The Commission cites only two instances in the last two decades in which it granted a waiver to the microbroadcasting ban — once to an Indian village in Alaska, where the microbroadcasting ban does not apply, and once to a remote community in a Navajo-speaking area of New Mexico, where high-power, English broadcasts are of little relevance. Turro v. FCC, 859 F.2d 1498, 1500 n. 1 (D.C. Cir. 1988) (noting these two instances). Neither of these waivers suggests that the Commission would seriously consider granting a waiver for Szoka to broadcast in English in Cleveland, Ohio. Finally, we agree with Szoka that because the Constitution permits a person faced with an unconstitutional licensing law to "ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license," the illegality of his unlicensed operations cannot, as the Commission implies, entirely preclude him from raising his constitutional claims.
Challenging the denial of a waiver is likewise not an easy task because an applicant for waiver bears the heavy burden on appeal to show that "the Commission's reasons for declining to grant the waiver were so insubstantial as to render that denial an abuse of discretion." Turro v. FCC, 859 F.2d 1498, 1499 (D.C. Cir. 1988); see also Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C. Cir. 1983). B.
However, we do reach the merits of the petitions before this court from Celltel and CT, who have presented petitions that were not premature. This court held in Turro v. FCC, 859 F.2d 1498 (D.C. Cir. 1988), that: Our standard for reviewing the FCC's denial of a request for waiver of an agency rule is very deferential.
See Comcast Corp. v. FCC, 526 F.3d 763, 767 (D.C.Cir.2008) (affirming denial of waiver in part because consistent application was necessary to preserve “providers' incentive” to comply with the policy); Turro v. FCC, 859 F.2d 1498, 1500 (D.C.Cir.1988) (“[S]trict adherence to a general rule may be justified by the gain in certainty and administrative ease, even if it appears to result in some hardship in individual cases”). The Commission's decision not to waive the threshold cutoff despite MVH just barely missing it was, therefore, not an abuse of discretion.
While Delta insists that this interpretation unjustly eliminates the possibility of waiver altogether, the strict application of a rule is not per se an abuse of discretion but "may be justified by the gain in certainty and administrative ease, even if it appears to result in some hardship in individual cases." BellSouth, 162 F.3d at 1225 (quoting Turro v. FCC, 859 F.2d 1498, 1500 (D.C. Cir. 1988)). As long as the agency has articulated a not "insubstantial" reason for its strict application of a rule and applies the rule consistently, we will not overturn it. Mountain Solutions, 197 F.3d at 517.
Dunifer could have applied for a license and sought a waiver of the applicable FCC rules, or he could have filed a petition for a rulemaking for new low power regulations, a denial of which would be reviewable by a court of appeals. See Turro v. FCC, 859 F.2d 1498, 1499 (D.C. Cir. 1988) (reviewing a denial of a license request pursuant to 47 U.S.C. § 402(b)); Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) (reviewing a determination of the FCC regarding a petition for a rulemaking pursuant to 47 U.S.C. § 402(a)). Instead, Dunifer decided to evade this carefully crafted process by concededly violating the regulatory framework implemented by the FCC.
(As noted above, the FCC in the Dunifer forfeiture proceeding held the microbroadcasting regulations did not violate the First Amendment.) See Bent Oak, 19 F. Supp.2d at 744-48 (applying doctrine of primary jurisdiction and dismissing case without prejudice because no administrative proceeding currently pending); United States v. Dunifer, 997 F. Supp. at 1238 (noting earlier stay of litigation under doctrine of primary jurisdiction in light of then-pending FCC forfeiture proceeding); cf. Rosenthal Co. v. Bagley, 581 F.2d 1258, 1260 (7th Cir. 1978) (holding exhaustion of administrative remedies doctrine retains its validity even when the collateral judicial action challenges the constitutionality of the basic statute under which agency functions); see also Turro v. FCC, 859 F.2d 1498 (D.C. Cir. 1988) (court of appeals review of FCC order denying request for waiver of FCC rules); WAIT Radio v. FCC, 418 F.2d 1153 (same; remanding matter to FCC for statement of reasons for denial of waiver). We hold that the district court has exclusive jurisdiction to adjudicate the in rem forfeiture action, including Fried's constitutional affirmative defenses.
In any event, the argument is without merit. It is reasonable to characterize as "substantial" the burden faced by a party seeking an exemption from a general statutory rule. Courts have used similar language in describing the difficulties of demonstrating entitlement to other statutory exemptions. See, e.g., Turro v. FCC, 859 F.2d 1498, 1499 (D.C. Cir. 1988) ("An applicant for waiver faces a high hurdle even at the starting gate.") (quoting WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969)). To hold that use of such language modifies the burden of proof is to elevate a passing reference to overarching significance.
"`[S]trict adherence to a general rule may be justified . . . even if it appears to result in some hardship in individual cases.'" BellSouth Corp. v. FCC, 162 F.3d 1215, 1225 (D.C. Cir. 1999) (quoting Turro v. FCC, 859 F.2d 1498, 1500 (D.C. Cir. 1988)). MGM also relies on Gulf Power Co. v. FERC, 983 F.2d 1095 (D.C. Cir. 1993), as support for its argument that the Register is imposing a harsh penalty.
'" [S]trict adherence to a general rule may be justified . . . even if it appears to result in some hardship in individual cases.'" BellSouth Corp. v. FCC, 162 F.3d 1215, 1225 (D.C. Cir. 1999) (quoting Turro v. FCC, 859 F.2d 1498, 1500 (D.C. Cir. 1988)). Universal also argues that the Register's decision to deny Universal a waiver is not supported by substantial evidence, and therefore violates the APA. "[A]n agency's refusal to grant a waiver will not be overturned unless the agency's reasons are `so insubstantial as to render that denial an abuse of discretion.'"