havens v fcc (mobex-mclm amts stations), dc circuit court, havens reply
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No. 02-1359, 02-1360
IN THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
________________________________
WARREN C. HAVENS
Petitioner
v.
FEDERAL COMMUNICATIONS COMMISSION
Respondent
____________________________________
PETITIONERS REPLY BRIEF
Tamir Damari (D.C. Bar No. 455744)
NOSSAMAN LLP
1666 K Street NWSuite 500
Washington, DC 20006
(202) 887-1400
Attorneys for Petitioner
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TABLE OF CONTENTS
Page
Table of Authorities .................................................................................................. ii
I. Introduction......................................................................................................1
II. Argument .........................................................................................................3
A. The FCC Did Not Have The Discretion To Ignore Petitioners
Objections To Regionets License Applications...................................3
B. The Arguments Proffered by the FCC Are Unavailing ......................19
1. The FCC Fails To Rebut Petitioners Contention That HeWas A Party To The Proceedings At Issue...............................19
2. In Any Event, Petitioner Has Met The Standard Set Forth
In 47 C.F.R. 1.106(b)(2) .........................................................23
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TABLE OF AUTHORITIES
Page
Cases
American Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008)....... 14
ClarksburgPublishing Co. v. FCC, 225 F.2d 511 (D.C. Cir. 1955).............. 4, 5, 15
Hall v. FCC, 237 F.2d 567 (D.C. Cir. 1956) .............................................................6
In re Application of Southern Broadcast Corp. of Sarasota,
16 FCC Rcd 3655 *30-31 (2001) ........................................................................ 24
In Re Applications of Stockholders of CBS, Inc.,
11 FCC Rcd 19746 *9 (1996) ............................................................................. 18
In Re Christian Family Network, Inc., 23 FCC Rcd 18369 *10 n.12 (2008)............4
In re Citadel Broadcasting Co., 22 FCC Rcd 7083 n. 139 (2007)......................... 24In re Indiana Community Radio Corp., 23 FCC Rcd 10963 n. 1 (2008) ............... 24
In re Levandusky, 25 FCC Rcd 14172, 14174, n. 18 (2010).................................. 18
In re McVeigh, 25 FCC Rcd 3572, 3574 n. 18 (2010)............................................ 18
In re Trinity Broadcasting of Florida, Inc., 10 F.C.C.R. 12020 (1995)....................7
In the Matter of James A. Kay, Jr., 17 FCC Rcd 1834 (2002) ..................................8
Kay v. FCC, 396 F.3d 1184 (D.C. Cir. 2005) ............................................................7
L.B. Wilson, Inc. v. FCC, 397 F.2d 717 (D.C. Cir. 1968) .................................... 5, 6
RKO General, Inc. v. FCC, 670 F.2d 215 (D.C. Cir. 1982) ......................................8
SeeButterfield v. FCC, 237 F.2d 552 (D.C. Cir. 1956).............................................8
Southern California Edison Co. v. F.E.R.C., 415 F.3d 17 (D.C. Cir. 2005).......... 17
Southwestern Publishing Co. v. FCC, 243 F.2d 829 (D.C. Cir. 1957)......................7
Valley Telecasting Co, v. FCC, 336 F.2d 914 (D.C. Cir. 1964)....................... 18, 19
WHW Enterprises, Inc. v. FCC, 753 F.2d 1132 (D.C. Cir. 1985) ........................ 7, 8
Statutes
47 U.S.C. 208 ........................................................................................................ 15
47 U.S.C. 308 ........................................................................................................ 15
47 U.S.C. 308(b) ......................................................................................................5
47 U.S.C. 309...........................................................................................................3
47 U.S.C. 309(a) ....................................................................... 2, 4, 5, 8, 16, 17, 18
47 U.S.C. 312.................................................................................................... 3, 15
47 U.S.C. 312(a) ................................................................................................... 15
47 U.S.C. 405.................................................................................... 2, 3, 23, 25, 26
47 U.S.C.S. 308........................................................................................................4
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Regulations
47 C.F.R. 1.106(b)(1).............................................................. 16, 17, 18, 19, 21, 25
47 C.F.R. 1.106(b)(2)............................................................................................ 23
47 C.F.R. 1.106(c)..................................................................................... 17, 18, 19
47 C.F.R. 1.106(c)(2).................................................................. 3, 8, 16, 17, 18, 2447 C.F.R. 1.2 ......................................................................................................... 15
47 C.F.R. 1.46(a)................................................................................................... 25
47 C.F.R. 1.939(a)(2)............................................................................................ 25
47 C.F.R. 1.946(c)....................................................................................................9
47 C.F.R. 1.946(d) ...................................................................................................9
47 C.F.R. 80.475(a)......................................................................... 9, 10, 11, 13, 16
47 C.F.R. 80.49 ........................................................................................................9
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I. INTRODUCTIONThis is a case involving the neglect of the FCCs Wireless
Telecommunications Bureau (the Bureau), which dates back for a decade. Due
to the quantity of spectrum at issue in this case (in particular, in connection with
the Atlantic Coast renewal applications at issue in Appeal No. 02-1360), the
importance of this matter is of some magnitude greater than the typical FCC
licensing case.1
In its Opening Brief, the FCC focuses almost entirely upon procedure,
ostensibly recognizing that Petitioners2
argument is meritorious on the substance
(i.e., the licenses at issue herein should not have been granted or renewed). At
various points in the administrative proceedings giving rise to each of these
appeals, Petitioner identified specific defects in Regionets3
license/renewal
applications which were evident on the face of these applications and which
1As noted in Petitioners Opening Brief, Case No. 02-1359 arises out of the grant
of B Block AMTS licenses by the FCCs Wireless Telecommunications Bureau
(the Bureau) to Regionet, permitting Regionet to service the Savannah, Cape
Fear, Haws, Cooper, Congaree, Broad and Saluda Rivers (collectively, the
Carolina Waterways.) Case No. 02-1360 arises out of the grant of license
renewal applications authorizing Regionet to provide AMTS service to the Atlantic
Coast under Call Sign WRV374.2
Petitioner, as used herein, refers to Petitioner and his lawful assigns with
respect to his AMTS-license based business.3
By Regionet, Petitioner means Regionet and, where appropriate, its successors-
in-interest Mobex Communications and Maritime Communications/Land Mobile
LLC.
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implicated serious public interest concerns. By way of a single example, the FCC,
in connection with the license renewals at issue, inexplicably ignored the fact that
Regionet had failed to provide station construction notices as required by the
FCCs Rules. The defects identified by Petitioner also gave rise to serious concerns
about the candor of Regionet and its principals, concerns which ultimately caused
the FCC to conduct a full audit of the station licenses obtained by Regionet.
Indeed, after rejecting Petitioners Reconsideration Petitions and Applications for
Review giving rise to these appeals, the FCC, in subsequent decisions, vindicated
the positions taken by Petitioner in these filings.
Despite all this, the FCC refuses to revisit its decision to grant Regionets
applications and renewals. In effect, the FCC is attempting to sugar-coat the
neglect of the Wireless Bureau (which, at the time of the license grants at issue,
had a pattern and practice of simply rubber-stamping AMTS site-based license
applications, including by accepting without question assertions by Regionet of
how, in the future, it would cure fatal defects to its license applications) by
focusing entirely upon procedure, and by ignoring its non-derogable statutory
mandate under 47 U.S.C. 309(a) and 47 U.S.C. 4054
to consider the pubic
4In this regard, 47 U.S.C. 405(a)(2) states, in pertinent part, that The
Commission, or designated authority within the Commission, shall enter an order,
with a concise statement of the reasons therefor, denying a petition for
reconsideration or granting such petition, in whole or in part, and ordering such
further proceedings as may be appropriate. (Emphasis added).
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interest in every instance in which a license is issued, including, in this case, where
evidence is proffered that indicates that an application is defective. Moreover, as
discussed more fully below, the FCC directly contradicts the plain language of 47
C.F.R. 1.106(c)(2), and deviates from its own precedent applying this regulation
(issued both before and after the October 25, 2002 determinations giving rise to
these appeals). The result urged by the FCC turns on its head the essential
Congressional public interest mandate for licensing under the Communications
Act, one that runs through the entirety of the Act (including 47 U.S.C. 309, 312
and 405) that is, the public interest. This public interest mandate is not
dependent upon private parties for its enforcement, nor is it dependent upon the
caprice of the FCC.
II. ARGUMENTA. The FCC Did Not Have The Discretion To Ignore Petitioners
Objections To Regionets License Applications
The FCCs Opening Brief is most remarkable with respect to what it does
notaddress, the public interest. As established in Petitioners Opening Brief, the
Wireless Bureau and FCCs discretion does not extend so far as to permit it to
summarily disregard the legitimate public interest issues raised by Petitioner.
As discussed in Petitioners Opening Brief, this case can be adjudicated on
the basis of 47 C.F.R. 1.106(c)(2), which permits a petitioner for reconsideration
to rely upon facts whose consideration is required "in the public interest," even if
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those facts were not previously presented at earlier stages of the proceeding (for
example, at the petition to deny stage) See,In re Christian Family Network, Inc.,
23 FCC Rcd 18369 *10 n.12 (2008) (considering information not previously
submitted at reconsideration stage). As also noted in Petitioners Opening Brief,
the Commissions authority to consider facts in the public interest at the petition
for reconsideration stage must be considered in light of the Commissions
obligation to consider the public interest in every instance in which a license is
issued under 47 U.S.C. 309(a) ([T]he Commission shall determine, in the case of
each application filed with it to which section 308 [47 U.S.C.S. 308] applies,
whether the public interest, convenience, and necessity will be served by the
granting of such application). This duty to consider the public interest cannot
simply be jettisoned at the whim of the FCC, to the contrary, it is non-derogable.
As Petitioner argued in his Opening Brief, in ClarksburgPublishing Co. v. FCC,
225 F.2d 511 (D.C. Cir. 1955) this Court held that the Commission may not simply
rubber-stamp a license application which is facially defective:
The statute contemplates that, in appropriate cases, the Commission's
inquiry will extend beyond matters alleged in the protest in order to
reach any issue which may be relevant in determining the legality of
the challenged grant. . . .[N]either the Commission's 'review'function under the rule nor its licensing function under the statute is
performed merely by a determination . . .that both applicants were
'legally, technically and financially qualified' to receive the grant. The
Commission does not stand in the position of a 'traffic policeman
with power to consider merely the financial and technical
qualifications of the applicant.' The preliminary determination,
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made on the basis of information required by 47 U.S.C. 308(b), is
neither a substitute for nor the equivalent of the conclusion requiredby 309(a). Even under the Commission's rules, these are separate
determinations. And it is clear that 309(b)'s mandate -- requiring,
apart from the earlier finding, a considered finding that the grant will
serve the public interest -- mustbe followed even where an
application is unopposed.
Id., at 515, 521-22. (emphasis added).
Thus, in Clarksburg, the Court held that the Commission had improperly
denied a license protest by a newspaper publisher against a broadcaster, chiding the
Commission for assuming that the defense of its grant, rather than the public
interest, as its primary role in the proceedings. Id., at 515. Likewise, inL.B.
Wilson, Inc. v. FCC, 397 F.2d 717 (D.C. Cir. 1968), the Court remanded an order
of the Commission which had granted a modification of a permit to construct a
television broadcast facility, concluding that the Commission had failed to properly
consider allegations that the applicants principals had failed to disclose a transfer
of corporate control in violation of the Communications Act. The Court concluded
that The Commission, having been alerted to the problem of corporate control,
had a duty to explore any related matters which might bear on the public interest,
whether urged by the parties or not. Id., at 721. Echoing Clarksburg Publishing
Co., the court further held:
To assist the Commission in these proceedings aggrieved private
parties are also encouraged to participate as private attorneys general.
However, in creating a role for private parties, Congress did not
intend to relieve the Commission of its responsibilities and allow the
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parties to limit the issues, thereby leaving it in the position of atraffic policeman . . .As we have said, the statute contemplates that
the Commission inquiry will extend beyond matters alleged in the
protest in order to reach any issue which may be relevant in
determining the legality of the challenged grant . . .one such issue is
trafficking. That issue may lie behind any control transfer, and is
simply too important to let the parties control the flow of information
to [the Commission].
Id., at 719-20 (emphasis added). This logic applies with even greater force where,
as here, the FCC does not contest actual notice of defects in a license application
giving rise to public interest concernspriorto the issuance of a license.5see,Hall
v. FCC, 237 F.2d 567, 571 (D.C. Cir. 1956) (That the particular respect in which
the grant offends may not have been alleged as one of the specific grounds of the
protest does not preclude [cancellation of a license] . . . A fortiori, where the
information relevant to the public interest has already been disclosed by the
evidentiary hearing, the Commissions inquiry cannot be limited to the facts
alleged in the protest. So, if it appears upon the record . . . that the public loses
rather than gains from the modification of the . . .construction permit, the
Commission must reckon with that circumstance even if it was not alleged in the
5As discussed in Petitioners Opening Brief and below, Petitioner in any event
maintains that: (i) he was a party to Regionets B Block application proceedingprior to his December 14, 2000 Petition for Reconsideration, by virtue of his timely
Petition to Deny Regionets A Block application for the Carolina Waterways
(which identified defects similar to those later identified by Petitioner in
connection with the B Block license application); and (ii) he was a party to the
proceeding related to Call Sign WRV374 by virtue of his June 26, 2001 protest,
which preceded the July 2, 2001 grant of Regionets renewal application.
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protests. The purpose of the statute is to search out the public interest.);
Southwestern Publishing Co. v. FCC, 243 F.2d 829 (D.C. Cir. 1957) ([T]he
Commission . . . should not close its eyes to the public interest factors raised by the
petition already on file . . . in appropriate cases, the Commission's inquiry will
extend beyond matters alleged in the protest in order to reach any issue which may
be relevant in determining the legality of the challenged grant. The situation where
the challenging allegations have been specifically brought to the Commission's
attention by a party who is thereafter dismissed from the proceeding is an a fortiori
case.).
As Petitioner also argued in his Opening Brief, one of the paramount public
interest factors that must be considered by the FCC is rooted in the principle that
license applicants are held to a high standard of candor and honesty before the
Commission. "[T]he Commission defines lack of candor to include not only
providing false information but also concealment, evasion or other failure to be
fully informative accompanied by an intent to deceive. In re Trinity Broadcasting
of Florida, Inc., 10 F.C.C.R. 12020, 12063 (1995); Kay v. FCC, 396 F.3d 1184,
1189 (D.C. Cir. 2005). The rationale for this principle was explained in WHW
Enterprises, Inc. v. FCC, 753 F.2d 1132, 1140 (D.C. Cir. 1985), in which the Court
stated:
The Commission must license more than 10,000 radio and television
stations in the public interest, andtherefore relies heavily on the
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completeness and accuracy of the submissions made to it. . . . Thus,
applicants . . . have an affirmative duty to inform the Commission ofthe facts it needs in order to fulfill its statutory mandate. Id. Indeed,
not only does the Commission refuse to tolerate deliberate
misrepresentations . . . .it may also premise a finding of lack of candor
on omissions as well . . . .[T]he "core" of a finding of lack of candor is
an omission . . . [a] failure to be completely forthcoming in the
provision of information which could illuminate a decisional matter.
Id., at 1139 (emphasis added, internal citations and quotations omitted); see also,
RKO General, Inc. v. FCC, 670 F.2d 215, 231 (D.C. Cir. 1982) (the integrity of the
Commissions processes rests on its ability to rely upon the representations of its
licensees);In the Matter of James A. Kay, Jr., 17 FCC Rcd 1834 (2002).
As a corollary to the principle that a petitioner for reconsideration may rely
upon facts whose consideration is required "in the public interest, and the
principle that chief among these interests is candor to the Commission, there is a
line of precedent that supports the proposition that reconsideration is particularly
appropriate where: (i) facts have been concealed from the Commission by an
applicant; and (ii) had these facts been considered by the Commission, the
Commission might have decided differently. SeeButterfield v. FCC, 237 F.2d
552, 555-56 (D.C. Cir. 1956).
What is perhaps most striking about the FCCs Opening Brief is that there is
little (if any) discussion of the Commissions public interest obligations under 47
U.S.C. 309(a), or the duty of candor imposed upon all license applicants under
that same statute, or 1.106(c)(2)s provision that petitions for reconsiderations
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may be based upon facts which the FCC is required to consider for reasons of
public interest. The FCCs Brief does not distinguish or even acknowledge any
of the authorities cited in Petitioners Opening Brief which discuss the FCCs non-
derogable obligation to evaluate the public interest.
Perhaps the most clear-cut example of the public interests at issue here can
be found in connection with the Call Sign WRV374 renewal application. As noted
in Petitioners Opening Brief, FCC rules in effect at the time the renewal was
sought required renewal applicants to provide proof that the stations associated
with their site-based licenses were constructed in a timely fashion under 47 C.F.R.
80.49, via appropriate construction notifications demonstrating that Regionet met
the coverage requirement set forth in 47 C.F.R. 80.475(a).6
Failure to do so
resulted in the automatic termination of a site-based AMTS license.7
Regionet
undisputedly did not do so. Regionet failed to provide any construction
notifications for a number of stations, and equivocated in other construction
notifications by stating that it would commence testing to commence services
on or about a certain date with respect to many of the facilities associated with
the subject licenses. As discussed in Petitioners Opening Brief, testing had
commenced is not a recognized construction status. It is the licensing equivalent
6See 47 C.F.R. 1.946(d).
7See 47 C.F.R. 1.946(c).
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of the checks in the mail. Similarly, in the Commissions October 25, 2002
Order giving rise to this appeal, the Commission itself acknowledged that with
respect to the stations associated with Call Sign WRV374 that were alleged to have
been constructed the antenna height was raised 180-270 feet above the authorized
height and in the case of four of those stations, the antenna height was lowered.
Regionet also moved six of the sixteen stations to locations that were within a half-
mile from the initial location of record. (J.A. ____). These defects were among
the defects identified by Petitioner in his protest of June 26, 2001, before the grant
of Regionets renewal application (J.A. ____).8
These defects also required
cancellation or termination of those stations (i.e., for construction not as
authorized), which would have then resulted in automatic termination of the entire
WRV374 license for failure to meet the coverage and continuity of service
requirements of 47 C.F.R. 80.475(a).9
Thus, the defects in Regionets renewal application directed to the WRV374
call sign were evident on their face, and the FCC need not have conducted any
8In any event, these defects would have been evident on the face of Regionets
station construction notices.9
Under FCC rules, any change of location or antenna height required a major
modification application to be filed and approved by the FCC. Also, any
unauthorized antenna height increases would have required new TV engineering
studies to be submitted per the rules for AMTS. At no time did Regionet ask for a
waiver of the FCCs rules to build unauthorized stations and at no time did the
FCC grant any such waiver.
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investigation in order to determine, at least as a preliminary matter, that something
serious was amiss. The Wireless Bureau had Regionets station activation notices
for Call Sign WRV374 in its own records prior to Petitioners June 26, 2001
protest, and was required to have reviewed these notices when it considered
Regionets renewal application. The Bureau would have (or should have)
recognized that Regionets claim that it had commenced testing to commence
services was in effect a nullity. Stated in another fashion, even if Petitioner had
done nothing in response to the WRV374 renewal application, this application
should have been further scrutinized by the FCC, given its facial defects.10
Indeed, the administrative record undisputedly reflects that at least certain
stations associated with the WRV374 renewal application were in fact never built.
In 2004, the FCC conducted an audit of certain licensed AMTS stations to
determine the construction status of each of these stations. In the course of doing
so, the FCC transmitted letters to Mobex Network Services, LLC (Mobex),
Regionets successor-in-interest, to determine the construction status of the stations
associated with the WRV374 call sign. In a response dated June 24, 2004 (a full
10As noted in Petitioners Opening Brief, Regionets B Block license applications
to serve the Carolina Waterways were likewise deficient on their face, among other
reasons because these applications had failed to meet the requirement of describing
the waterway to be served by the proposed license and how Regionets proposed
service met the so-called continuity of coverage requirement of the then-existing
version of 47 C.F.R. 80.475(a), or how they met TV engineering requirements.
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three years after the filing of Regionets renewal applications) Mobex admitted
that it had not constructed more than 30 AMTS stations which it had previously
represented had been constructed, including at least two of the stations associated
with Call Sign WRV374.11
The licenses associated with many of these
unconstructed stations (including the stations associated with license Call Sign
WRV374) were renewed by the FCC, in certain instances more than once. The
failure to construct a station is not the type of misstatement that can reasonably be
said to have been innocent or de minimus it is a flat-out fraudulent
misrepresentation by Regionet, plain and simple.
What the FCC is in effect attempting to do here is protect its own. For
years, its Wireless Bureau followed a policy which effectively rubber-stamped
site-based AMTS applications, without conducting basic due diligence, even where
(as here) the Bureau had not been provided with any evidence of station
construction. No meaningful review was undertaken with respect to these
applications. Basic documentation comprising the sine qua non of an effective
renewal process was neither sought, nor obtained. As a result, scores of renewal
applications were granted by the FCC which should not have been granted in the
11Although Mobex claimed in its response to the FCC audit that it had in fact
constructed certain other stations associated with the WRV374 Call Sign,
Petitioner disputes this representation. However, this Court need not resolve this
issue, since at least certain of the stations associated with the WRV374 Call Sign
were undisputedly not constructed within the requisite construction period.
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first instance. Had the Bureau complied with its rules, and required bona fide
evidence of station construction, the WRV374 renewal application would have
been summarily denied, because the record was bereft of the documentation
needed to support such a renewal.12
Why, in the face of all of this evidence of wrongdoing by Regionet
(including evidence on the face of Regionets renewal applications), does the FCC
continue to decline to address the merits of Petitioners challenges to Regionets
applications, instead choosing at every turn to reject these challenges entirely on
procedural grounds, even when the Commissions own Order dated October 25,
2002 recognizes defects in the construction of certain of these stations? It appears
to Petitioner that the FCC was more concerned with white-washing the Wireless
Bureaus failure to comply with its own rules (on a level which rose to neglect)
than it was with complying with its public interest obligations. As discussed in
Petitioners Opening Brief, the defects identified by Petitioner were far from
insubstantial, they went to the sine qua non of a unique aspect of AMTS service
i.e., continuity of coverage under 47 C.F.R. 80.475(a), which license applicants
(including renewal applicants) were required to establish in order to have their
12In fact, from what Petitioner can discern, the FCC still does not have any
evidence of actual construction of the stations associated with Call Sign WRV374.
No construction notifications have ever been filed by Regionet or its successors-in-
interest on the FCCs Form 601 as required by FCC rules.
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applications favorably processed by the FCC.13
In order to make such a showing,
applicants such as Regionet were required to proffer proper engineering studies.
No such engineering studies were proffered by Regionet. It inevitably follows that
Regionets renewal applications should never have even been processed, let alone
acted favorably upon. It was the Commissions responsibility (not Petitioners) to
ensure that Regionet met its threshold continuity of coverage obligations. In
American Radio Relay League, Inc. v. FCC, 524 F.3d 227, 239 (D.C. Cir. 2008),
this Court noted that when the FCC makes a decision based upon a technical or
engineering-related determination, and the Commission keeps the basis for such a
determination secret, it does so at its own peril, holding that the Commission
cannot hide from the public parts of . . . studies that may contain contrary
evidence, inconvenient qualifications or relevant explanations of the methodology
employed. This logic applies with all the more force where, as here, the matter
being hidden is the absence of any appropriate engineering study.
This case cannot be analogized to the cases upon which the FCC seeks to
rely. None of them involved the kind of public interest concerns implicated here.
None of them involved the FCCs wholesale abrogation of its threshold
responsibility to determine that applications meet certainprima facie requirements.
13This continuity of coverage is what allows AMTS (i.e., Automated Marine
Telecommunications Service) to in fact be automated.
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And none of them involved demonstrable fraud on the part of the license applicant,
as alleged here. In this regard, it is also worth noting that 47 U.S.C. 312(a)
authorizes the FCC to revoke licenses for "for false statements knowingly made
either in the application or in any statement of fact which may be required pursuant
to section 308 of this title," and "because of conditions coming to the attention of
the Commission which would warrant it in refusing to grant a license or permit on
an original application." Crucially, there is no time limit on this authority; i.e., the
Commission can revoke a license on 312 grounds months or years after it is
issued.14
Parties such as Petitioner (with a business to run) should not be placed in the
untenable position of having to in effect watchdog the FCC in order to ensure that
it complies with its basic documentation requirements with respect to licenses. As
aptly noted by this Court in Clarksburg, Petitioner should not be expected to act as
a traffic policeman. Likewise, Petitioner should not be the one to have to
identifyprima facie defects in license applications. The Wireless Bureau employs
a staff for this very purpose, and that staff should be expected to do their job. The
14Likewise, there are no time limitations upon: (i) complaints to the FCC on
account of a common carriers failure to comply with the provisions of the Federal
Communications Act (47 U.S.C. 208); (ii) informal requests for FCC action (47
C.F.R. 1.41); or (iii) declaratory rulings (47 C.F.R. 1.2). These statutes and
regulations commonly form the ground for FCC action on the basis of the public
interest.
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result urged by the FCC here encourages parties such as Regionet to misrepresent
their licensing qualifications in the hope of a procedural misstep by a competitor.
But unlike a court adjudicating a private dispute between litigating parties, the
Wireless Bureau had an independent duty under 47 U.S.C. 309(a) to undertake the
basic due diligence required to ensure that Regionets license applications/renewals
met the requirements set forth in the FCCs Rules. In this respect, 1.106(c)(2)
functions as a kind of public interest safety net which exists independently of the
timeliness considerations applicable to disputes between private parties under
1.106(b)(1).
The FCC cannot cherry-pick which rules it chooses to enforce. It is perhaps
simpler for the Wireless Bureau to selectively enforce procedural rules which
permit it to avoid fundamental issues pertaining to an applicants candor and
qualifications, but it is not a proper exercise of the Wireless Bureaus discretion.15
There is no basis upon which the Wireless Bureau can sacrifice its public interest
investigatory duty simply to further procedural expediency. At an absolute
15As noted herein, Regionets applications were facially defective, as Petitioner
demonstrated to the Wireless Bureau even prior to the Reconsideration Petitions atissue, due to the lack of continuous coverage under 47 C.F.R. 80.475(a) (the
Atlantic Coast renewal applications failed to show or even allege any actual
coverage constructed, and the B Block applications likewise failed to show
continuous coverage). In his Reconsideration Petitions, Petitioner further
demonstrated these defects by assuming the FCCs obligation to undertake
engineering studies.
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minimum, the Wireless Bureau and FCC should have balanced the need for
procedural expediency and timeliness with a consideration of the public interest
under 47 U.S.C. 309(a) and 47 C.F.R. 1.106(c)(2). Such a balancing is
conspicuously absent from the administrative record. This Court has previously
held that when an agency disregards its own regulations without explanation (such
as the Wireless Bureau and the FCC disregarded 1.106(c)(2) in the case sub
judice), it engages in behavior that is perhaps the essence of arbitrary and
capricious. Southern California Edison Co. v. F.E.R.C., 415 F.3d 17, 22 (D.C.
Cir. 2005). This logic applies with all the more force where the agency disregards
a statutory mandate (in this case, a mandate under 309(a)).
In its Opening Brief, the FCC maintains that 1.106(c) did not permit the
Bureau to address Petitioners Petitions for Reconsideration without making a
threshold determination that Petitioner also satisfied the requirements of 47 C.F.R.
1.106(b)(1). This contention is illogical because it would render 1.106(c)
entirely superfluous. It also would make the FCCs consideration of the public
interest in connection with an applicants license application entirely dependent
upon a third-partys compliance with a procedural requirement. This is not and
cannot be the law, because, as noted, the FCC is required to determine whether
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an AMTS license serves the public interest in every instance. 47 U.S.C. 309(a).16
In fact, in the myriad cases in which the FCC has itself applied 1.106(c)(2), it has
acknowledged that a public interest showing under 1.106(c)(2) comprises a basis,
entirely independentof 1.106(b)(1), upon which to grant a petition for
reconsideration. See,In re Applications of Stockholders of CBS, Inc., 11 FCC Rcd
19746 *9 (1996) (Should these circumstances [set forth in 47 C.F.R.
1.106(b)(1)] not be present, the rules nevertheless allow grant of the petition for
reconsideration should the Commission determine that consideration of the facts
relied upon by petitioner is in the public interest.) (emphasis added);In re
McVeigh, 25 FCC Rcd 3572, 3574 n. 18 (2010);In re Levandusky, 25 FCC Rcd
14172, 14174, n. 18 (2010).
The FCCs argument here also contradicts this Courts reading of 1.106(c)
in one of the cases on which the FCC relies, Valley Telecasting Co, v. FCC, 336
F.2d 914 (D.C. Cir. 1964). Valley Telecasting considered the FCCs denial of a
petition for rehearing on the grant of a permit to build a television station. This
Court stated that 1.106(c)s public-interest rubric is separate and independent
from any requirement imposed by any other regulation. Section 1.106(c), this
Court said, demand[s] either that a good reason be given why a pre-grant
16In sum, the FCCs position is that when it errs in granting an application in the
first instance, it need not, and should not, correct its error in the public interest later
on. This turns the licensing process into a unfair free for all.
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opposition was not utilized [as required by Section 1.106(b)(1)] or a pleading of
facts which, if shown to be true, clearly point to an injury of the public sufficient to
outweigh considerations of administrative orderliness. Id. at 917 (emphasis
added).
The FCC does not dispute that Petitioners Petitions for Reconsideration
raised serious public interest concerns under 47 C.F.R. 1.106(c). The Bureaus
refusal to consider and address those concerns, therefore, derogated its statutory
mandate.
B. The Arguments Proffered by the FCC Are UnavailingWhile Petitioner submits that the public interest concerns implicated in this
case are dispositive, Petitioner also notes that the purely-procedural arguments
proffered by the FCC in its Opening Brief are not meritorious, and should be
rejected in their own right.
1. The FCC Fails To Rebut Petitioners Contention That He WasA Party To The Proceedings At Issue
In Petitioners Opening Brief, Petitioner demonstrated that the Wireless
Bureaus and FCCs adjudications of Petitioners Petitions for Reconsideration and
Applications for Review were based on an incorrect threshold assumption, that
Petitioner was not a party to the proceeding (as that term is used in 47 C.F.R.
1.106(b)(1)) prior to the filing of Petitioners Petitions for Reconsideration. As
discussed in Petitioners Opening Brief, Petitioner maintains that: (i) he was in fact
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a party to Regionets B Block application proceeding prior to his December 14,
2000 Petition for Reconsideration, by virtue of his timely petition to deny
Regionets A Block application for the Carolina Waterways (which was ultimately
granted in part by the Wireless Bureau on January 31, 2001); and (ii) Petitioner
was in fact a party to the proceeding related to Call Sign WRV374 by virtue of his
June 26, 2001 protest, which preceded the July 2, 2001 grant of Regionets renewal
application. With particular respect to the protest, it is important to note that this
type of filing is expressly authorized by 47 C.F.R. 1.41.17
In its October 25, 2002
Memorandum Opinion denying Petitioners Application for Review, the
Commission in essence determined that Petitioners June 26 protest was ineffective
because Petitioner purportedly did not identify particular facilities that were
improperly constructed (J.A. ____). Nonetheless, the fact remains that Petitioners
protest identified the licenses associated with station activation notices evidencing
improper construction. (J.A. ____). The purpose of 1.41 is to permit the public
to provide information to the Commission at any time that may be relevant to an
FCC-issued license. For the FCC to say that it did not have to act on Petitioners
June 26 protest because he did not identify particular facilities, is simply an
17This regulation states, inter alia, Except where formal procedures are required
under the provisions of this chapter, requests for action may be submitted
informally . . .
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attempt by the FCC to excuse itself from its public interest obligation to make a
reasoned decision based on the evidence supplied by Petitioner.
The FCC does not dispute the timely filing of Petitioners petition to deny
Regionets A Block application, nor does it deny Petitioners filing (and the
Bureaus receipt) of his June 26, 2001 protest. Nor does it contest the Bureaus
actual notice of each of these filingspriorto the time the B Block application and
the Call Sign WRV374 renewal application were granted. Instead, the FCC argues
that Petitioner was not a party to the proceeding prior to the filing of his Petitions
for Reconsideration simply because Petitioner had not filed a Petition to Deny
prior to the grant of the subject applications. This argument is not supported by the
plain text of 1.106(b)(1). The regulation makes it clear that it is participation
not the filing of any particular document that makes one a party to a proceeding
before the Bureau (otherwise, the first sentence of the regulation would be
irreconcilable with its second sentence). Section 1.106(b)(1) could just as easily
have stated any person who filed a petition to deny . . . may file a petition
requesting reconsideration of the action taken, along with a concomitant
obligation upon a party who had not done so to show good reason why it was not
possible for him to file a petition to deny. Yet, the regulation was not so drafted.
In light of the foregoing, it is not surprising that the FCC has yet to identify
any authority stating that a person must file a petition to deny to become a party to
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a proceeding. This omission is both remarkable and telling. The regulation that
the FCC seeks to interpret has been in place since at least the early 1960s. Yet the
FCC cannot identify a single case, statute, regulation, or internal agency decision
that supports the interpretation of party to the proceeding that the FCC now
advances.
With particular respect to the B Block applications for the Carolina
Waterways, the FCC never has denied that the Wireless Bureaus representatives
who evaluated these applications actually knew about Petitioners timely
objections to the A Block applications. As such, it was unreasonable for the
Bureau to have required Petitioner to anticipate its novel and unprecedented
construction of its own regulations. And it is certainly unreasonable for the FCC to
refuse to revisit its anomalous decision simply because Petitioner did not undertake
the purely ministerial act of submitting objections directed to the B Block
applications which would have been utterly duplicative of the objections Petitioner
had already filed in connection with the A Block applications.
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With particular respect to the Call Sign WRV374 renewal application,
Petitioner filed his protest one week before the Wireless Bureau acted on this
application. The FCC does not contest that this protest was a valid filing.18
2. In Any Event, Petitioner Has Met The Standard Set Forth In 47C.F.R. 1.106(b)(2)
In his Opening Brief, Petitioner demonstrated that he met the standard set
forth in 47 C.F.R. 1.106(b)(2), because: (i) he was adversely affected by . . .
action taken by the Commission; (ii) there was a good reason why it was not
possible for him to participate in the earlier stages of the proceeding (in particular,
because he needed to procure engineering studies to adequately contest Regionets
applications); and (iii) his petition for reconsideration relied on new facts or
changed circumstances. The FCC does not seriously contest the first and third of
these factors. Rather, it maintains that Petitioner had not demonstrated a good
reason for not participating in earlier stages of the Regionet-licensing proceedings.
18The FCC argues on page 27 of its Opening Brief that 47 U.S.C. 405 bars
Petitioners argument that he was made a party to the proceeding via his June 26,
2001 protest. This statute specifies the circumstances under which a party must
file a petition for reconsideration with the FCC as a precondition to filing an appeal
with the Circuit Court. This statute is inapplicable here because in the instant case
Petitioner did file a petition for reconsideration with the Wireless Bureau.
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Assuming arguendo that 1.106(b)(2) is even applicable here,19
the FCCs
argument is unavailing.
On page 27 of its Opening Brief, the FCC, while acknowledging that
Havens did attempt to justify his failure to participate earlier in the proceeding by
asserting that he was unable to gather complete information . . . within the 30-day
deadline, nonetheless maintains that nothing prevented Havens from making his
other claims within the 30-day filing period." This argument is a red herring. As
noted in Petitioners Opening Brief, a procedure which would have compelled
Petitioner to split his points of contention would have prejudiced Petitioner,
because it would have in effect forced him to jettison those points of contention for
which Petitioner required an engineering study. SeeIn Re Indiana Community
Radio Corp., 23 FCC Rcd 10963 n. 1 (2008) (finding a supplemental petition to
deny to be untimely);In re Citadel Broadcasting Co., 22 FCC Rcd 7083 n. 139
(2007);In re Application of Southern Broadcast Corp. of Sarasota, 16 FCC Rcd
3655 *30-31 (2001). At a minimum, by acknowledging (as it must) Petitioners
averment that he was unable to gather complete information within 30 days as to
certain of his points of contention (i.e., those which required conducting
engineering studies by a qualified radio engineer, Ralph Haller, the former head of
19As noted above, Petitioner maintains that he was a party to the proceedings by
virtue of his Petition to Deny Regionets A Block applications and by virtue of his
informal request of June 26, 2001.
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the FCCs Private Radio Bureau), the FCC appears to be conceding that, at least in
part, Petitioners contentions were properly the subject of a petition for
reconsideration.
Secondly, it not entirely clear that Petitioner was authorized under the
Commissions Rules to seek and obtain an extension of the deadline to file a
Petition to Deny. In this regard, 47 C.F.R. 1.939(a)(2) states that petitions to
deny non-auctionable applications must be filed no later than 30 days after the
date of the Public Notice listing the application as accepted for filing. The
regulation does not, on its face, provide for an extension of this 30 day deadline.
Moreover, under 47 C.F.R. 1.46(a) It is the policy of the Commission that
extensions of time shall not be routinely granted, thus further underscoring the
futility of an extension remedy. For each of the foregoing reasons, Petitioner has
met the standard set forth in 47 C.F.R. 1.106(b)(1).20
Finally, it is worth noting that the FCCs insistence upon timeliness is
inconsistent with its own actions in adjudicating Petitioners Applications for
Review. 47 U.S.C. 405(b) states that: Within 90 days after receiving a petition
20
On pages 26-27 of its Opening Brief, the FCC contends that 47 U.S.C.405(a) bars consideration of Petitioners argument that he was unable to
participate in earlier stages of the Regionet licensing proceedings due to his need to
procure engineering studies. In particular, the FCC states that Havens "did not
make this argument before the FCC." This simply isn't correct. Page 14 of
Petitioners opening brief describes how Petitioner previously asserted this
argument in pages 4-6 of his January 17, 2002 Application for Review to the FCC.
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for reconsideration. . . the Commission shall issue an order granting or denying
such petition. (Emphasis added). The express language of the statute is
mandatory and does not permit any exceptions. Nonetheless, the FCC acted in an
untimely fashion with respect to each of the Applications for Review giving rise to
the instant consolidated appeals. As noted in Petitioners Opening Brief, the
Application for Review with respect to the B Block licenses was filed on January
17, 2002, but was not adjudicated until October 25, 2002, over nine months later
(i.e., over six months after it was required to have been adjudicated under 405).
Likewise, the Application for Review in connection with Regionets renewal
applications was filed on December 3, 2001, but not adjudicated until October 25,
2002, nearly eleven months later (i.e., nearly eight months after it was required to
have been adjudicated 405). The Commission should not be free to pick and
choose which of the Communications Acts procedural provisions it seeks to
enforce.
Accordingly, this Court should remand this case to the FCC for appropriate
action on the substance of Petitioners Petitions.
Respectfully submitted,
/s/Tamir Damari
Tamir Damari (D.C. Bar. 455744)
NOSSAMAN L.L.P.
1666 K Street, N.W., Suite 500
Washington, D.C. 20006
Email: [email protected]
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Phone: (202) 887-1400
Attorneys for Appellant
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CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing document was
served on the 10th
day of February, 2011, via hand delivery, upon:
Pamela Smith, Esq.
Office of General Counsel
Federal Communications Commission
445 12th
Street SW
Washington, DC 20554
Dennis Brown, Esq.
126 B North Bedford Street
Arlington, Va. 22201
Jane E. Mago, Esq.
National Association of Broadcasters
1771 N Street NW
Washington, DC 20036
/s/Tamir Damari
Tamir Damari
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CERTIFICATE REGARDING WORD-COUNT
I HEREBY CERTIFY that the word count for Petitioners Brief is less than
7,000 words. The word count is 5,588 words.
/s/Tamir Damari
Tamir Damari
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