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UNITED STATES v. EVERGREEN MEDIA CORP.

August 20, 1993

THE UNITED STATES OF AMERICA, Plaintiff-counterdefendant,
v.
EVERGREEN MEDIA CORPORATION OF CHICAGO, AM, Licensee of Radio Broadcast Station WLUP (AM), Defendant-counterplaintiff, and THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Intervenor-defendant counterplaintiff.



The opinion of the court was delivered by: JOHN A. NORDBERG

 STATEMENT OF FACTS

 This is an action by the Federal Communications Commission ("FCC") to collect a forfeiture penalty imposed against Evergreen Media Corporation of Chicago (AM) ("Evergreen"), the licensee of WLUP-AM, a Chicago radio station, for the broadcast of obscene, indecent or profane language in violation of 18 U.S.C. § 1464. 47 U.S.C. § 504(a). The incidents leading to the FCC's order of forfeiture occurred on programming, during the afternoon in August 19, 1987 and March 30, 1989. The FCC issued a notice of apparent liability in the amount of $ 6,000.00 on November 30, 1989. Evergreen's license was renewed by the FCC the next day, December 1, 1989. An order of forfeiture was issued over Evergreen's objection on January 28, 1991. 6 FCC Rcd 502. Evergreen's motion to reconsider was denied on October 18, 1991. 6 FCC Rcd 5950.

 Counterclaims have been filed by Evergreen and an intervenor, the American Civil Liberties Union ("ACLU"), challenging the constitutionality of § 1464. This motion, by Evergreen, seeks partial judgment on the pleadings, Fed. R. Civ. P. 12(c), to the effect that the FCC's efforts to impose a forfeiture on the basis of the August 17, 1987 incidents are untimely.

 ANALYSIS

 In interpreting the statute of limitations Congress has provided for FCC forfeiture actions, one should keep in mind the old adage "Do as I say, not as I do." Three terms within the statute are at issue. Unfortunately, the least ambiguous of these terms creates the most havoc. With apologies to the normal precept of statutory construction to give effect to the plain meaning of the words of a statute, court must instead adopt the interpretation of the statute of limitations given in its legislative history. See U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) (plain meaning not conclusive in rare cases literal application will produce demonstrably at odds with intentions of drafters).

 The statute of limitations for the initiation of forfeiture actions by the FCC is found at 47 U.S.C. § 503(b)(6) (1978):

 
No forfeiture penalty shall be determined or imposed against any person under this subsection if -
 
(A) such person holds a broadcast station license issued under subchapter III of this chapter and if the violation charged occurred -
 
(i) more than 1 year prior to the date of issuance of the required notice or notice of apparent liability; or
 
(ii) prior to the date of commencement of the current term of such license,
 
whichever is earlier so long as such violation occurred within 3 years prior to the date of issuance of such required notice; or . . .

 Three terms are at issue here. The first is the phrase "current term." The FCC contends that this refers to the license term in effect at the time of the issuance of the notice of apparent liability. Evergreen posits that it refers to the license term in effect at the time of imposition of the order of forfeiture. The court concludes that the FCC's position is correct, and that this term is not ambiguous. *fn1"

 Evergreen theorizes that its construction must be correct because the prefatory language of § 503(b)(6) refers to imposition of a forfeiture penalty, not imposition of a notice of liability. This also true of the FCC's own interpretation of the statute. 47 C.F.R. § 1.80(c)(1) (1993), but this choice of language is without significance. The word "forfeiture" is used rather than "notice" because forfeiture is the actual remedy imposed on the licensee. Notice of liability without further ...


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