FCC breaks logjam on appeals of Audio Division decisions.

Along with spring daffodils, there has been a refreshing burst of FCC activity in the last few weeks on applications for review relating to decisions (mainly FM matters) from the FCC’s Audio Division. An “application for review,” in FCC parlance, is the pleading by which one asks the full Commission to review an adverse decision by one of the Commission’s delegated authorities, such as the Wireless Bureau or Media Bureau. This allows the five Commissioners to review a decision by their subordinates and either approve it or correct any errors that might have been made. The presidentially-appointed Commission is, after all, the body charged with fulfilling the regulatory functions under the Communications Act, so it naturally has the last word when it comes to agency actions. In fact, an FCC action is technically not “final” (and, therefore, ripe for judicial review) until the full Commission has passed upon the matter one way or another.

Unfortunately, in recent years – in fact, as long as we can remember – the five Commissioners have seemed to regard applications for review much as Superman regards Kryptonite. The matters at issue tend to concern issues of local interest and small importance to most: should this site change be approved, should this waiver be granted, did this application have a defect? These issues, though often vitally important to the parties out in the hinterlands, must seem of small consequence compared to the Great Issues of Our Day that typically fill the Commissioners’ ex parte meeting schedules. Net neutrality, spectrum access, auction policy – these are the grave and weighty issues that our philosopher-Commissioners prefer to debate and ponder in their offices up in the clouds of the 8th floor.

This is certainly understandable, but we cannot forget that a huge part of the Commission’s job is to review and grant license applications. Part of that process requires the resolution – at the staff level – of disputes involving a tiny fraction of the thousands of applications routinely filed, and then full Commission review of the staff’s resolutions in the even tinier fraction of cases in which applications for review are filed. But for some reason – perhaps because the original action by the delegated authority is effective upon its issuance – the Commission has historically appeared to feel that there is no need to dispose of such appeals promptly. It has therefore not been unheard of for applications for review to languish at the Commission level for three, four, five years, sometimes even longer. They are just not on anybody’s priority list except for the hapless parties who cannot close the books on the matter until the full Commission acts.

Chairman Wheeler has taken a welcome step in the direction of reform by appointing Diane Cornell as a special assistant to identify and redress problems with FCC procedures, including this one. Suggestions have included treating applications for review as automatically disposed of if the full Commission does not take affirmative action within a specified timeframe. (Whether the automatic disposition should be a grant or a denial of the application for review is still a matter of debate.) Commissioner Pai in particular has been a public advocate for this approach.   We out in the hinterlands are looking forward to adoption of some of the reform measures proposed in the Cornell Report which was presented a couple of months ago, but we are not holding our breath.

In the meantime, at least one Division at the FCC appears to have taken the bull by the horns. In the last couple of weeks, at least five decisions disposing of long-pending applications for review concerning FM radio cases have been issued by the Commission. Most of the cases were able to be disposed of quickly in whole or in part because the issue involved had become moot or there was some technical defect in the pleading.  But in a few the Commission reviewed the record, found that the Bureau’s original decision was solid, and affirmed. These actions both ensure that the original decision has been looked at by a fresh set of eyes and, importantly, permits an aggrieved applicant to seek independent review at the Court of Appeals. The wheels of justice may grind slowly. but they need to at least keep grinding or cases never come to a conclusion.

From what we can determine, the notable increase in the resolution of Audio Division-related applications for review is the result of (a) an effort by the Division to identify and “package” cases appropriate for relatively streamlined treatment, and (b) an affirmative response to that effort from the 8th Floor. The latter factor is particularly noteworthy because, under the recent Martin and Genachowski chairmanships, the Eighth Floor reportedly showed zero interest in dealing with pretty much any routine Media Bureau applications for review. Rather than spend time on matters that seemed unlikely to make it past the eighth floor, the Bureau staff chose to occupy themselves more productively on other things, which resulted in a backlog of pending applications of review. The Wheeler Commission, by contrast, has encouraged disposition of those long-pending items. And beyond mere encouragement, staff members on the Eighth Floor and in the General Counsel’s office have devoted considerable time and attention on this front, working with Bureau staff to produce a series of brief, backlog-reducing orders – generally not more than three or four pages each – designed to address only the issues necessary for resolution. We note that most of these short orders concern matters already addressed at some length in the Bureau’s initial disposition of the case.

Kudos to Peter Doyle and the other folks at the Audio Division who have seen a problem and taken action to right it. And kudos to the full Commission for acting promptly on the matters presented rather than simply shoving them to the back of their desks behind lead screens. Now if only the other Bureaus and Divisions would follow a similar course, those mountains of years-old applications for review could be reduced to molehills.