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UNITED STATES v. MCINTIRE

October 25, 1973

UNITED STATES of America and the Federal Communications Commission, Plaintiffs,
v.
Reverend Carl McINTIRE et al., Defendants


Cohen, Chief Judge.


The opinion of the court was delivered by: COHEN

COHEN, Chief Judge:

 This is an action for a preliminary and permanent injunction by the United States of America and the Federal Communications Commission (FCC) against the Reverend Carl McIntire, Pastor of the Bible Presbyterian Church, Collingswood, New Jersey, and Wayne C. Hansen and Christopher Hansen, Miami, Florida, owners of the vessel "Oceanic," pursuant to Sections 401(a), *fn1" 401(c), *fn2" and 414 *fn3" of the Communications Act of 1934 (Act), 47 U.S.C. § 151 et seq. Jurisdiction of this Court is invoked pursuant to Section 401(a) of the Act.

 The facts out of which this controversy arose are as follows:

 Following the loss of his FCC license to operate radio station WXUR (FM) in Media, Pennsylvania, *fn4" defendant Reverend Carl McIntire chartered a vessel owned and operated by defendants Wayne and Christopher Hansen and, after equipping it with radio broadcast equipment, proceeded to a location some three and one-half (3 1/2) miles off the coast of New Jersey. At or about 12:40 P.M. September 19, 1973 Dr. McIntire began to transmit a radio broadcast signal. The defendants' broadcast was admittedly made without a license issued by the FCC as a direct challenge to the power of the United States to restrict and regulate radio broadcasts originating beyond its territorial limits.

 The complaint in the instant action was filed by plaintiffs on September 21, 1973 to enforce provisions of Section 301 *fn5" of the Communications Act of 1934, 47 U.S.C. § 301, and Article 7, Section 1(1) *fn6" of the International Tele-Communications Convention of 1959 (Convention), 12 U.S.T. & O.I.A. 2377, 2480, entered into force on October 23, 1961.

 On September 21, 1973 this Court issued a temporary restraining order, pursuant to Rule 65(b), F.R.Civ.P., enjoining defendants, their employees and agents from operating radio broadcast equipment on board the American-registered vessel "Oceanic," also known as the "Columbus," without a license issued by the Federal Communications Commission as required by Section 301 of the Act. *fn7" It is alleged that the broadcast while originating beyond the territorial waters of the United States, interfered with the broadcast frequencies of several duly licensed radio stations, namely KSL (AM) in Salt Lake City, Utah, and WHLW (AM) of Lakewood, New Jersey.

 On application of defendants, this Court extended the temporary restraining order until November 1, 1973. Defendants now move to dismiss the complaint and to dissolve the restraining order.

 DISCUSSION

 For purposes of this motion to dismiss, the pleaded material allegations of plaintiffs' complaint are taken as admitted. Rule 12(b)(6), F.R.Civ.P.; 2A Moore, Federal Practice § 12.08 at 2266 et seq.

 Defendants first argue that this Court does not have jurisdiction in this case in that the FCC failed to follow the proper procedure in instituting this action. Specifically, it is alleged that the FCC did not request the Attorney General of the United States to proceed against the defendants in accordance with Section 401(a) *fn8" of the Act. Accordingly, it is urged, the complaint and the resulting restraining order are fatally defective. With this we do not agree.

 It should first be noted that the United States Attorney for the District of New Jersey is appearing in this case as counsel for plaintiff United States of America. It is highly unlikely that the United States Attorney -- the local representative of the Attorney General -- would have participated in the filing of the complaint and prosecution of this action without authorization and approval of the Attorney General. It is also 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). ...


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