United States District Court, D. Nevada
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION TO AMEND (Dkt. No. 30)
ANDREW P. GORDON, District Judge.
The United States of America seeks to enforce a $20, 000.00 forfeiture order against Hodson Broadcasting for repeated violations of the Communications Act and Federal Communications Commission ("FCC") regulations. The Government seeks summary judgment, arguing it has provided sufficient evidence establishing both Hodson's violations and the reasonableness of the $20, 000 forfeiture sum. I agree. Because Hodson has failed to raise a genuine issue of material fact, and the Government is entitled to judgment as a matter of law, the Government's motion is granted.
Hodson's response to the Government's summary judgment motion proposes to add two new claims against the Government: one for the FCC's allegedly improper handling of an agency appeal, and another for the FCC's allegedly improper handling of an administrative tort claim form. Although Hodson has not properly sought leave to amend, I will treat the language in Hodson's response as a motion to amend its answer. Because Hodson has failed to plead sufficient facts to state a claim as to either of these causes of action, its request to amend is denied as futile.
On June 28, 2006, the FCC granted Hodson a construction permit to build an FM radio station in Des Moines, New Mexico. Once constructed, Hodson was required to apply for final approval to operate its station. Hodson's construction permit restricted the type of equipment it could install, and required it to submit a formal request to the FCC if it desired to conduct program testing prior to final operation approval.
From June 2008 through December 2008, after receiving numerous complaints about radio interference in the area around Raton, New Mexico, agents from the FCC's Denver Office confirmed Hodson was transmitting from an unauthorized station on a rooftop in Raton. The agents also noted the station was transmitting with a power level, antenna height, and antenna structure not authorized by Hodson's construction permit. On June 25, 2008, July 1, 2008, and December 11, 2008, FCC agents verbally warned Hodson that its transmissions from Raton were unauthorized.
On November, 17, 2008 the FCC issued to Hodson a Notice of Apparent Liability for Forfeiture ("NAL") detailing Hodson's violations. Hodson was provided an opportunity to respond, and did so on December 19, 2008.
On December 29, 2008, after transmitting without authorization for over five months, Hodson requested, for the first time, to operate in Raton. In February of 2009, Hodson filed another request for authorization to operate in Raton. The FCC denied both of Hodson's requests.
The FCC continued to receive complaints about radio interference from Hodson's operations in Raton, so on April 21, 2009, the FCC issued a second NAL to Hodson. Hodson was again provided an opportunity to respond, and did so on May 20, 2008.
On October 3, 2009, FCC agents confirmed Hodson continued its unauthorized operations in Raton. On November 13, 2009, the FCC issued a Forfeiture Order in the amount of $20, 000.00 - $10, 000 for each NAL - against Hodson for willful and repeated violations of its construction permit and FCC regulations. Hodson failed to pay, and the Government sued to enforce the FCC's forfeiture order. The Government now moves for summary judgment that the FCC's forfeiture is warranted, and the forfeiture sum is appropriate.
A. Plaintiff's Motion for Summary Judgment
i. Legal Standard - Summary Judgment
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party, and a dispute is "material" if it could affect the outcome of the suit under the ...