United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2001 Decided February 8, 2002

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 for petitioner Greg
Ruggiero. With him on the briefs was Barbara J. Olshansky.

Jacob M. Lewis, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the briefs
were Robert S. Greenspan, Attorney, Jane E. Mago, Acting
General Counsel, Federal Communications Commission, Dan-
iel M. Armstrong, Associate General Counsel, John E. Ingle,


Deputy Associate General Counsel, C. Grey Pash, Jr. and
Lisa E. Boehley, Counsel.

Before: Henderson, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Henderson.

Tatel, Circuit Judge: In this case, an unlicensed microb-
roadcaster--a "pirate"--challenges the constitutionality of the
Radio Broadcasting Preservation Act of 2000's character
qualification provision, which permanently prohibits anyone
who ever "engaged in any manner in the unlicensed operation
of any station in violation of ... the Communications Act of
1934" from obtaining a low-power FM radio license. To
survive First and Fifth Amendment challenges in this Circuit,
restrictions limiting the future lawful speech of a well-defined
class of broadcasters must be more than "minim[ally] ration-
al[ ]." News Am. Publ'g, Inc. v. FCC, 844 F.2d 800, 812, 814
(D.C. Cir. 1988) ("News America"). Finding nothing in the
Act, its legislative history, or the record before us to justify
the character qualification provision's unique and draconian
sanction for broadcast piracy, nor to explain why a more
limited restriction would not achieve Congress's objective, we
hold that the provision and its implementing regulation fail to
meet this standard and are therefore unconstitutional.

I.

Section 301 of the Communications Act of 1934 makes it
unlawful to operate a radio station without a license issued by
the Federal Communications Commission. 47 U.S.C. s 301.
When the Commission began licensing FM radio stations in
the 1940s, it licensed both high-power stations and low-power,
or "Class D," educational stations operating with a maximum
of ten watts of power. In 1978, however, the Commission
concluded that the Class D stations were impeding expansion
of more efficient high-power operations. Opting to "str[ike]
the balance in favor of licensing higher powered stations to
ensure that large audiences were served," the Commission
stopped licensing low-power stations and required most exist-


ing stations to upgrade to at least 100 watts. Creation of
Low Power Radio Serv., 15 F.C.C. Rcd. 19,208, 19,236 (2000)
("First Low-Power Reconsideration") (recons.) (discussing
the 1978 rule, Changes in the Rules Relating to Noncommer-
cial Educ. FM Broad. Stations, 70 F.C.C.2d 972, 983 (1979)
(codified at 47 C.F.R. s 73.512(d))).

Over the next two decades, often in open defiance of this
rule, individual pirates began operating unlicensed low-power
stations that broadcast local news, music, and commentary.
Known as "microradio," this phenomenon expanded signifi-
cantly in the late 1990s after Congress amended the Telecom-
munications Act to eliminate restrictions on the number of
radio stations any one person or entity could own. Telecom-
munications Act of 1996, Pub. L. No. 104-104, s 202(a), (b),
110 Stat. 56, 110-12 (1996). Following the amendment, own-
ership of licensed radio stations became increasingly concen-
trated, leading--according to microradio proponents--to a
"marked decline in serious local radio news reporting" and a
corresponding increase in the perceived importance and, in
turn, number of unlicensed low-power stations. Pet'r's Br. at
6-7. In response to this microradio expansion, the Commis-
sion cracked down on pirates, ordering them to cease broad-
casting and taking legal action against those who refused.
See, e.g., Grid Radio v. FCC, No. 99-1463, __ F.3d __ (D.C.
Cir. Feb. 8, 2002); United States v. Dunifer, 219 F.3d 1004
(9th Cir. 2000).

In 1999, the Commission again changed course, seeking
public comment on proposed rules that would allow licensing
of low-power stations. The Commission observed that in
contrast to 1978, when it first adopted the microbroadcasting
ban, "[n]ow, ... radio service is widely available throughout
the country and very little spectrum remains available for
new full-powered stations," so licensing low-power stations
could "fill ... gaps in the spectrum that would otherwise go
unused," First Low-Power Reconsideration, 15 F.C.C. Rcd.
at 19,236, providing a "low-cost means of serving" both urban
and rural areas, Creation of Low Power Radio Serv., 14
F.C.C. Rcd. 2471, 2471 (1999) ("Low-Power Proposal") (notice
of proposed rulemaking). Many groups submitted comments,


with students, religious groups, and labor unions generally
supporting the low-power program, and the established
broadcasting industry (including National Public Radio and
other noncommercial broadcasters) opposing it.

In January 2000, the Commission issued an order authoriz-
ing two new classes of low-power stations: 100-watt stations,
reaching a radius of roughly 3.5 miles, and 10-watt stations,
reaching a radius of less than 2 miles. Creation of Low
Power Radio Serv., 15 F.C.C. Rcd. 2205, 2205, 2210-12 (2000)
("First Low-Power Rulemaking"). The order encouraged
local ownership of low-power stations, limited the number of
such stations any single entity could own, required the sta-
tions to operate on a noncommercial, educational basis, and
prohibited existing media entities from holding interests in
them. Id. at 2215-25. The order also included a provision
addressing license applications by broadcast pirates. Con-
cerned that those who had flouted the licensing process in the
past could not be trusted "to deal truthfully with the Commis-
sion and to comply with [its] rules and policies," the Commis-
sion provided that it would only accept low-power applications
from individuals who certified (under penalty of perjury) that
if they had operated illegally in the past, they ceased all such
operations either within twenty-four hours of being directed
by the Commission to do so or within ten days of publication
of the Low-Power Proposal. Id. at 2225-26. The Commis-
sion also extended this requirement to all parties to any
corporate applicant, including the applicant's "parents, its
subsidiaries, their officers and members of their governing
boards." Id. at 2223-26.

This version of the low-power rules was short-lived. Less
than a year after the rules' promulgation, Congress, respond-
ing to broadcast industry lobbying, see, e.g., 146 Cong. Rec.
S8197-8211 (statement of Sen. Grams) (discussing licensed
broadcasters' concerns about the low-power rules), passed the
Radio Broadcasting Preservation Act of 2000 ("RBPA"), Pub.
L. No. 106-553, 114 Stat. 2762 (2000). The RBPA directs the
Commission to amend the low-power rules to limit the fre-
quencies available for low-power stations, thus reducing the
risk of interference to existing stations. Central to this case,


the Act also directs the Commission to deny licenses to all
applicants whose officers or board members ever "engaged in
any manner in the unlicensed operation of any station in
violation" of the Communications Act. Id. s 632(a)(1)(B).
This "character qualification provision" thus eliminates the
distinction the Commission had drawn between those erst-
while broadcast pirates who voluntarily ceased broadcasting
within a specified period and those who refused. The provi-
sion also rescinds the Commission's discretion to waive the
character qualification requirement in cases in which, despite
an applicant's--or a party to an applicant's--unlicensed
broadcasting, the Commission finds no reason to question the
applicant's potential reliability as a licensee. Id.
s 632(a)(2)(B).

Following passage of the RBPA, the Commission issued
rules implementing the Act's character qualification provision.
Creation of Low Power Radio Serv., 16 F.C.C. Rcd. 8026,
2001 FCC LEXIS 1760 (2001) ("Second Low-Power Rule-
making") (amending First Low-Power Rulemaking). Under
the new rules--described by the Commission as "minor
amendment[s]" that merely "codif[y] a Congressional require-
ment"--all pirates and former pirates are automatically and
permanently disqualified from applying for low-power licens-
es. Id., 2001 FCC LEXIS 1760, at *15. Moreover, an
applicant is deemed "ineligible to hold [a low-power] license if
it has engaged in unlicensed operation regardless of whether
the Commission has made a specific finding that the party
has engaged in such conduct." Id., 2001 FCC LEXIS 1760,
at *14 (emphasis added).

II.

Petitioner Greg Ruggiero, an acknowledged former pirate
affiliated with microbroadcasting stations in New York City
and elsewhere, argues that facially and as applied to him, the
character qualification provision and implementing regulation
violate the First and Fifth Amendments to the United States
Constitution. Before considering the merits of Ruggiero's
challenge, we must deal with the Commission's argument that


we lack jurisdiction for two independent reasons: because
Ruggiero failed to file a petition for review, and because he
lacks Article III standing. We consider each in turn.

Petition for Review

Resolving the Commission's first argument requires an
understanding of the history of this case. Ruggiero originally
filed a petition for review of the Commission's First Low-
Power Rulemaking, in which he argued that the then-current
version of the licensing restriction violated both the Adminis-
trative Procedure Act and the First Amendment. Following
passage of the RBPA, we remanded the record to the Com-
mission and directed the parties to file supplemental briefs
addressing Ruggiero's standing to pursue his First Amend-
ment claim, as well as the merits of that claim as applied "to
the Act and any implementing orders or regulations the
Commission may issue." Order of the United States Court of
Appeals for the District of Columbia Circuit at 1 (Jan. 8,
2001) (No. 00-1054) ("Order of Jan. 8, 2001"). After the
Commission issued the Second Low-Power Rulemaking, the
parties submitted the requested supplemental briefs, and we
heard oral argument on Ruggiero's constitutional claims--
expanded by a footnote in Ruggiero's Supplemental Brief to
include a claim under the Fifth Amendment--as applied to
the RBPA and the new rules.

The Commission now argues that because Ruggiero never
filed a petition for review of the Second Low-Power Rule-
making, this court lacks jurisdiction to hear his constitutional
challenge. We disagree. Although it is true that Ruggiero
did not file a second petition for review, he did, as we
directed, file a brief addressing the constitutionality of the
RBPA and the Commission's implementing regulation, and
that brief, in all but title, satisfies the four statutory require-
ments for a petition for review of the Second Low-Power
Rulemaking. Specifically, as required by 28 U.S.C. s 2344,
Ruggiero filed the brief within sixty days of the rulemaking;


stated "the nature of the proceedings as to which review is
sought, ... the facts on which venue is based, ... the
grounds on which relief is sought, and ... the relief prayed";
attached a copy of the challenged rulemaking; and served the
brief on the Commission and the United States Department
of Justice. See generally Pet'r's Supp. Br. at 1-10, App. B,
Certificate of Service. Accordingly, we may treat the brief as
the "functional equivalent" of a petition for review. See
Smith v. Barry, 502 U.S. 244, 248-49 (1992) (internal citations
omitted) (construing pro se brief as notice of appeal and
noting that "[i]f a document filed within the time specified by
Rule 4 gives the notice required by Rule 3, it is effective as a
notice of appeal"); Moore v. United States Dep't of Transp.,
2001 U.S. App. LEXIS 2496, at *12 (7th Cir. Feb. 5, 2001)
(unpublished disp.) (citing Smith v. Barry and construing
brief as "functional equivalent of a timely petition for review"
of agency action).

This liberal construction of 28 U.S.C. s 2344 makes particu-
lar sense in this case. For one thing, as we learned at oral
argument, Ruggiero filed no second petition for review solely
because we had directed him to file a supplemental brief
addressing the applicability of his First Amendment claims to
the RBPA and any subsequent implementing regulations.
See Order of Jan. 8, 2001, at 1; cf. Moore v. South Carolina
Labor Bd., 100 F.3d 162, 163 (D.C. Cir. 1996) (discussing "the
unique circumstances doctrine, under which appellate courts
will excuse an untimely notice of appeal where the appellant
could have filed a timely notice but was misled to delay filing
by a court order or ruling which purportedly extended or
tolled the appeal deadline" (citing, inter alia, Thompson v.
INS, 375 U.S. 384, 387 (1964) (applying the doctrine))).
Moreover, we maintained jurisdiction of Ruggiero's claims
throughout the Commission's implementation of the RBPA,
remanding only the record for further Commission action.
Order of Jan. 8, 2001, at 1; see also D.C. Cir. R. 41(b).
Finally, Ruggiero's original contentions, made in his brief
challenging the First Low-Power Rulemaking, are sufficient-
ly broad to cover at least his First Amendment challenge to
the character qualification provision and implementing regu-
lation. His original brief asserted that the Commission "vio-


lated [his] First Amendment rights in disqualifying [him]
from holding a low power FM radio station license" and that
"[t]he [a]utomatic [d]isqualification [p]olicy [l]acks the [n]ar-
row [t]ailoring [r]equired by the First Amendment." Pet'r's
Br. at 2, 23. These broadly worded objections to the First
Low-Power Rulemaking are equally valid as objections to the
amended rules, as Ruggiero continues to argue primarily that
the Commission violated his First Amendment rights by
automatically disqualifying him and other unlicensed micro-
broadcasters from holding low-power licenses. Cf. Tenn. Gas
Pipeline Co. v. FERC, 871 F.2d 1099, 1109 (D.C. Cir. 1989)
(finding jurisdiction to review claims despite appellant's fail-
ure to file new FERC petition for rehearing because most of
appellant's objections to agency's first decision, raised in
timely petition for review, were "equally valid" as objections
to agency's amended decision).

Standing

In support of its argument that Ruggiero lacks Article III
standing, the Commission relies on two basic facts: First,
although Ruggiero once operated an unlicensed microradio
station, he is not now an applicant for a low-power license,
nor is he associated with any such applicant; and second,
Ruggiero is a resident of New York City where, all concede,
no spectrum space is available for low-power stations. In
response, Ruggiero claims that but for the RBPA's character
qualification provision, he would associate with a low-power
applicant. To support this assertion, he submitted a declara-
tion by the President of a Greenville, South Carolina station
stating that the station has applied for a low-power license
and that "[b]ut for the character qualification provisions[,] ...
[it] would offer [Ruggiero] a position on [its] board of di-
rectors." Wangaza Decl. para. 3. Because the Commission
challenges none of the declaration's factual assertions, we
think Ruggiero has established the prerequisites for Article
III standing: a personal injury (inability to become a director
of the Greenville station), fairly traceable to the challenged
action (the character qualification provision and implementing
regulation), and likely to be redressed by the requested relief
(a declaration that the provision and regulation are unconsti-


tutional). See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992).

We are equally unpersuaded by the Commission's second-
ary standing argument: that Ruggiero is a "poor candidate"
to challenge the character qualification provision because,
given his history of deliberate and willful licensing violations,
the Commission would be unlikely to grant him a license even
in the absence of the provision. This may be true, but it is
irrelevant. Ruggiero alleges only that the RBPA's per se ban
deprives him of the right to compete in the low-power licens-
ing process, and the Supreme Court has held that such
allegations are sufficient for Article III standing. See North-
eastern Fla. Chapter of the Assocd. Gen. Contractors of Am.
v. City of Jacksonville, 508 U.S. 656, 666 (1993) ("When the
government erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for
members of another group, a member of the former group
seeking to challenge the barrier need not allege that he would
have obtained the benefit but for the barrier in order to
establish standing.").

III.

To evaluate the constitutionality of the RBPA's character
qualification provision--and, in turn, the implementing regu-
lation--we must first identify the appropriate level of First
and Fifth Amendment scrutiny. The parties agree, as they
must in view of Red Lion Broadcasting Co. v. FCC, 395 U.S.
367 (1969), that the "scarcity of broadcast frequencies" neces-
sitates that "broadcast regulations receive more lenient [First
Amendment] scrutiny than ones affecting other types of
speech." News Am., 844 F.2d at 811. Going further, the
Commission asserts that under FCC v. National Citizens
Committee for Broadcasting, we should ask only whether the
challenged character qualification provision "is based on con-
sideration of permissible factors and is otherwise reasonable."
436 U.S. 775, 793 (1978) ("NCCB"). We disagree.

To begin with, neither NCCB nor any subsequent Supreme
Court case supports the Commission's position that all "rea-


sonable" broadcasting restrictions automatically pass consti-
tutional muster. NCCB involved both statutory and constitu-
tional challenges to Commission regulations governing cross-
ownership of broadcast stations and daily newspapers in the
same community ("the cross-ownership rules"). Although the
NCCB Court did indeed observe that the Commission has
broad regulatory authority to "issue regulations codifying its
view of the public-interest licensing standard, so long as that
view is based on consideration of permissible factors and is
otherwise reasonable," it made that statement when describ-
ing the Commission's mandate under the Communications
Act. 436 U.S. at 793. Turning to the petitioner's First
Amendment arguments, the Court indicated only that regula-
tion of broadcast frequencies is permissible if the regulation
is content-neutral and preserves "the interests of the 'people
as a whole ... in free speech.' " Id. at 800 (quoting Red Lion
Broad. Co., 395 U.S. at 390). Concluding that the challenged
cross-ownership regulations meet both requirements, the
Court found the regulations "a reasonable means of promot-
ing the public interest in diversified mass communications."
Id. at 802. The Court expressly distinguished broadcast
regulations that turn "on the content of constitutionally pro-
tected speech," however, and said nothing about restric-
tions--like those at issue here--that permanently limit the
speech of certain specific individuals. Id. at 801.

Supreme Court case law since NCCB, moreover, confirms
that some broadcast regulations merit heightened scrutiny.
In FCC v. League of Women Voters, for example, the Court
used intermediate scrutiny to strike down a statute that
banned noncommercial educational stations from "engag[ing]
in editorializing." 468 U.S. 364, 366 (1984). The Court
observed that although "the broadcasting industry ... oper-
ates under restraints not imposed upon other media," restric-
tions that constrain broadcasters' choices about the view-
points presented fail constitutional scrutiny unless "narrowly
tailored to further a substantial governmental interest." Id.
at 380.


Finally, in News America, we expressly rejected rational
basis review as the standard for evaluating the constitutional-
ity of a broadcasting restriction analogous to the one chal-
lenged here. See 844 F.2d at 810-14. In that case, we
confronted a statute that forbade the Commission from ex-
tending existing waivers of the cross-ownership rules. The
provision affected only two such waivers, both held by a
single publisher/broadcaster, Rupert Murdoch. News Amer-
ica's challenges to the provision "l[ay] at the intersection of
the First Amendment's protection of free speech and the
Equal Protection Clause's requirement that government af-
ford similar treatment 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, we continued,
the "prohibition at issue in League of Women Voters [was] at
some remove from pure content, as it forbade 'editorializing'
of any kind by the covered stations[,]" while 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 "the safe-
guards of a pluralistic political system are often absent when
the legislature zeroes in on a small class of citizens[,]" but
wary of League of Women Voters' intermediate-scrutiny stan-
dard, we concluded, "[w]hat suffices for this case is that more
is required than 'minimum rationality.' " Id. at 814. Apply-
ing this heightened rational basis standard to the challenged
provision, we concluded that the provision's narrow focus on
extensions 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. See id. at 814-15.


Like the prohibition at issue in News America, the RBPA's
character qualification provision raises both First Amend-
ment and Equal Protection concerns, as it restricts future
lawful speech (licensed broadcasting) and applies to a limited
class of pirates and former pirates. See 844 F.2d at 812.
True, as the dissent points out, Dissent at 1 n.1, the class of
pirate microbroadcasters is neither "closed" nor as small as
News America's single-member class, but the former class is
well defined (consisting of all pirates), and the character
qualification provision focuses on it "with the precision of a
laser beam." News Am., 844 F.2d at 814. The character
qualification provision, moreover, is far more severe than the
News America prohibition: An unlicensed broadcaster can
never lawfully operate a low-power station anywhere in the
country, whereas even under the News America prohibition,
Rupert Murdoch could lawfully have operated a television
station outside of any community in which he "own[ed] or
control[led] a daily newspaper." Id. at 803; cf. NCCB, 436
U.S. at 800 (holding that the cross-ownership rules do not
"condition receipt of a broadcast license upon forfeiture of the
right to publish a newspaper" because even "[u]nder the
regulations, ... a newspaper owner need not forfeit anything
in order to acquire a license for a station located in another
community"). On the other hand, like the News America
prohibition, the character qualification provision is not purely
content-based, nor does it ban "a form of speech ... that lies
at the heart of First Amendment protection," as did the
prohibition on editorializing at issue in League of Women
Voters. 468 U.S. at 381. As in News America, therefore, we
find ourselves in a middle ground, sure only that the appro-
priate standard is neither NCCB's minimal scrutiny nor
League of Women Voters' intermediate scrutiny. Also as in
News America, however, we need not "exact[ly] characteriz[e]
... the proper standard," for "any that is appreciably more
stringent than 'minimum rationality' requires invalidation of
the challenged [provision]." 844 F.2d at 802.

IV.

The RBPA's meager legislative history suggests that in
enacting the statute's character qualification provision, Con-


gress sought to increase compliance with Commission regula-
tions in two ways: by deterring future operation of unli-
censed stations and by preventing former pirates--who Con-
gress evidently believes would violate other Commission rules
if given the opportunity--from obtaining licenses. See H.R.
Rep. No. 106-567, at 8 (2000) ("[O]peration of an unlicensed
station demonstrates a lack of commitment to follow the basic
rules and regulations which are essential to having a broad-
cast service that serves the public."); 146 Cong. Rec. S613-
S626 (2000) (statement of Senator Gregg) (arguing that per-
mitting pirates to obtain low-power licenses would "reinforce
their unlawful behavior and encourage[ ] future illegal activity
by opening the door to new unauthorized broadcasters"); see
also Resp'ts' Br. at 7-8 ("[T]he statute ... is reasonably
designed to avoid licensing those whose past conduct por-
tends future unlawful behavior."). Accepting the legitimacy
of this broad goal, we nevertheless believe that the character
qualification provision suffers from the same defect that
doomed the statute challenged in News America: The provi-
sion "bears only the most strained relationship to [its ostensi-
ble] purpose." 844 F.2d at 814.

To begin with, the provision is "astonishingly underinclu-
sive," id. at 814, excluding some "conduct that seems indistin-
guishable in terms of [the] ostensible purpose" of increasing
regulatory compliance, id. at 805. Specifically, the provision
bans low-power license applications only from broadcasters
who have operated without a license, leaving the Commission
free to evaluate applications from anyone else under its
preexisting, more permissive character qualification policy.
See Policy Regarding Character Qualifications in Broad. Li-
censing, 102 F.C.C.2d 1179, 1229 (1986), recon. granted in
part and denied in part, 1 F.C.C. Rcd. 421 (1986). As a
result, civil wrongdoers, felons, and even inveterate regulato-
ry violators other than pirates, retain the opportunity to
demonstrate that notwithstanding their offenses, they can
reliably operate microbroadcast stations in the public interest.
In Modesto Broadcast Group, for example, the Commission
considered a license application filed by a station whose


general manager had operated with relatively high, night-
time-authorized power during the day, risking interference
with other stations. 7 F.C.C. Rcd. 3404, 3422 (1992). The
Commission ultimately rejected the application, but only after
considering such factors as the willfulness, duration, and
timing of the general manager's violations--factors that the
RBPA prohibits the Commission from considering in cases
involving pirates who seek microbroadcast licenses. See id.;
see also Alessandro Broad. Co., 99 F.C.C.2d 1, 11 n.13 (1984)
(refusing to disqualify applicant for new broadcast station
permit even though applicant's controlling shareholder had
been convicted of second degree murder because "the crime
was an isolated event that occurred in the remote past and
the state authorities ... [had] determined officially that [the
shareholder was] rehabilitated," so there was "no predictive
nexus between his past crime and his current and future
fitness to be a Commission licensee"); Teleprompter Cable
Sys., Inc., 40 F.C.C.2d 1027, 1028 (1973) (noting that "viola-
tions of Federal antitrust laws are not absolutely disqualify-
ing, but are a circumstance from which the Commission may
draw inferences as to probable future conduct"). Moreover,
the Commission may still grant full-power licenses to stations
affiliated with former unlicensed broadcasters. Neither Con-
gress nor the Commission has articulated any justification for
this double standard. If former misconduct portends non-
compliance with Commission regulations, why shouldn't for-
mer violators of any relevant federal law or regulation be
ineligible to apply for any broadcast license?

Of course, "Congress ordinarily need not address a per-
ceived problem"--here, the possibility of future regulatory
violations by past wrongdoers--"all at once," but we have
rejected this "facile one-bite-at-a-time explanation" for other-
wise inexplicable underinclusiveness in "rules affecting impor-
tant First Amendment values." News Am., 844 F.2d at 815.
Our dissenting colleague omits the latter half of this quoted
passage, arguing that even in the First Amendment context,
Congress may "permissibly tackle a single part of a perceived
problem ... through a statute ... which is neither overinclu-
sive nor underinclusive." Dissent at 2 & n.2. But the
RBPA's underinclusiveness (and indeed its overinclusiveness,


too, as we discuss below) is the precise issue at hand. The
dissent's argument proves too much, relabeling any perceived
underinclusiveness as a permissible attempt to address "a
single part of a perceived problem." Dissent at 2 n.2.

The character qualification provision is poorly aimed for
another reason: It covers circumstances only marginally re-
lated to the purpose of increasing regulatory compliance.
For example, the provision bans applications from former
unlicensed operators who violated the licensing requirement
only briefly or long ago; from operators who have since
exhibited, in whatever manner, an ability to abide by federal
laws and regulations; from operators who plan to serve only
as members of a multi-member board, rather than as presi-
dent or CEO of an applicant station; from operators who
shut down immediately upon receiving a Commission order to
do so; and, most tellingly, from operators who were unaware
of the licensing requirement at the time of the violation.
Again, neither Congress nor the Commission has explained
how a restriction that ignores such factors accurately targets
those former pirates who pose a real risk of future malfea-
sance.

These examples of the character qualification provision's
under- and overinclusiveness are particularly troubling given
the ready availability of a less restrictive and better aimed
alternative: the analogous provision in the First Low-Power
Rulemaking, which allowed for the possibility of waiver in
certain circumstances and applied only to former pirates who
continued to operate in spite of a Commission request to shut
down. Cf. NCCB, 436 U.S. at 802 n.20 ("The reasonableness
of the [challenged cross-ownership] regulations as a means of
achieving diversification is underscored by the fact that waiv-
ers are potentially available from ... [the] rules in cases in
which a broadcast station and a co-located daily newspaper
cannot survive whithout common ownership."); also News
Am., 844 F.2d at 814 (questioning Congress's chosen ap-
proach to the identified problem of "temporary waivers
'creeping' into permanence" and suggesting alternative legis-
lative solutions). Though potentially still underinclusive, such
a limited restriction would not only permit the Commission to
grant a license to rehabilitated former pirates, but more
accurately identify likely future rule-breakers. Indeed,


adopting this limited regulatory restriction in the first place,
the Commission rejected the very per se ban that Congress
has now enacted, see First Low-Power Rulemaking, 15
F.C.C. Rcd. at 2225-26, reasoning that "[t]he reliability as
licensees of parties who ... illegally operated for a time but
... ceased operation after being advised of an enforcement
action ... is not necessarily as suspect" as that of "[p]arties
who persist[ed] in unlawful operation after the Commission
[took] ... enforcement actions," Low-Power Proposal, 14
F.C.C. Rcd. at 2498.

Overall, therefore, we find the character qualification provi-
sion so poorly aimed at maximizing future compliance with
broadcast laws and regulations as to "raise[ ] a suspicion"
that perhaps Congress's "true" objective was not to increase
regulatory compliance, but to penalize microbroadcasters'
"message." News Am., 844 F.2d at 805. Indeed, Ruggiero
expressly alleges viewpoint discrimination, pointing to state-
ments in the record that suggest many former pirates violat-
ed the licensing requirement solely because they questioned
the constitutionality of the now-defunct microbroadcasting
ban and viewed their piracy as "civil disobedience." See, e.g.,
Creation of Low Power Radio Serv., Comment of Civil Rights
Orgs., reprinted in J.A. 325 ("[O]ne who broadcasts openly,
willingly accepting that the government will attempt to shut
her station down, is engaging in an act of civil disobedi-
ence."); Creation of Low Power Radio Serv., Comment of
Professor Robert McChesney, reprinted in J.A. 339 ("The
tremendous demand for microradio is demonstrated by the
emergence of a national Free Radio Movement, widespread
civil disobedience, ... as well as the proliferation of unli-
censed community radio stations ... whose operators broad-
cast at the risk of financial losses, seizure of property, arrest,
and in some cases, imprisonment."). We need neither en-
dorse the pirates' tactics--in fact, in Grid Radio, slip op. at
11-12, __ F.3d __, (also issued today), we reject an argument
that penalizing microbroadcasting piracy violates the First
Amendment--nor believe the RBPA discriminates against
pirates' "message" to conclude, as we did in News America,
that the provision's inaccurate aim is fatal.

We emphasize that this result does not leave Congress and
the Commission powerless to bar some past pirates from


applying for licenses. While that might well be the outcome
were we applying intermediate scrutiny, we read News Amer-
ica's more permissive standard as leaving ample room for a
carefully aimed licensing restriction. Indeed, the Commis-
sion already has authority under its general character qualifi-
cation provision to deny licenses to individual pirates who, in
the Commission's considered judgment, have demonstrated
an inability to "comply with the Communications Act and
[Commission] rules and policies." Policy Regarding Charac-
ter Qualifications in Broad. Licensing, 102 F.C.C.2d at 1183.
Even under the News America standard, however, we cannot
sanction an automatic and permanent restriction on unli-
censed broadcasters' future lawful speech without under-
standing why their misdeeds warrant a penalty so much more
severe than that applied to any other misconduct. Yet nei-
ther the RBPA itself, nor the legislative history, nor the
record in this case provides a satisfactory explanation. We
thus have no choice but to declare the statute and the
Commission's implementing regulation unconstitutional.

V.

The petition for review is granted, the Second Low-Power
Rulemaking is vacated, and this matter is remanded to the
Commission for further proceedings not inconsistent with this
opinion.

So ordered.


Karen LeCraft Henderson, Circuit Judge, dissenting:

I dissent from the majority's holding that the challenged
provision of the Radio Broadcasting Preservation Act (Act)--
withholding future low power FM (LPFM) licenses from
those who have illegally engaged in LPFM broadcasting in
the past--falls short of the "something more than minimum
rationality"standard adopted in News America Publishing,
Inc. v. FCC, 844 F.2d 800 (D.C. Cir. 1988). Quoting News
America, the majority charges that the Act's license restric-
tion is so "poorly aimed at maximizing future compliance with
broadcast laws and regulations as to 'raise[ ] a suspicion' that
perhaps Congress's true objective was not to increase regula-
tory compliance, but to penalize pirate microbroadcasters'
'message.' " Maj. Op. at 16 (quoting 844 F.3d at 805). This
case, however, is nothing like News America.

In News America the court overturned a funding resolution
that barred the FCC from using appropriated funds " 'to
extend the time period of current grants of temporary waiv-
ers to achieve compliance with such rules.' " 844 F.2d at 802
(quoting Pub. L. No. 100-202, 101 Stat. 1329, 34 (1987)). The
court found the provision "astonishingly underinclusive" for
two reasons. First, it did not prohibit extension of waivers
granted after its enactment but only of those already in
existence. Second, it forbade only extensions of existing
waivers and not the granting of new waivers. In fact, be-
cause of its narrow focus the restriction affected only a single
party, News America Publishing, Inc., a corporation owned
by Rupert Murdoch, striking him, in the court's words, "with
the precision of a laser beam." 844 F.2d at 814. By contrast,
the license restriction here applies to the entire class of those
who as of the time of their license applications have unlawful-
ly engaged in LPFM broadcasting.1 Further, the restriction
substantially furthers the plain intent of the Congress which

__________
1 This class includes persons who broadcast illegally after the
Act's passage as well as those who had already done so before
enactment. It is therefore not a "closed" class as was the case in
News America. See 844 F.2d at 810 & n. 13 (noting that challenged
provision "impinges on a closed class" because "Murdoch is not only
the sole current member of the class, but is the sole party that can
ever be a member").

believed that "the operation of an unlicensed station demon-
strates 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."
H.R. Rep. No. 506 at 8 (2000). What could be more reason-
able or logical than to suspect that those who ignored the
Commission's LPFM broadcast regulations in the past are
likely to do so in the future and therefore to head them off.
The majority claims this class is underinclusive because it
excludes a host of other scofflaws such as "civil wrongdoers,
felons, and even inveterate regulatory violators other than
pirates." Maj. Op. at 13. As the majority acknowledges,
however, " 'Congress ordinarily need not address a perceived
problem ... all at once.' " Maj. Op. at 14 (quoting News
America, 844 F.2d at 815.).2 It is no surprise that in legisla-
tion addressing LPFM licensing the Congress began with
known violators of LPFM regulations. In any event, given
that the class's members here are many and unidentified, see
supra note 1, I am at a loss to understand how we can infer

__________
2 As the majority points out, the court in News America noted
other courts' rejection of the "one-bite-at-a-time explanation for
rules affecting important First Amendment values." News Amer-
ica, 844 F.2d at 815, quoted in Maj. Op. at 14. Judging from the
examples cited in News America, the court meant only that a
proffered governmental interest will not suffice if the challenged
statute does not reasonably serve the interest, that is, if the statute
is underinclusive or overinclusive or both. See FCC v. League of
Women Voters, 468 U.S. 364, 396 (1984) (striking down statute of
"patent overinclusiveness and underinclusiveness" because it "clear-
ly 'provide[d] only ineffective or remote support for the govern-
ment's purpose.' ") (quoting Central Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 564 (1980)); Community-
Serv. Broadcasting v. FCC, 593 F.2d 1102 (D.C. Cir. 1978) (reject-
ing statute that "[a]t best ... serves as an overly restrictive means"
of achieving asserted purpose) (en banc). I see no reason the
legislature cannot permissibly tackle a single part of a perceived
problem (including one touching on the First Amendment) through
a statute, such as the one here, which is neither overinclusive nor
underinclusive.


the Congress intended to punish any particular "message" the
way the senators mentioned in News America targeted Mur-
doch's message.3

__________
3 As the News America court recounted, Murdoch was thoroughly
excoriated in the Senate shortly after the Act was passed. See
News America, 844 F.2d at 807-10.