Thank you for playing our game
FCC-watching is a more fascinating hobby than ever. A “made-over” commission is in place, new faces are in the bureaus and divisions, and the budget is on the front burner. It’s been said that a new broom sweeps clean, but when things get this hectic, there can be an impulse to sweep the dirt under the rug.
We noticed with interest a January news item on an order from the Wireless Telecommunication Bureau (WTB) dismissing a June 1996 petition from the Washington-based law firm of Brown and Schwaninger. The Petition for Special Relief requested that the FCC cancel certain enhanced specialized mobile radio (ESMR) licenses held by Nextel Communications, McLean, VA, on the basis that the applications on which the licenses were granted were defective. Editorial Director Don Bishop expressed our concerns in this space, in August 1996, on the alleged application defects, fee omissions and lack of frequency coordination. We all rested on our heels and waited.
As reported in the trade press, the January FCC Order found the petition itself to be “untimely,” “replete with factual errors” and found no reason to act on the “meager anecdotal information” it contained. End of story? Not quite. We’re not coy; as the masthead of this magazine indicates, we rely on that particular law firm for regulatory consultation. We don’t necessarily agree with or support every action it takes in private practice, but if the attorneys are screw-ups, as the above quotes imply, we’d like to know about it.
Faced with deadlines, more-frequently circulated publications simply don’t have the time to examine such issues with as much depth or exactitude as they’d like. We examined the full text of the order from the WTB, and the quotes appear accurate. The context is a little more disturbing. Regarding the timeliness of the petition, the discussion section of the Order said “Although styled as a Petition for Special Relief, the Petition is in substance a petition for reconsideration of license grants made to Nextel in the October 31  Public Notice.” Under the rules, the long-awaited Order said, “petitions challenging the results … were due no later than Nov. 30, 1995. Because the instant petition was filed on June 25, 1996, approximately seven months after this deadline, it is untimely on its face.”
In layman’s terms, the FCC’s response was equivalent to saying, ‘Thank you very much for your complaint about apples; however, on review we have determined that your complaint is really about oranges, and since oranges are no longer in season, we’re not taking any complaints_Thank you for playing our game!” The question of course, is not about apples or oranges, but about who knocked over the fruit stand.
When interviewed, the attorneys referred to this recharacterization of the petition as “legal and administrative conversion,” and pointed out that there is no time period for special relief.
The discussion in the Order also refers to the “alleged random samples” of applications discussed in the petition, says that the alleged engineering and frequency coordination missing from Nextel’s petitions “was in fact provided,” and that fee waivers “were either not necessary or were properly requested.”
We have examined the original petition. The sample applications for review were not gleaned from the ether_they were provided by the commission under a Freedom of Information Act (FOIA) request that the FCC finally responded to after nearly three months, and not all requested materials were provided. No documentation of fee waivers was released.
A quick civics lesson on FOIA: The 1966 law, amended in 1996, requires federal agencies to cough up public documents, unless they meet one of nine exemptions such as national security. An agency must respond to the request within 20 working days, and act on it shortly thereafter. (At the time in question, the response window was even shorter.) Despite the letter of the law, and the contempt and litigation penalties it contains, the process can still take months, which is why journalists, who have a thing called deadlines, don’t wait around for the feds to uncork themselves. A House report issued in March 1997 as much as admitted that the only reason that agencies get away with delays is because most people don’t have the time or money to drag them into court. Therefore, only about 5% of the 600,000 FOIA requests filed annually with federal agencies are filed by journalists. Most are from private businesses, lawyers seeking documents and the prison population.
But things change.
The questions we raised here a year and a half ago about the application process are still valid. What happens to Nextel’s licenses specifically may not be moot. (Brown and Schwaninger, however, have filed an appeal to the WTB Order, contradicting its findings. For those who enjoy light reading, it can be found in file number CWD-27-24.) The question is, will the new commission play by the rules of law or not? Section 1.958 of the commission’s rules_you know, the Code of Federal Regulations_says “An application which is defective on its face will not be accepted for filling as will be dismissed … An application which is excepted for filing, but which is later determined to be defective, will be dismissed.” There is no “statute of limitations” on these rules. They’re rules.
The FCC used to believe in rules. An experienced radio operator recently remarked to me that in the “old days,” “The FCC was like the voice of God,” as far as enforcement was concerned. Unfortunately, in recent years, it’s been less like a voice from the burning bush and more like sounding brass or a tinkling cymbal.
This is not to say that things are dark on M Street. The new FCC chairman has already broken with past policy on several issues. The new WTB bureau chief evidences much more willingness to listen to and communicate with the industry than some of his predecessors. A new managing director, who actually has small business regulatory experience, has been announced for the Telecommunications Development Fund. Spring is coming.
Part of the problem for any bureaucracy is churn. Because of staff turnover and lack of continuity, regulators are making decisions on issues that took place before they were part of their current division, bureau or even the FCC itself. Because regulators have their own agenda, some decisions on outstanding matters can be hasty.
This new commission, still on its “honeymoon,” has an opportunity to take advantage of the largesse afforded to a fresh administration. It is allowed to “discover” a mess, announce intentions to clean it up, and blame it on its predecessor.