United States v. Any & All Radio Station Transmission Equipment

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 97-3972
___________

United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Any and all Radio Station *
Transmission Equipment; Radio *
Frequency Power Amplifiers, *
Radio Frequency Test Equipment, *
and any other equipment associated *
with or used in connection with the * Appeal from the United States
transmission at 97.7 MHZ, located * District Court for the
at 1400 Laurel Avenue, Apartment * District of Minnesota
1109, Minneapolis, MN 55403; *
*
Defendants. *
*
Alan Fried, *
*
Claimant-Appellant, *
------------------------------------------- *
National Association of Broadcasters, *
*
Amicus on Behalf of Appellee. *
___________

Submitted: May 14, 1998

Filed: February 26, 1999
___________
Before McMILLIAN, NOONAN1 and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
___________

McMILLIAN, Circuit Judge.

Alan Fried appeals from a final order entered in the United States District
2
Court for the District of Minnesota granting judgment on the pleadings in favor of
the United States of America, pursuant to Fed. R. Civ. P. 12(c), in its action for in rem
forfeiture of certain radio equipment pursuant to the Communications Act of 1934,
as amended, 47 U.S.C. § 510. United States v. Any & All Radio Station
Transmission Equipment, 976 F. Supp. 1255 (D. Minn. 1997). For reversal, Fried
argues the district court erred in holding that it lacked subject matter jurisdiction to
adjudicate his constitutional affirmative defenses. For the reasons discussed below,
we hold that the district court has exclusive jurisdiction to adjudicate the in rem
forfeiture action, including Fried’s constitutional challenges to the microbroadcasting
regulations. Accordingly, we reverse the judgment of the district court and remand
the case to the district court for further proceedings.

The government asserted that the district court had jurisdiction over the in rem
forfeiture action pursuant to 28 U.S.C. §§ 1345 (United States as plaintiff), 1355
(action for forfeiture under any Act of Congress). We have appellate jurisdiction over
the district court’s final order pursuant to 28 U.S.C. § 1291. The notice of appeal was
timely filed pursuant to Fed. R. App. P. 4(a).

1
The Honorable John T. Noonan, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
2
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

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BACKGROUND FACTS

Most of the facts are not disputed, and the following statement of facts is taken
in large part from the district court’s memorandum opinion and order.

This in rem forfeiture action involves the seizure of certain radio equipment
owned and used by Fried to operate BEAT, an unlicensed radio station, out of his
apartment in downtown Minneapolis. BEAT broadcast at a level of about 20 watts,
at a frequency of 97.7 MHZ, in an area with a radius of about 6 miles from Fried’s
apartment. According to Fried, BEAT’s broadcast signal did not interfere with any
other radio stations.

Fried is a "microbroadcaster." Microbroadcasters operate low-wattage radio
stations without licensing approval from the FCC. Microbroadcasters generally use
1 to 95 watts of power to broadcast their FM radio signals. (Extremely low-wattage
broadcasts do not need to be licensed by the FCC. See 47 C.F.R. § 15.239(b)
(emissions which do not exceed 250 microvolts/meter at 3 meters as measured by
average detectors).) At the present time FCC regulations bar issuing licenses to
microbroadcasters, that is, any radio station broadcasting below 100 watts. See 47
C.F.R. § 73.211(a), .511(a), .512(c) (beginning in 1978, FCC refused to issue all
future licenses for broadcasting below 100 watts, except in Alaska). It can cost more
than $100,000 for a broadcast license for a 100-watt station. Broadcasting without
an FCC license is a violation of federal law. 47 U.S.C. § 301. The FCC estimates
that there are between 300 to 1,000 unlicensed, low-wattage radio stations
broadcasting diverse programs ranging from Christian sermons to rock 'n roll to
call-in discussions nationwide. Microbroadcasters generally view themselves as part
of a free speech movement and as community broadcasters; they typically spend their
air time talking about topics such as the evils of income tax and government
regulation, reading poetry, playing “alternative” music, and expressing political
points of view on many subjects.

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 This litigation began in July 1996, when the FCC received a complaint from
an FM radio station in Rochester, MN, about an unlicensed station broadcasting on
97.7 MHZ. FCC agents investigated and confirmed unauthorized radio transmissions
from Fried’s apartment. In August 1996 the FCC mailed a warning letter to Fried,
informing him that broadcasting unauthorized radio transmissions was unlawful in
violation of 47 U.S.C. § 301, ordered him to respond to the warning letter within 10
days, and demanded that he cease operations immediately. Title 47 U.S.C. § 301
provides in part that “[n]o person shall use or operate any apparatus for the
transmission of . . . signals by radio . . . except under and in accordance with [the
Federal Communications Act] and with a license in that behalf granted under the
provisions of this chapter.” Persons who willfully and knowingly intend to violate
the licensing requirement may have their equipment or devices seized and forfeited
to the United States. Id. § 510(a).

Fried responded to the warning letter by challenging the constitutionality of the
microbroadcasting regulations and requested a waiver of the FCC licensing
requirement, but he did not cease operation of BEAT. (The government disputed
whether or not Fried requested a waiver, but the district court assumed he had done
so. 976 F. Supp. at 1256 n.1.)

PROCEEDINGS IN DISTRICT COURT

The government then brought this in rem forfeiture action in federal district
court. The in rem forfeiture complaint asserted the district court had jurisdiction
under 28 U.S.C. §§ 1345, 1355, and 47 U.S.C. § 510. In October 1996, after a
hearing, the federal magistrate judge3 issued a warrant of arrest and notice in rem
commanding the United States marshal to “arrest” the radio equipment used to
operate the unlicensed radio station. The government gave notice of the arrest by

3
The Honorable John M. Mason, United States Magistrate Judge for the District
of Minnesota.

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personal service on Fried and his attorney and by publication. The United States
marshal executed the warrant and seized the radio equipment in early November
1996. Fried filed a claim of ownership of the seized radio equipment and sought
restoration of the equipment. Fried also filed an answer to the in rem forfeiture
complaint in which he raised several affirmative defenses challenging the
constitutionality of the microbroadcasting regulations. Fried argued in general that
the FCC regulations barring new licenses to microbroadcasters violated the First
Amendment, equal protection and due process. Fried also argued that the
microbroadcasting regulations violated the Communications Act, 47 U.S.C. § 303(g)
(directing the FCC to encourage larger and more effective use of radio “in the public
interest”), as well as Article XIX of the United Nations Declaration of Human Rights
and Article XIX of the International Covenant on Civil and Political Rights. Fried
did not challenge the constitutionality of the Communications Act itself. (We note
that the Supreme Court upheld the constitutionality of the Communications Act in
NBC v. United States, 319 U.S. 190, 227 (1943).)

The government filed a motion for judgment on the pleadings in its favor
pursuant to Fed. R. Civ. P. 12(c). The government argued that it was undisputed that
Fried used and possessed the radio equipment to broadcast without an FCC license.
Fried admitted that he intended to continue to operate the radio equipment (and did
in fact continue) to broadcast even after receiving the warning letter from the FCC
ordering him to cease operations immediately. The district court agreed with the
government that there was no material issue of fact in dispute and that it was entitled
to judgment as a matter of law-- the radio equipment violated 47 U.S.C. § 301 and
seizure and forfeiture of the radio equipment was authorized under 47 U.S.C.
§ 510(a). 976 F. Supp. at 1257.

The district court noted, however, that Fried’s affirmative defenses raised
constitutional and other challenges to the microbroadcasting regulations. The
government argued that it was entitled to judgment on the pleadings because,

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pursuant to 47 U.S.C. § 402, the court of appeals, not the district court, has exclusive
jurisdiction to determine the validity of the microbroadcasting regulations. Section
402(a) provides that "[a]ny proceeding to enjoin, set aside, annul, or suspend any
order of the [FCC] under this chapter (except those appealable under subsection (b)
of this section) shall be brought as provided by and in the manner prescribed in
chapter 158 of Title 28." Chapter 158 includes 28 U.S.C. § 2342, which provides in
part that "[t]he court of appeals . . . has exclusive jurisdiction to enjoin, set aside,
suspend . . . or to determine the validity of– (1) all final orders of the [FCC] made
reviewable by § 402(a) of title 47." In other words, the government argued that Fried
was seeking to litigate his constitutional challenges in the wrong forum-- that instead
of the district court, Fried should raise his constitutional challenges before the FCC
and then, assuming the FCC rejects his constitutional arguments, seek judicial review
by appealing the final order of the FCC directly to the court of appeals. See, e.g.,
FCC v. ITT World Communications, Inc., 466 U.S. 463, 468 (1984). The FCC has
not issued a final order in the present case because Fried has never applied for a
license, although he maintained (and the district court assumed so for purposes of
analysis) that he had filed a request for a waiver.

Fried argued that the district court, not the court of appeals, had exclusive
jurisdiction over the forfeiture action, including the merits of his constitutional
challenges to the microbroadcasting regulations. Fried argued that 47 U.S.C. § 504(a)
vests exclusive jurisdiction in the district courts to hear forfeiture suits by the
government and suits by private individuals seeking to avoid forfeitures, including
the merits of his constitutional challenges to the microbroadcasting regulations:

The forfeitures provided for in this chapter shall be payable into
the Treasury of the United States, and shall be recoverable, . . . in a civil
suit in the name of the United States brought in the district where the
person or carrier has its principal operating office . . . : Provided, That
any suit for the recovery of a forfeiture imposed pursuant to the
provisions of this chapter shall be a trial de novo . . . .

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 Although federal district courts have exclusive jurisdiction to hear forfeiture
suits brought by the government and suits by individuals seeking to avoid
enforcement of forfeiture, the court of appeals has exclusive jurisdiction to determine
the validity of all final orders of the FCC. The present case involved both an effort
to avoid enforcement of the forfeiture (and thus a matter for the district court) and a
constitutional challenge to the microbroadcasting regulations (and thus a matter for
the court of appeals). The district court decided that Fried was really challenging the
constitutionality of the microbroadcasting regulations, rather than the forfeiture order
itself, and thus the case was properly one within the exclusive jurisdiction of the court
of appeals pursuant to 47 U.S.C. § 402. 976 F. Supp. at 1259. The district court
distinguished the two cases relied upon by Fried to support exclusive jurisdiction in
the district court on the ground that, unlike Fried, the claimants in those cases
challenged some aspect of the forfeiture orders. Id. at 1258-59, citing Pleasant
Broadcasting Co. v. FCC, 564 F.2d 496 (D.C. Cir. 1977) (Pleasant Broadcasting)
(contesting whether refusal to permit FCC inspection violated regulation), and
Dougan v. FCC, 21 F.3d 1488 (9th Cir. 1994) (disputing whether petitioner violated
regulation by refusing to permit FCC inspection). The district court granted the
government's motion for judgment on the pleadings. This appeal followed.4

STANDARD OF REVIEW

4
The National Association of Broadcasters (NAB) has tendered an amicus
curiae brief in support of the Federal Communications Commission (FCC).
According to its brief, the NAB is a non-profit incorporated association of radio and
television broadcast stations and networks representing the nation's broadcasting
industry and is committed to protecting the integrity of the spectrum used for radio
and television broadcasting to ensure that the public receives the highest quality
service.

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 We review a motion for judgment on the pleadings de novo. We accept as true
all facts pleaded by the non-moving party and grant all reasonable inferences from the
pleadings in favor of the non-moving party. Judgment on the pleadings is not
properly granted unless the moving party has clearly established that no material issue
of fact remains to be resolved and the party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 12(c); e.g., National Car Rental System, Inc. v. Computer Assocs.
Int'l, Inc., 991 F.2d 426, 428 (8th Cir.), cert. denied, 510 U.S. 861 (1993); Westcott
v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

EXCLUSIVE JURISDICTION IN DISTRICT COURT

The threshold issue is which court has exclusive jurisdiction-- the district court
(as Fried argues) or the court of appeals (as the government argues). The parties raise
essentially the same arguments on appeal as they did in the district court. For
reversal, Fried argues that the district court erred in holding that the court of appeals
has exclusive jurisdiction over the in rem forfeiture action and his constitutional
defenses. Fried argues that the district court has exclusive jurisdiction because the
forfeiture provision, 47 U.S.C. § 504(a), specifically refers to trial de novo in the
district court and that reference contemplates adjudication of all issues raised in the
forfeiture action, including any and all defenses. He further argues that this specific
jurisdictional provision, which particularly refers to forfeiture orders in the district
courts, overrides 47 U.S.C. § 402, which is a general jurisdictional provision for
judicial review in the courts of appeals of final orders of the FCC.

The government argues that the courts of appeals have exclusive jurisdiction
to review all final orders of the FCC, including orders deciding applications for
broadcast licenses and requests for waivers. See 47 U.S.C. § 402(a); 28 U.S.C.
§ 2342 (the court of appeals (other than the court of appeals for the Federal Circuit)
has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to

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determine the validity of all final orders of the FCC). The government argues that the
validity of the underlying microbroadcasting regulations is not at issue in the in rem
forfeiture action and that Fried cannot “bootstrap” a constitutional challenge to the
microbroadcasting regulations into the forfeiture action. The government argues that,
by attempting to bypass first administrative review by the FCC and then judicial
review in the court of appeals, Fried is improperly seeking what essentially amounts
to “pre-enforcement” review of the microbroadcasting regulations without an
adequate administrative record. The government argues that Fried can raise his
constitutional challenges to the microbroadcasting regulations by filing an application
for a license with a request for a waiver. If his application for a license and request
for a waiver are denied by the FCC, the government argues that Fried can then appeal
to the United States Court of Appeals for the District of Columbia Circuit, pursuant
to 47 U.S.C. § 402(b)(1). Alternatively, the government argues that Fried can
challenge the constitutionality of the microbroadcasting regulations by filing a
petition for rulemaking pursuant to 47 C.F.R. § 1.401, and, if that petition is denied,
then seek judicial review in any court of appeals, pursuant to 47 U.S.C. § 402(a).

This is a difficult issue, and the cases are not easy to reconcile. Nonetheless,
we think Fried’s argument is persuasive. In particular, we are persuaded by the
statutory analysis in Dougan v. FCC, 21 F.3d 1488. In that case, the FCC had issued
a final forfeiture order against Dougan for operating a radio station without a license
and for refusing to permit FCC engineers to inspect the station. Dougan filed a
petition for review in the court of appeals, citing 47 U.S.C. § 402(a) and 28 U.S.C.
§ 2342. The government contested Dougan’s right to seek judicial review of the
forfeiture order in the court of appeals, arguing that the more specific forfeiture
statute, 47 U.S.C. § 504(a), controlled the more general one, 47 U.S.C. § 402(a), even
though 47 U.S.C. § 504(a) deals only with suits by the government to enforce
forfeiture and not suits by recipients of notices of forfeiture seeking to avoid
enforcement. The Ninth Circuit agreed with the government’s argument, holding that
the more specific 47 U.S.C. § 504(a) “is a special review statute which vests

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[exclusive] jurisdiction over forfeiture actions in the district court, and therefore cuts
off simultaneous jurisdiction in other courts.” 21 F.3d at 1491 (referring to
enforcement suits by the government as well as suits by private individuals seeking
to avoid enforcement), citing Pleasant Broadcasting, 564 F.2d at 496, 500-01.

The Dougan court relied on the analysis in an earlier case, Pleasant
Broadcasting, which involved consolidated petitions by two broadcast licensees who
had requested that forfeiture orders entered against them by the FCC be set aside. In
the first petition, the FCC had imposed a $500 forfeiture on Pleasant Broadcasting for
“repeatedly” violating the over-power regulation. The sole contention was the FCC's
interpretation of the word "repeatedly" was erroneous as a matter of law. The second
petition involved the FCC finding that WIYN Radio was in "repeated" violation of
the Personal Attack Rule, 47 C.F.R. § 73.123, which required the licensee, within
seven days, to notify the party that had been publicly and personally attacked. The
FCC found that a separate offense had occurred during each of the 20 days WIYN
Radio had failed to notify the attacked party. Both Pleasant Broadcasting and WIYN
Radio contested the FCC's interpretation of “repeatedly” and sought judicial review
in the D.C. Circuit pursuant to 47 U.S.C. § 402(a).

The D.C. Circuit held that 47 U.S.C. § 504(a) established the district court as
the exclusive forum for review of the forfeiture orders. 564 F.2d at 500 (noting that,
even though that section by its terms makes no provision for initiation of judicial
review by persons subjected to forfeiture order, it clearly provides such persons with
opportunity to obtain full review in district court in proceeding which the government
must bring to collect the monetary forfeiture). The D.C. Circuit noted that, “‘even
where Congress has not expressly conferred exclusive jurisdiction, a special review
statute vesting jurisdiction in a particular court cuts off other courts’ original
jurisdiction in all cases covered by the special statute.’” Id. at 500-01, citing
Investment Co. Institute v. Board of Governors, 551 F.2d 1270, 1279 (D.C. Cir.
1977). Accord United States v. Any & All Radio Station Transmission Equipment,

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19 F. Supp. 2d 738, 746-47 (E.D. Mich. 1998) (Bent Oak) (holding 47 U.S.C.
§ 504(a) is a special review statute that vests jurisdiction over forfeiture actions in the
district courts and cuts off simultaneous jurisdiction in other courts); cf. United States
v. Neset, 10 F. Supp. 2d 1113, 1114-15 (D.N.D. 1998) (holding courts of appeals
have exclusive jurisdiction to review FCC declaratory rulings on validity of FCC
policies or practices; whether FCC policies or practices comply with paperwork
reduction act or administrative procedures act are matters within primary jurisdiction
of FCC). But see Moser v. FCC, 46 F.3d 970, 973 (9th Cir.) (holding summarily that
district courts lack jurisdiction over all challenges to FCC regulations), cert. denied,
515 U.S. 1161 (1995); United States v. Any & All Radio Station Transmission
Equipment, 29 F. Supp.2d 393, 397-98 (E.D. Mich. 1998) (holding that district court
does not have jurisdiction in forfeiture action to entertain challenge to
constitutionality of FCC microbroadcasting regulations; claimant must first seek final
decision by FCC and then appeal any unfavorable decision to appropriate court of
appeals, citing district court decision in the present appeal). The D.C. Circuit
considered the statutory scheme and concluded that

it is unlikely that Congress intended for persons in the position of the
licensees to have two bites at the apple, that is, to be able to challenge
the forfeiture order in a court of appeals on the basis of the
administrative record and, if unsuccessful, to litigate all issues de novo
in the district court, with a right of appeal to the court of appeals. . . .
[W]e would be reluctant to give litigants a choice of forums for review,
without some support in the language or history of the forfeiture statute,
or some showing that the special procedure enacted by Congress is
unavailable or inadequate.

564 F.2d at 501 (noting that review of legislative history indicated that Congress was
operating under assumption that any review would occur through trial de novo in the
district court).

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 Another decision involving an unlicensed microbroadcaster also supports the
position that the district courts have exclusive jurisdiction over forfeiture actions,
including any constitutional affirmative defenses raised by the person seeking to
avoid enforcement. In United States v. Dunifer, 997 F. Supp. 1235 (N.D. Cal. 1998),
the government brought an action for injunctive and declaratory relief in federal
district court against Stephen Paul Dunifer, the owner and operator of an unlicensed
microbroadcasting radio station, Radio Free Berkeley. The government sought a
ruling that Dunifer was violating 47 U.S.C. § 301 by broadcasting without a license.
Dunifer did not dispute that he had been operating the radio station without a license,
but he argued that he should not be enjoined from broadcasting because the FCC’s
refusal to license microbroadcasters amounted to a content-based restriction on
speech in violation of the First Amendment. The FCC had issued a monetary
forfeiture order and Dunifer had filed an application for review of the forfeiture order,
raising the same constitutional arguments. The district court denied the government’s
motion for a preliminary injunction and stayed the case under the doctrine of primary
jurisdiction so that the issue of the constitutionality of the microbroadcasting
regulations could be decided first by the FCC, either in the context of the pending
forfeiture proceeding or in FCC rule-making proceedings. 997 F. Supp. at 1238.

After the FCC issued its forfeiture order holding the microbroadcasting
regulations did not violate the First Amendment (or the FCC’s statutory mandate to
regulate in the public interest), the government filed a motion for summary judgment
in the declaratory judgment action, arguing that the district court lacked jurisdiction
because exclusive jurisdiction over any challenge to FCC regulations is vested in the
court of appeals. The district court rejected that argument, ruling that 47 U.S.C.
§ 401(a), which provides the district court with jurisdiction over actions by the
government in which it alleges failure to comply with the Communications Act,
including the charge of broadcasting without a license, granted jurisdiction to the
district court over any valid defense to the charge. 997 F. Supp. at 1238.

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 We find the analysis in these cases to be persuasive and hold that the district
court has exclusive jurisdiction over the in rem forfeiture action, including Fried’s
constitutional affirmative defenses.

ISSUES ON REMAND

For purposes of this appeal, we have assumed, as did the district court, that
Fried filed a request for a waiver of the microbroadcasting rules in which he raised
his arguments challenging their constitutionality. The FCC does have jurisdiction to
determine the constitutionality of its regulations. See id. at 1240, citing Meredith
Corp. v. FCC, 809 F.2d 863, 872, 874 (D.C. Cir. 1987) (holding that FCC was
required to respond to plaintiff’s constitutional arguments and remanding case to FCC
to consider constitutionality of FCC fairness doctrine on its face and as applied), and
WAIT Radio v. FCC, 418 F.2d 1153, 1156 (D.C. Cir. 1969) (remanding FCC’s denial
of applicant’s waiver request to FCC to reconsider First Amendment issue raised
therein). See also United States v. Evergreen Media Corp., 832 F. Supp. 1183,
1185-86 (N.D. Ill. 1993) (district court held it had jurisdiction to hear defendant’s
counterclaims challenging facial constitutionality of FCC regulation barring obscene,
indecent or profane language). However, the record does not indicate that the FCC
has acted upon Fried’s request for waiver.

Having determined that the district court has exclusive jurisdiction to
adjudicate the in rem forfeiture action, we reverse the judgment of the district court
and remand the case to the district court with directions to consider whether to invoke
the doctrine of primary jurisdiction, because the issue of the constitutionality of the
microbroadcasting regulations has yet to be addressed by the FCC, at least in the
context of the present litigation. (As noted above, the FCC in the Dunifer forfeiture
proceeding held the microbroadcasting regulations did not violate the First
Amendment.) See Bent Oak, 19 F. Supp. 2d at 744-48 (applying doctrine of primary
jurisdiction and dismissing case without prejudice because no administrative

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proceeding currently pending); United States v. Dunifer, 997 F. Supp. at 1238 (noting
earlier stay of litigation under doctrine of primary jurisdiction in light of then-pending
FCC forfeiture proceeding); cf. Rosenthal & Co. v. Bagley, 581 F.2d 1258, 1260 (7th
Cir. 1978) (holding exhaustion of administrative remedies doctrine retains its validity
even when the collateral judicial action challenges the constitutionality of the basic
statute under which agency functions); see also Turro v. FCC, 859 F.2d 1498 (D.C.
Cir. 1988) (court of appeals review of FCC order denying request for waiver of FCC
rules); WAIT Radio v. FCC, 418 F.2d 1153 (same; remanding matter to FCC for
statement of reasons for denial of waiver).

We hold that the district court has exclusive jurisdiction to adjudicate the in
rem forfeiture action, including Fried’s constitutional affirmative defenses.
Accordingly, we reverse the judgment of the district court and remand the case to the
district court for further proceedings. On remand, the district court should consider
the issue of primary jurisdiction.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

I would reverse the order of the district court, but for reasons different from
those elaborated in Judge McMillian's opinion. I do not believe that the defendant
in this case is seeking to "enjoin, set aside, annul, or suspend any order of the
Commission," see 47 U.S.C. § 402(a), for the simple reason that no FCC order is
being challenged. This is a suit initiated by the United States to forfeit Mr. Fried's
property, a suit over which the district court plainly has jurisdiction under 28 U.S.C.
§§ 1345, 1355. Until today I had not supposed that anyone could plausibly maintain
that any court of the United States, properly seized of jurisdiction of a suit, did not
also have jurisdiction to consider constitutional defenses to that suit. Congress could,
of course, provide otherwise, as, for instance, by providing streamlined forfeiture
remedies that excluded certain defenses, while giving a defendant an opportunity to

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raise those defenses in some other context. I do not see that Congress has done so in
this instance.

Congress knows how to give exclusive jurisdiction to determine the validity
of a regulation when it wants to. Indeed, 28 U.S.C. § 2342 is itself directly
instructive on this point. While it gives the courts of appeals exclusive jurisdiction
to set aside "all final orders" of the FCC (§ 2342(1)), it gives the courts of appeals the
same jurisdiction to set aside "all rules, regulations, or final orders" of a certain kind
issued by the Secretary of Transportation (28 U.S.C. § 2342(3)(A)) and the Federal
Maritime Commission (28 U.S.C. § 2342(3)(B)). See also 28 U.S.C. § 2342(5) (all
rules, regulations, or final orders of a certain kind issued by the ICC). It thus
becomes plain that 28 U.S.C. § 2342(1) does not give the courts of appeals exclusive
jurisdiction to determine the validity of an FCC regulation.

FCC v. ITT World Communications, Inc., 466 U.S. 463 (1989), on which
Judge Noonan relies, is not to the contrary, for that was a suit to enjoin a denial of a
rulemaking petition. No such petition is at issue here, and the fact that Mr. Fried
could file one and have his defenses adjudicated is of no moment. What we have is
the case before us, and in it I see no statutory or other impediment to the
consideration of Mr. Fried's defenses.

I therefore join in the order reversing and remanding the case to the district
court for further proceedings.

NOONAN, Circuit Judge, dissenting.

This case is an important one for the statutory scheme created by Congress for
the regulation of broadcasting. No binding authority is a precise precedent, with the
result that the court has a certain leeway in its interpretation of the jurisdictional

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provisions of the Federal Communications Act. However, by close analogy with
decided cases, by out-of-circuit precedent, and by the terms of the statutory scheme,
the district court is without jurisdiction to entertain a challenge to FCC regulations.

The FCC has brought a forfeiture action against a broadcaster without a
license. The broadcaster's only defense is the "the FCC prohibition against low
power broadcasting" is contrary to the Constitution of the United States, the statutory
mandate of 47 U.S.C. § 303(g), the United Nations Declaration of Human Rights, and
the International Covenant on Civil and Political Rights. The defense is exclusively
focused on the validity of the regulations. The district court has no jurisdiction to
decide the validity of the regulations and therefore has no jurisdiction to consider the
defense.

The statute provides: "Any proceeding to enjoin set aside, annul, or suspend
any order of the Commission . . . shall be brought as provided by and in the manner
prescribed in chapter 158 of Title 28." 47 U.S.C. § 402(a). The cross referenced
statute states: "The court of appeals . . . has exclusive jurisdiction to enjoin, set aside,
suspend (in whole or in part), or to determine the validity of – (1) all final orders of
the Federal Communications Commission made reviewable by section 402(a) of title
47." 28 U.S.C. § 2342. It is hard to think of clearer language confining the review
of regulations to the Courts of Appeal.

The Supreme Court has authoritatively determined that the exclusive
jurisdiction of the Court of Appeals over rulemaking by the FCC may not be evaded
by seeking to enjoin a final order of the FCC in the district court. FCC v. ITT World
Communications, Inc., 466 U.S. 463, 468 (1984). A defensive attack on the FCC
regulations is as much an evasion of the exclusive jurisdiction of the Court of
Appeals as is a preemptive strike by seeking an injunction. Whichever way it is done,
to ask the district court to decide whether the regulations are valid violates the
statutory requirements. As this court said in applying ITT: "Where exclusive

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jurisdiction is mandated by statute, a party cannot bypass the procedure by
characterizing its position as a defense to an enforcement action." Southwestern Bell
Telephone v. Ark. Pub. Serv., 738 F.2d 901, 906 (8th Cir. 1984), vacated and
remanded on other grounds, 476 U.S. 1167 (1986). "The exclusive jurisdiction of the
courts of appeals cannot be evaded simply by labeling the proceeding as one other
than a proceeding for judicial review." Id.

The two cases relied on by the majority are not to the contrary. These cases,
won by the FCC, merely hold that the district court is the exclusive forum for a
forfeiture. The cases say nothing as to where the regulations of the FCC may be
challenged. See Dougan v. FCC, 21 F.3d 1448 (9th Cir. 1994); Pleasant Broadcasting
Co. v. FCC, 564 F.2d 496 (D.C. Cir. 1977). As the court notes, its interpretation of
the Ninth Circuit case of Dougan is directly contrary to Moser v. FCC, 46 F.3d 970,
973 (9th Cir.), cert. denied, 515 U.S. 1161 (1995).

The statutory scheme makes sense (1) to ensure review based on an
administrative record made before the agency charged with implementation of the
statute;(2) to ensure uniformity of decisionmaking because of uniform factfinding
made by the agency; (3) to bring to bear the agency's expertise in engineering and
other technical questions. If Fried had no way of obtaining judicial review of the
regulations his case might be different. See Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 212-13 (1994). But he could have obtained review by applying for a
license and asking for a waiver of the regulations; rejection of his request would be
permitted appeal to the circuit. Rather than follow the procedures established by law,
he has attempted an end run.

I would affirm the district court.

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A true copy.

Attest:

U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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