havens v fcc (mobex-mclm amts stations), dc circuit court, havens reply

8/7/2019 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

Case: 02-1360 Document: 1292710 Filed: 02/10/2011 Page: 1


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i

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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ii

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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19

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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21

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



32/33

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


Dennis Brown, Esq.

126 B North Bedford Street

Arlington, Va. 22201

Jane E. Mago, Esq.

National Association of Broadcasters

1771 N Street NW


/s/Tamir Damari

Tamir Damari



33/33

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


havens v fcc (mobex-mclm amts stations), dc circuit court, havens reply

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