Minority Television Project, Inc. v. Federal Communications Commission;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINORITY TELEVISION PROJECT,
INC.,
Plaintiff - Appellant,
v.
FEDERAL COMMUNICATIONS
COMMISSION; et al.,
Defendants - Appellees.,
and
LINCOLN BROADCASTING
COMPANY,
Intervenor.
No. 09-17311
D.C. No. 3:06-cv-02699-EDL
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
Before: NOONAN, PAEZ, and BEA, Circuit Judges.
FILED
APR 12 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

1 We address Minority’s contention that § 399b imposes an unconstitutional
content-based restriction on speech in an opinion filed concurrently with this
memorandum.
2 Because the parties are familiar with the facts of this case, we repeat them
here only to the extent necessary to explain our decision.
2
Petitioner Minority Television Project (“Minority”) appeals the district
court’s dismissal of its as-applied First Amendment challenges to 47 U.S.C.
§ 399b, as well as its First Amendment challenges to 47 C.F.R. § 73.621(e), the
Federal Communications Commission (“FCC”) order which implements § 399b.
Minority further appeals the district court’s grant of summary judgment to the
government, which held § 399b’s ban on paid messages by for-profit entities which
“promote” services, facilities, or products is not unconstitutionally vague. 1 We
affirm.2
The district court correctly dismissed Minority’s as-applied challenges to
§ 399b, as well as its challenge to 47 C.F.R. § 73.621(e). Section 399b was applied
to Minority only through FCC orders and regulations, including 47 C.F.R.
§ 73.621(e). Jurisdiction over challenges to FCC orders lies exclusively in the
court of appeals; as such, federal district courts lack jurisdiction over challenges to
FCC orders. 28 U.S.C. § 2342(1) (“The court of appeals . . . has exclusive
jurisdiction to enjoin, set aside, suspend (in whole or in part) or determine the

-- 2 of 4 --

3
validity of . . . all final orders of the Federal Communications Commission.”). See
also United States v. Duinfer, 219 F.3d 1004, 1007 (9th Cir. 2000) (district courts
lack jurisdiction over any challenge to FCC regulations).
Although the Supreme Court has previously reviewed a First Amendment
challenge to an FCC regulation which was initially filed in federal district court,
see Greater New Orleans Broadcasting Association v. United States, 527 U.S. 173
(1999), the Court in that case did not address—and was not asked to
address—whether jurisdiction in the district court was proper. Courts “are not
bound by a prior exercise of jurisdiction in a case where it was not questioned and
it was passed sub silento.” United States v. L.A. Trucker Truck Lines, Inc., 344
U.S. 33, 38 (1952).
Section 399b’s prohibition of paid messages intended to “promote” any
service, facility, or product of a for-profit entity is not unconstitutionally vague. A
statute need not have “mathematical certainty” to survive a vagueness challenge;
instead, it may be marked by “flexibility and reasonable breadth, rather than
meticulous specificity.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).
The meaning of the term “promote” is clear in the vast majority of circumstances.
Where it is not, the FCC—to remove uncertainty—provides declaratory rulings to
broadcasters who fear they might run afoul of § 399b. 47 C.F.R. § 1.2. A statute

-- 3 of 4 --

4
may overcome a First Amendment vagueness challenge if a government body
provides administrative regulations that “sufficiently narrow potentially vague or
arbitrary interpretations of the ordinance.” Hoffman Estates v. Flipside, Hoffman
Estates, 455 U.S. 489, 504 (1982).
AFFIRMED.

-- 4 of 4 --