unlikely that the Attorney General would have authorized such action unless a request to do so was tendered by the FCC.
Furthermore, FCC regulations clearly authorize the General Counsel of the agency to "take action . . . as to civil and criminal proceedings to enforce the Communications Act, the rules and regulations of the Commission . . . in courts of the United States." 47 C.F.R. § 0.47 (Supp.1972). Finally, the affidavit of regularity executed by John W. Pettit, General Counsel of the FCC, indicates that the present action was initiated only after consultation with representatives of the Attorney General of the United States.
This Court is of the opinion that the presumption of regularity which attaches to the acts of government officials has not been rebutted. Fusco v. Richard W. Kaase Baking Co., 205 F. Supp. 465, 474 (W.D.Ohio 1962); LeBaron v. Kern County Farm Labor Union, 80 F. Supp. 151, 155 (S.D.Cal.1948). Plaintiffs, then, have satisfied the jurisdictional requirements of Section 401 (a).
Defendants next urge that the Convention, ratified in 1961, has eliminated the FCC's power to license radio broadcast equipment on vessels, pursuant to Section 301 (e) of the Act of 1934.
Section 301 provides in part that, "No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . (e) upon any vessel . . . of the United States . . . except under and in accordance with this chapter and with a license . . . granted under the provisions of this chapter."
Article 7, Section 1(1) of the Convention prohibits the "establishment and use of broadcasting stations . . . outside national territories . . . ."
While it is true that treaties and acts of Congress are equally binding on this Court,
and while it is true that where a treaty and an Act of Congress are in direct, irreconcilable conflict, the latter in time prevails,
such a conflict does not appear in this case.
The Convention complements and further restricts those areas subject to regulation by the FCC pursuant to the Act. The prohibition of the Convention is one of the numerous limitations on the power of the FCC to issue a broadcast license.
To suggest that this prohibition limits the FCC's power to proceed against a party who broadcasts in violation of the prohibition is wholly without merit. Indeed, the opposite conclusion prevails. The Convention enhances the FCC's enforcement powers against those who would broadcast from beyond United States territorial boundaries in violation of the Act and the Convention.
Defendants also contend that the Convention has been implemented by the United States only in terms of penal enforcement; hence, equitable relief is not available to plaintiffs.
Section 502 of the Act, 47 U.S.C. § 502, provides that violations of FCC regulations and conventions "shall, in addition to any other penalties provided by law, be punished, upon conviction thereof, by a fine of not more than $500 for each and every day during which such offense occurs." [emphasis added]. It is clear that this section does not act to divest this Court of its discretionary equitable powers which are always available where a legal remedy is inadequate and an important public interest is at stake.
Further, the Act affirmatively grants this Court power to issue injunctions to prevent violations of the Act.
Thus, Section 401(a) gives authority to the United States to seek, and for this Court to grant, "writs of mandamus commanding . . . person to comply with the provisions of this chapter." Moreover, Section 414 of the Act states that, "Nothing in this chapter . . . shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." Certainly, this Court's power to issue an injunction -- a traditional common law remedy -- has not been abrogated.
Defendants next maintain that this Court should not exercise its equitable powers to enjoin commission of a criminal offense.
While this is a general rule of equity, courts retain the power to enjoin acts which while they may constitute criminal offenses, have a serious impact on the public welfare by creating a widespread nuisance.
As early as 1929, at least one federal court has held that radio broadcasting without a license is the type of public nuisance which may be restrained by injunction, regardless of the fact that the act also constituted a criminal violation. United States v. American Bond & Mortgage Co., 31 F.2d 448 (E.D.Ill.1929). This Court is in agreement with the conclusion reached in that case.
Defendants also urge that the administrative requirements of the Act have not been complied with and, therefore, the case is not ripe for adjudication.
However, an examination of the Act reveals that plaintiffs need not pursue administrative remedies as a condition precedent to this Section 401(a) action. The administrative process referred to by defendants is only applicable to Section 401(b), 47 U.S.C. § 401(b), actions which relate to enforcement of FCC cease and desist orders issued under Section 312(b), 47 U.S.C. § 312(b), of the Act relating to administrative sanctions. It is not a condition precedent to this Court exercising its equity powers to prevent irreparable harm and enjoin an existing public nuisance.
Defendants finally argue that the injunction should be dissolved in that there has been no showing of irreparable harm.
However, in at least two instances, defendants' transmissions have caused harmful interference with the broadcast signals of several duly licensed stations. The fact that defendants voluntarily halted their broadcasts pending technical adjustments aimed at avoiding further interference is not dispositive of this issue. As the United States Supreme Court has consistently noted the application of the traditional equitable criteria of irreparable harm is eased in those cases where the activity against which the injunction is sought constitutes a violation of a federal statute. In such cases, the public interest should bear more than the traditional evaluation of equitable principles -- even to the point of slackening the customary criteria. See, e.g., United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754 (1944); Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789 (1937); United States v. Stoeco Homes, Inc., 359 F. Supp. 672 (D.N.J. 1973).
In ruling on a motion to dismiss under the Federal Rules of Civil Procedure, a complaint may not be dismissed unless it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of the claim. See, e.g., Ballou v. General Electric Co., 393 F.2d 398 (1st Cir. 1968); Mizell v. North Broward Hospital Dist., 392 F.2d 580 (5th Cir. 1968); 2A Moore Federal Practice § 312.08 at 2271 et seq. Applying this standard to the present case, it cannot be said that plaintiffs' case is without merit. Defendants' motions to dismiss the complaint and dissolve the temporary restraining order are denied.
An appropriate order may be submitted.