Ruggiero, Greg v. FCC, et al, No. 00-1100 (D.C. Cir. 2003)

Annotate this Case

This opinion or order relates to an opinion or order originally issued on February 8, 2002.

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, , 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., , 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, (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, , 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, , 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, (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, ,

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, , 482-84

(1989); Los Angeles Police Dep't v. United Reporting Publ'g

Corp., , 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, , 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., , 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, , 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, , 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, , 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, , 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, , 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., , 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, , 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,

, 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, (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, , 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, , 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., , 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., , 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, , 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, , 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., (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, , ___, 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, (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, , 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., (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, , 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, , 484 (1989)

(quoting Broadrick v. Oklahoma, , 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, (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., , 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.

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