SARAH JONES, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION

SARAH JONES, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION and MICHAEL POWELL, in his official capacity as CHAIRMAN OF THE FEDERAL COMMUNICATIONS COMMISSION, Defendants. 02 CIV. 693 (DLC) United States District Court, S.D. New York September 4, 2002

Edward H. Rosenthal, Kesari Ruza, Frankfurt Garbus Kurnit Klein & Selz, P.C., New York, NY, Attorneys for the Plaintiff.

Elliot M. Mincberg, Lawrence S. Ottinger, People for the American Way Foundation, Washington, D.C., Attorneys for the Plaintiff.

Daniel S. Alter, Assistant United States Attorney, New York, NY, Attorney for the Defendants.

OPINION AND ORDER

DENISE COTE, United States District Judge Songwriter and performer Sarah Jones ("Jones") has filed this action to challenge the issuance by the Federal Communications Commission ("FCC") of a Notice of Apparent Liability for Forfeiture ("NAL"). The FCC issued the NAL against a radio station for playing Jones's song "Your Revolution" (the "Song") on October 20, 1999. Jones claims that the NAL — which gave notice to the radio station that the FCC may seek a forfeiture of $7,000 from the radio station for its broadcasting of indecent language — has injured her reputation and chilled her speech. The NAL was issued on May 14, 2001, and the FCC has not yet issued a final forfeiture order. The FCC moves to dismiss this complaint, filed on January 29, 2002, on a variety of grounds, including the absence of final agency action and the lack of jurisdiction in this Court over Jones's claims. The FCC contends that Jones may pursue her claims by filing a request with the FCC for action pursuant to 47 C.F.R. § 1.41, and if unhappy with either the decision of the FCC on her request or any delay by the FCC in reaching her request, must appeal to the circuit courts, where exclusive jurisdiction resides for review of agency decisions. For the reasons that follow, the motion to dismiss is granted.

BACKGROUND

According to the complaint and its attachments, on October 20, 1999, KBOO, a Portland, Oregon radio station played the Song. On February 6, 2001, the FCC notified KBOO that it had received a complaint that the station had broadcast indecent material. Following receipt of KBOO's response, which included Jones's declaration that the Song was a parody of music that degrades women, the FCC issued a NAL on May 14. The NAL gave notice that the FCC found that KBOO had willfully broadcast indecent language in violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. It concluded that KBOO was "apparently liable for a forfeiture" of $7,000. On July 8, KBOO opposed the NAL. The matter remains pending before the FCC, which has not issued a final decision. In her complaint, Jones challenges the constitutionality of the FCC regulations concerning the issuance of NALs as applied in this case, argues that the NAL issued here is an unconstitutional prior restraint on her speech, and contends that the FCC has violated its own regulations by finding the Song indecent. She claims that the NAL has damaged her reputation and livelihood and is chilling the broadcasting of certain music. She seeks a declaration that the Song is not indecent and that her First and Fifth Amendment rights have been violated, as well as an injunction against any further FCC enforcement proceedings related to the Song. The FCC enforcement scheme at issue here is contained in Sections 503(b)(4) and 504(a) of Title 47 of the United States Code. The FCC is empowered to impose forfeiture penalties on anyone who "utters any obscene, indecent, or profane language by means of radio communication." 18 U.S.C. § 1464. Section 504(a) of Title 47, United States Code, provides that any forfeiture "shall be recoverable . . . in a civil suit . . . brought in the district" where the person required to pay the forfeiture operates. 47 U.S.C. § 504(a). Apart from this and other limited exceptions not relevant here, jurisdiction over final FCC orders is exclusively vested in the Courts of Appeals. Section 402(a) of Title 47, United States Code, provides that "[a]ny 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). That chapter, in turn, provides that the Courts of Appeals have "the exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final order of the Federal Communications Commission made reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1).

DISCUSSION

1. Absence of Final Agency Action The FCC has not yet issued a final order of forfeiture. KBOO's objection to the NAL is pending before the FCC, an objection that includes Jones's defense of her Song and her contention that it is not indecent. There is a "strong presumption that judicial review will be available only when agency action becomes final." Bell v. New Jersey, 461 U.S. 773, 778 (1983); see also Air Espana v. Brien, 165 F.3d 148, 152 (2d Cir. 1999) (fine imposed in INS regulatory scheme not final until there is a ruling and administrative challenges to the ruling are exhausted or waived). Premature intervention by the courts during the administrative review process "denies the agency an opportunity to correct its own mistakes and to apply its expertise." Fed. Trade Comm'n v. Standard Oil Co., 449 U.S. 232, 242 (1980).

To the extent that Jones is complaining of the delay in the FCC decision on the objection to the NAL, she may bring her own request for FCC action pursuant to 47 C.F.R. § 1.41, which provides that "[e]xcept where formal procedures are required under the provisions of this chapter, requests for action may be submitted informally." 47 C.F.R. § 1.41. The FCC has the power to issue "a declaratory ruling terminating a controversy or removing uncertainty." Id. at § 1.2; see also Fed. Comm. Comm'n v. ITT World Comm., Inc., 466 U.S. 463, 468 n. 5 (1984). Any appeal from a decision on that request, including any claim that the FCC has failed to act on the request in a timely fashion, must be brought in the circuit court. See Ill. Citizens Comm. for Broad. v. Fed. Comm. Comm'n, 515 F.2d 397, 401, 403 (D.C. Cir. 1975) (approving circuit review of FCC response to petition by public interest groups that FCC remit fine imposed on a broadcaster); see also Telecomm. Research & Action Ctr. v. Fed. Comm. Comm'n ("TRAC"), 750 F.2d 70, 75-76 (D.C. Cir. 1984) (circuit court has exclusive jurisdiction over claim of unreasonable delay by FCC).

2. Absence of Jurisdiction

As described above, Congress has vested exclusive jurisdiction to review final FCC orders in the Courts of Appeals. See, e.g., ITT World, 466 U.S. at 468; In re Fed. Comm. Comm'n, 217 F.3d 125, 140 (2d Cir. 2000); Cellular Phone Taskforce v. Fed. Comm. Comm'n, 205 F.3d 82, 89 (2d Cir. 2000). The narrow statutory exception to this exclusive grant of jurisdiction, an exception for the enforcement of FCC forfeiture orders, see Action for Children's Television v. Fed. Comm. Comm'n ("ACT"), 59 F.3d 1249, 1256 (D.C. Cir. 1995); Pleasant Broad. Co. v. Fed. Comm. Comm'n, 564 F.2d 496, 500 (D.C. Cir. 1977), does not vest a district court with jurisdiction over Jones's claims. Beyond the limited grant to the district courts of jurisdiction over forfeiture orders, the Communications Act of 1934, 47 U.S.C. § 151 et seq., "cuts off original jurisdiction" in those courts in all other cases. TRAC, 750 F.2d at 77. The plaintiff relies on ACT to support her assertion that this Court has jurisdiction over her First Amendment claim. In ACT, a broadcaster sued the FCC in district court, challenging the FCC's delay in concluding forfeiture proceedings that had been initiated against the broadcaster. The broadcaster argued that the FCC's issuance of a NAL followed by delay in concluding forfeiture proceedings "allows the FCC to take action against [it] without affording [it] the procedural safeguards necessary to avoid any abridgment of [its] first amendment rights.” ACT, 59 F.3d at 1255.[fn1] The District of Columbia Circuit Court held that the district court had jurisdiction over the suit because it "would have original jurisdiction over an FCC forfeiture proceeding." Id. at 1256.

Jones analogizes the facts of her case to those in ACT and maintains that she should similarly be allowed to bring a constitutional challenge to the FCC's delay in concluding forfeiture proceedings in district court. Unlike the broadcaster in ACT, however, Jones will not be subject to a forfeiture order, should one be issued. In cases in which the plaintiff is not the subject of the forfeiture order, the circuit court has jurisdiction. See, e.g., Ill. Citizens, 515 F.2d at 403. Consequently, this Court lacks jurisdiction over Jones's claims.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss is granted. The Clerk of Court shall close the case.

SO ORDERED.

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