The Federal Communications Commission (FCC) issues regulations, the violation of which can result in the FCC seeking forfeiture— “the divestiture of property without compensation.” Courts are currently split regarding the jurisdiction of district courts to entertain constitutional challenges to these regulations when raised as affirmative defenses in forfeiture actions under the Communications Act of 1934. The Act sets up a jurisdictional structure for review of FCC actions. Three provisions are of interest here: 47 USC §§ 402, 504, and 510. The courts of appeals have exclusive jurisdiction over “[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the [FCC]” under § 402. The federal district courts have exclusive jurisdiction over forfeiture proceedings under §§ 504 and 510. Unfortunately, the Act’s jurisdictional grants are notably complicated, and it is unclear whether district court forfeiture jurisdiction extends to constitutional defenses that implicate the validity of an FCC order.
In 2000, the Sixth and Eighth Circuits disagreed over whether district court forfeiture jurisdiction extended to constitutional challenges to regulations raised as defenses (“constitutional defenses”) during a forfeiture proceeding. It is important to emphasize that the split is about constitutional challenges to the FCC directives underlying the forfeiture action and not constitutional challenges to either the forfeiture action itself (for example, that the search violated the Fourth Amendment) or the statute. In United States v Any and All Radio Station Transmission Equipment (“Laurel Avenue”), the Eighth Circuit found that district courts lack jurisdiction over such defenses. In United States v Any and All Radio Station Transmission Equipment (“Maquina Musical”), the Sixth Circuit found that district courts have jurisdiction. While other circuits have discussed the issue, none has fully committed to either approach. Ultimately, the solutions presented are either too blunt or too confused to resolve this issue—the courts have brought a sledgehammer to surgery.