                                                                                         FILED
                              UNITED STATES DISTRICT COURT
                                                                                         "JUL 16 i,G09
                              FOR THE DISTRICT OF COLUMBIA
                                                                                    Clerk, U.S. District and
                                                                                       Bankruptcy Courts
Geoffrey Sinckler,

                Plaintiff,

        v.                                            Civil Action No.
                                                                             09 1313
Federal Communication Commission,

                Defendant.


                                    MEMORANDUM OPINION

       The plaintiff has filed an application to proceed in forma pauperis and a pro se complaint.

The Court will grant the application and will sua sponte dismiss the complaint without prejudice

for lack of subject matter jurisdiction.

        The brief, one-paragraph, complaint asserts that the recent Congressionally-mandated

switch from analogue to digital television signals violates the plaintiff s speech rights under the

First Amendment because the switch "has left many Americans without a way or means to

receive [the plaintiffs] message." CompI. at 1. The complaint alleges that these people, "who

through ... purchasing a television set have shown their desire to receive [the plaintiffs]

message and the message of other citizens like [the plaintiff]" are subject to a de facto "form a

censorship between those who can afford to receive [the digital signal] and those who cannot."

Id The complaint describes the plaintiffs First Amendment right as a right to broadcast his

message "[n]otjust to those citizens who can afford the FCC's expensive switch to digital, but

[to] all citizens." Id The complaint also alleges that while the Federal Communication

Commission ("FCC") is forbidden to do so, it is nonetheless charging citizens through the sale of
equipment. Id. As relief, the complaint seeks an order requiring the FCC to reinstate the

analogue signal. Id. Asserting that "the actions of the FCC has infringed upon all of our

freedoms," the plaintiff "is simply asking the court to give Americans, back, their constitutional

rights to 'Free' airwaves as well as their right to choose." Id. The complaint does not indicate

whether the plaintiffs message is opinion or commercial, and it does not allege that the plaintiff

is unable to communicate his message via the digital television signal.

       A federal court is limited by the Constitution to considering matters that present an actual

case or controversy.   u.s. Const. art. III, § 2.   Standing is one of the justiciability doctrines that

has developed to give meaning to Article Ill's case or controversy requirement. Nat 'I Treas.

Employees Union v. United States, 101 F.3d 1423,1427 (D.C. Cir. 1996). Article III standing is

comprised of three elements. First, standing requires a plaintiff to have suffered an injury in fact,

which is an invasion of a legally protected interest that is both concrete and particularized and

actual or imminent rather than conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992). "The complainant must allege an injury to himself that is distinct and

palpable." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal quotations marks and

citation omitted; emphasis added). Second, standing requires that "the injury has to be fairly

traceable to the challenged action of the defendant, and not the result of the independent action of

some third party not before the court." Lujan v. Defenders of Wildlife, 504 U.S. at 560 (internal

quotation marks and alterations omitted). Third, for a plaintiff to have standing, it "must be

likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision." Id. at 561 (internal quotation marks omitted). "[W]hen the plaintiff is not himself the

object of the government action or inaction he challenges, standing is not precluded, but it is

ordinarily substantially more difficult to establish." Id. at 562 (internal quotation marks omitted).



                                                      2
        Here, the plaintiff has not alleged facts showing that it is plausible that he has suffered a

concrete and particularized actual injury in fact. Rather, he has merely speculated that his

message is not reaching some unstated number of people that he presumes it would have reached

if the analogue signal had not been discontinued. In addition, the complaint does not allege facts

showing that it is likely that granting the relief requested will address any injury in fact. Because

the plaintiff has not established two of the three elements of Article III standing, and because

standing is a matter of subject matter jurisdiction, the Court concludes that this action must be

dismissed without prejudice for lack of jurisdiction.

        A separate order accompanies this memorandum opinion.




Date:   :r I'i \   Co)   ~




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