UNITED STATES v. ANY AND ALL R. STA. TRANS. EQ., (W.D.Mich. 1999)

Wendell A. Miles, Senior Judge

For the reasons stated in the court's Opinion and Order on Pending Motions entered on this same day, the court hereby ORDERS, ADJUDGES, AND DECREES that defendant claimant's property is FORFEITED to the United States, and shall be disposed of according to law.

OPINION AND ORDER ON PENDING MOTIONS

In this civil action in rem, the United States seeks forfeiture of radio transmission equipment it seized from a location at 200 Griggs Street, S.W. in Grand Rapids, Michigan pursuant to the Federal Communications Act ("FCA"), 47 U.S.C. § 510. The United States alleges that the seized property was being used illegally to operate a radio station known as La Voz Radio de la Communidad ("La Voz"), which did not have a license to broadcast as required under the FCA, 47 U.S.C. § 301.

The matter is currently before the court on various motions filed by both the United States and La Voz, the claimed owner of the property. These motions include (1) the United States' Motion for Summary Judgment and Final Order of Forfeiture (docket no. 23); (2) defendant-claimant's Motion to Submit Response to Plaintiff's Motion for Summary Judgment and Final Order of Forfeiture Instanter (docket no. 26); (3) Claimant's Ex Parte Motion for Leave to File an Oversized Brief (docket no. 27); and (4) Defendant-Claimant's "Brief in Support of Motion for Summary Judgment, to Dismiss Complaint for Forfeiture and to Quash in Rem Arrest Warrant" (undocketed). The court, which has considered all of the written submissions made by the parties, hereby grants the defendant-claimant its requests for leave to file. For the reasons to follow, the court also grants the United States' motion for summary judgment and denies the defendant-claimant's corresponding request for judgment in its favor.

On November 1, 1999, the court received a document captioned "Brief in Support of Motion for Summary Judgment, to Dismiss Complaint for Forfeiture and to Quash in Rem Arrest Warrant," filed under the signature of counsel for the defendant-claimant. This brief, although neither preceded nor accompanied by defendant-claimant's own motion for summary judgment, will be treated by the court as such a motion. It shall therefore be docketed by the clerk of court in order to complete the record in this matter.

FACTS

The following relevant facts are undisputed. On October 22, 1998, a confidential source telephoned the Detroit field office of the FCC's Compliance and Information Bureau ("CIB") and reported that an unauthorized FM broadcast radio station was transmitting on 93.1 MHz from 200 Griggs, S.W. in the Grand Rapids, Michigan area. On November 4, 1998, FCC agent Patrick Patterson and FCC electronics engineer Paul Mako tracked the transmission to the second-story level of 200 Griggs Street, S.W., the "Iglesia de Cristo Misioner, Inc." (the "Missionary Church of Christ, Inc."). Two men present there, including the operator, identified the station as "La Voz Radio." The two men contacted Miguel Toro, president of La Voz. After Toro arrived and with his permission, Patterson and Mako entered the premises to conduct an inspection. At that time, Toro indicated that he was in the process of applying for a license to operate the station, but had not yet received FCC authorization. Toro showed Patterson and Mako a September 16, 1998 letter from the FCC which had dismissed the application of "The Missionary Church of Christ MI, Inc." for a new FM station on 90.9 MHz in Grand Rapids, Michigan.

Patterson and Mako warned Toro and the operator on duty that operation of the radio station without a license was a violation of 47 U.S.C. § 301, subject to specified penalties.

Patterson and Mako also told Toro that he would receive a written warning letter from the FCC via mail. Despite these warnings, Toro would not guarantee that he would refrain from operating the radio station in the future.

On November 9, 1998, CIB's Detroit field office sent, via certified mail, a letter addressed to Toro, at La Voz.

The letter again warned Toro of the penalties for unlicensed operation of a radio station, and requested a response within ten days. The evidence shows that Toro received the letter on November 14, 1998.

On November 25, 1998, CIB's Detroit field office again received information from a complainant that the unlicensed FM broadcast station transmitting on 93.1 MHz had resumed broadcasting on the previous day. After investigating the complaint, Patterson and Mako were able to confirm that La Voz had resumed transmitting from the second-story of 200 Griggs Street, S.W., and that it was operating at a level which exceeded that permitted without a license. Shortly thereafter, on December 8, 1998, the Detroit field office received a letter from counsel for La Voz, which contended, among other things, that the station was entitled to a hearing to determine whether it was in violation of the FCC's rules.

On December 7, 1998 La Voz and a number of its listeners filed a civil action against the FCC and its district director, James Bridgewater. In their action, La Voz Radio de la Communidad v. FCC, No. 1:98-cv-867 (W.D.Mich.), the parties essentially challenged the constitutionality of certain provisions of the FCA and regulations promulgated thereunder by the FCC. Alleging that La Voz faced an imminent threat of civil and criminal enforcement proceedings, the complaint sought injunctive relief which would both permit La Voz to continue to broadcast and enjoin the FCC from instituting enforcement proceedings. On May 5, 1999, the court dismissed the action for lack of subject matter jurisdiction. That dismissal is currently on appeal.

In March and April, 1999, Patterson and Mako were again dispatched to investigate whether La Voz was continuing to operate without a license. On both occasions they determined that the station was indeed operating in violation of the law. Given this continued violation, on April 15, 1999 the United States filed its complaint in forfeiture in this action. On April 22, 1999, acting pursuant to a warrant for arrest issued in the case, United States Marshals seized the station's transmission equipment.

According to the complaint which it filed in the prior action, La Voz is a Spanish-language radio station which serves primarily Hispanic listeners within an estimated 10-mile radius of its location in Grand Rapids, Michigan. La Voz began broadcasting in September, 1998. It programming "includes aspects of Hispanic culture, primarily religious, including community events and service announcements, news, music, politics, and what is popularly referred to as `talk-show radio.'" Paragraph 11, Verified Complaint for Temporary Restraining Order and/or Preliminary Injunction under the Religious Freedom Restoration Act, and Bivins [sic] Action, La Voz Radio del la Communidad v. FCC, No. 1:98-cv-867 (W.D.Mich. Dec. 7, 1998). According to an October 26, 1999 affidavit of Miguel Toro filed in this action, Toro is a member of the board of directions of the Missionary Church of Christ and the manager and operator of La Voz. Toro states that La Voz is owned and operated by the Missionary Church of Christ, a non-profit and tax exempt Christian church. Both the broadcast studio and transmitting site of La Voz, and the church, are located in the same building at 200 Griggs, S.W. in Grand Rapids. Toro also states that La Voz was founded as a religious broadcast, and as disciples and ministers of the Pentecostal Church, the station is called upon and required to spread the word of the Lord Jesus Christ, as our religion requires.

Additionally, La Voz is called upon to receive the Kingdom of Christ through assistance and help to others. . . . Since the inception of the La Voz broadcast, programming has always focused on Christian religious content . . . Affidavit of Miguel Toro, ¶¶ 4-5. As exhibits to its brief filed on November 1, 1999, La Voz has also submitted the affidavits of five persons, each of whom states that for various reasons (health in particular), they are unable to attend regular church services and therefore rely on the La Voz broadcast to practice and exercise their religion. As an exhibit to its brief, La Voz has also submitted a copy of a December 2, 1998 letter which its counsel sent to the FCC. In the letter, counsel describes La Voz as a community organization devoted to providing a simple and easy access to the airwaves for members of the Hispanic community in Grand Rapids, Michigan, who wish to communicate to the local community cultural, educational, informational, discussion and artistic information that is highly useful to the surrounding Hispanic community.

It is noted that each of these five affidavits is in large part virtually identical to 19 affidavits of listeners which La Voz filed in the prior action, with one exception: while the 19 affidavits filed in the prior action contain no mention that the listeners rely on the broadcasts for religious purposes, each of the five affidavits filed in this action contains two additional paragraphs indicating such.

Although the letter cites the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., it contains no mention of the station being religion-oriented.

ANALYSIS

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the burden of establishing the non-existence of any genuine issue of material fact and may satisfy this burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). While inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion," [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material." Anderson, 477 U.S. at 248.

The United States concedes that in the context of a civil forfeiture action, it bears the initial burden of establishing probable cause for the institution of the action. Probable cause has been defined as "reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. Real Property Known and Numbered as Rural Route 1, Box 137-B, Cutler, Ohio, 24 F.3d 845, 848 (6th Cir. 1994). The statute at issue in this action is the FCA, which prohibits persons from engaging in radio broadcasting in the United States without a license. Specifically, 47 U.S.C. § 301 provides, in pertinent part, that

It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. No person shall use or operate any apparatus for the transmission or energy or communications or signals by radio

(a) from one place in any State, Territory, or possession of the United States or in the District of Columbia to another place in the same State, Territory, possession, or District . . . except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.

The defendant-claimant does not dispute that the equipment seized was used to broadcast or that La Voz had no FCC license for the broadcasts. Therefore, no genuine issue remains regarding whether the equipment was used in violation of the licensing requirement. Section 510 of the FCA authorizes the ex parte seizure of radio equipment used for unlicensed broadcasts. The statute states, in pertinent part, as follows:

(a) Violation with willful and knowing intent

Any electronic, electromagnetic, radio frequency, or similar device, or component thereof, used, sent, carried, manufactured, assembled, possessed, offered for sale, sold, or advertised with willful and knowing intent to violate section 301 or 302a of this title, or rules prescribed by the Commission under such sections, may be seized and forfeited to the United States.

(b) Seizure

Any property subject to forfeiture to the United States under this section may be seized by the Attorney General of the United States upon process issued pursuant to the supplemental rules for certain admiralty and maritime claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made if the seizure is incident to a lawful arrest or search.

(c) Laws applicable to seizure and forfeiture

All provisions of law relating to —

(1) the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws;

(2) the disposition of such property or the proceeds from the sale thereof;

(3) the remission or mitigation of such forfeitures; and

(4) the compromise of claims with respect to such forfeitures; shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section, except that such seizures and forfeitures shall be limited to the communications device, devices, or components thereof.

In defense of the forfeiture, defendant-claimant argues that the seizure of La Voz's equipment violated the RFRA.

The RFRA reads as follows:

(a) In general

Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person —

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

However, not all regulations affecting religious activity fall within the RFRA. Only regulations which substantially burden a person's exercise of religion are governed by the statute. 42 U.S.C. § 2000bb-1(a); Abdur-Rahman v. Michigan Dep't of Corrections, 65 F.3d 489, 492 (6th Cir. 1995).

Reasonable time, place, or manner restrictions upon religious activities do not necessitate the identification of a compelling state interest. Id. (citation omitted).

"Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation." National Broadcasting Corp. v. United States, 319 U.S. 190, 226 (1943). "A religious group, like any other, may buy and operate a licensed radio or television station." King's Garden. Inc. v. Federal Communications Comm'n, 498 F.2d 51, 60 (D.C. Cir. 1958), cert. denied, 419 U.S. 996 (1974). However, the requirement that La Voz obtain a license before broadcasting does not burden anyone's free exercise of religion, much less substantially burden it. The Supreme Court long ago held that "[t]he right of free speech does not include . . . the right to use the facilities of radio without a license." National Broadcasting Corp., 319 U.S. at 227. That result does not change when the basis for the First Amendment claim shifts from the free speech clause to the religion clause of that amendment. As for those filing affidavits who state that they are unable to attend church services, nothing the government has done prevents them from exercising their religion; rather, it is their own physical infirmities or life situations hinder them from doing so. It also goes without saying that none of these persons unable to attend church services has filed a timely claim or answer in this forfeiture action, as required by Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims.

The situations of these persons are in stark contrast with that of incarcerated persons, whose incarceration at the hands of the government causes them to be subjected to restrictions and/or limitations on their right to exercise their religion. Cf. Abdur-Rahman, 65 F.3d at 491.

Because the court concludes that the licensing requirement of 47 U.S.C. § 301 does not as a matter of law substantially burden anyone's free exercise of religion, much less the defendant-claimant's free exercise, consideration of whether the United States has demonstrated that application of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest becomes unnecessary. However, the court feels constrained to note that given that radio frequencies are a limited resource, a compelling interest in maintaining a license requirement cannot reasonably be questioned. Moreover, although defendant-claimant argues to the contrary, the means of furthering that interest — the licensing requirement itself — is the least restrictive means of furthering that interest. In its response to the United States' motion, the defendant-claimant argues that the FCC has five separate actions it can bring against unlicensed operators: (1) an "in house" monetary forfeiture under 47 U.S.C. § 503; (2) an administrative cease and desist order, pursuant to 47 U.S.C. § 312(b) and (c); (3) if a broadcaster ignores an FCC order, application to a district court for enforcement, under 47 U.S.C. § 401(b); (4) have criminal charges filed against the broadcaster, under 47 U.S.C. § 501; and (5) initiate an in rem property seizure and forfeiture, under 47 U.S.C. § 510. Here, the court notes that La Voz was repeatedly warned of the applicable penalties but failed to obey the law. That La Voz would have obeyed a cease and desist order issued by the FCC is questionable, and it cannot be presumed that the station or its owner would have preferred criminal charges to a civil forfeiture.

Defendant-claimant's brief filed November 1, 1999 focuses in part on FCC regulations which purportedly prohibit micro broadcasting.
Defendant-claimant's Brief in Support of Motion for Summary Judgment at p. 13. However, those regulations are not at issue here; instead, what is at issue is the licensing requirement of 47 U.S.C. § 301. If La Voz wished to challenge FCC regulations not at issue in this forfeiture proceeding, the station undoubtedly had a proper forum available to it do so. This is not such a forum. See generally Opinion and Order of Dismissal entered in La Voz v. FCC, No. 1:98-cv-867 (dismissing for lack of subject matter jurisdiction).

The court respectfully rejects the views expressed by the district court in United States v. Any and All Radio Station Transmission Equipment, No. 99-2260, 1999 WL 718646 (E.D.Pa. Aug. 31, 1999), cited by the defendant-claimant. In that case, the court granted summary judgment in favor of the owners of the defendant-in-rem, concluding both (1) that the government had substantially burdened the exercise of religion through its seizure of the property from a church in Lancaster, Pennsylvania, and (2) seizure of the property was not the least restrictive means of furthering the government's compelling interest in preventing radio stations from operating without a license. To the extent that the court's analysis in that case differs from the court's views expressed herein and from applicable precedent which this court is required to follow, the court declines to adopt the reasoning of that case.

La Voz also argues, in defense of the forfeiture, that the ex parte seizure of its property violated its rights under the Fourth and Fifth Amendments. This argument is not persuasive. The property at issue is portable, and was being used in violation of the law. Seizure of such property for purposes of forfeiture has been identified as one of the "extraordinary situations" justifying postponing notice and opportunity for a hearing.

Calero-Toledo v. Pearson Yacht Leasing Co. 416 U.S. 663, 677 (1974). Before authorizing the seizure, a United States magistrate found probable cause to seize the property for forfeiture, and defendant-claimant has filed a claim with the court which is now being addressed, in the context of the pending motions. Its rights have not been violated here.

CONCLUSION

For the foregoing reasons, the court enters summary judgment in favor of the United States.