[nlgcdc] victory in lpfm case, part 1 of majority opinion

Peter Franck pfranck@culturelaw.com
Fri, 08 Feb 2002 11:42:18 -0800


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United States Court of Appeals

                FOR THE DISTRICT OF COLUMBIA CIRCUIT

        Argued September 6, 2001   Decided February 8, 2002

                            No. 00-1100

                          Greg Ruggiero,
                             Petitioner

                                 v.

               Federal Communications Commission and
                     United States of America,
                            Respondents

             On Petition for Review of an Order of the
                 Federal Communications Commission

      Robert T. Perry argued the cause for petitioner Greg
Ruggiero.  With him on the briefs was Barbara J. Olshansky.

      Jacob M. Lewis, Attorney, U.S. Department of Justice,
argued the cause for respondents.  With him on the briefs
were Robert S. Greenspan, Attorney, Jane E. Mago, Acting
General Counsel, Federal Communications Commission, Dan-
iel M. Armstrong, Associate General Counsel, John E. Ingle,

Deputy Associate General Counsel, C. Grey Pash, Jr. and
Lisa E. Boehley, Counsel.

      Before:  Henderson, Rogers, and Tatel, Circuit Judges.

      Opinion for the Court filed by Circuit Judge Tatel.

      Dissenting opinion filed by Circuit Judge Henderson.

      Tatel, Circuit Judge:  In this case, an unlicensed microb-
roadcaster--a "pirate"--challenges the constitutionality of the
Radio Broadcasting Preservation Act of 2000's character
qualification provision, which permanently prohibits anyone
who ever "engaged in any manner in the unlicensed operation
of any station in violation of ... the Communications Act of
1934" from obtaining a low-power FM radio license.  To
survive First and Fifth Amendment challenges in this Circuit,
restrictions limiting the future lawful speech of a well-defined
class of broadcasters must be more than "minim[ally] ration-
al[ ]."  News Am. Publ'g, Inc. v. FCC, 844 F.2d 800, 812, 814
(D.C. Cir. 1988) ("News America").  Finding nothing in the
Act, its legislative history, or the record before us to justify
the character qualification provision's unique and draconian
sanction for broadcast piracy, nor to explain why a more
limited restriction would not achieve Congress's objective, we
hold that the provision and its implementing regulation fail to
meet this standard and are therefore unconstitutional.

                                 I.

      Section 301 of the Communications Act of 1934 makes it
unlawful to operate a radio station without a license issued by
the Federal Communications Commission.  47 U.S.C. s 301.
When the Commission began licensing FM radio stations in
the 1940s, it licensed both high-power stations and low-power,
or "Class D," educational stations operating with a maximum
of ten watts of power.  In 1978, however, the Commission
concluded that the Class D stations were impeding expansion
of more efficient high-power operations.  Opting to "str[ike]
the balance in favor of licensing higher powered stations to
ensure that large audiences were served," the Commission
stopped licensing low-power stations and required most exist-

ing stations to upgrade to at least 100 watts.  Creation of
Low Power Radio Serv., 15 F.C.C. Rcd. 19,208, 19,236 (2000)
("First Low-Power Reconsideration") (recons.) (discussing
the 1978 rule, Changes in the Rules Relating to Noncommer-
cial Educ. FM Broad. Stations, 70 F.C.C.2d 972, 983 (1979)
(codified at 47 C.F.R. s 73.512(d))).

      Over the next two decades, often in open defiance of this
rule, individual pirates began operating unlicensed low-power
stations that broadcast local news, music, and commentary.
Known as "microradio," this phenomenon expanded signifi-
cantly in the late 1990s after Congress amended the Telecom-
munications Act to eliminate restrictions on the number of
radio stations any one person or entity could own.  Telecom-
munications Act of 1996, Pub. L. No. 104-104, s 202(a), (b),
110 Stat. 56, 110-12 (1996).  Following the amendment, own-
ership of licensed radio stations became increasingly concen-
trated, leading--according to microradio proponents--to a
"marked decline in serious local radio news reporting" and a
corresponding increase in the perceived importance and, in
turn, number of unlicensed low-power stations.  Pet'r's Br. at
6-7.  In response to this microradio expansion, the Commis-
sion cracked down on pirates, ordering them to cease broad-
casting and taking legal action against those who refused.
See, e.g., Grid Radio v. FCC, No. 99-1463, __ F.3d __ (D.C.
Cir. Feb. 8, 2002);  United States v. Dunifer, 219 F.3d 1004
(9th Cir. 2000).

      In 1999, the Commission again changed course, seeking
public comment on proposed rules that would allow licensing
of low-power stations.  The Commission observed that in
contrast to 1978, when it first adopted the microbroadcasting
ban, "[n]ow, ... radio service is widely available throughout
the country and very little spectrum remains available for
new full-powered stations," so licensing low-power stations
could "fill ... gaps in the spectrum that would otherwise go
unused," First Low-Power Reconsideration, 15 F.C.C. Rcd.
at 19,236, providing a "low-cost means of serving" both urban
and rural areas, Creation of Low Power Radio Serv., 14
F.C.C. Rcd. 2471, 2471 (1999) ("Low-Power Proposal") (notice
of proposed rulemaking).  Many groups submitted comments,

with students, religious groups, and labor unions generally
supporting the low-power program, and the established
broadcasting industry (including National Public Radio and
other noncommercial broadcasters) opposing it.

      In January 2000, the Commission issued an order authoriz-
ing two new classes of low-power stations:  100-watt stations,
reaching a radius of roughly 3.5 miles, and 10-watt stations,
reaching a radius of less than 2 miles.  Creation of Low
Power Radio Serv., 15 F.C.C. Rcd. 2205, 2205, 2210-12 (2000)
("First Low-Power Rulemaking").  The order encouraged
local ownership of low-power stations, limited the number of
such stations any single entity could own, required the sta-
tions to operate on a noncommercial, educational basis, and
prohibited existing media entities from holding interests in
them.  Id. at 2215-25.  The order also included a provision
addressing license applications by broadcast pirates.  Con-
cerned that those who had flouted the licensing process in the
past could not be trusted "to deal truthfully with the Commis-
sion and to comply with [its] rules and policies," the Commis-
sion provided that it would only accept low-power applications
from individuals who certified (under penalty of perjury) that
if they had operated illegally in the past, they ceased all such
operations either within twenty-four hours of being directed
by the Commission to do so or within ten days of publication
of the Low-Power Proposal.  Id. at 2225-26.  The Commis-
sion also extended this requirement to all parties to any
corporate applicant, including the applicant's "parents, its
subsidiaries, their officers and members of their governing
boards."  Id. at 2223-26.

      This version of the low-power rules was short-lived.  Less
than a year after the rules' promulgation, Congress, respond-
ing to broadcast industry lobbying, see, e.g., 146 Cong. Rec.
S8197-8211 (statement of Sen. Grams) (discussing licensed
broadcasters' concerns about the low-power rules), passed the
Radio Broadcasting Preservation Act of 2000 ("RBPA"), Pub.
L. No. 106-553, 114 Stat. 2762 (2000).  The RBPA directs the
Commission to amend the low-power rules to limit the fre-
quencies available for low-power stations, thus reducing the
risk of interference to existing stations.  Central to this case,

the Act also directs the Commission to deny licenses to all
applicants whose officers or board members ever "engaged in
any manner in the unlicensed operation of any station in
violation" of the Communications Act.  Id. s 632(a)(1)(B).
This "character qualification provision" thus eliminates the
distinction the Commission had drawn between those erst-
while broadcast pirates who voluntarily ceased broadcasting
within a specified period and those who refused.  The provi-
sion also rescinds the Commission's discretion to waive the
character qualification requirement in cases in which, despite
an applicant's--or a party to an applicant's--unlicensed
broadcasting, the Commission finds no reason to question the
applicant's potential reliability as a licensee.  Id.
s 632(a)(2)(B).

      Following passage of the RBPA, the Commission issued
rules implementing the Act's character qualification provision.
Creation of Low Power Radio Serv., 16 F.C.C. Rcd. 8026,
2001 FCC LEXIS 1760 (2001) ("Second Low-Power Rule-
making") (amending First Low-Power Rulemaking).  Under
the new rules--described by the Commission as "minor
amendment[s]" that merely "codif[y] a Congressional require-
ment"--all pirates and former pirates are automatically and
permanently disqualified from applying for low-power licens-
es.  Id., 2001 FCC LEXIS 1760, at *15.  Moreover, an
applicant is deemed "ineligible to hold [a low-power] license if
it has engaged in unlicensed operation regardless of whether
the Commission has made a specific finding that the party
has engaged in such conduct."  Id., 2001 FCC LEXIS 1760,
at *14 (emphasis added).

                                II.

      Petitioner Greg Ruggiero, an acknowledged former pirate
affiliated with microbroadcasting stations in New York City
and elsewhere, argues that facially and as applied to him, the
character qualification provision and implementing regulation
violate the First and Fifth Amendments to the United States
Constitution.  Before considering the merits of Ruggiero's
challenge, we must deal with the Commission's argument that

we lack jurisdiction for two independent reasons:  because
Ruggiero failed to file a petition for review, and because he
lacks Article III standing.  We consider each in turn.

                        Petition for Review

      Resolving the Commission's first argument requires an
understanding of the history of this case.  Ruggiero originally
filed a petition for review of the Commission's First Low-
Power Rulemaking, in which he argued that the then-current
version of the licensing restriction violated both the Adminis-
trative Procedure Act and the First Amendment.  Following
passage of the RBPA, we remanded the record to the Com-
mission and directed the parties to file supplemental briefs
addressing Ruggiero's standing to pursue his First Amend-
ment claim, as well as the merits of that claim as applied "to
the Act and any implementing orders or regulations the
Commission may issue."  Order of the United States Court of
Appeals for the District of Columbia Circuit at 1 (Jan. 8,
2001) (No. 00-1054) ("Order of Jan. 8, 2001").  After the
Commission issued the Second Low-Power Rulemaking, the
parties submitted the requested supplemental briefs, and we
heard oral argument on Ruggiero's constitutional claims--
expanded by a footnote in Ruggiero's Supplemental Brief to
include a claim under the Fifth Amendment--as applied to
the RBPA and the new rules.

      The Commission now argues that because Ruggiero never
filed a petition for review of the Second Low-Power Rule-
making, this court lacks jurisdiction to hear his constitutional
challenge.  We disagree.  Although it is true that Ruggiero
did not file a second petition for review, he did, as we
directed, file a brief addressing the constitutionality of the
RBPA and the Commission's implementing regulation, and
that brief, in all but title, satisfies the four statutory require-
ments for a petition for review of the Second Low-Power
Rulemaking.  Specifically, as required by 28 U.S.C. s 2344,
Ruggiero filed the brief within sixty days of the rulemaking;

stated "the nature of the proceedings as to which review is
sought, ... the facts on which venue is based, ... the
grounds on which relief is sought, and ... the relief prayed";
attached a copy of the challenged rulemaking;  and served the
brief on the Commission and the United States Department
of Justice.  See generally Pet'r's Supp. Br. at 1-10, App. B,
Certificate of Service.  Accordingly, we may treat the brief as
the "functional equivalent" of a petition for review.  See
Smith v. Barry, 502 U.S. 244, 248-49 (1992) (internal citations
omitted) (construing pro se brief as notice of appeal and
noting that "[i]f a document filed within the time specified by
Rule 4 gives the notice required by Rule 3, it is effective as a
notice of appeal");  Moore v. United States Dep't of Transp.,
2001 U.S. App. LEXIS 2496, at *12 (7th Cir. Feb. 5, 2001)
(unpublished disp.) (citing Smith v. Barry and construing
brief as "functional equivalent of a timely petition for review"
of agency action).

      This liberal construction of 28 U.S.C. s 2344 makes particu-
lar sense in this case.  For one thing, as we learned at oral
argument, Ruggiero filed no second petition for review solely
because we had directed him to file a supplemental brief
addressing the applicability of his First Amendment claims to
the RBPA and any subsequent implementing regulations.
See Order of Jan. 8, 2001, at 1;  cf. Moore v. South Carolina
Labor Bd., 100 F.3d 162, 163 (D.C. Cir. 1996) (discussing "the
unique circumstances doctrine, under which appellate courts
will excuse an untimely notice of appeal where the appellant
could have filed a timely notice but was misled to delay filing
by a court order or ruling which purportedly extended or
tolled the appeal deadline" (citing, inter alia, Thompson v.
INS, 375 U.S. 384, 387 (1964) (applying the doctrine))).
Moreover, we maintained jurisdiction of Ruggiero's claims
throughout the Commission's implementation of the RBPA,
remanding only the record for further Commission action.
Order of Jan. 8, 2001, at 1;  see also D.C. Cir. R. 41(b).
Finally, Ruggiero's original contentions, made in his brief
challenging the First Low-Power Rulemaking, are sufficient-
ly broad to cover at least his First Amendment challenge to
the character qualification provision and implementing regu-
lation.  His original brief asserted that the Commission "vio-

lated [his] First Amendment rights in disqualifying [him]
from holding a low power FM radio station license" and that
"[t]he [a]utomatic [d]isqualification [p]olicy [l]acks the [n]ar-
row [t]ailoring [r]equired by the First Amendment."  Pet'r's
Br. at 2, 23.  These broadly worded objections to the First
Low-Power Rulemaking are equally valid as objections to the
amended rules, as Ruggiero continues to argue primarily that
the Commission violated his First Amendment rights by
automatically disqualifying him and other unlicensed micro-
broadcasters from holding low-power licenses.  Cf. Tenn. Gas
Pipeline Co. v. FERC, 871 F.2d 1099, 1109 (D.C. Cir. 1989)
(finding jurisdiction to review claims despite appellant's fail-
ure to file new FERC petition for rehearing because most of
appellant's objections to agency's first decision, raised in
timely petition for review, were "equally valid" as objections
to agency's amended decision).


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United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued September 6, 2001   Decided February 8, 2002

                           No. 00-1100

                         Greg Ruggiero,
                            Petitioner

                                v.

              Federal Communications Commission and
                    United States of America,
                           Respondents

            On Petition for Review of an Order of the
                Federal Communications Commission

     Robert T. Perry argued the cause for petitioner Greg
Ruggiero.  With him on the briefs was Barbara J. Olshansky.

     Jacob M. Lewis, Attorney, U.S. Department of Justice,
argued the cause for respondents.  With him on the briefs
were Robert S. Greenspan, Attorney, Jane E. Mago, Acting
General Counsel, Federal Communications Commission, Dan-
iel M. Armstrong, Associate General Counsel, John E. Ingle,

Deputy Associate General Counsel, C. Grey Pash, Jr. and
Lisa E. Boehley, Counsel.

     Before:  Henderson, Rogers, and Tatel, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Tatel.

     Dissenting opinion filed by Circuit Judge Henderson.

     Tatel, Circuit Judge:  In this case, an unlicensed microb-
roadcaster--a "pirate"--challenges the constitutionality of the
Radio Broadcasting Preservation Act of 2000's character
qualification provision, which permanently prohibits anyone
who ever "engaged in any manner in the unlicensed operation
of any station in violation of ... the Communications Act of
1934" from obtaining a low-power FM radio license.  To
survive First and Fifth Amendment challenges in this Circuit,
restrictions limiting the future lawful speech of a well-defined
class of broadcasters must be more than "minim[ally] ration-
al[ ]."  News Am. Publ'g, Inc. v. FCC, 844 F.2d 800, 812, 814
(D.C. Cir. 1988) ("News America").  Finding nothing in the
Act, its legislative history, or the record before us to justify
the character qualification provision's unique and draconian
sanction for broadcast piracy, nor to explain why a more
limited restriction would not achieve Congress's objective, we
hold that the provision and its implementing regulation fail to
meet this standard and are therefore unconstitutional.

                                I.

     Section 301 of the Communications Act of 1934 makes it
unlawful to operate a radio station without a license issued by
the Federal Communications Commission.  47 U.S.C. s 301. 
When the Commission began licensing FM radio stations in
the 1940s, it licensed both high-power stations and low-power,
or "Class D," educational stations operating with a maximum
of ten watts of power.  In 1978, however, the Commission
concluded that the Class D stations were impeding expansion
of more efficient high-power operations.  Opting to "str[ike]
the balance in favor of licensing higher powered stations to
ensure that large audiences were served," the Commission
stopped licensing low-power stations and required most exist-

ing stations to upgrade to at least 100 watts.  Creation of
Low Power Radio Serv., 15 F.C.C. Rcd. 19,208, 19,236 (2000)
("First Low-Power Reconsideration") (recons.) (discussing
the 1978 rule, Changes in the Rules Relating to Noncommer-
cial Educ. FM Broad. Stations, 70 F.C.C.2d 972, 983 (1979)
(codified at 47 C.F.R. s 73.512(d))).

     Over the next two decades, often in open defiance of this
rule, individual pirates began operating unlicensed low-power
stations that broadcast local news, music, and commentary. 
Known as "microradio," this phenomenon expanded signifi-
cantly in the late 1990s after Congress amended the Telecom-
munications Act to eliminate restrictions on the number of
radio stations any one person or entity could own.  Telecom-
munications Act of 1996, Pub. L. No. 104-104, s 202(a), (b),
110 Stat. 56, 110-12 (1996).  Following the amendment, own-
ership of licensed radio stations became increasingly concen-
trated, leading--according to microradio proponents--to a
"marked decline in serious local radio news reporting" and a
corresponding increase in the perceived importance and, in
turn, number of unlicensed low-power stations.  Pet'r's Br. at
6-7.  In response to this microradio expansion, the Commis-
sion cracked down on pirates, ordering them to cease broad-
casting and taking legal action against those who refused. 
See, e.g., Grid Radio v. FCC, No. 99-1463, __ F.3d __ (D.C.
Cir. Feb. 8, 2002);  United States v. Dunifer, 219 F.3d 1004
(9th Cir. 2000).

     In 1999, the Commission again changed course, seeking
public comment on proposed rules that would allow licensing
of low-power stations.  The Commission observed that in
contrast to 1978, when it first adopted the microbroadcasting
ban, "[n]ow, ... radio service is widely available throughout
the country and very little spectrum remains available for
new full-powered stations," so licensing low-power stations
could "fill ... gaps in the spectrum that would otherwise go
unused," First Low-Power Reconsideration, 15 F.C.C. Rcd.
at 19,236, providing a "low-cost means of serving" both urban
and rural areas, Creation of Low Power Radio Serv., 14
F.C.C. Rcd. 2471, 2471 (1999) ("Low-Power Proposal") (notice
of proposed rulemaking).  Many groups submitted comments,

with students, religious groups, and labor unions generally
supporting the low-power program, and the established
broadcasting industry (including National Public Radio and
other noncommercial broadcasters) opposing it.

     In January 2000, the Commission issued an order authoriz-
ing two new classes of low-power stations:  100-watt stations,
reaching a radius of roughly 3.5 miles, and 10-watt stations,
reaching a radius of less than 2 miles.  Creation of Low
Power Radio Serv., 15 F.C.C. Rcd. 2205, 2205, 2210-12 (2000)
("First Low-Power Rulemaking").  The order encouraged
local ownership of low-power stations, limited the number of
such stations any single entity could own, required the sta-
tions to operate on a noncommercial, educational basis, and
prohibited existing media entities from holding interests in
them.  Id. at 2215-25.  The order also included a provision
addressing license applications by broadcast pirates.  Con-
cerned that those who had flouted the licensing process in the
past could not be trusted "to deal truthfully with the Commis-
sion and to comply with [its] rules and policies," the Commis-
sion provided that it would only accept low-power applications
from individuals who certified (under penalty of perjury) that
if they had operated illegally in the past, they ceased all such
operations either within twenty-four hours of being directed
by the Commission to do so or within ten days of publication
of the Low-Power Proposal.  Id. at 2225-26.  The Commis-
sion also extended this requirement to all parties to any
corporate applicant, including the applicant's "parents, its
subsidiaries, their officers and members of their governing
boards."  Id. at 2223-26.

     This version of the low-power rules was short-lived.  Less
than a year after the rules' promulgation, Congress, respond-
ing to broadcast industry lobbying, see, e.g., 146 Cong. Rec.
S8197-8211 (statement of Sen. Grams) (discussing licensed
broadcasters' concerns about the low-power rules), passed the
Radio Broadcasting Preservation Act of 2000 ("RBPA"), Pub.
L. No. 106-553, 114 Stat. 2762 (2000).  The RBPA directs the
Commission to amend the low-power rules to limit the fre-
quencies available for low-power stations, thus reducing the
risk of interference to existing stations.  Central to this case,

the Act also directs the Commission to deny licenses to all
applicants whose officers or board members ever "engaged in
any manner in the unlicensed operation of any station in
violation" of the Communications Act.  Id. s 632(a)(1)(B). 
This "character qualification provision" thus eliminates the
distinction the Commission had drawn between those erst-
while broadcast pirates who voluntarily ceased broadcasting
within a specified period and those who refused.  The provi-
sion also rescinds the Commission's discretion to waive the
character qualification requirement in cases in which, despite
an applicant's--or a party to an applicant's--unlicensed
broadcasting, the Commission finds no reason to question the
applicant's potential reliability as a licensee.  Id.
s 632(a)(2)(B).

     Following passage of the RBPA, the Commission issued
rules implementing the Act's character qualification provision. 
Creation of Low Power Radio Serv., 16 F.C.C. Rcd. 8026,
2001 FCC LEXIS 1760 (2001) ("Second Low-Power Rule-
making") (amending First Low-Power Rulemaking).  Under
the new rules--described by the Commission as "minor
amendment[s]" that merely "codif[y] a Congressional require-
ment"--all pirates and former pirates are automatically and
permanently disqualified from applying for low-power licens-
es.  Id., 2001 FCC LEXIS 1760, at *15.  Moreover, an
applicant is deemed "ineligible to hold [a low-power] license if
it has engaged in unlicensed operation regardless of whether
the Commission has made a specific finding that the party
has engaged in such conduct."  Id., 2001 FCC LEXIS 1760,
at *14 (emphasis added).

                               II.

     Petitioner Greg Ruggiero, an acknowledged former pirate
affiliated with microbroadcasting stations in New York City
and elsewhere, argues that facially and as applied to him, the
character qualification provision and implementing regulation
violate the First and Fifth Amendments to the United States
Constitution.  Before considering the merits of Ruggiero's
challenge, we must deal with the Commission's argument that

we lack jurisdiction for two independent reasons:  because
Ruggiero failed to file a petition for review, and because he
lacks Article III standing.  We consider each in turn.

                       Petition for Review

     Resolving the Commission's first argument requires an
understanding of the history of this case.  Ruggiero originally
filed a petition for review of the Commission's First Low-
Power Rulemaking, in which he argued that the then-current
version of the licensing restriction violated both the Adminis-
trative Procedure Act and the First Amendment.  Following
passage of the RBPA, we remanded the record to the Com-
mission and directed the parties to file supplemental briefs
addressing Ruggiero's standing to pursue his First Amend-
ment claim, as well as the merits of that claim as applied "to
the Act and any implementing orders or regulations the
Commission may issue."  Order of the United States Court of
Appeals for the District of Columbia Circuit at 1 (Jan. 8,
2001) (No. 00-1054) ("Order of Jan. 8, 2001").  After the
Commission issued the Second Low-Power Rulemaking, the
parties submitted the requested supplemental briefs, and we
heard oral argument on Ruggiero's constitutional claims--
expanded by a footnote in Ruggiero's Supplemental Brief to
include a claim under the Fifth Amendment--as applied to
the RBPA and the new rules.

     The Commission now argues that because Ruggiero never
filed a petition for review of the Second Low-Power Rule-
making, this court lacks jurisdiction to hear his constitutional
challenge.  We disagree.  Although it is true that Ruggiero
did not file a second petition for review, he did, as we
directed, file a brief addressing the constitutionality of the
RBPA and the Commission's implementing regulation, and
that brief, in all but title, satisfies the four statutory require-
ments for a petition for review of the Second Low-Power
Rulemaking.  Specifically, as required by 28 U.S.C. s 2344,
Ruggiero filed the brief within sixty days of the rulemaking; 

stated "the nature of the proceedings as to which review is
sought, ... the facts on which venue is based, ... the
grounds on which relief is sought, and ... the relief prayed"; 
attached a copy of the challenged rulemaking;  and served the
brief on the Commission and the United States Department
of Justice.  See generally Pet'r's Supp. Br. at 1-10, App. B,
Certificate of Service.  Accordingly, we may treat the brief as
the "functional equivalent" of a petition for review.  See
Smith v. Barry, 502 U.S. 244, 248-49 (1992) (internal citations
omitted) (construing pro se brief as notice of appeal and
noting that "[i]f a document filed within the time specified by
Rule 4 gives the notice required by Rule 3, it is effective as a
notice of appeal");  Moore v. United States Dep't of Transp.,
2001 U.S. App. LEXIS 2496, at *12 (7th Cir. Feb. 5, 2001)
(unpublished disp.) (citing Smith v. Barry and construing
brief as "functional equivalent of a timely petition for review"
of agency action).

     This liberal construction of 28 U.S.C. s 2344 makes particu-
lar sense in this case.  For one thing, as we learned at oral
argument, Ruggiero filed no second petition for review solely
because we had directed him to file a supplemental brief
addressing the applicability of his First Amendment claims to
the RBPA and any subsequent implementing regulations. 
See Order of Jan. 8, 2001, at 1;  cf. Moore v. South Carolina
Labor Bd., 100 F.3d 162, 163 (D.C. Cir. 1996) (discussing "the
unique circumstances doctrine, under which appellate courts
will excuse an untimely notice of appeal where the appellant
could have filed a timely notice but was misled to delay filing
by a court order or ruling which purportedly extended or
tolled the appeal deadline" (citing, inter alia, Thompson v.
INS, 375 U.S. 384, 387 (1964) (applying the doctrine))). 
Moreover, we maintained jurisdiction of Ruggiero's claims
throughout the Commission's implementation of the RBPA,
remanding only the record for further Commission action. 
Order of Jan. 8, 2001, at 1;  see also D.C. Cir. R. 41(b). 
Finally, Ruggiero's original contentions, made in his brief
challenging the First Low-Power Rulemaking, are sufficient-
ly broad to cover at least his First Amendment challenge to
the character qualification provision and implementing regu-
lation.  His original brief asserted that the Commission "vio-

lated [his] First Amendment rights in disqualifying [him]
from holding a low power FM radio station license" and that
"[t]he [a]utomatic [d]isqualification [p]olicy [l]acks the [n]ar-
row [t]ailoring [r]equired by the First Amendment."  Pet'r's
Br. at 2, 23.  These broadly worded objections to the First
Low-Power Rulemaking are equally valid as objections to the
amended rules, as Ruggiero continues to argue primarily that
the Commission violated his First Amendment rights by
automatically disqualifying him and other unlicensed micro-
broadcasters from holding low-power licenses.  Cf. Tenn. Gas
Pipeline Co. v. FERC, 871 F.2d 1099, 1109 (D.C. Cir. 1989)
(finding jurisdiction to review claims despite appellant's fail-
ure to file new FERC petition for rehearing because most of
appellant's objections to agency's first decision, raised in
timely petition for review, were "equally valid" as objections
to agency's amended decision).

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