"Mother May I" follow-up: FCC affirms requirement for approval before further filings.
Perhaps you remember the individual who saw the FCC turn down his same applications 11 separate times over the last 13 years or so. In 2011 (in connection with Rejection Number 11), an exasperated FCC took the unusual step of forbidding the applicant from filing again on this matter, unless he first obtained prior approval from the Wireless Telecommunications Bureau. (After giving the applicant a chance to respond, the FCC confirmed the prior-approval requirement.)
The applicant petitioned for reconsideration of the prior-approval requirement. After pausing to think about whether the requirement itself barred such a petition, the Bureau decided it did not. But then, citing a rule permitting the dismissal of reconsideration petitions that “plainly do not warrant consideration,” the Bureau tossed the petition anyway in a terse order that lacked a detailed response to any of the petitioner’s points.
Perhaps you thought that would be the end of it.
Perhaps you underestimate the tenacity of the human spirit.
The applicant promptly asked the full FCC to review this last Bureau turn-down. There was a potentially fatal error in how he titled the request (yes, these details matter), which the applicant did not correct until after the deadline had passed. The FCC magnanimously accepted the correction anyway – and then turned down the applicant yet again.
The latest request for review raised two kinds of arguments. One set went back to the merits of the original license rejection, starting in 2000. The FCC declined to consider those arguments because they were not at issue in the order under challenge (i.e., the one rejecting reconsideration of the prior-approval requirement).
The applicant’s other arguments protested the prior-approval requirement on grounds related to free speech, right to petition the government, property rights, due process, and a related claim that the FCC had acted outside its authority. The Bureau, in denying reconsideration, had brushed aside each of these as being procedurally defective, raised too late, or presented without adequate supporting argument. The full FCC has now backed the Bureau in each of these respects, and rejected some new procedural arguments as well.
The applicant’s only remaining recourse would appear to be a trip to a U.S. Court of Appeals. Since the proceeding arises in the context of FCC decisions relating to licensing applications, the D.C. Circuit would ordinarily be the only place to go. However, the applicant might want to argue that the real crux at this stage of the dispute is no longer a licensing issue, but rather the prior-approval requirement which (the argument would go) did not, strictly speaking, entail action on a licensing application. (The FCC itself observes that the underlying licensing component of the proceeding ended some five years ago.) If that argument were to succeed – and we offer no opinion as to whether it might – then the applicant might have access to a U.S. Court of Appeals other than the D.C. Circuit. Ordinarily a court appeal is expensive enough – typically in six figures – to deter anyone not having both a lot at stake and a lot of confidence in his arguments. But the applicant here has been acting as his own lawyer, which brings the costs way down, and he seems not to be lacking in confidence. He has at least 30 days to decide.
