     Case: 09-50683     Document: 00511032404          Page: 1    Date Filed: 02/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 22, 2010
                                     No. 09-50683
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk



RADAR SOLUTIONS, LTD., doing business as Rocky Mountain Radar, Inc.,

                                           Plaintiff - Appellant

v.

THE UNITED STATES FEDERAL COMMUNICATIONS COMMISSION,

                                           Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                            USDC No. 3:07-cv-00344-KC


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The Federal Communications Commission fined Rocky Mountain Radar
for producing two types of police radar jammers. The Commission alleged that
the jammers harmfully interfered with authorized radio communications – a
violation of FCC regulations. Rocky Mountain Radar refused to pay, and the
dispute found its way to federal court. The district court granted summary



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                     No. 09-50683

judgment to the Commission, requiring Rocky Mountain Radar to remit the
penalty. Rocky Mountain Radar appeals, and we affirm.


                                           I.


                                          A.
      Congress created the Federal Communications Commission to “execute
and enforce” the Communications Act of 1934.1 The legislature – in the organic
statute – delegated to the agency the authority to make regulations “governing
the interference potential of devices which in their operation are capable of
emitting radio frequency energy by radiation, conduction, or other means in
sufficient degree to cause harmful interference to radio communications.” 2 The
agency’s regulatory power would extend over the “manufacture, import, sale,
offer for sale, or shipment of such devices” and “the use of such devices.”3
      The Commission has exercised its authority to regulate what it calls
intentional radiators – “device[s] that intentionally generate[ ] and emit[ ] radio
frequency . . . .” 4 Radio frequency energy is “[e]lectromagnetic energy at any
frequency in the radio spectrum between 9 kHz and 3,000,000 MHz.” 5 Any seller
must receive the Commission’s authorization “prior to marketing” an intentional



      1
          47 U.S.C. § 151.
      2
          47 U.S.C. § 302a(a).
      3
          47 U.S.C. § 302a(a).
      4
          47 C.F.R. § 15.3(o).
      5
          47 C.F.R. § 15.3(u).

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radiator.6 Additionally, no radiator – intentional or otherwise – may cause
“harmful interference,” 7 which the Commission defines as “[a]ny emission,
radiation or induction that endangers the functioning of a radio navigation
service or of other safety services or seriously degrades, obstructs or repeatedly
interrupts a radiocommunications service operating in accordance with this
chapter.” 8 As the district court noted, these regulations fulfill Congress’s express
intent that “[n]o person shall willfully or maliciously interfere with or cause
interference to any radio communications . . . licensed or authorized by or under
this chapter . . . .”9


                                           B.
       The Commission authorizes the police to use radar – a type of radio energy
– to enforce traffic laws. Police radar can decipher the speed of moving cars by
interpreting a phenomenon beloved by middle-school science teachers
everywhere – the Doppler effect. The police radar system sends a radar signal
toward an approaching car. When the radar hits the car, the car’s movement
adds an audio signal to the original radar. The combined signal bounces back
to the police, where the radar machine removes the radar frequency to process
only the remaining audio frequency – to which the car’s speed is proportional.10



       6
           47 C.F.R. § 15.201(b).
       7
           47 C.F.R. § 15.5(b).
       8
           47 C.F.R. § 15.3(m).
       9
           47 U.S.C. § 333.
       10
            See R. at 90-91.

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      Rocky Mountain Radar produces radar jammers, which the company
claims will “scramble” police radar.11 According to a Commission expert, all
radar jammers “work in the same basic way.” 12 When police radar hits a car
equipped with a radar jammer, the jammer mixes the incoming signal with an
audio signal artificially produced by the jammer. The produced audio signal’s
frequency falls below 9 kHz – and thus outside of the Commission’s regulated
frequency range. The jammer then reflects back the original radar signal –
combined not only with the natural audio signal created by all moving objects,
but also with the artificially created audio signal. According to Rocky Mountain
Radar, the police system “may become confused at having multiple audio signals
to process.”13


                                           C.
      The Commission has long interpreted radar jammers to be unlawful under
its regulations governing harmful interference. In fact, the agency in 1996
issued a public notice warning against the use of jammers: “The intentional use
of jammers is considered ‘malicious interference’ and is strictly prohibited by the
Communications Act of 1934, as amended, and by Commission Rules.”14
      Rocky Mountain Radar decided not to heed the Commission’s warning. It



      11
           R. at 90.
      12
         R. at 345. Rocky Mountain Radar does not on summary judgment dispute this point.
See R. at 90 (explaining, at least, that the jammer models in this case work in this same
general manner).
      13
           R. at 91.
      14
           R. at 114.

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continued in the late 1990s to produce its Spirit II line of radar jammers. The
Commission cited the company: the Spirit II acted as an intentional radiator
designed         harmfully   to   interfere   with   police    radar.     The   company
administratively challenged the determination; the Commission upheld its
ruling that the Spirit II violated FCC regulations; and the company appealed the
Commission’s final determination to the United States Court of Appeals for the
10th Circuit in a case called Rocky Mountain Radar, Inc. v. Federal
Communications Commission.15
      The 10th Circuit described that the Spirit II – as expected – “receives a
radar signal, then blends the signal with white noise, and confuses the computer
inside the radar gun.” 16 The question on judicial review boiled down to whether
the Commission could classify radar jammers as intentional radiators – devices
that intentionally generate and emit radio energy. Rocky Mountain Radar urged
that the Commission’s conception of the word “generate” made no sense –
arguing that “the Spirit II is not covered by FCC rules regulating radiators of
radio frequency energy because the device merely reflects a police radar signal
and, by itself, cannot produce radio frequency energy.” 17              According to the
company, reflect does not mean generate.
      The Commission countered that “the fact that the original source of the
radio frequency energy is external to the device does not place it beyond the




      15
           158 F.3d 1118 (10th Cir. 1998).
      16
           Id. at 1120 (quotation marks omitted).
      17
           Id.

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Commission’s jurisdiction.” 18 Indeed, the jammer “uses the radar signal as a
source of RF [(radio frequency)] energy, modulates the signal electronically to
generate a different RF signal, and emits that RF signal to cause interference
to police radars.” 19 According to the Commission, the company could find no
solace in the fact that it designed the Spirit II “to function only when it is
illuminated by a police radar signal.”20
      The 10th Circuit agreed and upheld the Commission’s determination that
radar jammers operate as harmful intentional radiators, deferring to the
agency’s interpretation of its own regulations. The court explained, “When an
agency applies its regulations to complex or changing circumstances . . . this
calls upon the agency’s unique expertise and policymaking prerogatives and
courts must presume the power authoritatively to interpret its own regulations
is a component of the agency’s delegated lawmaking powers.”21 The 10th Circuit
continued, “The FCC’s decision to give ‘generate’ a more expansive treatment
than that advocated by [the company] is consistent with the ordinary meaning
of the term as in ‘create,’ ‘produce,’ or ‘propagate.’” 22 The court opined that “a
broad reading of the word furthers a stated aim of the Communications Act . .
. . [and] can also be reconciled with the purpose of the regulations, which is to
regulate and minimize interference between users of the electromagnetic


      18
           Id. at 1121 (citations, alterations, and quotation marks omitted).
      19
           Id. (citations and quotation marks omitted).
      20
           Id.
      21
         Id. at 1124 (citing Marin v. Occupational Safety & Health Review Comm’n, 499 U.S.
144, 151 (1991)) (quotation marks omitted).
      22
           Id. (citing WEBSTER ’S THIRD NEW INTERNATIONAL DICTIONARY ).

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spectrum.” 23 In the end, the 10th Circuit did not find the Commission’s order
plainly erroneous or inconsistent with regulation.24


                                               D.
      The Commission in 2005 learned that the company had produced two new
lines of radar jammers – the RMR-C450 and RMR-S201.25 The Commission
asked the company to provide it with information about and samples of the
devices.         Rocky Mountain Radar complied.          After testing, the Commission
concluded that both devices – like the Spirit II – functioned as intentional
radiators designed harmfully to interfere with police radar.
      Regarding the S201: “When the scrambler is hit by a [radar] signal it runs
it thorough the mixer, adding the FM chirp [audio signal] to mix up the signal
and using the antenna, reflect back this new signal to the radar gun.” 26 The
Commission explained: “By definition if an FM chirp generator is mixed with an
incoming signal and sent to an antenna, then it is . . . an intentional radiator
subject to Section 15.209.” 27         The agency concluded that the device “is an
[unlicensed] intentional radiator” and “was designed to intentionally interfere
with a licensed radio service and is thus in violation of Section 15.5 of our




      23
           Id.
      24
           Id. (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
      25
       The C450 functions as a dual radar detector and radar jammer, and the S201 has only
jammer capabilities.
      26
           R. at 463.
      27
           R. at 463.

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rules.” 28     The Commission found the C450 to work in the same unlawful
manner.29
       The Commission sent the company a Notice of Apparent Liability
Forfeiture for $25,000. Rocky Mountain Radar did not respond, so the agency
issued a Forfeiture Order directing the company to pay the penalty.30
       Instead, Rocky Mountain Radar – oddly enough – sued the Commission in
federal court. The company alleged that the Commission had, among other
misdeeds, ignored its request to set aside the forfeiture.                  The Commission
counterclaimed for the payment of $25,000. The district court concluded that it
had no jurisdiction over the company’s claims, a ruling that the company does
not appeal.        The district court did find jurisdiction over the Commission’s
counterclaim, noting that an agency may bring a forfeiture action through a de
novo trial in federal district court.31
       All parties agreed that the case came down to whether the C450 and S201
are “intentional radiators” under the Commission’s regulations. After motions



       28
            R. at 465.
       29
            See R. at 309 & 316.
       30
          See 47 U.S.C. § 503(b)(1) (stating that any person who has “willfully or repeatedly
failed to comply with any of the provisions of this chapter or of any rule, regulation, or order
issued by the Commission under this chapter . . . shall be liable to the United States for a
forfeiture penalty”); see generally Action for Children’s Television v. Federal Communications
Commission, 59 F.3d 1249, 1253-54 (D.C. Cir. 1995) (describing the Commission’s forfeiture
procedures).
       31
         See 47 U.S.C. § 504(a) (“The forfeitures provided for in this chapter shall be payable
into the Treasury of the United States, and shall be recoverable . . . in a civil suit in the name
of the United States brought in the district where the person or carrier has its principal
operating office . . . . Provided, That any suit for the recovery of a forfeiture imposed pursuant
to the provisions of this chapter shall be a trial de novo. . . .”).

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from both sides, the district court granted the Commission summary judgment.
The court held that the facts indisputably showed the company’s jammers to fit
the Commission’s regulatory definition of intentional radiators. Rocky Mountain
Radar appeals from that final judgment.


                                             II.


                                             A.
       We must verify that we have jurisdiction, even though no party challenges
our ability to hear this appeal.32 Indeed, “every federal appellate court has a
special obligation to satisfy itself not only of its own jurisdiction, but also that
of the lower courts in a cause under review, even though the parties are
prepared to concede it.” 33
       The Communications Act creates a complicated review process.                     One
federal court has called it a “maze.” 34 Generally, only a court of appeals has
jurisdiction to hear challenges to the Commission’s orders.35 So a judicial attack
on the Commission’s regulations (or interpretations thereof) usually has to
originate in a circuit court. “The district courts, however, have a sliver of the



       32
         Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000) (“[W]e have a
duty to consider objections to our jurisdiction sua sponte.”).
       33
        Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (citation and
quotation marks omitted).
       34
          Action for Children’s Television v. Federal Communications Commission, 827 F. Supp.
4, 10 (D.D.C. 1993) (“The maze of jurisdictional rules governing the review of FCC matters is
difficult to navigate . . . .”).
       35
            See 47 U.S.C. § 402(a).

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jurisdictional pie for enforcement of FCC orders imposing a monetary forfeiture
penalty.” 36 Indeed, 47 U.S.C. § 504(a) establishes that the Commission may
bring a de novo forfeiture enforcement action in federal district court.
       But the district court’s jurisdiction may be limited – even in a forfeiture
action. The district court can hear a factual dispute as to whether a defendant
has violated the Commission’s rules. But can the district court hear – by way of
defense – that the Commission’s rules are themselves unlawful?
       Suppose Broadcaster allegedly violates the Commission’s regulation XYZ.
The Commission issues a forfeiture order, but Broadcaster does not pay. The
Commission sues in district court to collect. The Commission puts on proof of
Broadcaster’s actions that violate XYZ. Broadcaster defends that he did not
commit the alleged actions. So far no apparent jurisdictional problem.
       But suppose, too, that Broadcaster argues in the alternative that XYZ
violates the Constitution. Broadcaster, in other words, directly challenges the
validity of the governing agency regulation – a claim usually subjected
exclusively to appellate review. Does the district court have jurisdiction to hear
the defense?
       Our sister circuits have split on the issue.37 On the one hand, the 8th
Circuit has held that “to ask the district court to decide whether the regulations
are valid violates the statutory requirements.” 38           District courts in the 8th



       36
            Rocky Mountain Radar, 158 F.3d at 1121 (citation and quotation marks omitted).
       37
         See Prayze FM v. Federal Communications Commission, 214 F.3d 245, 250-51 (2d Cir.
2000) (citing cases).
       38
         United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 463 (8th
Cir. 2000).

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Circuit cannot hear these sorts of challenges even in a de novo forfeiture trial.
On the other hand, the 6th Circuit allows its district courts to entertain all
relevant subject matters in a Commission forfeiture proceeding.39 Dicta from
D.C. Circuit caselaw suggests that it would side with the 6th Circuit.40
       We need not today decide the question. Read properly, Rocky Mountain
Radar before the district court defended that the Commission had failed to
establish the necessary facts to prove its jammers to be intentional radiators.
According to the company, “There exist genuine issues of material fact [that the
jammers are intentional radiators] to be resolved in a de novo trial as required
by statute.” 41 The company on appeal assumes the same posture – suggesting
that summary judgment cannot stand because factual issues remain
unanswered. The company does not challenge the validity of the regulations.
The Communications Act expressly authorizes the district court to hear factual
disputes in de novo forfeiture collection actions, so we can in this case review the
district court’s final judgment.


       39
         United States v. Any & All Radio Station Transmission Equip., 204 F.3d 658, 667 (6th
Cir. 2000) (“Congress presumably could have created a streamlined forfeiture remedy that
excluded certain defenses by giving claimants the opportunity to raise those defenses in some
other forum. But it did not do so.”).
       40
          See, e.g., Action for Children’s Television, 59 F.3d at 1256 (“[T]he district court’s
jurisdiction over the [broadcaster’s] challenge to the constitutionality of the forfeiture statute
is no threat to the jurisdiction of the court of appeals because review of a Commission order
imposing a forfeiture (in the defense against a collection suit) would itself be in the district
court, not in the court of appeals.”); Pleasant Broadcasting Co. v. Federal Communications
Commission, 564 F.2d 496, 501 (D.C. Cir. 1977) (“Thus, absent strong evidence to the contrary
in the legislative history, or a showing that the special review mechanism is unavailable or
inadequate, we must assume that the mechanism selected by Congress – a trial de novo in the
district court – is the exclusive means for review of a forfeiture order entered by the
Commission.”).
       41
            R. at 437.

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                                               B.
      We continue to the merits, reviewing de novo the grant of summary
judgment and applying the same standards as the district court.42 “Summary
judgment is appropriate where the competent summary judgment evidence
demonstrates that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” 43 Both parties agree that the
main issue centers on whether C450 and S201 are “intentional radiators” under
the Commission’s regulations.
      The Commission ran three tests on each of the jammers, and Rocky
Mountain Radar argues that the tests’ results do not provide sufficient evidence
for summary judgment – and neither do the Commission’s conclusory
interpretations of those results. One test involved a police radar gun aimed at
a jammer-equipped car as it drove down the road. According to the company, the
police radar machine correctly read the car’s speed, so the jammer must not
interfere with police radar – and cannot be an intentional radiator.
      Ultimately, though, no issues of material fact remain that the jammers fit
the regulatory definition of intentional radiators – notwithstanding the
possibility of either the jammers’ inefficacy or the inconclusiveness of any test
results. Rocky Mountain Radar’s founder and owner admitted – both in an
expert report 44 and at deposition 45 – that the jammers work by receiving a radar



      42
           Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009).
      43
           Id.
      44
           R. at 90-91.
      45
           Supp. R. at 1-6.

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signal, mixing the signal with an audio frequency, and through an antenna
reflecting the new conglomerate signal back to the police unit.46 Jammers that
function in this way meet the regulatory definition of an intentional radiator –
something the company has known since the 10th Circuit twelve years ago
handed down its decision in Rocky Mountain Radar.47


                                             III.


       By the company’s own admissions, there is no dispute of material fact that
Rocky Mountain Radar’s unlicensed police jammers generate and emit radio
energy.     The company designed its jammers to interfere with police radio
communications, and – by obstructing law enforcement’s effort to keep our roads
free from careless drivers – the company endangers the public’s safety. The
Commission’s regulations expressly forbid all of this. The district court did not
err in granting summary judgment to the Commission and ordering the company

       46
         The company stresses in its briefs that intentional radiators must emit “radio” energy
– but that the Commission never measured the frequency of the signal reflected by the
jammers. According to the company, the Commission thus has failed to establish one of the
factual predicates for classifying a device as an intentional radiator. A specious argument to
be sure, because the company admits in its expert report that the reflected signal falls within
the radio range of the electromagnetic spectrum. See R. at 93 (“The FCC argues that the
scrambler changes the radio energy it intercepts. This is completely true. Any moving object
in existence will also change the radio energy reflected back to the radar gun.”).
       47
         We, of course, adopt the 10th Circuit’s reasoning that the “ordinary meaning” of the
word “generate” includes the type of action performed by radar jammers. See Rocky Mountain
Radar, 158 F.3d at 1124. It is of no moment that the police radar is the first source of radio
energy. Consider this dictionary example: Mountain ranges “generate” more heat than low-
lying plains. See WEBSTER ’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH
LANG UAG E UNABRIDGED 945 (1961). It is the sun in this example – like the police radar in our
case – that is the first source of energy, and radar jammers do more work than inert
mountains to generate energy.

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to pay the forfeiture.


      AFFIRMED.




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