**United States Court of Appeals**

**FOR THE EIGHTH CIRCUIT**

**\_\_\_\_\_\_\_\_\_\_\_\_\_**

No. 97-3972

\_\_\_\_\_\_\_\_\_\_\_\_\_

United States of America, \*

> \*

Plaintiff-Appellee, \*

> \*

v\. \*

> \*

Any and all Radio Station \*

Transmission Equipment; Radio \*

Frequency Power Amplifiers, \*

Radio Frequency Test Equipment, \*

and any other equipment associated \*

with or used in connection with the \* Appeal from the United States

transmission at 97.7 MHZ, located \* District Court for the

AT 1400 Laurel Avenue, Apartment \* District of Minnesota

1109, Minneapolis, MN 55403, \*

> \*

Defendants. \*

> \*

Alan Fried, \*

> \*

Claimant-Appellant, \*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \*

National Association of Broadcasters, \*

> \*

Amicus on Behalf of Appellee. \*

> \*

\_\_\_\_\_\_\_\_\_\_\_\_

Submitted: October 19,1999

Filed: March 27, 2000

Before McMILLIAN, NOONAN[^1] and MORRIS SHEPPARD ARNOLD, Circuit Judges

\_\_\_\_\_\_\_\_\_\_\_\_

NOONAN, Circuit Judge.

Alan Fried appeals from a final order entered in the United States
District Court[^2] for the District of Minnesota granting judgment on
the pleadings in favor of the United States, pursuant to Fed. R. Civ. P.
12(c), in its action for in rem forfeiture of certain radio equipment
pursuant to the Communications Act of 1934, as amended, 47 U.S.C. § 510.
[United States v. Any & All Radio Station Transmission
Equipment]{.underline}, 976 F. Supp. 1255 (D. Minn. 1997).

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

For reversal, Fried argues the district court erred in holding that it
lacked subject matter jurisdiction to adjudicate his constitutional
affirmative defenses. For the reasons discussed below, we hold that the
district court has jurisdiction to adjudicate the in rem forfeiture
action, but not jurisdiction to hear Fried's constitutional challenges
to the microbroadcasting regulations. Accordingly we affirm the judgment
of the district court.

BACKGROUND FACTS

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

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

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

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

Fried responded to the warning letter by challenging the
constitutionality of the microbroadcasting regulations and requesting a
waiver of the FCC licensing requirement, but he did not cease operation
of BEAT.

PROCEEDINGS IN DISTRICT COURT

The government brought this in rem forfeiture action in federal district
court. The in rem forfeiture complaint asserted that the district court
had jurisdiction under 28 U.S.C. §§ 1345, 1355, and 47 U.S.C. § 510. In
October 1996, after hearing, the federal magistrate judge[^3] issued a
warrant of arrest and notice in rem commanding the United States marshal
to "arrest" the radio equipment used to operate the unlicensed radio
station. The government gave notice of the arrest by personal service on
Fried and his attorney and by publication. The United States marshal
executed the warrant and seized the radio equipment in early November
1996. Fried filed a claim of ownership of the seized radio equipment and
sought restoration of the equipment. Fried also filed an answer to the
complaint in which he raised several affirmative defenses challenging
the constitutionality of the microbroadcasting regulations. Fried argued
in general that the FCC regulations barring new licenses to
microbroadcasters violated the First Amendment, equal protection and due
process. Fried also argued that the microbroadcasting regulations
violated the Communications Act, 47 U.S.C. § 303(g) (directing the FCC
to encourage larger and more effective use of radio "in the public
interest"), as well as Article XIX of the United Nations Declaration of
Human Rights and Article XIX of the International Covenant on Civil and
Political Rights. Fried did not challenge the constitutionality of the
Communications Act itself. (We note that the Supreme Court upheld the
constitutionality of the Communications Act in [NBC v. United
States]{.underline}, 319 U.S. 190, 227 (1943).)

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

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

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

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

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

district court granted the government's motion for judgment on the
pleadings. This appeal followed.[^4]

STANDARD OF REVIEW

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

JURISDICTION OF THE DISTRICT COURT

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

The government argues that the courts of appeals have exclusive
jurisdiction to review all final orders of the FCC, including orders
deciding applications for broadcast licenses and requests for waivers.
[See]{.underline} 47 U.S.C. § 402(a); 28 U.S.C. § 2342 (the court of
appeals (other than the court of appeals for the Federal Circuit) has
exclusive jurisdiction to enjoin, set aside, suspend (in whole or in
part), or to determine the validity of all final orders of the FCC). The
government argues that the validity of the underlying microbroadcasting
regulations is not at issue in the forfeiture action and that Fried
cannot "bootstrap" a constitutional challenge to the microbroadcasting
regulations into the forfeiture action. The government argues that, by
attempting to bypass first administrative review by the FCC and then
judicial review in the court of appeals, Fried is improperly seeking
what essentially amounts to "pre-enforcement" review of the
microbroadcasting regulations without an adequate administrative record.
The government argues that Fried can raise his constitutional challenges
to the microbroadcasting regulations by filing an application for a
license with a request for a waiver. If his application for a license
and request for a waiver are denied by the FCC, the government argues
that Fried can then appeal to the United States Court of Appeals for the
District of Columbia Circuit, pursuant to 47 U.S.C. § 402(b)(1).
Alternatively, the government argues that Fried can challenge the
constitutionality of the microbroadcasting regulations by filing a
petition for rulemaking pursuant to 47 C.F.R. § 1.01, and, if that
petition is denied, seek judicial review in a court of appeals, pursuant
to 47 U.S.C. § 402(a).

This case is an important one for the statutory scheme created by
Congress for the regulation of broadcasting. No binding authority is a
precise precedent, with the result that the court has a certain leeway
in its interpretation of the jurisdictional provisions of the Federal
Communications Act. However, by close analogy with decided cases, by
out-of-circuit precedent, and by the terms of the statutory scheme, the
district court is without jurisdiction to entertain a challenge to FCC
regulations.

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

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

The Supreme Court has authoritatively determined that the exclusive
jurisdiction of the Court of Appeals over rulemaking by the FCC may not
be evaded by seeking to enjoin a final order of the FCC in the district
court. [ITT]{.underline}, 466 U.S. at 468 (1984). A defensive attack on
the FCC regulations is as much an evasion of the exclusive jurisdiction
of the Court of Appeals as is a preemptive strike by seeking an
injunction. Whichever way it is done, to ask the district court to
decide whether the regulations are valid violates the statutory
requirements. As this court said in applying [ITT]{.underline}: "Where
exclusive jurisdiction is mandated by statute, a party cannot bypass the
procedure by characterizing its position as a defense to an enforcement
action." [Southwestern Bell Telephone v. Ark. Pub. Serv.]{.underline},
738 F.2d 901, 906 (8^th^ Cir. 1984), [vacated and remanded on other
grounds]{.underline}, 476 U.S. 1167 (1986). "The exclusive jurisdiction
of the courts of appeals cannot be evaded simply by labeling the
proceeding as one other than a proceeding for judicial review."
[Id.]{.underline}

The district court is the exclusive forum for a forfeiture.
[See]{.underline} [Moser v. FCC]{.underline}, 46 F.3d 970, 973 (9th
Cir.), [cert. denied]{.underline}, 515 U.S. 1161 (1995); [Dougan v.
FCC]{.underline}, 21 F.3d 1488 (9th Cir. 1994); [Pleasant Broadcasting
Co. v. FCC]{.underline}, 564 F.2d 496 (D.C. Cir. 1977).

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

AFFIRMED.

A true copy.

Attest:

U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

[^1]: The Honorable John T. Noonan, United States Circuit Judge for the
    Ninth Circuit, sitting by designation.

[^2]: The Honorable Michael J. Davis, United States District Judge for
    the District of Minnesota.

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

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