruggiero has never conceded that the RBPA may be applied
constitutionally to him, much less to anyone else. Quite to
the contrary, he argues that the RBPA cannot constitutional-
ly be applied to anyone because the statute automatically
bars unlicensed microbroadcasters (unlike all other Communi-
cations Act violators) from future speech without an opportu-
nity to demonstrate to the Commission that notwithstanding
their offenses, they can function as truthful and reliable
licensees.

It is true that Ruggiero concedes that "some former pirates
may lack the requisite character traits to hold [low power]
licenses," Petitioner's Reply Br. at 11, and that he never says
that his behavior is "not egregious," Randolph Op. at 3. But
that's beside the point. Ruggiero argues not that he has a
right to serve on the low power station's board of directors,
but that this poorly tailored statute automatically bars him
from even trying to demonstrate to the Commission--which
under its general character policy automatically disqualifies
not even the most "atrocious" violators--that he can never-

theless be trusted to function in the public interest. Ruggie-
ro thus has no need to take advantage of the overbreadth
doctrine's " 'departure from traditional rules of standing,' "
designed "to enable persons who are themselves unharmed
by the defect in a statute nevertheless 'to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court.' " Bd. of Trustees v. Fox, 492 U.S. 469, 484 (1989)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)
(emphasis added)).

Second, even if the RBPA could constitutionally be applied
to Ruggiero, I believe he would prevail on an overbreadth
challenge. To begin with, and contrary to the concurring
opinions, the RBPA does present a classic chilling effect.
Because the Commission's RBPA regulations require low
power license applicants to disclose all prior unlicensed broad-
casting, those applicants whose piracy went undetected--a
situation the Commission considers to be covered by the
RBPA, see Second Low Power Report and Order, 16 F.C.C.R.
at 8030, p 11--must either (1) admit to a prior act of unli-
censed broadcasting, an admission leading not just to perma-
nent ineligibility, but also to possible administrative and/or
criminal sanctions, or (2) deny their prior misconduct, risking
both prosecution for perjury and "additional enforcement
actions," id. It is thus not accurate to say that "[i]f [unli-
censed broadcasters] file applications in the future no harm
will befall them. Their applications will simply be denied."
Randolph Op. at 2. Rather than face the Scylla of adminis-
trative and criminal prosecution for unlawful broadcasting or
the Charybdis of perjury and Commission enforcement ac-
tions for failing to disclose such broadcasting, former unli-
censed microbroadcasters may find it far safer to forego
applying for licenses and simply remain silent. See Nat'l
Endowment for the Arts v. Finley, 524 U.S. 569 (1998)
(allowing overbreadth challenge based on potential cutoff of
government funding).

It is true that under the Commission's general character
policy, applicants must disclose any unlicensed broadcasting.
See Randolph Op. at 4. But the question here is whether the

RBPA, not the Commission's general character policy, has a
chilling effect. I am unaware of any decision rejecting an
overbreadth challenge because the "preceding regime" not
actually at issue may have had an equally chilling effect as
the challenged provision. Id. And for the same reason the
RBPA is unconstitutionally overinclusive, Ruggiero could pre-
vail on an overbreadth challenge. See Bd. of Airport
Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)
(finding statute banning all First Amendment activities at
airport "substantially overbroad" and unconstitutional under
overbreadth doctrine).

V.

Declaring the RBPA unconstitutional would not leave Con-
gress powerless to bar unlicensed microbroadcasters from
receiving low power licenses. This circuit's more than mini-
mal scrutiny standard leaves ample room for carefully aimed
licensing restrictions. Moreover, the Commission already has
authority under its long-existing character qualification policy
to deny licenses to unlicensed microbroadcasters who, in the
Commission's considered judgment, have demonstrated an
inability " 'to deal truthfully with the Commission and to
comply with [its] rules and policies.' " First Low Power
Report and Order, 15 F.C.C.R. at 2226, p 54 (internal citation
omitted). In view of this circuit's heightened rational basis
standard, however, the court has no basis for sanctioning an
automatic, lifetime ban on future lawful speech that applies,
indefensibly, to only a limited class of unlicensed microbroad-
casters and to just the portion of the spectrum created for
new voices.