                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                            APR 12 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MINORITY TELEVISION PROJECT,                     No. 09-17311
INC.,
                                                 D.C. No. 3:06-cv-02699-EDL
         Plaintiff - Appellant,

  v.                                             MEMORANDUM*

FEDERAL COMMUNICATIONS
COMMISSION; et al.,

         Defendants - Appellees.,

  and

LINCOLN BROADCASTING
COMPANY,

        Intervenor.


                     Appeal from the United States District Court
                        for the Northern District of California
                  Elizabeth D. Laporte, Magistrate Judge, Presiding

                      Argued and Submitted November 1, 2010
                             San Francisco, California

Before: NOONAN, PAEZ, and BEA, Circuit Judges.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Petitioner Minority Television Project (“Minority”) appeals the district

court’s dismissal of its as-applied First Amendment challenges to 47 U.S.C.

§ 399b, as well as its First Amendment challenges to 47 C.F.R. § 73.621(e), the

Federal Communications Commission (“FCC”) order which implements § 399b.

Minority further appeals the district court’s grant of summary judgment to the

government, which held § 399b’s ban on paid messages by for-profit entities which

“promote” services, facilities, or products is not unconstitutionally vague.1 We

affirm.2

      The district court correctly dismissed Minority’s as-applied challenges to

§ 399b, as well as its challenge to 47 C.F.R. § 73.621(e). Section 399b was applied

to Minority only through FCC orders and regulations, including 47 C.F.R.

§ 73.621(e). Jurisdiction over challenges to FCC orders lies exclusively in the

court of appeals; as such, federal district courts lack jurisdiction over challenges to

FCC orders. 28 U.S.C. § 2342(1) (“The court of appeals . . . has exclusive

jurisdiction to enjoin, set aside, suspend (in whole or in part) or determine the



      1
        We address Minority’s contention that § 399b imposes an unconstitutional
content-based restriction on speech in an opinion filed concurrently with this
memorandum.
      2
        Because the parties are familiar with the facts of this case, we repeat them
here only to the extent necessary to explain our decision.

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validity of . . . all final orders of the Federal Communications Commission.”). See

also United States v. Duinfer, 219 F.3d 1004, 1007 (9th Cir. 2000) (district courts

lack jurisdiction over any challenge to FCC regulations).

      Although the Supreme Court has previously reviewed a First Amendment

challenge to an FCC regulation which was initially filed in federal district court,

see Greater New Orleans Broadcasting Association v. United States, 527 U.S. 173

(1999), the Court in that case did not address—and was not asked to

address—whether jurisdiction in the district court was proper. Courts “are not

bound by a prior exercise of jurisdiction in a case where it was not questioned and

it was passed sub silento.” United States v. L.A. Trucker Truck Lines, Inc., 344

U.S. 33, 38 (1952).

      Section 399b’s prohibition of paid messages intended to “promote” any

service, facility, or product of a for-profit entity is not unconstitutionally vague. A

statute need not have “mathematical certainty” to survive a vagueness challenge;

instead, it may be marked by “flexibility and reasonable breadth, rather than

meticulous specificity.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

The meaning of the term “promote” is clear in the vast majority of circumstances.

Where it is not, the FCC—to remove uncertainty—provides declaratory rulings to

broadcasters who fear they might run afoul of § 399b. 47 C.F.R. § 1.2. A statute


                                           3
may overcome a First Amendment vagueness challenge if a government body

provides administrative regulations that “sufficiently narrow potentially vague or

arbitrary interpretations of the ordinance.” Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489, 504 (1982).

      AFFIRMED.




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