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LUZ v. F.C.C.

July 20, 1999

RADIO LUZ, ET AL.
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL. RADIO VIDA, ET AL. V. FEDERAL COMMUNICATIONS COMMISSION, ET AL.



The opinion of the court was delivered by: Bartle, District Judge.

MEMORANDUM

For the purposes of a motion to dismiss, all well-pleaded factual allegations in the amended complaint are assumed to be true and are viewed in the light most favorable to the plaintiffs. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). We draw any reasonable inferences from the allegations in plaintiffs' favor. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 (3d Cir. 1994). A complaint should be dismissed only when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon, 467 U.S. at 73, 104 S.Ct. 2229. In deciding a 12(b)(6) motion to dismiss, we may consider documents attached to the complaint, as well as those not formally attached to the complaint if the complaint relies upon those documents and their authenticity is unchallenged. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

The salient facts viewed most favorably to the plaintiffs are as follows. Radio Luz and Radio Vida are nonprofit corporations that operated radio stations in Bethlehem, Pennsylvania and in Lancaster, Pennsylvania, respectively. Both stations broadcast in the Spanish language. Their programs were varied. They included Hispanic culture and religious programs, community events announcements, service announcements, music, news, politics, and "talk-shows." No other radio station in the Bethlehem or Lancaster areas provides coverage of such a nature for the Hispanic community. Significantly, neither station had an FCC license to operate its transmitting equipment.

In June, 1997, Radio Luz started broadcasting at radio frequency 91.5 MHZ and later at 94.7 MHZ. On October 23, 1998, Radio Luz received a letter from the FCC stating that an FCC investigation had revealed that the station was operating unlicensed radio transmitting equipment in violation of federal law. The FCC warned that unlicensed operation should discontinue at once. Failure to do so could subject the owner, operator, or both to "severe penalties." That same day, FCC officers entered the Radio Luz studio and turned off its transmitter. Radio Luz alleges that after October 23 it changed its frequency to 92.1 MHZ, yet it also maintains that it has not broadcast since October 23, 1998. The strength of Radio Luz's radio signal was, and remained at all times, below 100 Watts. On February 23, 1999, the station submitted to the FCC an application for a license. In its application, Radio Luz raised constitutional and statutory challenges to the FCC regulation restricting the issuance of new Class D licenses.*fn2

For its part, Radio Vida began broadcasting in September, 1998 at radio frequency 106.3 MHZ. Like Radio Luz, Radio Vida has always utilized a radio signal of under 100 Watts. In October, 1998, FCC field agents visited Radio Vida at its Lancaster studio and warned it that it was violating federal law by broadcasting without a license. On November 5, 1998, Radio Vida also received a letter from the FCC stating that an FCC investigation had disclosed that the station had been operating an unlicensed radio transmitter in violation of federal law. The FCC demanded that the unlicensed operation cease immediately. It warned of the criminal and civil penalties if such action was not discontinued. On December 16, 1998, Radio Vida received a second warning letter from the FCC. The station applied for an FCC license on March 23, 1999. As in the case of Radio Luz, Radio Vida's application raised constitutional challenges to the FCC regulation restricting the issuance of new Class D licenses.

Radio Luz and Radio Vida both allege that the FCC regulation that restricts the issuance of new Class D licenses, 47 C.F.R. § 73.512 (c), violates their First Amendment rights of free speech and freedom of religion. The regulation reads, in relevant part:

  Except in Alaska, no new Class D applications nor
  major change applications by existing Class D stations
  are acceptable for filing except by existing Class D
  stations seeking to change frequency.

47 C.F.R. § 73.512 (c). In addition to their constitutional arguments, plaintiffs also allege that the regulation violates the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. RFRA provides:

  Government shall not substantially burden a person's
  exercise of religion even if the burden results from a
  rule of general applicability, except . . .
  [g]overnment may substantially burden a person's
  exercise of religion only if it demonstrates that
  application of the burden to the person — (1) is
  in furtherance of a compelling governmental interest;
  and (2) is the least restrictive means of furthering
  that compelling governmental interest.

42 U.S.C. § 2000bb-1 (a), (b). Plaintiffs seek the following remedy:

  a preliminary injunction to allow the station[s] to
  continue to broadcast . . . [their] religious message
  while they challenge the validity of the Federal
  Communication[s] Act (FCA), and to enjoin the Federal
  Communications Commission (FCC) from ex parte seizures
  and in rem forfeitures of Plaintiffs['] radio
  equipment, criminal prosecutions, and/or from seeking
  civil penalties during the pendency of their
  challenge.

Mem. in Supp. of Radio Luz Compl. at p. 1; Mem. in Supp. of Radio Vida Compl. at p.1.

Pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Radio Luz has joined as a defendant an FCC "regional director for the location of Plaintiffs' radio station," Radio Luz Compl. at ¶ 47, and Radio Vida has joined the FCC District Director for the Philadelphia field office, see Radio Vida Compl. at ¶ 44. These officials are sued in their individual and official capacities. See Radio Luz Compl. at ¶ 3; Radio Vida Compl. at ¶ 3. Plaintiffs allege that each federal officer "authorized and executed the violations of Plaintiffs' First Amendment rights and their rights under the RFRA when he notified Plaintiffs that they were broadcasting in violation of the FCC regulations and told . . . ...


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