      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0069P (6th Cir.)
               File Name: 00a0069p.06


UNITED STATES COURT OF APPEALS
               FOR THE SIXTH CIRCUIT
                 _________________


                                ;
                                 
         98-2129
                                 
UNITED STATES OF AMERICA,
                                 
         Plaintiff-Appellant,
                                 
                                      Nos. 98-2129/2396

                                 
          v.                      >
                                 
                                 
                                 
ANY AND ALL RADIO

                                 
STATION TRANSMISSION
                                 
EQUIPMENT, RADIO
                                 
FREQUENCY POWER
AMPLIFIERS, RADIO                
                                 
                                 
FREQUENCY TEST EQUIPMENT

                                 
AND ANY OTHER EQUIPMENT

                                 
ASSOCIATED WITH OR USED
                                 
IN CONNECTION WITH THE
                                 
TRANSMISSION AT 97.7 MHZ,
LOCATED AT 2903 BENT OAK         
                                 
                                 
HIGHWAY, ADRIAN,

                                 
MICHIGAN,
                                 
        Defendant-Appellee,
                                 
RICK STRAWCUTTER,                
                                 
                                 
         Claimant-Appellee.

                                 
                                 
                                 

                           1
2       United States v.                 Nos. 98-2129/2396
        Strawcutter, et al.


                                     
                                     
             98-2396
                                     
    UNITED STATES OF AMERICA,
                                     
              Plaintiff-Appellee,
                                     
                                     
                                     
               v.

                                     
                                     
 ANY AND ALL RADIO
                                     
 STATION TRANSMISSION
                                     
 EQUIPMENT, RADIO
 FREQUENCY POWER                     
                                     
                                     
 AMPLIFIERS, RADIO

                                     
 FREQUENCY TEST EQUIPMENT
                                     
 AND ANY OTHER EQUIPMENT
                                     
 ASSOCIATED WITH OR USED
 IN CONNECTION WITH THE              
                                     
                                     
 RADIO TRANSMISSIONS ON

                                     
 FREQUENCY 95.9 MHZ,

                                     
 LOCATED AT 3968 WEST
                                     
 VERNOR HIGHWAY, DETROIT,
                                     
 MICHIGAN 48216,
         Defendant-Appellant,        
                                     
                                     
 MAQUINA MUSICAL,

                                     
 INCORPORATED,

                                     
          Claimant-Appellant,
                                     
 JUAN V. MARINEZ, CATALINA
                                     
 MARTINEZ, IGNACIO CAMPOS,
                                     
                                     
 JORGE CANCHOLA, SERGIO

                                     
 VALLEJO,

                                     
                   Intervenors-
                                     
  Counterplaintiffs-Appellants.
                                    1
18   United States v.                      Nos. 98-2129/2396       Nos. 98-2129/2396                       United States v.     3
     Strawcutter, et al.                                                                                 Strawcutter, et al.

28 U.S.C. § 1291 in the absence of special factors, none of              Appeal from the United States District Court
which are present here. Cf. Lickiss v. Drexler, 141 F.3d 1220,          for the Eastern District of Michigan at Detroit.
1222 (7th Cir.) (noting that a denial of a motion to dismiss           Nos. 97-73527; 98-74368—Julian A. Cook, Jr. and
based on qualified immunity is considered a final, appealable                  Patrick J. Duggan, District Judges.
order if there are no material facts in dispute, because part of
the harm sought to be averted by the doctrine of immunity is                      Argued: December 10, 1999
the necessity of standing trial), cert. denied, 119 S. Ct. 513
(1998). The denial is also not an immediately appealable                      Decided and Filed: February 25, 2000
interlocutory order within the meaning of 28 U.S.C.
§ 1292(a)(1). Finally, the doctrine of pendent appellate             Before: JONES, COLE, and GILMAN, Circuit Judges.
jurisdiction does not apply, because the issue of whether
Maquina Musical’s motion for a preliminary injunction                                  _________________
should have been granted is not “coterminous with, or
subsumed in” the issue of whether its motion to dismiss the                                 COUNSEL
government’s complaint should have been granted. See
Brennan v. Twp. of Northville, 78 F.3d 1152, 1158 (6th Cir.        ARGUED: Jacob M. Lewis, U.S. DEPARTMENT OF
1996). We therefore find no basis to consider Maquina              JUSTICE, CIVIL DIVISION, APPELLATE STAFF,
Musical’s motion to dismiss as part of the present appeal.         Washington, D.C., for United States of America. Patrick M.
                                                                   E d w a r d s , C O N S T IT U T IO N A L L I T I G A T I O N
                    III. CONCLUSION                                ASSOCIATION, Detroit, Michigan, for Claimants.
                                                                   ON BRIEF: Jacob M. Lewis, Robert S. Greenspan, U.S.
  For all of the reasons set forth above, we REVERSE the           DEPARTMENT OF JUSTICE, CIVIL DIVISION,
judgment of the district court in No. 98-2129 (Strawcutter),       APPELLATE STAFF, Washington, D.C., for United States
which dismissed the government’s forfeiture case sua sponte        of America. Kevin S. Ernst, Detroit, Michigan, Katharine M.
pursuant to the doctrine of primary jurisdiction, and              Omansiek, Detroit, Michigan, for Appellants. Patrick M.
REMAND the case for further proceedings. We REMAND                 E d w a r d s , C O N S T IT U T IO N A L LI T I G A T I O N
No. 98-2396 (Maquina Musical) to the district court for            ASSOCIATION, Detroit, Michigan, for Claimants.
reconsideration in light of its determination that the doctrine
of primary jurisdiction precluded it from considering Maquina                          _________________
Musical’s “constitutional defenses” to the government’s
forfeiture action. Concerning Maquina Musical’s appeal from                                OPINION
the district court’s denial of its motion to dismiss the                               _________________
government’s forfeiture complaint, we DISMISS the appeal
for lack of jurisdiction.                                            RONALD LEE GILMAN, Circuit Judge. The principal
                                                                   question presented by these consolidated appeals is whether,
                                                                   under the doctrine of primary jurisdiction, district courts may
                                                                   decline to adjudicate in rem forfeiture actions brought by the
                                                                   United States against persons who operate radio stations
                                                                   without licenses. For the reasons set forth below, we
                                                                   conclude that the answer is no. We therefore REVERSE the
4     United States v.                      Nos. 98-2129/2396       Nos. 98-2129/2396                       United States v.     17
      Strawcutter, et al.                                                                                 Strawcutter, et al.

judgment of the district court in No. 98-2129 (Strawcutter),        district court’s conclusion. As previously stated in Part
which dismissed the government’s forfeiture case sua sponte         II.B.1.a. above, nobody has a First Amendment right to hear
pursuant to the doctrine of primary jurisdiction, and               radio broadcasts from a station that does not have a First
REMAND the case for further proceedings. We also                    Amendment right to broadcast them.
REMAND No. 98-2396 (Maquina Musical) to the district
court for reconsideration in light of its determination that the           d.     Public interest
doctrine of primary jurisdiction precluded it from considering
Maquina Musical’s “constitutional defenses” to the                    Finally, the district court concluded that the public interest
government’s forfeiture action.          Concerning Maquina         did not favor granting the injunction because the government
Musical’s appeal from the district court’s denial of its motion     has an interest in the uniform and consistent application of the
to dismiss the government’s forfeiture complaint, we                Communications Act. Maquina Musical argues that “the
DISMISS the appeal as premature.                                    district court erred as a matter law and fact” because the
                                                                    “policy of free speech is the very cornerstone of a democratic
                     I. BACKGROUND                                  society.” This is undoubtedly true, but we think that Maquina
                                                                    Musical avoids the issue by defining the question
A. No. 98-2129 (Strawcutter)                                        considerably more abstractly than the Supreme Court has
                                                                    been willing to do. As noted above, the Court has made it
  On November 12, 1996, the manager of a licensed FM                quite clear that unlicensed broadcasting is not considered free
radio station in Toledo, Ohio telephoned the Federal                speech protected by the First Amendment. See Part II.B.1.a.
Communications Commission (FCC) and complained that the             above.
signal from a radio station identifying itself as “Radio Free
Lenawee” was interfering with his station’s signal. During            We express no opinion on whether the constitutionality of
the preceding two weeks, a number of other persons had also         the challenged FCC regulation is an appropriate consideration
complained to the FCC’s Detroit office about Radio Free             in deciding the merits of this case. The district court may
Lenawee’s transmissions.                                            have been right when it concluded that even if the challenged
                                                                    regulation is unconstitutional, the statute is valid, and that
   On November 14, 1996, the FCC sent a field agent to              Maquina Musical’s violation of the statute is the beginning
investigate the complaints. An unlicensed radio station             and end of the government’s forfeiture case. But before this
identifying itself as Radio Free Lenawee was found to be            court decides the issue, it should be resolved on the merits by
broadcasting from a building at 2903 Bent Oak Highway, in           the district court. We will therefore remand this case to the
Adrian, Michigan, at a frequency of 97.7 megahertz. The             district court so that it can determine whether it wishes to
FCC later determined that Radio Free Lenawee was                    adhere to its reasoning in light of its ability to consider the
broadcasting at a strength of 29,625 microvolts per meter at        constitutionality of the FCC regulations.
a distance of over half a mile, far exceeding that permitted for
unlicensed radio stations (a maximum of 250 microvolts per            2.        Motion to dismiss
meter at a distance of three meters). See 47 C.F.R.
§ 15.239(b).                                                          Maquina Musical is also appealing from the portion of the
                                                                    district court’s order that denied the station’s motion to
  Rick Strawcutter, Radio Free Lenawee’s owner and                  dismiss the government’s complaint. An order denying a
operator, took the position that he had a constitutional right to   motion to dismiss is not a “final decision” appealable under
16    United States v.                      Nos. 98-2129/2396       Nos. 98-2129/2396                       United States v.     5
      Strawcutter, et al.                                                                                 Strawcutter, et al.

Currency, 985 F.2d 245, 250 (6th Cir. 1993) (applying the           continue his radio broadcasts without interference from the
Fourth Amendment exclusionary rule in a forfeiture case).           government. FCC inspectors sought to inspect Radio Free
We believe that this makes it even less likely that Congress        Lenawee’s premises. Strawcutter refused them permission to
enacted a statute that allows the government to forfeit a           do so. The FCC notified Strawcutter by letter that he was
person’s property while denying the owner the right to defend       violating the Communications Act of 1934, 47 U.S.C. §§ 151-
himself by challenging the legal basis of the government’s          614. Specifically, the letter stated that (1) the station’s
forfeiture case.                                                    broadcast strength exceeded the maximum allowed by 47
                                                                    C.F.R. § 15.239(b), (2) the station was violating 47 U.S.C.
   Although we conclude that the district court erred in            § 301 because it was operating an unlicensed transmitter, and
holding that it lacked jurisdiction to adjudicate Maquina           (3) operating a transmitter without a license subjects the
Musical’s arguments, this does not mean that Maquina                operator to the criminal penalties described in 47 U.S.C.
Musical is any closer to demonstrating that it is likely to         § 501. Strawcutter responded with a letter in which he
succeed on the merits. With one exception, the cases                explained that he had “come to a sincerely held conclusion
Maquina Musical relies upon for the boilerplate propositions        that the [FCC] in reality has no Constitutional regulatory
that restrictions on First Amendment rights must be “narrowly       power over FM stations which run a power level less than 100
tailored” and that “prior restraints” on protected free speech      watts.”
are presumptively invalid have nothing to do with radio
broadcasting, much less with unlicensed radio broadcasting.           Between the end of November of 1996 and the end of
The one exception is FCC v. League of Women Voters of               February of 1997, the FCC conducted six field tests. Those
California, 468 U.S. 364 (1984), which concerned the                tests established that Radio Free Lenawee, which was still
constitutionality of a statute prohibiting licensed broadcasters    unlicensed, was continuing to transmit, and was doing so in
that accepted federal funding from engaging in                      excess of the permissible signal strength.
“editorializing.” Even in that opinion, the Court repeatedly
observed that broadcasting may legitimately be regulated in            On July 22, 1997, the government filed in the United States
ways that would be unconstitutional in other contexts. See id.      District Court for the Eastern District of Michigan a
at 374 (“[B]ecause broadcast regulation involves unique             complaint in which it sought, pursuant to 47 U.S.C. § 510(a),
considerations, our cases have not followed precisely the           the civil in rem forfeiture of the radio transmission equipment
same approach that we have applied to other media”).                located at 2903 Bent Oak Highway, the source of Radio Free
                                                                    Lenawee’s broadcasts. Strawcutter filed a claim of ownership
     c.   Substantial harm to others                                on August 5, 1997, and an answer approximately two weeks
                                                                    later. In his answer, Strawcutter asserted that the FCC
   The district court concluded that it did “not believe that the   regulation that prohibits unlicensed “microbroadcasting” was
absence of Hispanic radio programming outweighs what                invalid because it violated his rights under the First
would amount to judicial sanction of an unlicensed radio            Amendment, the Equal Protection and Due Process Clauses
station.”     This appears to be more a weighing of the             of the Fifth Amendment, Article XIX of the United Nations
“substantial harm” factor against the “public interest” factor      Declaration of Human Rights, and Article XIX of the
than strictly a consideration of whether the inability of           International Covenant on Civil and Political Rights. He also
Maquina Musical’s audience to hear the station’s broadcasts         argued that the FCC regulation is inconsistent with its
constitutes substantial harm. We agree, however, with the           statutory mandate to “encourage the larger and more effective
6     United States v.                      Nos. 98-2129/2396       Nos. 98-2129/2396                          United States v.      15
      Strawcutter, et al.                                                                                    Strawcutter, et al.

use of radio in the public interest,” as set forth in 47 U.S.C.        Maquina Musical also contends that the FCC regulation
§ 303(g).                                                           announcing the moratorium on Class D licenses, 47 C.F.R.
                                                                    § 73.512(c), was an unconstitutional prior restraint on speech.
   Strawcutter’s arguments centered around the FCC                  In response, the government argues that even if the regulation
regulations found at 47 C.F.R. Part 73. Those regulations           was ultimately held to be unconstitutional, it would not
classify FM radio broadcast licenses as Class A, Class B,           matter, because the government’s forfeiture case begins and
Class C, or Class D, depending on the station’s transmission        ends with Maquina Musical’s violation of 47 U.S.C. § 301.
power, antenna height, and the area or place from which the         The district court concluded, however, that it lacked
broadcasts emanate. See 47 C.F.R. §§ 73.210-.211. The FCC           jurisdiction to entertain Maquina Musical’s constitutional
once granted Class D licenses to “microbroadcasters,” but in        defenses because 28 U.S.C. § 2342 provides that the courts of
1978 adopted a regulation effectively preventing new Class D        appeals have exclusive jurisdiction “to enjoin, set aside,
stations from operating, except in Alaska. See 47 C.F.R.            suspend . . . or to determine the validity of . . . all final orders
§ 73.512(c) (providing that no new Class D applications             of the [FCC] . . . .”
would be accepted, except in Alaska or by existing Class D
stations seeking to change frequency).                                We disagree, “for the simple reason that no FCC order is
                                                                    being challenged.” United States v. Any and All Radio
  We note that during the pendency of this appeal, the FCC          Station Transmission Equipment (Laurel Avenue), 169 F.3d
has changed its position on microbroadcasting. See In the           548, 554 (8th Cir.) (M. Arnold, J., concurring in the result),
Matter of Creation of a Low Power Radio Service, FCC 99-6,          reh’g granted, 182 F.3d 1026 (8th Cir. 1999). Indeed, as
14 FCCR 2471, at ¶ 1 (released Feb. 3, 1999) (proposing the         Judge Morris Arnold said in his short but well-reasoned
creation of two new classes of low-power FM radio stations,         opinion in Laurel Avenue: “Until today I had not supposed
and seeking comment “on whether to establish a third,               that anyone could plausibly maintain that any court of the
‘microradio’ class of low power radio service that would            United States, properly seized of jurisdiction of a suit, did not
operate in the range of 1 to 10 watts.”); In the Matter of          also have jurisdiction to consider constitutional defenses to
Creation of Low Power Radio Service, FCC 00-19, — FCCR              that suit.” See Laurel Avenue, 169 F.3d at 554 (M. Arnold, J.,
—, 2000 WL 85304, at ¶ 1 (released January 27, 2000)                concurring in the result). Laurel Avenue involved facts that
(authorizing, among other things, the licensing of low-power        are virtually identical to those of the present case, in that the
FM stations operating at a maximum of 10 watts).                    government sought the in rem forfeiture of an unlicensed
Notwithstanding this change in policy, however, Strawcutter         microbroadcaster’s radio transmission equipment.
apparently will still not be eligible for a broadcasting license.
See In the Matter of Creation of Low Power Radio Service,              Congress presumably could have created a streamlined
2000 WL 85304, at ¶¶ 51-55 (announcing that                         forfeiture remedy that excluded certain defenses by giving
microbroadcasters who had broadcast without licenses in the         claimants the opportunity to raise those defenses in some
past will now be eligible for low-power broadcast licenses,         other forum. But it did not do so. Forfeiture actions,
but only if they voluntarily ceased broadcasting no later than      although nominally civil, are quasi-criminal in nature. See
February 26, 1999 “without specific direction to terminate by       One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 700
the FCC,” or ceased broadcasting within 24 hours after being        (1965). As a consequence, some of the protections to which
advised to do so by the FCC).                                       criminal defendants are entitled also apply in forfeiture cases.
                                                                    See, e.g., United States v. $53,082.00 in United States
14    United States v.                    Nos. 98-2129/2396       Nos. 98-2129/2396                       United States v.      7
      Strawcutter, et al.                                                                               Strawcutter, et al.

court erred on the side of overgenerosity to Maquina Musical         On June 9, 1998, the government moved for summary
in assessing whether it had demonstrated a risk of irreparable    judgment, taking the position that it was entitled to summary
harm. Cf. Free Speech ex rel. Ruggiero, 200 F.3d at 65            judgment as a matter of law because there was no material
(concluding that the government had established that it would     issue of fact—indeed, the facts were essentially
suffer irreparable harm without an injunction “simply by          uncontroverted—as to whether Strawcutter had broadcast
establishing that plaintiffs were broadcasting without a          without a license despite being warned by the FCC that it was
license”).                                                        unlawful for him to do so. The only disputed issues were the
                                                                  validity of the regulations that Strawcutter concededly
     b.   Likelihood of success on the merits                     violated, and whether the authorizing statutes were
                                                                  unconstitutional or in conflict with a treaty. Those issues, the
   The district court found that Maquina Musical had not          government argued, were part of a “regulatory challenge” that
demonstrated that it was likely to prevail on the merits. In      was “not justiciable” in the district court, because “Congress
reaching this conclusion, the district court noted that it was    vested exclusive jurisdiction in the United States Courts of
undisputed that Maquina Musical had broadcasted without a         Appeals, whether that review involves FCC regulations
license and, indeed, that it had never applied for a license, a   generally or specific licensing decisions.”
waiver, or an amendment to the pertinent FCC regulations
barring microbroadcasting. This, the district court concluded,       The government claimed that in challenging the legal basis
was sufficient for the government to establish probable cause     of the statutes or regulations with which he disagreed,
that Maquina Musical had violated 47 U.S.C. § 301 (which          Strawcutter’s sole options were to apply to the FCC for a
prohibits radio broadcasting without a license) and, by           broadcast license or to petition the FCC either to amend its
extension, that its broadcasting equipment was subject to         regulations or to waive their application to him. Strawcutter
forfeiture under 47 U.S.C. § 510(a), which subjects to            argued that those administrative remedies offered him no
forfeiture “any electronic, electromagnetic, radio frequency,     realistic prospect of relief, because the FCC had an unyielding
or similar device, or component thereof . . . used . . . with     policy not to waive the regulations that bar microbroadcasters
willful and knowing intent to violate [47 U.S.C. §] 301 [or       from transmitting. As many other microbroadcasters around
FCC regulations promulgated under § 301].”                        the country have done, Strawcutter argued that the FCC was
                                                                  “being used as the tool of powerful broadcast corporations”
  Because Maquina Musical produced absolutely no evidence         that wished to maintain cartel-like control over the airwaves,
to rebut its violation of a facially valid federal statute, we    at the cost of suppressing potential competitors and depriving
believe that the district court was correct in its ultimate       the listening public of “low-cost broadcasting on community
conclusion that the station had failed to demonstrate that it     issues as an alternative to mainstream perspectives.”
was likely to succeed on the merits. See United States v.
Certain Real Property 566 Hendrickson Blvd., Clawson,               The district court, in a memorandum and order dated
Oakland County, Mich., 986 F.2d 990, 995 (6th Cir. 1993)          August 7, 1998, denied the government’s motion and,
(noting that in forfeiture cases, the government is entitled to   invoking sua sponte the doctrine of primary jurisdiction,
a judgment of forfeiture upon an unrebutted showing of            dismissed the action for lack of subject matter jurisdiction.
probable cause).                                                  See United States v. Any and All Radio Station Equipment
                                                                  (Strawcutter), 19 F. Supp. 2d 738 (E.D. Mich. 1998).
8    United States v.                     Nos. 98-2129/2396       Nos. 98-2129/2396                         United States v.     13
     Strawcutter, et al.                                                                                  Strawcutter, et al.

B. No. 98-2396 (Maquina Musical)                                  seizure of his broadcasting equipment is sufficient to
                                                                  demonstrate irreparable injury.” See Maquina Musical, 29 F.
   On April 16, 1998, the FCC’s Detroit office received a         Supp. 2d at 396.
complaint about an unlicensed FM radio station broadcasting
at a frequency of 95.9 megahertz. That day, FCC agents went          It need not have done so. As the Supreme Court has
to 3968 West Vernor Highway in Detroit, and detected the          observed, “[t]he right of free speech does not include . . . the
emission of FM broadcast signals at 95.9 megahertz that were      right to use the facilities of radio without a license.” National
146 times the maximum strength permitted by FCC                   Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943).
regulations for unlicensed broadcasts. On April 21, 1998, the     In National Broadcasting Co., the Supreme Court broadly
agents returned and detected FM broadcast signals that were       affirmed the Communications Act and its licensing standard
nearly 8,900 times the maximum permitted for unlicensed           of “public interest, convenience, or necessity” as valid
broadcasts. The agents entered the premises of the station,       exercises of congressional power, and held that denying a
which was called Radio Maquina, and spoke with Pedro              license on that ground, “if valid under the Act, is not a denial
Zamora, the president of Maquina Musical, which owns              of free speech.” Id. See also Free Speech ex rel. Ruggiero v.
Radio Maquina. They told Zamora that Radio Maquina’s              Reno, 200 F.3d 63, 64-65 (2d Cir. 1999) (per curiam)
broadcasts exceeded the maximum strength permitted by FCC         (rejecting the argument of unlicensed microbroadcasters that
regulations and that the broadcasts violated 47 U.S.C. § 301.     the FCC’s broadcast licensing scheme is subject to public
It is undisputed that Maquina Musical did not have a              forum analysis and strict judicial scrutiny).
broadcast license, and that it had never applied for one.
                                                                     In the present case, Maquina Musical never applied for a
  On May 4, 1998, the agents determined that Radio Maquina        broadcast license. For that reason, neither it nor Zamora has
was continuing to broadcast. That day, the agents determined      any First Amendment interest in its broadcasts. We therefore
that the broadcast signals were more than 7,600 times the         conclude that Maquina Musical lacks any plausible claim to
maximum permissible strength. The FCC’s Detroit office            the presumption of irreparable harm. Maquina Musical also
sent Zamora a letter on May 12, 1998, again informing him         asserts that members of its listening audience—who
that the broadcasts violated 47 U.S.C. § 301 and demanding        intervened in this action and filed affidavits in support of its
that he cease broadcasting forthwith, or face numerous            motion for injunctive relief—also have a First Amendment
potential penalties, including criminal prosecution and civil     right “to hear the political, cultural and educational
forfeiture of his broadcasting equipment. Zamora replied to       information conveyed to their community.” But it follows
the FCC’s letter by demanding an administrative hearing           that nobody has a First Amendment right to hear radio
before any forfeiture proceedings against him were instituted.    broadcasts from a station that does not have a First
During August of 1998, the FCC determined that Radio              Amendment right to broadcast them. Cf. Richmond
Maquina was still broadcasting, and was continuing to do so       Newspapers, Inc. v. Virginia, 448 U.S. 555, 599 (1980)
well in excess of the maximum strength permitted by FCC           (Stewart, J., concurring) (observing that the right to listen is
regulations.                                                      implied by the right to speak).
   On October 7, 1998, the government filed a civil complaint       In any event, we do not mean to suggest that this is the end
in the United States District Court for the Eastern District of   of the analysis in determining whether Maquina Musical can
Michigan, seeking the forfeiture of Maquina Musical’s             possibly prevail in this case. Our point is just that the district
12    United States v.                    Nos. 98-2129/2396       Nos. 98-2129/2396                       United States v.     9
      Strawcutter, et al.                                                                               Strawcutter, et al.

erroneous findings of fact.” E.g., Schenck v. City of Hudson,     broadcasting equipment. The next day, the government
114 F.3d 590, 593 (6th Cir. 1997).                                executed a writ of entry and a warrant of arrest, and
                                                                  proceeded to arrest (that is, seize) the equipment. On October
  Taken literally, the standard is difficult to understand. The   9, 1998, Maquina Musical—joined by several Radio Maquina
idea of discretion connotes a reasoned, properly informed,        listeners who were permitted to intervene in the action—filed
deliberate choice between legally permissible alternatives.       a “verified complaint” in which it applied for a temporary
No judge deliberately chooses to apply an incorrect legal         restraining order and moved for a preliminary injunction, a
standard, misapply a correct legal standard, or rely upon         dismissal of the government’s forfeiture complaint for lack of
clearly erroneous factual findings. Presumably, the standard      subject matter jurisdiction, and an order quashing the in rem
as articulated in Schenck and numerous other cases is a           arrest warrant. After a hearing, the district court denied the
shorthand way of expressing the idea that this court ordinarily   application for a temporary restraining order. Subsequently,
extends a high degree of deference to the district court’s        in a memorandum and order dated November 6, 1998, the
decision, but does so only if the district court properly         district court denied the remainder of the relief sought by
understood the pertinent law and applied it in a defensible       Maquina Musical. See United States v. Any and All Radio
manner to the facts as they appear in the record. Otherwise,      Station Transmission Equipment (Maquina Musical), 29 F.
affording deference to the district court makes little sense.     Supp. 2d 393 (E.D. Mich. 1998).
   With this understanding in mind, reviewing the district           In denying Maquina Musical’s motion for a preliminary
court’s order denying a preliminary injunction to Radio           injunction, the district court assumed for the sake of argument
Maquina in light of the pertinent factors—whether the movant      that Maquina Musical could demonstrate that it would suffer
is likely to succeed on the merits, whether the movant would      irreparable harm without the injunction, see Maquina
suffer irreparable harm without the injunction, whether an        Musical, 29 F. Supp. 2d at 396 (citing Connection
injunction would cause substantial harm to others, and            Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998),
whether an injunction would be in the public                      for the proposition that even brief deprivations of First
interest—becomes relatively straightforward. See, e.g.,           Amendment freedoms constitute irreparable injury), and
Connection Distribution Co. v. Reno, 154 F.3d 281, 288 (6th       concluded that the risk of substantial harm to others was not
Cir. 1998), cert. denied, 119 S. Ct. 1496 (1999) (setting forth   great. The district court, however, found that Maquina
the pertinent factors for determining whether a preliminary       Musical’s likelihood of success on the merits was low and
injunction should be granted).                                    that the public interest did not favor allowing it to broadcast
                                                                  without a license during the pendency of the proceedings.
     a.   Irreparable harm                                        Balancing these factors, the district court concluded that
                                                                  Maquina Musical was not entitled to a preliminary injunction.
  Maquina Musical’s argument regarding irreparable harm is
based on the premise that barring it from broadcasting would                            II. ANALYSIS
abridge both its First Amendment right to free speech and the
First Amendment interests of its listeners to hear Radio          A. No. 98-2129 (Strawcutter)
Maquina’s broadcasts. The district court assumed for the
sake of argument that Zamora’s “alleged deprivation of his           The doctrine of primary jurisdiction “arises when a claim
First Amendment right to free speech by the government’s          is properly cognizable in court but contains some issue within
10    United States v.                      Nos. 98-2129/2396       Nos. 98-2129/2396                         United States v.     11
      Strawcutter, et al.                                                                                   Strawcutter, et al.

the special competence of an administrative agency.” United         Circuits have noted, a federal agency’s decision to pursue a
States v. Haun, 124 F.3d 745, 749 (6th Cir. 1997) (citing           judicial remedy rather than an administrative one speaks
Reiter v. Cooper, 507 U.S. 258, 268 (1993)). When the               volumes about its views regarding the necessity of
doctrine applies, court proceedings are stayed so that the          administrative expertise. See All-American, Inc., 505 F.2d at
agency may bring its special competence to bear on the issue.       1363; ICC v. Maine Central R. Co., 505 F.2d 590, 594 (2d
See id.      Unfortunately, “[n]o fixed formula exists for          Cir. 1974) (“[T]he very institution of suit in the courts by the
applying the doctrine[.]” United States v. Western Pacific. R.      relevant administrative body represents an exercise of its
Co., 352 U.S. 59, 64 (1956)). Rather, “[i]n every case the          ‘special competence.’”).
question is whether the reasons for the existence of the
doctrine are present and whether the purposes it serves will be       In essence, the district court held that a statute expressly
aided by its application in the particular litigation.” Id.         authorizing the government to initiate a civil action in the
                                                                    district courts cannot be invoked by the government when it
  Those reasons, broadly speaking, are the desire for               sues on behalf of the very agency charged by the statute with
uniformity in adjudication and the belief that the                  special competence over the regulatory issues in question.
decisionmaker with the most expertise and broadest                  See 47 U.S.C. § 510 (providing that the illegal use of
perspective regarding a statutory or regulatory scheme will be      broadcasting equipment subjects the equipment to seizure and
most likely to resolve the issue correctly. See id. The             forfeiture if the equipment was used “with willful and
doctrine has even been applied to the government itself. See        knowing intent” to violate license requirement) and 28 U.S.C.
Far East Conference v. United States, 342 U.S. 570 (1952)           § 1355 (vesting the district courts with original jurisdiction
(ordering an antitrust action brought by the United States as       over “any action or proceeding” for forfeiture “incurred under
a shipper dismissed pursuant to the doctrine of primary             any Act of Congress” other than those within the jurisdiction
jurisdiction following the intervention of, and motion to           of the Court of International Trade). We cannot agree, and
dismiss by, the Maritime Board, the relevant federal agency).       therefore reverse the district court’s order dismissing this
                                                                    action for lack of subject-matter jurisdiction.
   But the doctrine does not apply when the specially
competent agency is itself the plaintiff. See, e.g., United         B. No. 98-2396 (Maquina Musical)
States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir.
1981) (“[D]eference to an agency’s primary jurisdiction               1.   Preliminary injunction
makes little sense in the context of an enforcement proceeding
initiated by the agency.”); ICC v. All-American, Inc., 505 F.2d       Whether a preliminary injunction should be granted is a
1360, 1362 (7th Cir. 1974) (“It has been suggested . . . that, in   decision left to the district court’s sound discretion. See, e.g.,
cases where the appropriate administrative body is before the       Allied Systems, Ltd. v. Teamsters Nat’l Automobile
court, the doctrine should not apply since a principal function     Transporters Industry Negotiating Committee, 179 F.3d 982,
of the rule, acquainting the court with the agency’s position       985-86 (6th Cir.), cert. denied, 120 S. Ct. 401 (1999). On
concerning the matter, has been satisfied.”); CAB v.                appeal, our review focuses on whether the district court
Aeromatic Travel Corp., 489 F.2d 251, 254 (2d Cir. 1974)            abused that discretion. This court has said that a district
(“[W]hen the agency chooses to go to the district court for         court, in deciding whether to grant an injunction, abuses its
enforcement, it makes little sense to refer the very question at    discretion when it “applies the incorrect legal standard,
issue to the agency.”). Indeed, as the Second and Seventh           misapplies the correct legal standard, or relies upon clearly
