United States of America v. Hodson Broadcasting

Filing 26

ORDER Denying 20 Motion to Reinstate Counterclaim. Signed by Chief Judge Robert C. Jones on 10/21/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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HODSON BROADCASTING,
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Defendant.
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2:11-cv-00332-RCJ-GWF
ORDER

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The United States has sued Defendant Hodson Broadcasting to enforce a $20,000

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forfeiture order of the Federal Communications Commission (“FCC”) arising out of Defendant’s

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willful and repeated operation of an unauthorized FM radio station in Raton, New Mexico,

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thirty-four miles from Defendant’s permitted location of Des Moines, New Mexico, as well as

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his use of an improper antenna and structure. (See Compl., Mar. 2, 2011, ECF No. 1). The Court

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dismissed Defendant’s counterclaim challenging the FCC’s findings for lack of subject matter

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jurisdiction. In dismissing the counterclaim, the Court also ordered Mr. Richard Hodson to show

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cause why it should not strike the Answer, because Mr. Hodson purported to represent Hodson

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Broadcasting “in proper person” where Hodson Broadcasting may have been a corporate entity,

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requiring its appearance through licensed counsel. See United States v. High Country Broad. Co.,

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Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (citing 28 U.S.C. § 1654).

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Defendant has asked the Court to reconsider dismissal of the counterclaim and has

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represented that it is not a corporate entity of any stripe requiring separate representation, but

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rather a sole proprietorship. “A sole proprietorship may litigate pro se, because it has no legal

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identity separate from the proprietor himself.” United States v. Hagerman, 545 F.3d 579, 581

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(7th Cir. 2008) (citations omitted). After oral argument, the Court is satisfied that Hodson

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Broadcasting is a sole proprietorship that Mr. Hodson may represent in pro se. The Court,

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however, will not reconsider dismissal of the counterclaim. Except for certain challenges to

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licensing decisions that may be appealed to the U.S. Court of Appeals for the D.C. Circuit, the

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FCC’s final orders must be appealed in accordance with “chapter 158 of Title 28.” See 47 U.S.C.

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§ 402(a)–(b). Chapter 158 in turn vests exclusive jurisdiction to review final orders of the FCC

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in the courts of appeals. See 28 U.S.C. § 2342(1). Here, jurisdiction and venue likely lie in the

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U.S. Court of Appeals for the Ninth Circuit because Defendant apparently has its principal

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operating office in Nevada. See id. § 2343. Defendant has cited no authority supporting this

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Court’s jurisdiction over his counterclaim.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Reinstate Counterclaim (ECF No. 20) is
DENIED.

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IT IS SO ORDERED.

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Dated this 21st day of October, 2011.

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_____________________________________
ROBERT C. JONES
United States District Judge

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