United States of America v. Any

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0069P (6th Cir.)
File Name: 00a0069p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
98-2129
UNITED S TATES OF AMERICA ,
Plaintiff-Appellant,
v.
ANY AND ALL R ADIO
S TATION TRANSMISSION
EQUIPMENT , R ADIO
FREQUENCY P OWER
AMPLIFIERS, R ADIO
FREQUENCY TEST EQUIPMENT
AND ANY OTHER EQUIPMENT
ASSOCIATED W ITH OR USED
IN C ONNECTION W ITH THE
TRANSMISSION AT 97.7 MHZ,
LOCATED AT 2903 BENT OAK
HIGHWAY , ADRIAN ,
M ICHIGAN ,
Defendant-Appellee,
R ICK S TRAWCUTTER,
Claimant-Appellee.
;>

Nos. 98-2129/2396

-- 1 of 10 --

2 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
98-2396
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
ANY AND ALL R ADIO
S TATION TRANSMISSION
EQUIPMENT , R ADIO
FREQUENCY P OWER
AMPLIFIERS, R ADIO
FREQUENCY TEST EQUIPMENT
AND ANY OTHER EQUIPMENT
ASSOCIATED W ITH OR USED
IN C ONNECTION W ITH THE
R ADIO TRANSMISSIONS ON
FREQUENCY 95.9 MHZ,
LOCATED AT 3968 W EST
VERNOR HIGHWAY , DETROIT ,
M ICHIGAN 48216,
Defendant-Appellant,
M AQUINA M USICAL,
INCORPORATED ,
Claimant-Appellant,
J UAN V. M ARINEZ, C ATALINA
M ARTINEZ, IGNACIO C AMPOS,
J ORGE C ANCHOLA , S ERGIO
VALLEJO ,
Intervenors-
Counterplaintiffs-Appellants.

1

-- 2 of 10 --

18 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
28 U.S.C. § 1291 in the absence of special factors, none of
which are present here. Cf. Lickiss v. Drexler, 141 F.3d 1220,
1222 (7th Cir.) (noting that a denial of a motion to dismiss
based on qualified immunity is considered a final, appealable
order if there are no material facts in dispute, because part of
the harm sought to be averted by the doctrine of immunity is
the necessity of standing trial), cert. denied, 119 S. Ct. 513
(1998). The denial is also not an immediately appealable
interlocutory order within the meaning of 28 U.S.C.
§ 1292(a)(1). Finally, the doctrine of pendent appellate
jurisdiction does not apply, because the issue of whether
Maquina Musical’s motion for a preliminary injunction
should have been granted is not “coterminous with, or
subsumed in” the issue of whether its motion to dismiss the
government’s complaint should have been granted. See
Brennan v. Twp. of Northville, 78 F.3d 1152, 1158 (6th Cir.
1996). We therefore find no basis to consider Maquina
Musical’s motion to dismiss as part of the present appeal.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
judgment of the district court in No. 98-2129 (Strawcutter),
which dismissed the government’s forfeiture case sua sponte
pursuant to the doctrine of primary jurisdiction, and
REMAND the case for further proceedings. We REMAND
No. 98-2396 (Maquina Musical) to the district court for
reconsideration in light of its determination that the doctrine
of primary jurisdiction precluded it from considering Maquina
Musical’s “constitutional defenses” to the government’s
forfeiture action. Concerning Maquina Musical’s appeal from
the district court’s denial of its motion to dismiss the
government’s forfeiture complaint, we DISMISS the appeal
for lack of jurisdiction.
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
3
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 97-73527; 98-74368—Julian A. Cook, Jr. and
Patrick J. Duggan, District Judges.
Argued: December 10, 1999
Decided and Filed: February 25, 2000
Before: JONES, COLE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Jacob M. Lewis, U.S. DEPARTMENT OF
JUSTICE, CIVIL DIVISION, APPELLATE STAFF,
Washington, D.C., for United States of America. Patrick M.
E d w a r d s , C O N S T IT U T IO N A L L I T I G A T I O N
ASSOCIATION, Detroit, Michigan, for Claimants.
ON BRIEF: Jacob M. Lewis, Robert S. Greenspan, U.S.
DEPARTMENT OF JUSTICE, CIVIL DIVISION,
APPELLATE STAFF, Washington, D.C., for United States
of America. Kevin S. Ernst, Detroit, Michigan, Katharine M.
Omansiek, Detroit, Michigan, for Appellants. Patrick M.
E d w a r d s , C O N S T IT U T IO N A L LI T I G A T I O N
ASSOCIATION, Detroit, Michigan, for Claimants.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. The principal
question presented by these consolidated appeals is whether,
under the doctrine of primary jurisdiction, district courts may
decline to adjudicate in rem forfeiture actions brought by the
United States against persons who operate radio stations
without licenses. For the reasons set forth below, we
conclude that the answer is no. We therefore REVERSE the

-- 3 of 10 --

4 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
judgment of the district court in No. 98-2129 (Strawcutter),
which dismissed the government’s forfeiture case sua sponte
pursuant to the doctrine of primary jurisdiction, and
REMAND the case for further proceedings. We also
REMAND No. 98-2396 (Maquina Musical) to the district
court for reconsideration in light of its determination that the
doctrine of primary jurisdiction precluded it from considering
Maquina Musical’s “constitutional defenses” to the
government’s forfeiture action. Concerning Maquina
Musical’s appeal from the district court’s denial of its motion
to dismiss the government’s forfeiture complaint, we
DISMISS the appeal as premature.
I. BACKGROUND
A. No. 98-2129 (Strawcutter)
On November 12, 1996, the manager of a licensed FM
radio station in Toledo, Ohio telephoned the Federal
Communications Commission (FCC) and complained that the
signal from a radio station identifying itself as “Radio Free
Lenawee” was interfering with his station’s signal. During
the preceding two weeks, a number of other persons had also
complained to the FCC’s Detroit office about Radio Free
Lenawee’s transmissions.
On November 14, 1996, the FCC sent a field agent to
investigate the complaints. An unlicensed radio station
identifying itself as Radio Free Lenawee was found to be
broadcasting from a building at 2903 Bent Oak Highway, in
Adrian, Michigan, at a frequency of 97.7 megahertz. The
FCC later determined that Radio Free Lenawee was
broadcasting at a strength of 29,625 microvolts per meter at
a distance of over half a mile, far exceeding that permitted for
unlicensed radio stations (a maximum of 250 microvolts per
meter at a distance of three meters). See 47 C.F.R.
§ 15.239(b).
Rick Strawcutter, Radio Free Lenawee’s owner and
operator, took the position that he had a constitutional right to
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
17
district court’s conclusion. As previously stated in Part
II.B.1.a. above, nobody has a First Amendment right to hear
radio broadcasts from a station that does not have a First
Amendment right to broadcast them.
d. Public interest
Finally, the district court concluded that the public interest
did not favor granting the injunction because the government
has an interest in the uniform and consistent application of the
Communications Act. Maquina Musical argues that “the
district court erred as a matter law and fact” because the
“policy of free speech is the very cornerstone of a democratic
society.” This is undoubtedly true, but we think that Maquina
Musical avoids the issue by defining the question
considerably more abstractly than the Supreme Court has
been willing to do. As noted above, the Court has made it
quite clear that unlicensed broadcasting is not considered free
speech protected by the First Amendment. See Part II.B.1.a.
above.
We express no opinion on whether the constitutionality of
the challenged FCC regulation is an appropriate consideration
in deciding the merits of this case. The district court may
have been right when it concluded that even if the challenged
regulation is unconstitutional, the statute is valid, and that
Maquina Musical’s violation of the statute is the beginning
and end of the government’s forfeiture case. But before this
court decides the issue, it should be resolved on the merits by
the district court. We will therefore remand this case to the
district court so that it can determine whether it wishes to
adhere to its reasoning in light of its ability to consider the
constitutionality of the FCC regulations.
2. Motion to dismiss
Maquina Musical is also appealing from the portion of the
district court’s order that denied the station’s motion to
dismiss the government’s complaint. An order denying a
motion to dismiss is not a “final decision” appealable under

-- 4 of 10 --

16 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
Currency, 985 F.2d 245, 250 (6th Cir. 1993) (applying the
Fourth Amendment exclusionary rule in a forfeiture case).
We believe that this makes it even less likely that Congress
enacted a statute that allows the government to forfeit a
person’s property while denying the owner the right to defend
himself by challenging the legal basis of the government’s
forfeiture case.
Although we conclude that the district court erred in
holding that it lacked jurisdiction to adjudicate Maquina
Musical’s arguments, this does not mean that Maquina
Musical is any closer to demonstrating that it is likely to
succeed on the merits. With one exception, the cases
Maquina Musical relies upon for the boilerplate propositions
that restrictions on First Amendment rights must be “narrowly
tailored” and that “prior restraints” on protected free speech
are presumptively invalid have nothing to do with radio
broadcasting, much less with unlicensed radio broadcasting.
The one exception is FCC v. League of Women Voters of
California, 468 U.S. 364 (1984), which concerned the
constitutionality of a statute prohibiting licensed broadcasters
that accepted federal funding from engaging in
“editorializing.” Even in that opinion, the Court repeatedly
observed that broadcasting may legitimately be regulated in
ways that would be unconstitutional in other contexts. See id.
at 374 (“[B]ecause broadcast regulation involves unique
considerations, our cases have not followed precisely the
same approach that we have applied to other media”).
c. Substantial harm to others
The district court concluded that it did “not believe that the
absence of Hispanic radio programming outweighs what
would amount to judicial sanction of an unlicensed radio
station.” This appears to be more a weighing of the
“substantial harm” factor against the “public interest” factor
than strictly a consideration of whether the inability of
Maquina Musical’s audience to hear the station’s broadcasts
constitutes substantial harm. We agree, however, with the
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
5
continue his radio broadcasts without interference from the
government. FCC inspectors sought to inspect Radio Free
Lenawee’s premises. Strawcutter refused them permission to
do so. The FCC notified Strawcutter by letter that he was
violating the Communications Act of 1934, 47 U.S.C. §§ 151-
614. Specifically, the letter stated that (1) the station’s
broadcast strength exceeded the maximum allowed by 47
C.F.R. § 15.239(b), (2) the station was violating 47 U.S.C.
§ 301 because it was operating an unlicensed transmitter, and
(3) operating a transmitter without a license subjects the
operator to the criminal penalties described in 47 U.S.C.
§ 501. Strawcutter responded with a letter in which he
explained that he had “come to a sincerely held conclusion
that the [FCC] in reality has no Constitutional regulatory
power over FM stations which run a power level less than 100
watts.”
Between the end of November of 1996 and the end of
February of 1997, the FCC conducted six field tests. Those
tests established that Radio Free Lenawee, which was still
unlicensed, was continuing to transmit, and was doing so in
excess of the permissible signal strength.
On July 22, 1997, the government filed in the United States
District Court for the Eastern District of Michigan a
complaint in which it sought, pursuant to 47 U.S.C. § 510(a),
the civil in rem forfeiture of the radio transmission equipment
located at 2903 Bent Oak Highway, the source of Radio Free
Lenawee’s broadcasts. Strawcutter filed a claim of ownership
on August 5, 1997, and an answer approximately two weeks
later. In his answer, Strawcutter asserted that the FCC
regulation that prohibits unlicensed “microbroadcasting” was
invalid because it violated his rights under the First
Amendment, the Equal Protection and Due Process Clauses
of the Fifth Amendment, Article XIX of the United Nations
Declaration of Human Rights, and Article XIX of the
International Covenant on Civil and Political Rights. He also
argued that the FCC regulation is inconsistent with its
statutory mandate to “encourage the larger and more effective

-- 5 of 10 --

6 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
use of radio in the public interest,” as set forth in 47 U.S.C.
§ 303(g).
Strawcutter’s arguments centered around the FCC
regulations found at 47 C.F.R. Part 73. Those regulations
classify FM radio broadcast licenses as Class A, Class B,
Class C, or Class D, depending on the station’s transmission
power, antenna height, and the area or place from which the
broadcasts emanate. See 47 C.F.R. §§ 73.210-.211. The FCC
once granted Class D licenses to “microbroadcasters,” but in
1978 adopted a regulation effectively preventing new Class D
stations from operating, except in Alaska. See 47 C.F.R.
§ 73.512(c) (providing that no new Class D applications
would be accepted, except in Alaska or by existing Class D
stations seeking to change frequency).
We note that during the pendency of this appeal, the FCC
has changed its position on microbroadcasting. See In the
Matter of Creation of a Low Power Radio Service, FCC 99-6,
14 FCCR 2471, at ¶ 1 (released Feb. 3, 1999) (proposing the
creation of two new classes of low-power FM radio stations,
and seeking comment “on whether to establish a third,
‘microradio’ class of low power radio service that would
operate in the range of 1 to 10 watts.”); In the Matter of
Creation of Low Power Radio Service, FCC 00-19, — FCCR
—, 2000 WL 85304, at ¶ 1 (released January 27, 2000)
(authorizing, among other things, the licensing of low-power
FM stations operating at a maximum of 10 watts).
Notwithstanding this change in policy, however, Strawcutter
apparently will still not be eligible for a broadcasting license.
See In the Matter of Creation of Low Power Radio Service,
2000 WL 85304, at ¶¶ 51-55 (announcing that
microbroadcasters who had broadcast without licenses in the
past will now be eligible for low-power broadcast licenses,
but only if they voluntarily ceased broadcasting no later than
February 26, 1999 “without specific direction to terminate by
the FCC,” or ceased broadcasting within 24 hours after being
advised to do so by the FCC).
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
15
Maquina Musical also contends that the FCC regulation
announcing the moratorium on Class D licenses, 47 C.F.R.
§ 73.512(c), was an unconstitutional prior restraint on speech.
In response, the government argues that even if the regulation
was ultimately held to be unconstitutional, it would not
matter, because the government’s forfeiture case begins and
ends with Maquina Musical’s violation of 47 U.S.C. § 301.
The district court concluded, however, that it lacked
jurisdiction to entertain Maquina Musical’s constitutional
defenses because 28 U.S.C. § 2342 provides that the courts of
appeals have exclusive jurisdiction “to enjoin, set aside,
suspend . . . or to determine the validity of . . . all final orders
of the [FCC] . . . .”
We disagree, “for the simple reason that no FCC order is
being challenged.” United States v. Any and All Radio
Station Transmission Equipment (Laurel Avenue), 169 F.3d
548, 554 (8th Cir.) (M. Arnold, J., concurring in the result),
reh’g granted, 182 F.3d 1026 (8th Cir. 1999). Indeed, as
Judge Morris Arnold said in his short but well-reasoned
opinion in Laurel Avenue: “Until today I had not supposed
that anyone could plausibly maintain that any court of the
United States, properly seized of jurisdiction of a suit, did not
also have jurisdiction to consider constitutional defenses to
that suit.” See Laurel Avenue, 169 F.3d at 554 (M. Arnold, J.,
concurring in the result). Laurel Avenue involved facts that
are virtually identical to those of the present case, in that the
government sought the in rem forfeiture of an unlicensed
microbroadcaster’s radio transmission equipment.
Congress presumably could have created a streamlined
forfeiture remedy that excluded certain defenses by giving
claimants the opportunity to raise those defenses in some
other forum. But it did not do so. Forfeiture actions,
although nominally civil, are quasi-criminal in nature. See
One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 700
(1965). As a consequence, some of the protections to which
criminal defendants are entitled also apply in forfeiture cases.
See, e.g., United States v. $53,082.00 in United States

-- 6 of 10 --

14 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
court erred on the side of overgenerosity to Maquina Musical
in assessing whether it had demonstrated a risk of irreparable
harm. Cf. Free Speech ex rel. Ruggiero, 200 F.3d at 65
(concluding that the government had established that it would
suffer irreparable harm without an injunction “simply by
establishing that plaintiffs were broadcasting without a
license”).
b. Likelihood of success on the merits
The district court found that Maquina Musical had not
demonstrated that it was likely to prevail on the merits. In
reaching this conclusion, the district court noted that it was
undisputed that Maquina Musical had broadcasted without a
license and, indeed, that it had never applied for a license, a
waiver, or an amendment to the pertinent FCC regulations
barring microbroadcasting. This, the district court concluded,
was sufficient for the government to establish probable cause
that Maquina Musical had violated 47 U.S.C. § 301 (which
prohibits radio broadcasting without a license) and, by
extension, that its broadcasting equipment was subject to
forfeiture under 47 U.S.C. § 510(a), which subjects to
forfeiture “any electronic, electromagnetic, radio frequency,
or similar device, or component thereof . . . used . . . with
willful and knowing intent to violate [47 U.S.C. §] 301 [or
FCC regulations promulgated under § 301].”
Because Maquina Musical produced absolutely no evidence
to rebut its violation of a facially valid federal statute, we
believe that the district court was correct in its ultimate
conclusion that the station had failed to demonstrate that it
was likely to succeed on the merits. See United States v.
Certain Real Property 566 Hendrickson Blvd., Clawson,
Oakland County, Mich., 986 F.2d 990, 995 (6th Cir. 1993)
(noting that in forfeiture cases, the government is entitled to
a judgment of forfeiture upon an unrebutted showing of
probable cause).
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
7
On June 9, 1998, the government moved for summary
judgment, taking the position that it was entitled to summary
judgment as a matter of law because there was no material
issue of fact—indeed, the facts were essentially
uncontroverted—as to whether Strawcutter had broadcast
without a license despite being warned by the FCC that it was
unlawful for him to do so. The only disputed issues were the
validity of the regulations that Strawcutter concededly
violated, and whether the authorizing statutes were
unconstitutional or in conflict with a treaty. Those issues, the
government argued, were part of a “regulatory challenge” that
was “not justiciable” in the district court, because “Congress
vested exclusive jurisdiction in the United States Courts of
Appeals, whether that review involves FCC regulations
generally or specific licensing decisions.”
The government claimed that in challenging the legal basis
of the statutes or regulations with which he disagreed,
Strawcutter’s sole options were to apply to the FCC for a
broadcast license or to petition the FCC either to amend its
regulations or to waive their application to him. Strawcutter
argued that those administrative remedies offered him no
realistic prospect of relief, because the FCC had an unyielding
policy not to waive the regulations that bar microbroadcasters
from transmitting. As many other microbroadcasters around
the country have done, Strawcutter argued that the FCC was
“being used as the tool of powerful broadcast corporations”
that wished to maintain cartel-like control over the airwaves,
at the cost of suppressing potential competitors and depriving
the listening public of “low-cost broadcasting on community
issues as an alternative to mainstream perspectives.”
The district court, in a memorandum and order dated
August 7, 1998, denied the government’s motion and,
invoking sua sponte the doctrine of primary jurisdiction,
dismissed the action for lack of subject matter jurisdiction.
See United States v. Any and All Radio Station Equipment
(Strawcutter), 19 F. Supp. 2d 738 (E.D. Mich. 1998).

-- 7 of 10 --

8 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
B. No. 98-2396 (Maquina Musical)
On April 16, 1998, the FCC’s Detroit office received a
complaint about an unlicensed FM radio station broadcasting
at a frequency of 95.9 megahertz. That day, FCC agents went
to 3968 West Vernor Highway in Detroit, and detected the
emission of FM broadcast signals at 95.9 megahertz that were
146 times the maximum strength permitted by FCC
regulations for unlicensed broadcasts. On April 21, 1998, the
agents returned and detected FM broadcast signals that were
nearly 8,900 times the maximum permitted for unlicensed
broadcasts. The agents entered the premises of the station,
which was called Radio Maquina, and spoke with Pedro
Zamora, the president of Maquina Musical, which owns
Radio Maquina. They told Zamora that Radio Maquina’s
broadcasts exceeded the maximum strength permitted by FCC
regulations and that the broadcasts violated 47 U.S.C. § 301.
It is undisputed that Maquina Musical did not have a
broadcast license, and that it had never applied for one.
On May 4, 1998, the agents determined that Radio Maquina
was continuing to broadcast. That day, the agents determined
that the broadcast signals were more than 7,600 times the
maximum permissible strength. The FCC’s Detroit office
sent Zamora a letter on May 12, 1998, again informing him
that the broadcasts violated 47 U.S.C. § 301 and demanding
that he cease broadcasting forthwith, or face numerous
potential penalties, including criminal prosecution and civil
forfeiture of his broadcasting equipment. Zamora replied to
the FCC’s letter by demanding an administrative hearing
before any forfeiture proceedings against him were instituted.
During August of 1998, the FCC determined that Radio
Maquina was still broadcasting, and was continuing to do so
well in excess of the maximum strength permitted by FCC
regulations.
On October 7, 1998, the government filed a civil complaint
in the United States District Court for the Eastern District of
Michigan, seeking the forfeiture of Maquina Musical’s
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
13
seizure of his broadcasting equipment is sufficient to
demonstrate irreparable injury.” See Maquina Musical, 29 F.
Supp. 2d at 396.
It need not have done so. As the Supreme Court has
observed, “[t]he right of free speech does not include . . . the
right to use the facilities of radio without a license.” National
Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943).
In National Broadcasting Co., the Supreme Court broadly
affirmed the Communications Act and its licensing standard
of “public interest, convenience, or necessity” as valid
exercises of congressional power, and held that denying a
license on that ground, “if valid under the Act, is not a denial
of free speech.” Id. See also Free Speech ex rel. Ruggiero v.
Reno, 200 F.3d 63, 64-65 (2d Cir. 1999) (per curiam)
(rejecting the argument of unlicensed microbroadcasters that
the FCC’s broadcast licensing scheme is subject to public
forum analysis and strict judicial scrutiny).
In the present case, Maquina Musical never applied for a
broadcast license. For that reason, neither it nor Zamora has
any First Amendment interest in its broadcasts. We therefore
conclude that Maquina Musical lacks any plausible claim to
the presumption of irreparable harm. Maquina Musical also
asserts that members of its listening audience—who
intervened in this action and filed affidavits in support of its
motion for injunctive relief—also have a First Amendment
right “to hear the political, cultural and educational
information conveyed to their community.” But it follows
that nobody has a First Amendment right to hear radio
broadcasts from a station that does not have a First
Amendment right to broadcast them. Cf. Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 599 (1980)
(Stewart, J., concurring) (observing that the right to listen is
implied by the right to speak).
In any event, we do not mean to suggest that this is the end
of the analysis in determining whether Maquina Musical can
possibly prevail in this case. Our point is just that the district

-- 8 of 10 --

12 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
erroneous findings of fact.” E.g., Schenck v. City of Hudson,
114 F.3d 590, 593 (6th Cir. 1997).
Taken literally, the standard is difficult to understand. The
idea of discretion connotes a reasoned, properly informed,
deliberate choice between legally permissible alternatives.
No judge deliberately chooses to apply an incorrect legal
standard, misapply a correct legal standard, or rely upon
clearly erroneous factual findings. Presumably, the standard
as articulated in Schenck and numerous other cases is a
shorthand way of expressing the idea that this court ordinarily
extends a high degree of deference to the district court’s
decision, but does so only if the district court properly
understood the pertinent law and applied it in a defensible
manner to the facts as they appear in the record. Otherwise,
affording deference to the district court makes little sense.
With this understanding in mind, reviewing the district
court’s order denying a preliminary injunction to Radio
Maquina in light of the pertinent factors—whether the movant
is likely to succeed on the merits, whether the movant would
suffer irreparable harm without the injunction, whether an
injunction would cause substantial harm to others, and
whether an injunction would be in the public
interest—becomes relatively straightforward. See, e.g.,
Connection Distribution Co. v. Reno, 154 F.3d 281, 288 (6th
Cir. 1998), cert. denied, 119 S. Ct. 1496 (1999) (setting forth
the pertinent factors for determining whether a preliminary
injunction should be granted).
a. Irreparable harm
Maquina Musical’s argument regarding irreparable harm is
based on the premise that barring it from broadcasting would
abridge both its First Amendment right to free speech and the
First Amendment interests of its listeners to hear Radio
Maquina’s broadcasts. The district court assumed for the
sake of argument that Zamora’s “alleged deprivation of his
First Amendment right to free speech by the government’s
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
9
broadcasting equipment. The next day, the government
executed a writ of entry and a warrant of arrest, and
proceeded to arrest (that is, seize) the equipment. On October
9, 1998, Maquina Musical—joined by several Radio Maquina
listeners who were permitted to intervene in the action—filed
a “verified complaint” in which it applied for a temporary
restraining order and moved for a preliminary injunction, a
dismissal of the government’s forfeiture complaint for lack of
subject matter jurisdiction, and an order quashing the in rem
arrest warrant. After a hearing, the district court denied the
application for a temporary restraining order. Subsequently,
in a memorandum and order dated November 6, 1998, the
district court denied the remainder of the relief sought by
Maquina Musical. See United States v. Any and All Radio
Station Transmission Equipment (Maquina Musical), 29 F.
Supp. 2d 393 (E.D. Mich. 1998).
In denying Maquina Musical’s motion for a preliminary
injunction, the district court assumed for the sake of argument
that Maquina Musical could demonstrate that it would suffer
irreparable harm without the injunction, see Maquina
Musical, 29 F. Supp. 2d at 396 (citing Connection
Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998),
for the proposition that even brief deprivations of First
Amendment freedoms constitute irreparable injury), and
concluded that the risk of substantial harm to others was not
great. The district court, however, found that Maquina
Musical’s likelihood of success on the merits was low and
that the public interest did not favor allowing it to broadcast
without a license during the pendency of the proceedings.
Balancing these factors, the district court concluded that
Maquina Musical was not entitled to a preliminary injunction.
II. ANALYSIS
A. No. 98-2129 (Strawcutter)
The doctrine of primary jurisdiction “arises when a claim
is properly cognizable in court but contains some issue within

-- 9 of 10 --

10 United States v.
Strawcutter, et al.
Nos. 98-2129/2396
the special competence of an administrative agency.” United
States v. Haun, 124 F.3d 745, 749 (6th Cir. 1997) (citing
Reiter v. Cooper, 507 U.S. 258, 268 (1993)). When the
doctrine applies, court proceedings are stayed so that the
agency may bring its special competence to bear on the issue.
See id. Unfortunately, “[n]o fixed formula exists for
applying the doctrine[.]” United States v. Western Pacific. R.
Co., 352 U.S. 59, 64 (1956)). Rather, “[i]n every case the
question is whether the reasons for the existence of the
doctrine are present and whether the purposes it serves will be
aided by its application in the particular litigation.” Id.
Those reasons, broadly speaking, are the desire for
uniformity in adjudication and the belief that the
decisionmaker with the most expertise and broadest
perspective regarding a statutory or regulatory scheme will be
most likely to resolve the issue correctly. See id. The
doctrine has even been applied to the government itself. See
Far East Conference v. United States, 342 U.S. 570 (1952)
(ordering an antitrust action brought by the United States as
a shipper dismissed pursuant to the doctrine of primary
jurisdiction following the intervention of, and motion to
dismiss by, the Maritime Board, the relevant federal agency).
But the doctrine does not apply when the specially
competent agency is itself the plaintiff. See, e.g., United
States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir.
1981) (“[D]eference to an agency’s primary jurisdiction
makes little sense in the context of an enforcement proceeding
initiated by the agency.”); ICC v. All-American, Inc., 505 F.2d
1360, 1362 (7th Cir. 1974) (“It has been suggested . . . that, in
cases where the appropriate administrative body is before the
court, the doctrine should not apply since a principal function
of the rule, acquainting the court with the agency’s position
concerning the matter, has been satisfied.”); CAB v.
Aeromatic Travel Corp., 489 F.2d 251, 254 (2d Cir. 1974)
(“[W]hen the agency chooses to go to the district court for
enforcement, it makes little sense to refer the very question at
issue to the agency.”). Indeed, as the Second and Seventh
Nos. 98-2129/2396 United States v.
Strawcutter, et al.
11
Circuits have noted, a federal agency’s decision to pursue a
judicial remedy rather than an administrative one speaks
volumes about its views regarding the necessity of
administrative expertise. See All-American, Inc., 505 F.2d at
1363; ICC v. Maine Central R. Co., 505 F.2d 590, 594 (2d
Cir. 1974) (“[T]he very institution of suit in the courts by the
relevant administrative body represents an exercise of its
‘special competence.’”).
In essence, the district court held that a statute expressly
authorizing the government to initiate a civil action in the
district courts cannot be invoked by the government when it
sues on behalf of the very agency charged by the statute with
special competence over the regulatory issues in question.
See 47 U.S.C. § 510 (providing that the illegal use of
broadcasting equipment subjects the equipment to seizure and
forfeiture if the equipment was used “with willful and
knowing intent” to violate license requirement) and 28 U.S.C.
§ 1355 (vesting the district courts with original jurisdiction
over “any action or proceeding” for forfeiture “incurred under
any Act of Congress” other than those within the jurisdiction
of the Court of International Trade). We cannot agree, and
therefore reverse the district court’s order dismissing this
action for lack of subject-matter jurisdiction.
B. No. 98-2396 (Maquina Musical)
1. Preliminary injunction
Whether a preliminary injunction should be granted is a
decision left to the district court’s sound discretion. See, e.g.,
Allied Systems, Ltd. v. Teamsters Nat’l Automobile
Transporters Industry Negotiating Committee, 179 F.3d 982,
985-86 (6th Cir.), cert. denied, 120 S. Ct. 401 (1999). On
appeal, our review focuses on whether the district court
abused that discretion. This court has said that a district
court, in deciding whether to grant an injunction, abuses its
discretion when it “applies the incorrect legal standard,
misapplies the correct legal standard, or relies upon clearly

-- 10 of 10 --