Havens V FCC (Mobex-MCLM AMTS Stations), DC Circuit Court, Havens Opening Brief

Case: 02-1359 Document: 1284309 Filed: 12/21/2010 Page: 1
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.
____________________________________
PETITION FOR REVIEW FROM

DECISION OF THE FEDERAL COMMUNICATIONS
COMMISSION PETITIONER’S OPENING BRIEF
Tamir Damari (D.C. Bar No. 455744)

NOSSAMAN LLP
1666 K Street NW
Suite 500
Washington, DC 20006
Telephone: (202) 887-1400
Attorneys for Petitioner

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Parties: Petitioner Warren Havens, Respondent the Federal
Communications Commission and Amicus Curiae Mobex Network Services, LLC.
Rulings: Two rulings of the Federal Communications Commission dated
October 25, 2002. 17 FCC Rcd 21263, 17 FCC Rcd 21269.
Related Cases: None.
i
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED
CASES .......................................................................................................i
TABLE OF AUTHORITIES .................................................................................v
I. JURISDICTIONAL STATEMENT .........................................................1
II. STATEMENT OF THE ISSUES PRESENTED FOR

REVIEW ...................................................................................................1
III. PERTINENT STATUTES AND REGULATIONS.................................2
IV. SUMMARY STATEMENT OF THE CASE, COURSE OF

PROCEEDINGS AND DISPOSITION BELOW ....................................3
A. Appeal No. 02-1359 .......................................................................3
B. Appeal No. 02-1360 .......................................................................4

V. STATEMENT OF FACTS .......................................................................5
A. Background Facts and Facts Common to Each Appeal .................5

B. Facts Relating Particularly to Appeal 02-1359 ..............................9
C. Facts Relating Particularly to Appeal 02-1360 ............................15

VI. SUMMARY OF THE ARGUMENT .....................................................19
VII. STANDING ............................................................................................22
VIII. ARGUMENT ..........................................................................................22

A. Relevant Legal Standards .............................................................22
1. Standard of Review Under the Administrative

Procedure Act .....................................................................22
2. The Commission Must Act Consistently and in

Accordance With Its Rules.................................................23
3. In Each Case in Which a Commission License is

Granted, the Commission Must Determine that
ii
the License Grant is in the Public Interest, and

Cannot Abrogate this Duty to Private Parties in
any Circumstance ...............................................................24
B. Application of the Law to the Facts of this Case .........................28
1. The FCC Erred By Denying Petitioner’s

Application for Review in the Case Giving Rise
to Appeal No. 02-1359 .......................................................28
a. Petitioner Was a Party to Regionet’s B
Block Proceeding Prior to His December
14, 2000 Petition for Reconsideration, By
Virtue of His Timely Petition to Deny
Regionet’s A Block Application..............................28
b. Assuming Arguendo that §1.106(b) is

Applicable, Petitioner has Demonstrated
His “Adverse Interest” and Has Shown
“Good Reason” for Failing to Participate in
“Earlier Stages of the Proceeding” ..........................33
c. Petitioner’s Petition for Reconsideration

Met the Standard Set Forth in 47 C.F.R.
§1.106(c) ..................................................................39
d. The Commission Should Have Addressed
the Bureau’s Disparate Treatment as to
Petitioner and Regionet............................................46
e. In any event, the Bureau Could Not

Abrogate Its Duty to Assess Regionet’s B
Block Applications on Their Merits,
Particularly Since the Defects in These
Applications Were Evident on Their Face...............48
2. The FCC Erred by Denying Petitioner’s

Application for Review in the Case Giving Rise
to Appeal 02-1360..............................................................50
a. Petitioner was a Party to the Proceeding at

Issue .........................................................................50
iii
b. Assuming Arguendo that §1.106(b) is

Applicable, Petitioner has Demonstrated
his “Adverse Interest” and has Shown
“Good Reason” for Failing to Participate in
“Earlier Stages of the Proceedings”.........................53
c. In Any Event, the Bureau Could Not

Abrogate Its Duty to Assess Regionet’s
Renewal Applications on Their Merits....................55
IX. CONCLUSION.......................................................................................56
CERTIFICATE OF SERVICE ............................................................................57
CERTIFICATE REGARDING WORD-COUNT ...............................................58
iv
47 C.F.R. $80.38s(a\2). ........'..'.......'.'.7

47 C.F.R. $80.475 ...................1 1,17, s6
47 C.F.R. $80.a75(a)..... 6, 8, 9, 10, rI,16, \7,36,44,51
47 C.F.R. $80.a8s(a)..... .....................'..6
47 C.F.R. $309.............. ........................ I
47 C.F.R. $1.106(c)....... 2,13,t4,t5,20,39,40,43,4s,46
ADMINISTRATIVE PROCEEDINGS
In re Application of Califurnia Industrial Service, Inc ,14 FCC Rcd 19377
(1999)............ ....33, s3
In re Application of Southern Broadcast Corp. of Saraso¡a, 16 FCC Rcd

365s (2001)... ..........s4
In re Applications of Metrocall, Inc.,11 FCC Rcd 21208 (1996).'..'.'...........'.'33, 53
* In re Applications of Tucker,4FCC Rcd 2816 (1989) .........'. ..'35'39
In re Citadel Broadcasting Co.,22 FCC Rcd 7083 (2007) ... ...........54
In re Orion Telecom,l4 FCC Rcd 3837 (1999)............ ..... ....'.'.....'.' 6
In re Weblink Wireless, Inc., 17 FCC Rcd 24642 (2002). '....'.".37, 38

In re: Amendment of the Commission's Rules Concerning Maritime
Communications, 17 FCC Rcd 6685 (2002) ........... ..'."..'...'.'.....31
In re: Application of Regionet TVireless License, LLC, For Renewal of

Licenseþr Station WRV374 to Provide Automated Marine
Telecommunications System Service to the Atlantic Coast, 17 FCC Rcd
2t269 (2002). l, s, 19, s2
In re; Application of RegionetWireless License, LLC, Granted Applications

to Provide Automated Marine Telecommunications Systems at Various
Locations in the united states,l7 FCCP(cd21263 (2002).................1,4,15,45
* In re; Applications of Aspen FM, Inc., 12 FCC Rcd 17852 (1997) ...........'......35,39
In re : Indiana Community Radio Corp., 23 F CC Rcd 1 0963 (2008)......'....' .'.'. "'.' 5 4

OTHERAUTHORITIES
Commission's Rules Applicable to Automated Maritime
Telecommunications Systems, Amendment of Parts 2 and 80 ........ ,. ..... ....... ... ... 6
Commission's Rules to Allocate Spectrum for an Automated Inland

'WaterwaysCommunicationsSystem,Amendmentof Parts2,8l and83...........8
Grenco, Inc.,28 FCC 2d 166 (1971)..... ....................3 I
Report and Order,

GEN Docket No. 80-1, 84 FCC 2d875, on recon., Memorandum Opinion
and Order, GENDocketNo. 80-1, 88 FCC 2d679 (1981) ..........8
Report and Order, GEN Docket No. 88-732,6 FCC Rcd 437,437 tl 3 (1991)........6
vlll
I. JURISDICTIONAL STATEMENT
The basis for the agency’s jurisdiction was 47 U.S.C. §§308, 309. The basis
for this Court’s appellate jurisdiction is 47 U.S.C. §402(b)(6) (authorizing review
of an appeal by a party whose interests are adversely affected by any order of the
Federal Communications Commission granting or denying a license).
Two final decisions, correlating to each of these consolidated appeals, were
rendered by the Federal Communications Commission (the “Commission”) on
October 25, 2002. See In re: Application of Regionet Wireless License, LLC,
Granted Applications to Provide Automated Marine Telecommunications Systems
at Various Locations in the United States, 17 FCC Rcd 21263 (2002); In re:
Application of Regionet Wireless License, LLC, For Renewal of License for Station
WRV374 to Provide Automated Marine Telecommunications System Service to the
Atlantic Coast, 17 FCC Rcd 21269 (2002). Appeals were timely taken from these
agency orders on November 25, 2002. The instant appeals are from final orders
disposing of all parties’ claims.
II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

These consolidated appeals involve a common issue:
1. Did the Commission err on October 25, 2002 by denying Petitioner’s
Application for Review of a December 17, 2001 decision by the Commission’s
Wireless Telecommunications Bureau (the “Bureau”), which denied Petitioner’s
1
Petition for Reconsideration of the Bureau’s grant to Regionet Wireless Licensee,
LLC (“Regionet”) of certain applications for Automated Marine
Telecommunications System (“AMTS”) service, on the grounds that Petitioner had
purportedly failed to demonstrate compliance with 47 C.F.R. §1.106(b)(1), thereby
rejecting consideration of this Petition on the merits? (Appeal No. 02-1359).
2. Did the Commission err on October 25, 2002 by denying Petitioner’s
Application for Review of a November 2, 2001 decision by the Bureau, which
denied Petitioner’s Petition for Reconsideration of the Bureau’s grant to Regionet
of its license renewal applications to purportedly provide AMTS service along the
Atlantic Coast under Call Sign WRV374, on the grounds that Petitioner had
purportedly failed to demonstrate compliance with 47 C.F.R. §1.106(b)(1), thereby
rejecting consideration of this Petition on the merits? (Appeal No. 02-1360).
III. PERTINENT STATUTES AND REGULATIONS

47 U.S.C. §309(a):
(a) Considerations in granting application. Subject to the provisions of this
section, the Commission shall determine, in the case of each application
filed with it to which section 308 [47 USC §308] applies, whether the public
interest, convenience, and necessity will be served by the granting of such
application, and, if the Commission, upon examination of such application
and upon consideration of such other matters as the Commission may
officially notice, shall find that public interest, convenience, and necessity
would be served by the granting thereof, it shall grant such application.
47 C.F.R. §§1.106(b), (c):

(b)(1) Subject to the limitations set forth in paragraph (b)(2) of this section,
any party to the proceeding, or any other person whose interests are
2
adversely affected by any action taken by the Commission or by the

designated authority, may file a petition requesting reconsideration of the
action taken. If the petition is filed by a person who is not a party to the
proceeding, it shall state with particularity the manner in which the person' s
interests are adversely affected by the action taken, and shall show good
reason why it was not possible for him to participate in the earlier stages of
the proceeding.
(2) Where the Commission has denied an application for review, a petition
for reconsideration will be entertained only if one or more of the following
circumstances is present: (i) The petition relies on facts which relate to
events which have occurred or circumstances which have changed since the
last opportunity to present such matters; or (ii) The petition relies on facts
unknown to petitioner until after his last opportunity to present such matters
which could not, through the exercise of ordinary diligence, have been
learned prior to such opportunity.
(3) A petition for reconsideration of an order denying an application for
review which fails to rely on new facts or changed circumstances may be
dismissed by the staff as repetitious.
(c) A petition for reconsideration which relies on facts not previously
presented to the Commission or to the designated authority may be granted
only under the following circumstances: (1) The facts fall within one or
more of the categories set forth in 1.106(b)(2); or (2) The Commission or the
designated authority determines that consideration of the facts relied on is
required in the public interest.
IV. SUMMARY STATEMENT OF THE CASE, COURSE OF

PROCEEDINGS AND DISPOSITION BELOW
A. Appeal No. 02-1359
This appeal arises out of the grant of “B Block” AMTS licenses by the
Bureau to Regionet, permitting Regionet to service the Savannah, Cape Fear,
Haws, Cooper, Congaree, Broad and Saluda Rivers (collectively, the “Carolina
Waterways”). Regionet applied for these licenses on June 9, 2000 and was granted
3
them on November 8, 2000. On December 14, 2000, Petitioner filed a Petition for
Reconsideration of the grant of these licenses. On September 7, 2001, the Bureau
denied this Petition on the grounds that Petitioner had purportedly failed to
demonstrate why it was not possible for him to participate in earlier stages of the
proceeding, under 47 C.F.R. §1.106(b)(1). Thus, the Bureau did not reach the
merits of Petitioner’s Petition for Reconsideration.2
On January 17, 2002, Petitioner filed an Application for Review seeking full
Commission review of the Bureau’s September 7, 2001 and December 17, 2001
Orders.3 Petitioner’s Application for Review was denied by the Commission on
October 25, 2002. See 17 FCC Rcd 21263 (2002). Specifically, the Commission
affirmed the Bureau’s determination that Petitioner had failed to meet the
requirements of 47 C.F.R. §1.106(b)(1). An appeal was timely taken to this Court
on November 25, 2002.
B. Appeal No. 02-1360

This appeal arises out of the grant of license renewal applications
authorizing Regionet to provide AMTS service to the Atlantic Coast under Call
Sign WRV374. These applications were accepted for filing by the Bureau on May
9, 2001. On June 26, 2001, Petitioner submitted to the Bureau a written protest
2 On October 9, 2001, Petitioner filed a timely Petition for further Reconsideration

of the Wireless Bureau’s September 7, 2001 Order, which was denied by the
Wireless Bureau on December 17, 2001.
3 See 47 C.F.R. §1.115(a).
4
identifying certain specific defects in these renewal applications. Nevertheless, on
July 2, 2001, the renewal applications were granted. On August 1, 2001, Petitioner
filed a Petition for Reconsideration of these renewals. On November 2, 2001, the
Bureau denied this Petition, concluding that Petitioner was not a party to the
proceeding prior to filing his Petition for Reconsideration, and had purportedly
failed to demonstrate why it was not possible for him to participate in earlier stages
of the proceeding, as required by §1.106(b)(1). The Bureau did not reach the
merits of Petitioner’s Reconsideration Petition.
On December 3, 2001, Petitioner filed an Application for Review with the
Commission, seeking review of the Bureau’s November 2, 2001 Order.
Petitioner’s Application for Review was denied by the Commission on October 25,
2002. See 17 FCC Rcd 21269 (2002). The Commission affirmed the Bureau’s
determination that Petitioner had failed to meet the requirements of 47 C.F.R.
§1.106(b)(1). An appeal was timely taken to this Court on November 25, 2002.
V. STATEMENT OF FACTS
A. Background Facts and Facts Common to Each Appeal

AMTS stations provide automated, integrated, interconnected ship-to-shore
communications similar to a cellular phone system for tugs, barges, and other
5
maritime vessels.4 Because the AMTS service is, by definition, an automated
systems service, created to ensure that vessels traveling along a waterway be
continuously in range of an AMTS station,5 the Commission enacted 47 C.F.R.
§80.485(a) in a form which continued in existence through the time of the license
grants at issue, that provided: (i) AMTS applicants who proposed to serve a
navigable inland waterway that was less than 150 miles long were required to serve
that waterway in its entirety; (ii) AMTS applicants who proposed to serve a
navigable inland waterway that was more than 150 miles long were required to
provide continuity of service for at least 60 percent of the waterway; and
(iii) AMTS applicants proposing to serve a portion of the Atlantic, Pacific, or Gulf
of Mexico coastline were required to provide continuity of service to a substantial
navigational area.6 In common AMTS parlance this is known as a “continuity of
coverage” requirement, and will be referred to below alternately as the “continuity
of coverage” requirement or the “Coverage Requirement.”
4See Amendment of Parts 2 and 80 of the Commission'

s Rules Applicable to
Automated Maritime Telecommunications Systems (AMTS), First Report and
Order, GEN Docket No. 88-732, 6 FCC Rcd 437, 437 ¶ 3 (1991).
5 See, e.g., In re Orion Telecom, 14 FCC Rcd 3837, 3839 (1999).
6 These coverage rules were codified at 47 C.F.R. §80.475(a). They were
eliminated from the C.F.R. in 2002 without providing any notice and comment for
such removal under the Administrative Procedures Act. Petitioner is contesting
this procedurally-unlawful removal in various proceedings pending before the
Commission, as well as in Appeal No. 10-71718 before the U.S. Court of Appeals
for the Ninth Circuit and Appeal No. 10-1112 before this Court.
6
Petitioner Warren Havens’ principal occupation is developing wireless
communications services, including services within the AMTS frequency
spectrum. Regionet, at all times relevant hereto, was also an AMTS licensee that
became owned and/or controlled by a company known as Mobex Network
Services, LLC (“Mobex”), a competitor of Petitioner and his affiliated companies.
Principals of Mobex and its parent, Maritime Communications/Land Mobile LLC
are currently being investigated by the FCC for numerous rule violations and
misrepresentations in AMTS license applications.7
The licenses at issue are “site-based” AMTS licenses (licenses for stations
authorized only at a specific fixed antenna site). The frequency band for AMTS
licenses is divided into two parts, “Block A” and “Block B,” under 47 C.F.R.
§80.385(a)(2), but at all times relevant to this case, only one block could be applied
for and/or licensed to any single entity. See, FCC 00-370 (2000), ¶44 and footnote
170.
In establishing AMTS rules, the Commission, in addition to the Coverage
Requirement, also focused upon the potential for AMTS interference with
television reception, particularly to TV Channels 10 and 13 (because of the
proximity of AMTS frequencies to these television channels), and therefore
7 See, e.g.,http://www.scribd.com/doc/28336861/FCC-Enforcement-Bureau-
Letter-of-Investigation-dated-2-26-2010-to-Sandra-DePriest-of-MCLM.
7
conditioned the operation of AMTS stations on the requirement that no harmful
interference be caused to television reception.8 Thus, under the Commission'

s
regulations in effect currently and at all times relevant to the subject license grants,
an applicant proposing to locate an AMTS station within 129 kilometers (80 miles)
of a Channel 10 television station and/or 169 kilometers (105 miles) of a Channel
13 television station must submit an specific engineering study demonstrating that
certain means have been utilized to avoid TV interference.9
Further, AMTS licensees are required to construct their systems and meet
the “continuity of coverage” requirement (referenced above) within a given time
period, and must notify and demonstrate to the Commission that the requirements
have been met; otherwise the license automatically terminates and must be
8 47 C.F.R. §80.215(h); Amendment of Parts 2, 81 and 83 of the Commission' s

Rules to Allocate Spectrum for an Automated Inland Waterways Communications
System (IWCS) along the Mississippi River and Connecting Waterways, Report
and Order, GEN Docket No. 80-1, 84 FCC 2d 875, 897-98 ¶ 81, on recon.,
Memorandum Opinion and Order, GEN Docket No. 80-1, 88 FCC 2d 679 (1981).
9 See 47 C.F.R. §80.475(a). “Applicants . . . must submit an engineering study
clearly showing the means of avoiding interference with television reception

within the grade B contour . . .” (emphasis added). Essentially, a “contour” is
represented by a line on the map where a reliable signal from the licensed fixed
station can be received by an end-user radio. Section 80.475(a) refers to
§80.215(h) for additional requirements of this engineering study including, most
notably, a requirement that where there are at least one hundred residences within
both a proposed AMTS station’s predicted interference contour and a television
station’s Grade B contour, the AMTS applicant must also: (1) show that the
proposed site is the only suitable AMTS location, (2) develop a plan to control any
interference its operations may cause within the Grade B contour, and (3) agree to
make any necessary adjustments to affected television receivers to eliminate such
interference.
8
surrendered for cancellation See 47 C.F.R. §§80.49(a)(3), 1.946(b)-(d) and
1.955(a)(2). AMTS licensees are also required to “provide the technical
characteristics for each proposed coast station, including transmitter type,
operating frequencies, emissions, transmitter output power, antenna arrangement,
and location.” See 47 C.F.R. §80.475(a).
B. Facts Relating Particularly to Appeal 02-1359

On May 17, 2000, Regionet filed license applications purportedly to serve
the Cape Fear, Haws, Cooper, Congaree, Broad, Saluda and Savannah Rivers
seeking the AMTS Block A. On June 9, 2000, Regionet filed identical
applications to serve the same waterways, except seeking AMTS Block B. See
Certified Index (“CI”) at 853314, 853315, 853317, 853318, 853324, 853325,
853326, 853327, 853328, 853329, 853333 and 853334. On July 6, 2000,
s A Block applications.10 This Petition

Petitioner filed a Petition to Deny Regionet'
identified certain fundamental defects in Regionet’s A Block applications,
including that the applications lacked the required engineering study demonstrating
TV interference protection (including a showing that, for each proposed AMTS
station, fewer than one hundred residences were within the overlap between the
station’s predicted interference contour and a Channel 13 television station’s Grade
B contour). Petitioner’s July 6 Petition to Deny also established that each of
10 See, 47 C.F.R. §1.939.
9
Regionet’s applications failed to meet the continuity of coverage requirement
(under the then-current version of §80.475(a)) including by describing the length
and navigability of the subject waterways, and the service coverage it proposed to
provide, as shown by coverage engineering studies.
Petitioner’s July 6 Petition to Deny as to the A Block applications was
granted in part by the Bureau on January 31, 2001. In this Order, the Commission
dismissed as defective Regionet’s A Block license application for the Savannah
River, pursuant to 47 C.F.R. §1.934(d).11 In particular, the Bureau accepted
Petitioner’s contention that this application was defective on its face because it did
not contain essential interference protection information:
Regionet contends that . . . the interference contour overlaps the Grade

B contour in low population density areas and . . . the overlap
encompasses fewer than one hundred residences. . . . [E]ven a
cursory review of the applications . . .belies Regionet’s
representation that it reviewed the proposed locations and determined
the areas of overlap to have low population densities. Finally, closer
examination of the subject applications reveals that the overlaps
generally are significant and often encompass entire towns and even
entire counties. Consequently, we find unconvincing Regionet’s
assertion that fewer than one hundred residences are within the
overlapping contours . . .where there are at least one hundred
residences within both a proposed AMTS station' s predicted
interference contour and a television station' s Grade B contour, the
AMTS applicant must show that the proposed site is the only suitable
location, develop a plan to control any interference its operations
11 This regulation states, in pertinent part “The Commission may dismiss without
prejudice an application that it finds to be defective. An application is defective if:
(1) It is unsigned or incomplete with respect to required answers to questions,
informational showings, or other matters of a formal character . . .”
10
cause within the Grade B contour, and agree to make any necessary
adjustments to affected television receivers to eliminate such
interference. Because Regionet did not make such a showing, we will
dismiss as defective its applications for AMTS stations that would
serve the Savannah River.
Id., at ¶¶6-7 (emphasis added).
In the interim, however, on November 8, 2000, the Bureau granted
Regionet'
s B Block applications for the subject waterways (including for the
Savannah River). C.I. 853314-29, 853333-34. On December 14, 2000, Petitioner
filed a Petition for Reconsideration of this grant. Id. In this Reconsideration
Petition, Petitioner maintained, inter alia, that: (i) Regionet, in its B Block
applications, had falsely represented its compliance with Commission regulations
pertaining to TV channel 10 and 13 interference;12 and (ii) the B Block
applications had failed to adequately describe the waterway to be served and how
such service met the continuity of coverage requirement set forth in 47 C.F.R.
§80.475(a). Id.13 In a September 7, 2001 Order, the Bureau dismissed the
12 Specifically on pages 8-9 of his Reconsideration Petition, Petitioner maintained

that Regionet had falsely asserted in its applications that its proposed stations cast
no interference contours with respect to TV stations 10 and 13, and in any case no
contours in which there were more than 100 residences.
13 Petitioner contended on pages 10-12 of his Reconsideration Petition that
Regionet had failed to meet its threshold requirement of showing whether, and to
what extent, the subject waterway was navigable. Petitioner maintained that absent
such a preliminary showing, Regionet could not meet its subsidiary §80.475
requirement of demonstrating service coverage (i.e., continuous coverage to the
required percentage of a navigable inland waterway).
11
Reconsideration Petition, purely on procedural grounds. C.I. 853314-29, 853333-
34. Specifically, on pages 2-3 of this Order, the Bureau held that review on the
merits was not warranted because Petitioner was neither a party to the proceeding
prior to the filing of the Reconsideration Petition, and had not demonstrated “good
reason” why it was not possible for him to participate in the earlier stages of the
proceeding, as required by 47 C.F.R. §1.106(b)(1). C.I. 853314-29, 853333-34.
With respect to the first issue (i.e., whether Petitioner was a “party to the
proceeding”) the Bureau held on page 2 of its order that Petitioner’s “petition to
deny Regionet’s channel block A applications cannot be extended, along with the
arguments raised therein, to the separate proceeding regarding Regionet’s channel
block B applications.” Id.
On October 9, 2001, Petitioner filed a Petition for further Reconsideration of
the Bureau’s September 7, 2001 Order, emphasizing new events which had
occurred subsequent to Petitioner’s filing of his original December 14, 2000
Reconsideration Petition. C.I. 853314-29, 853333-34. In particular, on page 9 of
his Petition, Petitioner cited to the Bureau’s January 31, 2001 Order dismissing in
part Regionet’s A Block applications on grounds substantially similar to those
propounded by Petitioner in support of the dismissal of Regionet’s B Block
applications. Id. Petitioner demonstrated that the Bureau’s acceptance of
Petitioner’s arguments with respect to the A Block applications established the
12
necessity for further scrutiny of the virtually identical (but for the different block)
B Block applications pursuant to 47 C.F.R. §1.106(c),14 both because the Bureau’s
1/31/01 Order was not in existence at the time of Petitioner’s original Petition for
Reconsideration (thereby meeting the standard set forth in §1.106(c)(1)), and
because this Order implicated public interest concerns necessitating further review
of Regionet’s B Block license applications under §1.106(c)(2). Id.
Petitioner also argued in his October 9 Petition for Reconsideration that his
objections to Regionet’s A Block and B Block license applications were, for all
intents and purposes, part of a single unitary proceeding, and therefore should be
treated as such. In this regard, Petitioner maintained on page 6 of his Petition that:
(i) “On 6-9-00, Regionet filed applications that exactly duplicated all of the [Block
A] applications, except that the duplicate applications were for the AMTS channel
block B;” and (ii) “The station sites, the described intended services, and all other
aspects of the A and B Block applications were identical except for the frequency
block.” Id.
Nevertheless, on December 17, 2001, the Bureau denied this Petition. Id. In
particular, on page 3 of its denial, the Bureau rejected Petitioner’s argument that
14 This regulation states, in pertinent part: “A petition for reconsideration which

relies on facts not previously presented to the Commission or to the designated
authority may be granted only under the following circumstances: (1) The facts fall
within one or more of the categories set forth in 1.106(b)(2); or (2) The
Commission or the designated authority determines that consideration of the facts
relied on is required in the public interest.”
13
his Petition to Deny Regionet'

s A Block applications could be extended to
Regionet’s B Block applications. On page 4 of its denial, the Bureau also rejected
Petitioner’s argument that his original Reconsideration Petition should have been
assessed under 47 C.F.R. §1.106(c), determining that the §1.106(c) standard was
inapplicable to petitions that were allegedly “procedurally defective” under
§1.106(b)(1) (i.e., allegedly untimely). Id.
On January 17, 2002, Petitioner filed an Application for Review with the
Commission, seeking review of the Bureau’s September 7, 2001 and December 17,
2001 Orders. Id. On pages 4-6 of this Application, Petitioner argued, inter alia,
that any purported delay on his part in opposing the Regionet B Block license
applications was unavoidable because Petitioner was unable to discover the full
extent of the deficiencies in the B Block applications until such time as he retained
his own private AMTS engineering firm to scrutinize these applications. Id. Thus,
Petitioner demonstrated that any delay in opposing the B Block applications was
caused by Regionet’s patent neglect of its obligations under the Commission’s
Rules; i.e., Regionet’s utter failure to proffer an appropriate engineering study to
support the B Block license applications, thereby effectively compelling Petitioner
to do so. Id. Finally, on pages 8-9 of his Application, Petitioner noted an apparent
double standard as to the Commission’s application of its rules to him and to
Regionet; in particular, the fact that Regionet had sought and received an extension
14
of time within which to file an opposition to a petition for reconsideration
Petitioner had filed in connection with proposed AMTS stations for certain
Arkansas Headwaters. Id.
Petitioner’s Application for Review was denied by the Commission on
October 25, 2002. 17 FCC Rcd 21263. In particular, the Commission agreed with
the Bureau that Petitioner’s Reconsideration Petition could not be considered
under the standard set forth in 47 C.F.R. §1.106(c). Id., at 21267. Appeal No. 02-
1359 therefore ensued.
C. Facts Relating Particularly to Appeal 02-1360

Regionet was granted authority to construct twenty-seven AMTS stations
under Call Sign WRV374 to service the Atlantic Coast between 1996 and 2000.
The spectrum associated with this Call Sign was the full 1-MHz-wide A-Block for
close to the entire Eastern seaboard of the United States, and stretches inland for
roughly one hundred miles (covering roughly half of the U.S. population).
Between 1999 and 2000, Regionet sought and obtained multiple extensions of the
Commission’s deadline under 47 C.F.R. §80.49(a) to construct the AMTS facilities
15
associated with this Call Sign,15 the final one being on October 28, 1999,
authorizing an extension until November 30, 2000.
On May 9, 2001, Regionet filed an application to renew its license for Call
Sign WRV374. C.I. 443747. Approximately 45 days later, on June 26, 2001,
Havens filed a written protest with the Bureau objecting to Regionet'

s station
“activation” letters for this Call Sign. Id. This protest established specific defects
with respect to Regionet’s purported “activation,” including:
(i) impermissible major modifications to facilities (e.g., antenna heights and
coordinates not authorized by the license or any granted amendment thereto) in
violation of 47 C.F.R. §1.929(c)(3),16 (ii) Regionet’s reporting of activation dates
for facilities which were beyond the extended November 30, 2000 deadline;
(iii) Regionet’s failure to provide any activation notice for numerous stations
required to be activated for the license to meet the §80.475(a) Coverage
Requirement; and (iv) Regionet’s equivocal statements in certain activation notices
to the effect that “testing had commenced” with respect to many of the facilities
(licensed stations) associated with the subject licenses (as opposed to the statement
15 This regulation states, in pertinent part: “For site-based AMTS coast station
licensees, when a new license has been issued or additional operating frequencies
have been authorized, if the station or frequencies authorized have not been placed
in operation within two years from the date of the grant, the authorization becomes
invalid and must be returned to the Commission for cancellation.”
16This regulation defines a “major amendment” as including, inter alia, a
“Change in antenna height from that authorized.”
16
required in valid notices to the effect that the subject facilities had actually been
constructed and placed into service at a specific date). Id.
Regionet’s renewal application for Call Sign WRV374 was granted by the
Bureau on July 2, 2001. Id. On July 6, 2001, the Bureau informed Petitioner that
his June 26, 2001 protest was insufficient to warrant denial of the renewal
application because it purportedly did not specify which Regionet facilities
Petitioner believed were improperly constructed. Id.
On August 1, 2001, Petitioner filed a Petition for Reconsideration as to the
Call Sign WRV374 renewal application, arguing that: (i) numerous facilities
associated with the Call Sign were reported as activated well beyond the extended
November 30, 2000 deadline; (ii) numerous other facilities had increased antenna
heights or had changed coordinates which constituted impermissible “major
modifications” to the authorized facilities for which Regionet had not obtained a
waiver, in violation of 47 C.F.R. §1.929(c)(3); (iii) Regionet had failed to meet the
Coverage Requirement for the Atlantic Coast under this Call Sign, as required by
§80.475; and (iv) none of the Regionet activation letters had actually indicated that
stations had been placed into service; rather, they simply indicated that “testing had
commenced” with respect to these stations. Id.
In a November 2, 2001 Order, the Bureau dismissed this Reconsideration
Petition, on the grounds that Petitioner purportedly lacked standing. 16 FCC Rcd
17
19375. In particular, the Bureau concluded that Petitioner was not a party to the
proceeding prior to filing his Reconsideration Petition, and that he failed to
demonstrate that it was not possible for him to participate earlier in this
proceeding, as required by 47 C.F.R. §1.106(b)(1). Id.
On December 3, 2001, Petitioner filed an Application for Review with the
Commission, seeking review of the Bureau’s November 2, 2001 denial of
Petitioner’s Petition for Reconsideration. C.I. 443747. Petitioner argued on pages
4-5 of his application that by virtue of his June 26, 2001 protest, Petitioner had
become a “party to the proceeding,” thus rendering §1.106(b)(1) inapplicable at the
outset. Petitioner also established that even assuming arguendo he was not a
“party to the proceeding” prior to his August 1, 2001 Petition for Reconsideration,
he had nonetheless demonstrated “good reason” under §1.106(b)(1) for failing to
participate in earlier stages of the proceeding. Id. Specifically, Petitioner
maintained on page 7 of his application that he could not have reasonably filed the
Petition sooner than he did, even if he had all the information needed in the thirty-
day period for filing petitions to deny Id.17
On October 25, 2002, the Commission denied this Application for Review.
The Commission began by rejecting Petitioner’s contention that he had in fact
17 See 47 C.F.R. §1.939(a)(2).
18
participated in earlier stages of the proceeding (by virtue of his June 26, 2001
protest):
[T]he informal protest was submitted on June 26, 2001, which is

beyond the thirty day petition to deny filing period that commenced
when the renewal application was accepted for filing on May 9, 2001
17 FCC Rcd at 21272.
The Commission also agreed with the Bureau that Petitioner had not met the
standard set forth in 47 C.F.R. §1.106(b)(1):
Assuming arguendo that Havens needed time beyond the thirty-day

petition to deny filing period to complete an engineering study to
demonstrate whether Call Sign WRV374 was in compliance with the
service coverage requirement, he fails to explain why he could not
have timely filed a petition to deny concerning his other points of
contention, i.e., whether Regionet commenced service by the station
construction deadlines and whether it made unauthorized major
modifications. Instead of filing a timely petition to deny concerning
these points or . . . requesting an extension of time to file a petition to
deny on all points of contention, Havens elected to allow the filing
period for petitions to deny to lapse. As a result, Havens failed to
raise any arguments opposing the subject renewal application until
after the filing period for petitions to deny had expired.
Id., at 21271-72.
Appeal No. 02-1360 therefore ensued.
VI. SUMMARY OF THE ARGUMENT

1. With respect to the matter giving rise to Appeal No. 02-1359, the
Commission erred in several respects. First, it erred in concluding that Petitioner
was required to meet the standard set forth in 47 C.F.R. §1.106(b)(1). This
regulation is only applicable to petitioners for reconsideration who have not
19
previously been “a party to the proceeding.” Petitioner was a party to the B Block
license application proceedings, by virtue of his timely Petition to Deny Regionet’s
A Block license applications. In this earlier Petition to Deny, Petitioner identified
defects in the A Block applications which were identical to the defects in the B
Block applications later identified by Petitioner. Moreover, the A Block and B
Block applications proposed identical service (except for minor frequency
differences) for an identical AMTS system.
Second, assuming arguendo that §1.106(b)(1) is applicable, Petitioner met
its requirements. Petitioner’s interests were harmed by virtue of the B Block
license grant to Regionet. Petitioner also showed “good reason” for failing to
participate in earlier stages of the proceedings; i.e., that he was unable to discover
the full extent of the deficiencies in the B Block applications until such time as he
retained his own private AMTS engineering firm to scrutinize these applications.
Third, Petitioner met the standard set forth in 47 C.F.R. §1.106(c)
(pertaining to facts which may be considered on reconsideration). Petitioner’s
Reconsideration Petition directed to the B Block license applications relied upon
facts which were unknown to Petitioner at earlier stages of Regionet’s B Block
application process. The Reconsideration Petition also relied upon events which
occurred after the grant of these licenses. The Reconsideration Petition also raised
vital public interest concerns, including: (i) issues related to Regionet’s candor;
20
(ii) issues related to continuity of service/coverage; and (iii) issues related to
television interference.
Finally, the Commission’s decision, which declined to address these serious
public interest issues purely on the basis of an alleged procedural misstep by
Petitioner, amounted to an abrogation by the Commission of its responsibilities
under 47 U.S.C. §309(a).
2. With respect to the matter giving rise to Appeal No. 02-1360, the
Commission likewise erred in several respects. First, §1.106(b)(1) was
inapplicable because Petitioner was a “party to the proceeding” prior to his August
1, 2001 Reconsideration Petition, by virtue of his June 26, 2001 protest directed to
the renewal of the Regionet licenses associated with Call Sign WRV374.
Second, assuming arguendo that §1.106(b)(1) was applicable, Petitioner met
its requirements. Petitioner’s interests were harmed by virtue of the WRV374
license grant to Regionet. Petitioner also showed “good reason” for failing to
participate in earlier stages of the proceedings; i.e., that he was unable to discover
the full extent of the deficiencies in the WRV374 renewal applications until such
time as he retained his own private AMTS engineering firm to scrutinize these
applications. Finally, the Commission’s decision, which declined to address
serious public interest issues purely on the basis of an alleged procedural misstep
21
by Petitioner, amounted to an abrogation by the Commission of its responsibilities
under 47 U.S.C. §309(a).
VII. STANDING
Petitioner has standing in this matter because it is an AMTS competitor of
Regionet whose interests were adversely affected by the licensing determinations
at issue herein.
VIII. ARGUMENT
A. Relevant Legal Standards
1. Standard of Review Under the Administrative Procedure

Act
Under the Administrative Procedure Act, made applicable to review of final
orders of the Commission by 47 U.S.C. §402(g) (1982), a court must set aside
agency actions, findings and conclusions that are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §706(2)(A) (1982);
See also, American Radio Relay League v. FCC, 524 F.3d 227, 233 (D.C. Cir.
2008). The Supreme Court has described the appropriate standard of review as
follows:
T]he agency must . . . articulate a . . . rational connection between the

facts found and the choice made . . . In reviewing that explanation, we
must consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment. . .
22
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103
S. Ct. 2856, 77 L. Ed. 2d 443 (1983) (internal citations omitted).
Likewise, it is a basic principle of administrative law is that agencies must
comply with the requirements and limits contained in the text of applicable
statutes. City of Anaheim v. FERC, 558 F.3d 521, 522 (D.C. Cir. 2009). Thus,
while courts afford "Chevron deference" to an agency'

s authoritative and
reasonable interpretation of an ambiguous statutory provision, they give no
deference to an agency interpretation that fails to comport with the plain statutory
language. Id. (emphasis added); see also, National Treasury Employees Union v.
Chertoff, 452 F.3d 839, 855-56, 859, 864-65 (D.C. Cir. 2006) (Chevron deference
does not apply where agency acts contrary to its statutory mandate).
2. The Commission Must Act Consistently and in Accordance

With Its Rules
Where the Commission elects to treat similarly-situated parties differently, it
must proffer a reason for its divergence. Petroleum Communications, Inc. v. FCC,
22 F.3d 1164, 1172 (D.C. Cir. 1994) (“We have long held that an agency must
provide adequate explanation before it treats similarly situated parties
differently.”); Melody Music, Inc. v. FCC, 345 F.2d 730, 732 (D.C. Cir. 1965)
(FCC’s refusal to explain its different treatment of similarly situated parties was
error); New Orleans Channel 20, Inc. v. FCC, 830 F.2d 361, 366 (D.C. Cir. 1987)
(“Melody Music and its progeny appropriately recognize the importance of treating
23
parties alike when they participate in the same event or when the agency vacillates
without reason in its application of a statute or the implementing regulations.”). As
this Court held in Public Media Center v. FCC, 587 F.2d 1322, 1331-32 (D.C. Cir.
1978), this rule of consistency is not just a maxim of fairness, it is a safeguard for
effective appellate review:
Although our judicial duties demand great deference to agency

expertise, we cannot defer, indeed we cannot even engage in
meaningful review, unless we are told which factual distinctions
separate arguably similarly situated licensees, and why those
distinctions are important . . . the failure of an administrative agency
to articulate the reasons for a particular decision makes meaningful
review of that decision impossible. (emphasis added).
Accordingly, the Court in Public Media Center held that
A reviewing court must be presented with the rationale underlying the

importance of factual distinctions as well as the factual distinctions
themselves . . . This court continues to insist that the agency articulate
with reasonable clarity its reasons for decision, and identify the
significance of the crucial facts, a course that tends to assure that the
agency' s policies effectuate general standards, applied without
unreasonable discrimination.
Id. (internal citations and quotations omitted).
3. In Each Case in Which a Commission License is Granted,

the Commission Must Determine that the License Grant is
in the Public Interest, and Cannot Abrogate this Duty to
Private Parties in any Circumstance
A proposed licensee has neither a de jure nor a de facto right to a license.
Under all circumstances, without exception, the Commission must determine
24
whether the grant of a license under the Federal Communications Act is in the
“public interest.” In this regard, 47 U.S.C. §309(a) states:
[T]he Commission shall determine, in the case of each application

filed with it to which section 308 [47 U.S.C. §308] applies, whether
the public interest, convenience, and necessity will be served by the
granting of such application, and, if the Commission, upon
examination of such application and upon consideration of such other
matters as the Commission may officially notice, shall find that public
interest, convenience, and necessity would be served by the granting
thereof, it shall grant such application.
It is equally well-established that the Commission’s duty to assess the public
interest in each licensing determination is non-derogable. As this Court held in
Clarksburg Publishing Co. v. FCC, 225 F.2d 511, 513 (D.C. Cir. 1955), a denial of
a license protest amounts to a de facto determination that the proposed license
“served the public interest,” under §309(a). As such, 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,
made on the basis of information required by § 308(b), is neither a
substitute for nor the equivalent of the conclusion required by §
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
25
serve the public interest – must be followed even where an

application is unopposed.
Id., at 515, 521-22 (emphasis added).
Thus, in Clarksburg Publishing Co., this 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, in L.B. Wilson, Inc. v. FCC, 397 F.2d 717 (D.C. Cir. 1968), this
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 applicant’s principals had failed
to disclose a transfer of corporate control in violation of the Communications Act.
This 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. This Court,
echoing Clarksburg Publishing Co., 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
parties to limit the issues, thereby leaving it in the position of a
traffic 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
26
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); see also, 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]. The purpose of the statute is to search out the public
interest.”).
This principle favoring resolution on the merits applies a fortiori to instances
where the defect in a license application has been specifically brought to the
attention of the Commission prior to a resolution of the case on the merits (even
where, as here, these alleged defects are purported to have been raised untimely).
See 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.”); Hall, supra, at 571 (“A fortiori, where the information relevant to the
public interest has already been disclosed by the evidentiary hearing, the
27
Commission’s 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 protests.”)
B. Application of the Law to the Facts of this Case
1. The FCC Erred By Denying Petitioner’s Application for

Review in the Case Giving Rise to Appeal No. 02-1359
a. Petitioner Was a Party to Regionet’s B Block

Proceeding Prior to His December 14, 2000 Petition
for Reconsideration, By Virtue of His Timely Petition
to Deny Regionet’s A Block Application
As discussed above, the Commission’s denial of the Application for Review
giving rise to Appeal No. 02-1359 was based in large measure upon its
construction of 47 C.F.R. §1.106(b)(1):
[A]ny party to the proceeding, or any other person whose interests are
adversely affected by any action taken by the Commission or by the
designated authority, may file a petition requesting reconsideration of
the action taken. If the petition is filed by a person who is not a party
to the proceeding, it shall state with particularity the manner in which
the person' s interests are adversely affected by the action taken, and
shall show good reason why it was not possible for him to participate
in the earlier stages of the proceeding.
Thus, under the regulation, it is only where a petition is filed “by a person
who is not a party to the proceeding,” where a dual showing of “adverse effect”
and “good reason” must be made by the petitioner. The question is therefore “Was
Petitioner a party to the B Block proceedings prior to requesting reconsideration?”
28
Petitioner submits that the answer to this question is clearly “yes,” thus rendering
§1.106(b)(1) inapplicable at the outset.
First, Regionet’s A Block and B Block applications encompassed the same
locations and pertained to the same service (AMTS service). Second, as even the
Bureau itself acknowledged in paragraph 6 of its December 17, 2001 Order “the
authorizations requested in the channel block A and B applications arguably can be
deemed to constitute a single system.” Third, Petitioner timely filed a Petition to
Deny with respect to Regionet’s A Block applications. Fourth, this Petition to
Deny as to the A Block applications was granted in part (as to the Savannah
River). Finally, the grounds asserted by Petitioner in support of his
Reconsideration Petition as to the B Block applications were materially identical to
those asserted by Petitioner in his successful Petition to Deny the A Block
applications.18 Based on the foregoing, Petitioner’s challenges to Regionet’s A
Block and B Block license applications must be viewed as a single unitary
“proceeding,” such that Petitioner’s timely (and indeed successful) Petition to
18 As discussed above, these grounds included: (i) the applications were bereft of
support for the assertion that for each proposed AMTS station, fewer than one
hundred residences were within the overlap between the station’s predicted
interference contour and a Channel 13 television station’s Grade B contour;
(ii) Regionet did not clearly describe the length and navigability of the subject
waterways, nor the service coverage it proposed to provide; and (iii) Regionet had
not demonstrated that an engineering study was properly conducted for any of the
applications.
29
Deny the A Block applications relieves Petitioner of having to make a
§1.106(b)(1) showing with respect to the B Block applications.
The term “proceeding” is not defined in Chapter 47 of the C.F.R. Nor does
there appear to be any reported case law from this Court construing this term in a
§1.106 context. Despite all this, the Bureau and Commission have assumed that
Petitioner’s challenges to Regionet’s A Block and B Block license applications
must be treated as distinct “proceedings, such that Petitioner’s timely protest of the
A Block license applications essentially had no bearing on the B Block license
applications. According to the Bureau’s December 17, 2001 Order, Petitioner’s
“petition to deny Regionet’s channel block A applications cannot be extended,
along with the arguments raised therein, to the separate proceeding regarding
Regionet’s channel block B applications.” There are several glaring problems with
this argument.
First, as noted, it is not supported by any relevant authority whatsoever.
Second, this argument is essentially circular – it presumes that the A Block and B
Block proceedings were separate in order to “demonstrate” the separateness of
these proceedings, without explaining why these proceedings should be treated
separately.
Most importantly, there is a latent disingenuousness to this argument,
because it presumes that Petitioner could have lawfully (i.e., as a party with
30
interest and standing) petitioned to deny both the A Block and B Block
applications, when this was obviously not the case. At the time Regionet filed
these applications and at the time Petitioner filed his Petition for Reconsideration,
the Commission’s well-established policy was that a party could not
simultaneously apply for A Block and B Block frequencies associated with the
same AMTS license area.19 Regionet plainly violated this well-established policy
by seeking both AMTS license blocks for the Carolina Waterways.20 Conversely,
Petitioner complied with the policy by only seeking the A Block AMTS licenses
(this is why Petitioner only petitioned to deny the Regionet A Block license
applications). Thus, the Commission’s conclusion that Petitioner was required to
petition to deny both the A Block and B Block Regionet applications in order to
19 This policy was reflected, inter alia, in the Commission’s November 16, 2000
Notice of Proposed Rulemaking, in which the Commission stated (at Paragraph 44)
“We propose to authorize two geographic area licensees in each licensing area,
with each licensee authorized to use one of the two AMTS frequency blocks. We
tentatively conclude that this will contribute to competition in the maritime CMRS
marketplace. The Commission has never assigned both AMTS frequency blocks at
one time to one licensee, but has permitted a licensee with one frequency block to
obtain the other block upon a showing of need.” Subsequently (i.e., well after the
grant of the licenses at issue herein), the Commission revised its policy to permit
parties to simultaneously apply for A Block and B Block frequencies. See, In re:
Amendment of the Commission’s Rules Concerning Maritime Communications, 17
FCC Rcd 6685, ¶41 (2002).
20 These were obvious “strike” applications; i.e., applications filed for the specific
purpose of preventing Petitioner from obtaining the subject frequencies See, e.g.,
Grenco, Inc., 28 FCC 2d 166 (1971) (“FCC precedent prohibits the filing of strike
applications or applications filed for the purpose of impeding, obstructing or
delaying the grant of a competing application.”).
31
protect his interests, ironically rewards Regionet for violating the then-existing
AMTS rules, while simultaneously penalizing Petitioner for complying with these
rules.
In Paragraph 6 of its December 17, 2001 Order, the Bureau further
concludes that notwithstanding its acknowledgement that the A block and B Block
applications may be viewed as a single system “our rules specifically provide for
the filing of petitions to deny applications not systems . . . Therefore . . . the
channel block B applications cannot be viewed in form or substance as
amendments to the channel block A applications.” (emphasis in original). The
flaw in this argument is that its linguistic rigidity cuts both ways. While it is true
that 47 C.F.R. §1.939 provides for petitions to deny “applications,” not “systems,”
§1.106(b)(1) itself does not speak in terms of “petitions to deny.” Instead, this
regulation only limits the adjudication of reconsideration petitions filed by entities
who have not been parties to earlier “proceedings” – it does not specify which
proceedings. Section 1.106(b)(1) could have just as easily have been drafted to
limit petitions for reconsideration by entities who had “not filed a timely petition to
deny as against the subject license application at issue.” But the regulation was not
so drafted. Instead, the regulation uses relatively open-ended language to only
limit petitions for reconsideration by entities who had “not participated in earlier
stages of the proceeding.” Petitioner submits that the use of this open-ended
32
language reflects a tacit understanding by the Commission that, in light of its
“public interest” obligations, it should avoid resorting to the procedural formalism
decried by Clarksburg and its progeny, and should, wherever possible, address
substantive defects in a license application on the merits.
b. Assuming Arguendo that §1.106(b) is Applicable,

Petitioner has Demonstrated His “Adverse Interest”
and Has Shown “Good Reason” for Failing to
Participate in “Earlier Stages of the Proceeding”
Assuming arguendo that §1.106(b)(1) is applicable to this case (i.e., that
Petitioner was not already a party to the B Block proceedings by virtue of his
timely Petition to Deny the A Block applications), Petitioner has met the two-part
standard set forth in this regulation. As to the first standard (i.e., adverse interest);
neither the Commission nor the Bureau has ever disputed that Petitioner, as an
AMTS licensee himself, was adversely affected by the license grant to Regionet.
See e.g., In re Applications of Metrocall, Inc., 11 FCC Rcd 21208, 21209 (1996)
(“A petitioner who is an existing licensee, or a competing applicant in the same
market or service area as the petitioned applicant has been found to have standing
to challenge the grant of the petitioned application.”); In re Application of
California Industrial Service, Inc., 14 FCC Rcd 19377, 19378 (1999) (Petitioner
for reconsideration demonstrated that it had been adversely affected by a license
grant, where it established that it was the assignee of the community repeater
station to which the applicant sought to add its mobiles).
33
Second, Petitioner has shown “good reason” for failing to participate in
earlier stages of the proceedings (i.e., proceedings prior to his December 14, 2000
Reconsideration Petition). The purpose underlying §1.106(b)(1)’s requirements
were stated in Office of Communication of the United Church of Christ v. FCC,
911 F.2d 803, 808 (D.C. Cir. 1990), “Underlying these regulations are principles of
finality and exhaustion of administrative remedies.” It is equally well-established
that, in applying §1.106(b)(1), these principles are assessed flexibly with due
regard to the particular facts of the case at issue. Thus, both the Commission and
this Court have declined to follow §1.106(b)(1) rigidly in appropriate
circumstances. For example, in Office of Communication, this Court rejected the
Commission’s argument that the alleged untimeliness of Appellant’s contentions
barred consideration on the merits of these contentions under §1.106(b)(1):
Silver King' s Vineland application was not opposed until UCC

petitioned the Commission for reconsideration of its decision granting
the application. UCC' s petition . . .challenged both the Commission' s
acceptance of Silver King' s programming statement and its waiver of
the duopoly rule . . .The Commission, however, dismissed UCC' s
petition for failure to show good reason why it had not previously
participated in the proceeding . . .As we stated in Meredith Corp. v.
FCC, "as a condition precedent to judicial review, section 405
requires only that the Commission have a ' fair opportunity'to pass on
[an] issue." UCC' s petition for reconsideration left the Commission
with the requisite fair opportunity to consider UCC' s objections to the
duopoly waiver. Because the Commission "' in fact considered the
issue,'. . . UCC' s challenge to the waiver . . .may therefore be
reviewed.
34
Id., at 809. See also, In re Applications of Tucker, 4 FCC Rcd 2816 (1989)
(“Because the Tucker'

s translator . . . would directly compete with TBA member
stations, TBA asserts that it will be adversely affected by the operation of that
translator station. TBA further asserts that inasmuch as the Tucker'

s
application . . . was granted four days after the release of a Public Notice
announcing acceptance of the application. TBA did not have an opportunity to
participate in the earlier stages of this proceeding. We believe that TBA has made
the showing required per Section 1.106(b)(1) and therefore conclude that TBA has
standing to file the instant petition for reconsideration.”); In re: Applications of
Aspen FM, Inc., 12 FCC Rcd 17852 (1997) (“Although it did not oppose
AFI/California'
s pro forma assignment application, Moss has standing, pursuant to
§ 1.106 . . . to file the instant petition for reconsideration of the staff'

s action
granting that application. Moss and AFI would compete for listeners in the Aspen
market, and thus, Moss meets the ‘aggrieved/adversely affected’ test for
standing . . . Consent to the KPVW permit assignment was granted only five days
after the issuance of the Public Notice of the acceptance of the assignment
application. In similar circumstances, the Commission has found that such a short
filing opportunity effectively precludes participation during the initial
consideration of an application . . . Thus, as required by §1.106(b)(1), Moss has
35
shown good cause why it was unable to participate in earlier stages of this
proceeding.”).21
Likewise, in this case, Petitioner demonstrated “good reason” under
§1.106(b)(1) for any alleged “failure” to participate in earlier stages of the
proceedings. As discussed, in his Application for Review Petitioner demonstrated
that any purported delay in opposing the Regionet B Block license applications
prior to December 14, 2000 was unavoidable because Petitioner was unable to
discover the full extent of the deficiencies in the B Block applications until such
time as he retained his own private AMTS engineering firm to scrutinize these
applications. Had Regionet itself commissioned an appropriate engineering study
at the time it submitted its B Block applications, as it was plainly required to do by
47 C.F.R. §80.475(a), Petitioner would never have been forced to do so. Neither
the Bureau, nor the Commission, has ever really addressed (let alone rebutted) this
essential point.
Furthermore, while there have been cases in which this Court has upheld a
Commission determination that a petitioner failed to demonstrate good reason
21 This kind of practical approach is also used by the Commission in assessing the
scope of the remedy to be fashioned upon rehearing when an application for review
is granted. See 47 C.F.R. §1.115(j) (“No evidence other than newly discovered
evidence, evidence which has become available only since the original taking of
evidence, or evidence which the Commission believes should have been taken in
the original proceeding shall be taken on any rehearing ordered pursuant to the
provisions of this section.”) (emphasis added).
36
under §1.106(b)(1) for failing to participate in earlier stages of a proceeding, these
cases are each distinguishable on their facts. See Kiro, Inc. v. FCC, 438 F.2d 141,
144 (D.C. Cir. 1970) (FCC erred by adjudicating a petition for reconsideration
filed by a party which had slept on its rights for three years before seeking to
contest a license grant); Valley Telecasting Co. v. FCC, 336 F.2d 914, 918-19
(D.C. Cir. 1964) (Court affirms a Commission order dismissing a petition for
rehearing on §1.106(b)(1) grounds, but notes that §1.106(b)(1) type determinations
often call for “discriminating judgments of the most exacting nature.”); Springfield
Television Broadcasting Corp. v. FCC, 328 F.2d 186, 187-88 (D.C. Cir. 1964)
(Commission properly dismissed a request for reconsideration of a license grant on
§1.106(b) grounds, where the sole reason proffered by the party for failing to
participate at earlier stages in the proceedings was its contention that “it did not
feel that the Commission would act favorably” on its request.); In re Weblink
Wireless, Inc., 17 FCC Rcd 24642 (2002) (petition for reconsideration denied as
untimely where the petitioner had failed to seek relief for over six years).
This case is entirely distinct from those described above in which the Bureau
was in effect surprised by a petitioner’s assertion of a substantive argument for the
first time on reconsideration. On this particular point, it is worth reiterating that
well before the Bureau granted Regionet’s B Block applications, it had been
apprised of the substantive basis for denying these applications, by virtue of
37
Petitioner’s timely Petition to Deny the A Block applications, which, as noted
above, asserted identical arguments. See, Directv v. FCC, 110 F.3d 816, 825 (D.C.
Cir. 1997) (“[W]e have often excused a party’s failure to raise an issue before an
agency if . . .the agency has in fact considered the issue.”).
In other words, this is not a situation in which Petitioner delayed for years
before challenging Regionet’s B Block applications, as did the petitioners in Kiro,
Inc. and Weblink Wireless. Nor is it a situation (as in Springfield Television) in
which the Petitioner deliberately sought to evade FCC review because it “did not
feel that the Commission would act favorably on its request.” To the contrary,
Petitioner actively sought Commission redress by virtue of his July 6, 2000
Petition to Deny Regionet’s A Block applications, and, thereafter by virtue of his
December 14, 2000 Reconsideration Petition as to Regionet’s B Block
applications. Finally, this is not a situation (such as in WCOV) in which the
Bureau was wholly-deprived in the first instance of the opportunity to address the
arguments against granting Regionet’s B Block applications. Petitioner submits
that this case is more similar to Office of Communication, supra, in which any de
minimus violation of §1.106(b)(1) was obviated by the fact that the Commission
ultimately had a full and fair opportunity to consider Petitioner’s arguments
directed to the B Block applications on their merits, yet refused to do so. See also,
38
In re Applications of Tucker, 4 FCC Rcd 2816 (1989); In re: Applications of Aspen
FM, Inc., 12 FCC Rcd 17852 (1997), supra.
c. Petitioner’s Petition for Reconsideration Met the

Standard Set Forth in 47 C.F.R. §1.106(c)
Furthermore, Petitioner’s December 14, 2000 Reconsideration Petition met
the standard set forth in 47 C.F.R. §1.106(c). This regulation states in relevant part
that:
A petition for reconsideration which relies on facts not previously

presented to the Commission or to the designated authority may be
granted [where] (1) The facts fall within one or more of the categories
set forth in § 1.106(b)(2); or (2) The Commission or the designated
authority determines that consideration of the facts relied on is
required in the public interest.
(Emphasis added.)
47 C.F.R. §1.106(b)(2), in turn, states that:
Where the Commission has denied an application for review, a

petition for reconsideration will be entertained only if . . . (i) The
petition relies on facts which relate to events which have occurred or
circumstances which have changed since the last opportunity to
present such matters; or (ii) The petition relies on facts unknown to
petitioner until after his last opportunity to present such matters which
could not, through the exercise of ordinary diligence, have been
learned prior to such opportunity.
In short, §§1.106(b)(2) and (c) provide three bases for reconsideration:
(i) the reconsideration petition is based upon after-occurring events; (ii) the
reconsideration petition is based upon facts which were unknowable to the
petitioner; (iii) consideration of the reconsideration petition is in the public interest.
39
Petitioner plainly met each of the elements for reconsideration set forth in
§1.106(c), and thus his December 14, 2000 Reconsideration Petition should have
been considered on the merits. As to §1.106(c)(1), the Reconsideration Petition
relied upon facts which were unknown to the Petitioner at earlier stages of
Regionet’s B Block application process (including as of the July 9, 2000 due date
for petitions to deny the Regionet B Block applications). Specifically, there is no
conceivable way in which Petitioner, through the exercise of ordinary diligence,
could have completed a reputable engineering study of the facilities associated
with the Block B license applications by this date. Only a few radio-system
engineers have the training, expertise and computer tools to understand the subject
FCC rules, extract relevant license application data, and conduct the radio-service
and radio interference analyses pertinent to the AMTS Coverage Requirement and
TV Interference studies. These studies take substantial time and cost.22 Simply
put, without the results of these studies, neither Petitioner, nor the Commission,
nor Regionet, could have determined if the AMTS license requirements were met.
The record clearly shows that of these three parties, only Petitioner undertook this
essential public interest threshold task.
22The Commission has in the past instructed Petitioner and his lead engineer (a
former FCC Bureau Chief) as to the multi-step methodology that must be used for
these analyses, which Petitioner has subsequently adopted.
40
Moreover, the October 9, 2001 Reconsideration Petition specifically relied
“on facts which relate to events which have occurred or circumstances which have
changed since the last opportunity to present such matters.” See 47 C.F.R.
§1.106(b)(2)(i). During the pendency of Petitioner’s original December 14, 2000
Reconsideration Petition. the Bureau issued its January 31, 2001 decision granting
Petitioner’s Petition to Deny Regionet’s A Block license application for the
Savannah River. This decision, which was cited specifically in the October 9, 2001
Reconsideration Petition, was obviously pertinent to the disposition of Petitioner’s
arguments directed against Regionet’s B Block application, because, as noted
above, it was premised upon arguments directed to the B Block applications
identical to the ones directed to the A Block applications.
Petitioner’s Reconsideration Petition also raised vital public interest
concerns under §1.106(c)(2). It is universally recognized that license applicants
are held to a “high standard of candor and honesty” before the Commission. See,
e.g., WHW Enterprises, Inc. v. FCC, 753 F.2d 1132, 1140 (D.C. Cir. 1985). As
further noted by this Court in WHW:
The Commission must license more than 10,000 radio and television
stations in the public interest, and therefore relies heavily on the
completeness and accuracy of the submissions made to it. . . . Thus,
applicants . . . have an affirmative duty to inform the Commission of
the 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
41
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
Commission’s processes rests on its ability to rely upon the representations of its
licensees); 47 U.S.C. §312(a) (“The Commission may revoke any station license or
construction permit – (1)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; (2)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 . . .”).
On the most basic level, the Reconsideration Petitions of December 14, 2000
and October 9, 2001 raised issues with respect to the honesty of Regionet and its
principals, the fundamental benchmark by which a license applicant’s
qualifications are assessed, and thus a matter of vital public interest They
described in detail how Regionet had falsely asserted in its B Block license
applications that its proposed stations cast no interference contours with respect to
TV stations 10 and 13, and in any case no contours in which there were more than
100 residences. The Commission itself rejected these assertions by Regionet,
42
finding them incredible on their face, within the context of Regionet’s A identical
Block applications:
Regionet contends that . . . the interference contour overlaps the Grade

B contour in low population density areas and . . . the overlap
encompasses fewer than one hundred residences. . . .[E]ven a cursory
review of the applications . . .belies Regionet’s representation that it
reviewed the proposed locations and determined the areas of overlap
to have low population densities. Finally, closer examination of the
subject applications reveals that the overlaps generally are significant
and often encompass entire towns and even entire counties.
(Emphasis added.)
On this basis alone, the public interest required consideration of Petitioner’s
Reconsideration Petition under §1.106(c).
Likewise, apart from Regionet’s candor, Petitioner also raised two serious
substantive public interest issues. The first was the need to avoid AMTS station
interference with TV channels. This is an important matter – for this reason, when
the Commission initially authorized the AMTS framework in 1981, it also adopted
“rules specifically designed to minimize the interference potential with TV
reception, including a requirement for applicants to submit an engineering study
clearly showing the means of avoiding interference when a grade B service area of
a Channel 13 TV station.” See 84 FCC 2d at 900. As established in Petitioner’s
Reconsideration Petition, the defects in Regionet’s A Block and B Block
applications with respect to television interference were serious and were evident
43
on the face of these applications, thus directly implicating these public interest
considerations.
The second, even more fundamental, public interest issue raised by
Petitioner was the continuity of service/Coverage Requirement issue. As
discussed, at all times relevant to this case, this Coverage Requirement, essential to
ensuring that vessels traveling along a waterway be constantly or nearly constantly
in range of an AMTS station, was in effect pursuant to 47 C.F.R. §80.475(a). In
Petitioner’s Reconsideration Petition, he established that Regionet failed to
demonstrate in its license applications how its proposed AMTS service complied
with this Coverage Requirement. Nonetheless, as discussed, the Bureau and later
the Commission failed to address this public interest issue on its merits.23 This
constituted error.
23 In fact, Petitioner has grounds to believe that the Commission never made a
bona fide effort to ensure that AMTS licensees complied with their obligation
under §80.475(a) to support claims of continuity of coverage with proper
engineering studies. Apart from Regionet, Petitioner is aware of numerous other
instances in which Bureau officials merely “eyeballed” AMTS license applications
without making any legitimate effort to ascertain whether a proper engineering
study supporting continuity of coverage had been submitted. Ultimately (in early
2007), Petitioner filed a FOIA request with the Commission in which it sought
certain §80.475(a) engineering studies in the possession of the Commission. In
response, the Commission acknowledged that apart from a single document (dating
from July, 1982) no such records existed. The Commission’s intent not to enforce
the engineering study requirement of §80.475(a) is also evidenced by the fact that
the Commission removed this requirement from the regulation without APA-
mandated notice and comment, as noted above.
44
In its October 25, 2002 decision denying Petitioner’s Reconsideration
Petition, the Commission determined that Petitioner’s reliance upon §1.106(c) was
misplaced, because, in the Commission’s view:
Section 1.106(c) does not relate to who may file a petition for
reconsideration; that is the subject of Section 1.106(b)(1). Rather,
Section 1.106(c) addresses the circumstances under which an
otherwise proper petition for reconsideration may rely on facts not
previously presented. That Section 1.106(c)(2) permits such facts to
be raised when "consideration of the facts relied on is required in the
public interest" does not in any way affect or provide relief from the
requirement in Section 1.106(b)(1) that a person seeking
reconsideration of a Commission action must either already be a party
to the proceeding or explain why earlier participation was not
possible.
17 FCC Rcd, at 21267.
Petitioner submits that this conclusion by the Commission was clearly
erroneous. First, the Commission did not cite to any authority whatsoever in
support of its legal conclusion that a party must first make a threshold
demonstration under §1.106(b)(1) before being permitted to show, e.g., that under
§1.106(c) the public interest mandates consideration of its reconsideration petition
on the merits. On its face, this construction of the regulation plainly violates the
policies underlying §309(a) which, as noted above, requires the public interest to
be considered in every license application. Obviously, the Commission cannot
meet its obligation to assess whether public interest concerns are at issue (under 47
U.S.C. §309(a), 47 C.F.R. §1.106(c), or otherwise) if it refuses to even consider a
45
reconsideration petition on purely procedural grounds.24 The Commission should
not be permitted to avoid its “public interest” obligations simply on account of a
petitioner’s alleged procedural misstep which caused no appreciable prejudice to
any party.
d. The Commission Should Have Addressed the

Bureau’s Disparate Treatment as to Petitioner and
Regionet
As noted supra, it is well-settled that the Commission and its subordinate
bodies (including the Bureau) are obligated to treat similarly-situated parties
similarly. Petroleum Communications, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir.
1994; Melody Music, Inc. v. FCC, 345 F.2d 730, 732 (D.C. Cir. 1965); New
Orleans Channel 20, Inc. v. FCC, 830 F.2d 361, 366 (D.C. Cir. 1987). In his
Application for Review directed to the B Block applications, Petitioner maintained
that the Bureau had applied a double standard to Petitioner vis. a vis. Regionet, by
permitting Regionet to file an untimely opposition to Petitioner’s petition for
reconsideration of the Bureau’s denial of Petitioner’s license applications to serve
24 Such a construction of §1.106(c) is also consistent with the policies underlying

47 U.S.C. §405, which states: “The filing of a petition for reconsideration shall not
be a condition precedent to judicial review of any such order, decision, report, or
action, except where the party seeking such review (1) was not a party to the
proceedings resulting in such order, decision, report, or action, or (2) relies on
questions of fact or law upon which the Commission, or designated authority
within the Commission, has been afforded no opportunity to pass . . .”
46
the Arkansas headwaters. Nevertheless, in its October 25, 2002 Order, the
Commission rejected this contention, holding:
Extending status as a party to a proceeding after a final action has

been taken is a different matter from merely granting to an entity that
already is a party to the proceeding a brief extension of time to file a
responsive pleading.
Once again, the Commission’s argument is circular. Of course, from a
purely procedural perspective, “Extending status as a party to a proceeding after a
final action has been taken is a different matter from merely granting to an entity
that already is a party to the proceeding a[n] . . . extension of time to file a
responsive pleading.” The real question is whether this procedural distinction
should make a difference in terms of relaxing the standards by which untimely
pleadings are assessed. The most glaring flaw in the Commission’s conclusion is
that it utterly fails to explain why the administrative policies in favor of finality,
exhaustion of administrative remedies, etc. warrant more lenient treatment of an
admittedly untimely opposition to a petition for reconsideration (as compared to a
purportedly untimely reconsideration petition itself). Whatever procedural
differences might exist between a petition for reconsideration and an opposition
thereto, these differences are plainly not so evident as to justify the absence of any
explanation as to why Regionet should be entitled to a waiver of the very same
timeliness regulations which have been strictly applied to bar Petitioner’s
Reconsideration Petition.
47
e. In any event, the Bureau Could Not Abrogate Its

Duty to Assess Regionet’s B Block Applications on
Their Merits, Particularly Since the Defects in These
Applications Were Evident on Their Face
Perhaps most importantly, the Commission’s purely procedural decision
amounts to a wholesale abrogation of its Congressionally-mandated §309(a) duty
to consider the public interest in every licensing matter. (“[T]he Commission shall
determine, in the case of each application filed with it . . . whether the public
interest, convenience, and necessity will be served by the granting of such
application.”). While the text of this statute alone is absolutely clear, its import has
been underscored in this Court’s decisions holding that valid protests to a license
application should not, and cannot, be rejected on purely procedural grounds, if
these protests implicate public interest concerns. For example, in Clarksburg, this
Court held:
[T]he 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 Commission
does not stand in the position of a 'traffic policeman with power to
consider merely the financial and technical qualifications of the
applicant.' [This] determination. . . is neither a substitute for nor
the equivalent of the conclusion required by § 309(a) . . . And it is
clear that § 309(b)' s mandate -- requiring . . . a considered finding
that the grant will serve the public interest -- must be followed even
where an application is unopposed.
Likewise, as noted by this Court in L.B. Wilson, while “aggrieved private
parties are also encouraged to participate as private attorneys general,” “Congress
48
did not intend to relieve the Commission of its responsibilities and allow the
parties to limit the issues, thereby leaving it in the position of a traffic
policeman.” (emphasis added). Thus, “if it appears upon the record that the public
loses rather than gains” by virtue of a license determination, “the Commission
must reckon with that circumstance even if it was not alleged in the protests.”
Hall, supra, 237 F.2d at 571 (emphasis added). This logic applies with even
greater force where (as here) the defect in a license application has been
specifically brought to the attention of the Commission. Hall, supra, Southwestern
Publishing Co., supra.
In the instant case, as discussed, Petitioner raised serious issues as to the
most vital public interest consideration relevant to a telecommunications license
grant – i.e., issues as to the honesty of the applicant. This is the very issue which
the L.B. Wilson Court held must be considered by the Commission on its merits.
Entirely aside from Regionet’s credibility gap, Petitioner also raised a
different set of public interest concerns, including issues relating to Regionet’s
interference with TV stations 10 and 13, and issues relating to the continuity of
service/Coverage Requirement. Under the holdings of Clarksburg and its progeny,
these types of issues cannot be summarily disregarded on purely procedural
grounds.
49
For each of the foregoing reasons, the Commission erred by holding in its
October 25, 2002 Order that Petitioner’s arguments directed to the Regionet B
Block applications were procedurally deficient under 47 C.F.R. §1.106(b)(1).
2. The FCC Erred by Denying Petitioner’s Application for

Review in the Case Giving Rise to Appeal 02-1360
The Commission likewise erred in rejecting on entirely procedural grounds
Petitioner’s Application for Review in the matter giving rise to Appeal No. 02-
1360.
a. Petitioner was a Party to the Proceeding at Issue

As noted above, §1.106(b)(1) only limits the scope of review of a
reconsideration petition filed by an entity which has not previously been a “party to
the proceeding.” Petitioner submits that as to Regionet’s renewal applications for
Call Sign WRV374, Petitioner was in fact a “party to the proceeding” prior to his
August 1, 2001 Reconsideration Petition. In his June 26, 2001 protest, which
preceded the July 2, 2001 renewal of the WRV374 licenses by one week (and
Petitioner’s Reconsideration Petition by several weeks), Petitioner raised many of
the same arguments ultimately advanced in the August 1 Reconsideration Petition,
including: (i) that major modifications to facilities (e.g., differing antenna heights
and coordinates) were made by Regionet without Commission authorization, in
violation of 47 C.F.R. §1.929(c)(3); (ii) that Regionet reported activation dates for
facilities which were beyond the extended November 30, 2000 deadline; (iii) that
50
Regionet failed to provide any activation notice for a number of stations required
to be activated for the license to meet the §80.475(a) Coverage Requirement; and
(iv) that Regionet had equivocated in certain activation notices by stating that
“testing had commenced” with respect to many of the facilities associated with the
subject licenses. For the reasons discussed supra in connection with Regionet’s B
Block license applications, Petitioner was therefore a “party to the proceeding”
prior to his August 1 Reconsideration Petition, rendering §1.106(b)(1)
inapplicable.
The Bureau and Commission have nonetheless claimed that Petitioner did
not become a “party to the proceeding” on account of his June 26, 2001 protest. In
essence, they have argued that the protest was of no effect because its filing post-
dated the June 9, 2001 deadline for filing petitions to deny the Call Sign WRV374
renewal applications (“The informal request was submitted on June 26, 2001 . . .
beyond the thirty-day petition to deny filing period that commenced when the
renewal application was accepted for filing on May 9, 2001.”).
As noted above, the term “proceeding” is not defined in Chapter 47 of the
C.F.R., and there does not appear to be any case law construing this term in a
§1.106(b) context. Nonetheless, it is clear that the Commission has conflated
becoming a “party to proceeding” with filing a petition to deny. There is no
express language in §1.106(b)(1) supporting such a construction of the regulation,
51
nor is there any decisional authority supporting such a construction. As noted,
§1.106(b)(1) could have been drafted to limit petitions for reconsideration by
entities who had “not filed a timely petition to deny as against the subject license
application at issue.” But the regulation was not so drafted, and instead uses
relatively open-ended language. Indeed, in its very decision denying Petitioner’s
Application for Review, the Commission acknowledged that its Rules permit
filings of the very type made by Petitioner on June 26, 2001: (“Because the
Commission'
s Rules do not specifically provide for filing protests of construction
notices, we will treat Havens'

s submission as informal requests pursuant to Section
1.41 of our rules.”)25
For each of the foregoing reasons, Petitioner was a “party to the proceeding”
prior to the time he filed his August 1, 2001 Reconsideration Petition, thus
rendering §1.106(b)(1) inapplicable at the outset.
25 See 17 FCC Rcd 21269 n.13. In this regard, 47 C.F.R. §1.41 states “Except
where formal procedures are required under the provisions of this chapter, requests
for action may be submitted informally. Requests should set forth clearly and
concisely the facts relied upon, the relief sought, the statutory and/or regulatory
provisions (if any) pursuant to which the request is filed and under which relief is
sought, and the interest of the person submitting the request.”
52
b. Assuming Arguendo that §1.106(b) is Applicable,

Petitioner has Demonstrated his “Adverse Interest”
and has Shown “Good Reason” for Failing to
Participate in “Earlier Stages of the Proceedings”
Assuming arguendo that §1.106(b)(1) is indeed applicable to this case (i.e.,
that Petitioner was not a “party to the proceeding” by virtue of his June 26, 2001
protest) he nevertheless met the two-part exception set forth in this regulation. As
to the first element, neither the Commission nor the Bureau has ever disputed that
Petitioner, as a AMTS licensee himself, was adversely affected by the license grant
to Regionet. See e.g., In re Applications of Metrocall, Inc.; In re Application of
California Industrial Service, Inc., supra.
Second, Petitioner has plainly shown “good reason” for not participating in
earlier stages of the proceedings (i.e., proceedings prior to Petitioner’s August 1,
2001 Reconsideration Petition). In his Application for Review, Petitioner
demonstrated that he could not have reasonably filed the Reconsideration Petition
sooner than he did, even if he had all the information needed in the thirty-day
period for filing petitions to deny. In pertinent part, Petitioner argued “It is not the
raw information that is the heart of the Petition and its showing under §1.106(b)(1),
it is the engineering showings and other analyses, ones which Regionet and the
Bureau should have done but failed to do over may [sic] years [to demonstrate]
compliance with [the] coverage requirements of 80.475(a).” (See the discussion
above of the required engineering study methods and results).
53
In its October 25, 2002 Order denying Petitioner’s Application for Review
with respect to the renewal applications, the Commission determined that
Petitioner should have, as of the June 9, 2001 deadline for filing Petitions to Deny,
either: (i) filed a petition to deny with respect to those points of contention for
which Petitioner did not require engineering studies (i.e., Petitioner should have
split his points of contention); or, alternatively (ii) sought an extension of time
within which to file a petition to deny. In fact, these proposed alternatives would
not have been feasible. First, 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 did require an engineering study. See In 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)
(same); In re Application of Southern Broadcast Corp. of Sarasota, 16 FCC Rcd
3655 *30-31 (2001) (same). Secondly, it not entirely clear that Petitioner was
authorized under the Commission’s 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
54
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).
c. In Any Event, the Bureau Could Not Abrogate Its

Duty to Assess Regionet’s Renewal Applications on
Their Merits
Finally, as in the case of the Commission’s procedural decision with respect
to the Regionet B Block applications, the Commission’s purely procedural decision
on the renewal applications amounts to a unlawful abrogation of its
Congressionally-mandated §309(a) duty to consider the public interest in every
licensing matter. As discussed, when this Court has construed this statute, it has
held that valid protests to a license application should not, and cannot, be rejected
on purely procedural grounds, if these protests implicate public interest concerns.
See Clarksburg, L.B. Wilson, Hall, Southwestern Publishing Co., supra.
As previously mentioned, with respect to Regionet’s Renewal Applications,
Petitioner raised a number of substantial public interest issues, including that:
(i) numerous facilities associated with the Call Sign were reported as activated well
beyond the extended November 30, 2000 deadline; (ii) numerous other facilities
had increased antenna heights or had changed coordinates which constituted
impermissible “major modifications” to the authorized facilities for which
55
Regionet had not obtained a waiver, in violation of 47 C.F.R. §1.929(c)(3);
(iii) Regionet had failed to provide continuity of radio-service coverage for the
Atlantic Coast under this Call Sign, as required by §80.475; and (iv) none of the
Regionet activation letters had actually indicated that stations had been placed into
service; rather, they simply indicated that “testing had commenced” with respect to
these stations.
Under the holdings of Clarksburg and its progeny, these types of issues
(which include issues going to the honesty of Regionet and its principals) cannot
be summarily disregarded on purely procedural grounds. Accordingly, the
Commission erred by holding in its October 25, 2002 Order that Petitioner’s
arguments directed to the Bureau as to the Call Sign WRV374 license applications
could not be considered.
IX. CONCLUSION
For the foregoing reasons, Petitioner requests that this Court vacate the
FCC’s October 25, 2002 Orders at issue herein.
Respectfully submitted,
/s/Tamir Damari
Tamir Damari (D.C. Bar. 455744)
NOSSAMAN LLP
1666 K Street, N.W., Suite 500
Washington, D.C. 20006
Email:tdamari@nossaman.com
Phone: (202) 887-1400
Attorneys for Appellant
56
CERTIFICATE OF SERVICE
I hereby certify that on December 21, 2010, a true and accurate copy of the
foregoing was served 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
CERTIFICATE REGARDING WORD-COUNT

I HEREBY CERTIFY that the word count for Petitioner’s Brief, exclusive
of the Cover Page, Corporate Disclosure Statement, Table of Contents, Table of
Authorities, and Certificate of Service, is less than 14,000 words. The word count
is 12,508 words.
/s/Tamir Damari
Tamir Damari
ADDENDUM - JANUARY 3I,2OOT DECISION

OF THE V/IRELES S TELECOMMUNICATIONS
BUREAU GRANTING IN PART PETITIONER'S
PETITION TO DENY REGIONET'S A BLOCK
LICENSE APPLICATIONS FOR THE
CAROLINA V/ATERWAYS
Federal Communications Conmission nÁ oi-z¿o
.l'll. t
Befole the
Federal Communications Cornnission
Washingto4 D.C' 20554
In the Matter of Applications of

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REGIONET }VIRELESS LICENSE, LLC
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File Nos. 853269-853286
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'.': .',.;'
ior the Authority to Operate Automated
Maritime Telecommunications Service in
Various Locatio¡s in the United States
. .ì...1
ORDER
' '- . ' i' ...:',-1 '-. - 1l': -
''.'
Adopted:. Jqnuary 24' 2001 Released: Janugry 31,20.01..:.:
r,l ' :¡ ":'' - ' .:
By the chief, Public safety and Private wi¡eless Division, wireless Telecommunications Bureau:
I. INTRODUCTION
1.
On July 6, 2000, Wanen c. Havens Q{avens) filed a petition to deny Automated Maritime
Telecommwrications System (AMTS) station appücalions fi.led by Regionet Wi¡eless Lice¡se, LLC
(Reeionet) for the Savannah River,r Chesapeake Bay,' souù coastal region of Califomia,i Sacramento
i¡uä p"ftu are¿,a and Apalachicola and Clattahoociree Rivers.s For the reasons lhat folo%',Havens's
petition iS granted in part,u and Regionet's applications to serve the Savannah River, C_nryneaþ A-af'
south coastãl region oi Culifo-iu, Sacramento River Delta areâ ard the Apalachicola.and Chattahoochee
Rivers are dismissed.
1
ot¡r l¡1a9.1 tGreenwood, South Carolina) and 8s3270
(Aucusta, Georsia) ', ,'i,,.:...,,..^ ._ " . ,
1it1
'rit"No. esrzrl 1crofton, Marylancl). :;;,,,j.i',
it''.;..iifi.,.
,,,,i
3
File Nos. 8S3278 (Verdugo Hills, California) aú 8532'19 (San Diego, California). File No.. 853278
was
withdfawn on August 3,2OOO. See Letter from Martin W. Bercovici, Keller and Heckman, LLP, to Kimbelly
Kleppinger, wireless Telecommunications Bureau, Federal communications conmission (dated Aug. 2, 2000)
(rYíthdrowal Letter).
a
File Nos. 853280 (yuba City, Califomia), 853281 (Shingle Springs, California), E53282 (San Francisco,
california), 853283 (Whiske¡.town, california), 8532E4 (Ukiah, califomia), 853285 (Saclalqgnto, Califomia),
and 853286 (San Brunq California) ' '''I.l''
t Ht" t¡oa. àS¡zZt (Sneads, Florida), 853272 (Fort cai¡es, ceorgia), 853273 (warm s.prhgs,,Georeia)lEs32Z
(Tiger, Georgia), 853275 (Stone Mountain, Georgia), and E53276 (Rosìüell, Georgia).
' ' r. : . ,
same petition to deny, Havens also listed the applicatioDs of Mobex Communications, Inc., Regionet's
6
In this
parent corporalion, for AMTS stations to/6erve the Upper Chattahoochee River @ile Nos. 853246-47) and Upper
ÞJo Grand'e Ri\rer (File Nos. 853248-5f, and by Regionet for the Cooper, Congaree, Broad, and Saluda Rive¡s
(File Nos. 853259-64) and Cape Fea/ and Haws Rivers (File Nos. 853265-68). These applications will be
àddressqd in a sçarate decision. /
II. BACKGROTJIII)
2. AMTS stations provide automateq integrated, interconnected shiP-to-shore communications

similar to a cellular phone system for tugs, barges, and other maritime vesseis.' There are two freçency
groups of twenty charmel pair, *ch alraiìoúle foi assignment to AMTS stations.E UndeÌ Section 80.475(a)
ãf tn" Coo-i.jioo's Rdès, AMTS applicants who propose to strve a navigablç inland.waterway tbat is
.,.-l*...'tfa". t SO- rniles in tengttr must sive that wat-erway in its entirety.e On the o-t¡er- h4nd.-AMTS
more than 150 qileS in leireÍ4-rmlst
: -applitagts Who propose to serve a navigable inland watoway that is
.,provide þontinuity of service for pt percçnt of the waterway.'" AppucenFs^ propo$ng to serve a
'., 'orleast 60
i,ottig¡: O¡ ¡t" Àtluoti", P*ift", Gulf of Mexico coastline must provide continuity of .serviçe to a
tI
subsantial navigational atea.
3.
In establishing the rules pernritting AMTS stations, the Commission considered the potential
for interference to television receptior¡ particularly Charmels 10 and 13 because ofthe proximity of AMTS
ûequ, encies to these television Charurels, and conditioned the operation of AMTS coast stations on the
..qrrl"-*t ,¡", no hamúrl interference be caused to television reception.r2 Under the'€omrrission's
Rules, an applicant proposing to locate an AMTS station wifhin 129 kilometers (80 miles) of a cþannel l0
television.station and/or 169 kilometers (105 miles) of a Char¡rel 13 television. station must submlt an
ensineerine study demo¡shating the means used to avoid interference v/ithin that particulPr feJevision
st¿iiorfs drade É contour.'' The study must include a description of the interference contour'and the
method used to determine that contou¡, along with a statement that provides the number of residences
within the contour.r4 Whe¡e there are at least one hundred residences within both a proposed AMTS
statiort's predicted interfe¡ence contour and a television station's Grade B contour,.the AMIS applicant
must (1) show that the proposed site is the only suitable location, (2) develop a.plan to.conhol any
interfeience its operations Cause within the Grade B contour, and (3) agree to make any necessary
adjustmçnts to affected television receivers to eliminate such interference' '' rrrr -i '- ' " '
7 Se¿ Ämendment of paÍs 2 and 80 of the Comnission's Rules Applicable to Automatèd MaritiEe
Telecommunications s)stems (AMTS), F ru t Report and order, GEN Docket No. 88-732' 6 FCC R.cd 437,47 n
3 (1991) (AMTS First RePort qnd Order).
t
47 c.r.n. g 8o.3Es(a)(2).
'4? c.F.R. g E0.475(a).

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" Id,
,t 47 C.F.R E0.215(h); Anendment ofParts 2, 8l and E3 of the Commission's Rules to Allocate SpecÍum for
$
an Automateã Inland \iaterways Communications System (IWCS) along the Mississippi Rive¡ and Coûnecting
watelweys, Repor¡ and order, GEN Docket No. 8O-1, 84 FCC 2d 8'15, 897-98I81, on recon., Memorandum
Qpinion ønd Order, GEN Docket No. 80-1, 88 FCC 2d 679 (1981). :. . . i. .
r3
+7 c.F.R,.$ 80.47.5(ø)(t); see AMES Fírst Report and order, 6 FCC Rcd at 437 15. ,. , .i ,i .r. ,. ri,;.1.i. "i.:l
. ,.,..i i i :i.;:iri :-:.
'o 47 c.F.n- þ 80.215(hX2). . 1.,...1 . .
t5
47 C.F.R g 80.215(hX3); see Fred Daniel d,/b/a Orion lelecom, Memorandum Opinion ønd Order' 14 FCC
Rcd 3909, 3910 f 4 (wTB PSPWD 1999).
. . ...ì..
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Federal Communications Commission DA 01-240
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| Regionet filed applicatio¡s
4.,'Oo Muy l'1,2000, 'River,
for AMTS stations that,lvould.. sqrve the
Apalachicola un¿ Cliuttaiooch"e Riväs, Sava¡nah- Chesapeake Bay, and south coastal region of
"'
catito.rria. on May 18, 2000, Regionet frled applications for AMTS statio¡s that would serve the
Sacrame¡rto River Delø area. On Jr¡ie 6, 2000, Rågionet's applicatiors appeared on public notice'16 On
July 6, 2000, Havens filed a petition to deny these applicatiors. on July l], 2000, Mobex a¡d Regionet
nfáá op¡*tti"o to Havens's petition to deny. On Julv 26, 2000, Havens ûled tgpV:liìi::r";
" ,.
- .-i-.: i -
,....1;,...Oo¡uly6,2000,KCOPTelevisioq.Inc.(KCOP), lioensee ofa Cha¡nel.I3.ltelçvjsiþE-station

iiniqr Aog"le", caliîomia, petitioned to døry one of the two AivfTS statio¡s thatlfaorytnrongö*tg ttt"
rágøn of Caûiornia. Specific; y, KCOP ârgued that over onemiìlion residences in,its Grade
"outù "ouíøratñer than Regionet's ìhi- of less than one hundred residences, .would also be in the
B contour,
interfere.lrce contour of the proposed AMTS station at Verdugo Hills, California.tT On
August 2, 2000,
Regionet requested the withárawal of its 4pplication for ttre AMTS station at Verdugo Hills.'"
On January
2, 2001, Regionet's request was granted
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,
Havøs argues thât the Regionet applications provide no basis for the asssrtion_ that ín the
ì 6.
betWeen the
case of each propose¿ atUTS søtion, feñer thanbne hundred residences are within thernoverla!
rtutifi"þt.ii.tèA intofoence contou¡ and a Cbannel 13 television station's Grade B''" Regionet contends
Grade B contour in low population densþ areas and
that in each case, the interference contour overlaps the
for that reason, it believes the overlap encompasses fewer than one hundred residences.''
:
'
we note that Regionet withdrew its apptication for an AMTS statio4 in V€rdugo Hills after
: .' : 7'.
KCOp presented evidence coit¡adicting Regionet's claim that fewer than one hundred residenÇç,were
,**i".¿ i" n" overlapping contoürs. In uddition, "u* a crrsory review of.thf r¡r''-:"¡:"t' "f
'' i1t;i"
'app,li9?li""P*"Ì9P"
16
Public Notice,Report No. 2096, rel. June 6, 2000.
Regionet \[ireless
Engineering Report on Behalf of KCOP Television, Inc. in Support of its Petitíon to Deny
r?
ricen-se r,LC ÃviS Application Verdugo Hills, California, at 2 (dated July 5' 2000)'
t.8
See.llithdrawal Leuer at7. i ".,r':ì ':,.' :
. ii Gtt", from Dvana R. Terry, Chief, Public safety and P¡ivate wireless . Pl"i:ioll" uYltÎl:¡l
Heckman, LLP (dated Jan- 2' 2001). ;ìll- ,::
Telecommunications
: - Bueau, to Mafin Vf. Bercovici, Keller and
--:--::-j--.---
petition to Deny Applications at 9. Havens, in his July 6, 2000 petition to deny, also argues that Regionet did
20
coveragç it proposed to
not clearly describe tirã length and navigability of the subject waterways, nor the service
provide. 1d at 6. He argues that Rãgionet has not demonstrated that an engineering study was properly
Id. at 7-g- He argues that Regionet should not be allowed to combine
concluctecl for any of the applications.
several rivers intá one systãm as it proposes with the Apalachicola and Chattahoochee
Rive¡s. 1d. at 4' Because
Regionet
.. we are not Dersuaded that the¡e areiewe¡ thall one hundred ¡esidences in the overlapping contours and
- ;;;; ;;ilil,r'"]ìi"',o",i"i required bv 47 cF.R. $ 80215(hX3), we find thc negiotrel:r¡qlig'ltilm
. 0.,e,,!9,!i-le,'ano ¡lerefore, we need not address Havens's other arguments, . ..,,¡.¡ir1.. r',..:;,1:t;i;,::,:ï;.1] :
': ,, 80.215(hx3) (the station will be authorized if the applicånt's ptan bas limited the
Id. at 4.' See +l c.F.R. ç
irrã¡"t""."ãa*tõ iã i""'"t than'ióo residences). It did not rely on census data when.ieachin! 'this
conclusion. Afüdavit ofRandall D. Young, Keller and Heckmaî'LLP, al4'
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Federal Comnunications Comm¡ssion DA 01-240
.whirh propose stations in such places as San Piego, San Francisco, and Sâcram€Étq, þtl,F.:Sçqpott''
'i"pt.råiäiioo that it reviewed tire proposed locations and determined the are¿é òf olerlaq lo'.have low
: pù-futlo" O*"ities. Finally, closer examination of the subject applications reveals that the overlaps
gág¡uUy are significant and-often ericompass entte towns and eve¡ enti¡e counties.". .Consequentl¡ we
ãnd rrtt"onvi"ci"g negionet's assertion tlat fewer than one hurul¡ed residences are wiihin the ovølapping
proposed
contours. As indicated previously, where there are at least one hunclred residences within both a
AMTS. stationls predicæd interføence contour and a te.levision siatioû's Glade B conto.fJr'-.th9 AMTS
applicant must show that the proposed site is the only suitable location' deveþ a'p..l9n J-o;,q9"nû"-oJ
any
¡åtofo*"" itt operatiors causè within the Grade B contour, and agtee to make a¡y necess.êry ad'jusbn.ents
. to affected television receivers to eliminate such interference.z' Be"ause RegiOnet' did.¡of nake-;sUch a
's¡owinejw"
will dismiss as defective its applications for AMTS stations that wouid serve'the Savarmah
Riu"r,fl Ch"sapeake Bay, south coasÞl ;egion of Califomia, Sacramento River Delta area, and
Apalachicola and Chattahoochee Rivers.
respect to the proposed Greenwood, South Carotina AMTS station, which would serve the Savannah
22
With
River, the iredicted inærference contour significantþ overlaps the Grade B contour of Channel 13. Television
Søtión $'f-OS,.esheville, North Carolina, in Greenville County, Piçkens County, and A¡de¡son Çounty' $outh
-
. Carolin4. The entire city of Baltimore, Maryland, would be encompassed in the o-verlap of the Cra99.qc?lt-1tr
of Channel 13 Television Station WJZTV, Baltimore, with the predicted interferencei contoui of the AMTS
station in Crofton, Maryland. As indicated, Regionet has proposed six AMTS stations to servq
tbe Apalachicola
and chattahoochee Rivefs. with respect to this s¡stem, all of calhoun county, Florida, and significart gortigns
in the overlap of the Gmde B contou of the Channel 13 Television
of other counties would be encompaìsed
station in Sne¿ds,
Station WMBB, Panama City, Flo;ida, v¡ith the predicted interfe¡ence contou¡ of the AMTS
,ignifi"unt poitions of Baker, Calhoun, and Dougherty Counties, Georgia, be
Florida. We dod thut _would
Station.r AlbaDy,
in the overlãp of the G¡ade B contour of Chan¡el 10 Telovision .ALBTV,
_
"i"oÀpurr"¿
Georgiar.lryitb thq predictedìnterference oontour of the AMTS st¿tion in Fort Gaines, Georgia;.iMoor.oe,CoytV'
Ciurnioi¿ Çounty; ancl Macon County, Georgia, are completely encompassed in the werlap¡o-f;thçlG"rade,B
contou¡ of Channel 13 Television StaaioD WMAZ-'TV, Macon, Georgia, with the pre{icte¡l intp-Ifp¡94c.Fiç.o.4!ow
oith. ¡VfS rtution in Warm Springs, Georgia. The Grade B contou¡ of Cha¡nel 10 Televisio¡ St¿tion,.lW)fl-A-
;T, ;,1"";", c;"t;ia, is atmosi coãpletely-encompassed by the preclicted interference çoriiours óf the ..dMTs
County, and
stations in Stone Mounøin ancl Roswetl, óeorgia. We also find that Greenville County, Pickens
Jackson County, South Carolina, are significantþ encompassed in the overlap ofthe Grade B çontour- of Charurel
13 Tetevision Station WLOS, Ashvillá Soutl¡ Ca¡olina, with the predicted int€rferenoe contour of thg AMTS
station in Tiger, Georgia. The city of san Diego, california, is encompassed in the overlap ofthe predicted
interferçnce ãontour oi the AMTS station in San Diego with the Grade B contour of Channel 10 Television
.station KGTV, San Diego. With respect to the proposJd AMTS stations that would serve the Sacramento River
Delta arça, the Grade B contou¡ of channel ù Television station Kov& Stocktou, California; ç¡ile¡iè¡rces
. sisnificarl overlap with the p¡edicte.d interfererce coûtours of the AMTS stations at Sqf. Brqno.'
San'Irancisco'
ä;-ö;,-ffiäl; ¡;..c;ini;h, ãi¿ iu"ru-"n,o, catifornia; and the Grade B contour of channel 13
California, experience significant
Television St¿tions Kgnt, Eureka, Califomia, and K13MD, Hydmpom,
overlap u/ith the predicted interference contour ofthe AMTS station in whiskefo\ryn, califomia.
" 47 c.F.R $ Bo.2l5(h)(3XD.

,o 22, supra. for,thc
We have already noted the Greçnwood, South Carolina AMTS station's defect. See note .As
is clear
Augusta, Georgia, AVts st¿tion (the only other station in the pfolosed savannah River system),*il aQÇ
with of
aoã' tné ,".Ñ whether the small overláp of its predicted iuterference contou¡ lhe.Grádç'B cpnt-our
county,. Gç¡!ia, enco¡passes mof e
. , channel i 3 Television station wMAzTV, Macon, Georgia, in washington
than 100 residencçs, Even if this overlap would affect fewer tha¡ 100 lesidences, howè.ver; ,the'Augusta
application still is defective. First, we note that this station would be part of a new system and not an
expansion
the waterway that is
oi} existing
system (WRv374), as Regioûet contends, because its contour does not reach
(continued....)
4
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i.ji'.';:;,;l . , ' ry. ORDERINGCLAUSES ,i ,,,";;i', ,,.ilr¡;iifri;"i .
;., -t i' ,. i . . , ,,
' .. I '
g. I ,. Accordingly, IT IS ORDERED pulsuani to Sections 4(i) and 303G) of the Communications
Act o1 1934, u, u..nJ.l 47 U.S.C. $$ 154(t, 303(r), and section 1.939 of
the commission's Rules, 47
C.F.R. $ 1.ó39, the petition to deny Flè Nos 853269'77, and 853279-86, file'd by Wanm C' Havens' on
iJv á, ãooo Is'cn ÑrED IN PA,RT as set forth above. ' ,' ,.. ' ,..,, "
.s.;'.lT'IS'FURTIIERORDEREDpursuanttoSections4(i)and303(r)oftheCommr¡nications
*ï"riöi,i, ã' Á*Jd? u.s.c. SS ù+(i), ¡os6), and sections !s34(d) nt-s^q,Í-slÐ-"f.P"
filed bv
c-;rrir¡i"r'; Rures, 47 ó.8.n. $$ 1.9j4(d), s0.475(a), File Nos. 8s3269:77' qFd8112?9.16:
:-l
^.-o.:^... Wireless License, LLC
Reeibnet on May 17 and 18, 2000 ARE DISMISSED': l l '':
: .r :r i :.:.r..
ll-
This action is taken under delegated authority pursuant to se¿tio¡s 0.131 a¡d 0'331:of the
10.
Commission's Rules,47 C.F.R. $$ 0'131' 0.331.
FEDERAL COMMUNICATIONS CO}AÁISSION

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'
D'wana R. Terry
Chief, Public Safety and ?rivate Wi¡eless Division
'Wireless
Telecommunications Bureau
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(Continued ûom Previous Page) -...-

Opinion and Order' 14 FCC
ìerved by the existing systóm. ,iee Fred Daniel d/b/a O¡ion Telæ,om, Memorandum
must be regarded as a. neìry
Rcd 199i2, 19918_1é í 12 (\ggg). Because AMTS service to the savannah Rir-er
svstem. the service coverage requirements (¡.e., waterway that is less thao 150 miles mult be- serve.d,.il] its
;triiiJÛt ;;;r*"t ttrat is featei ttran 150 miles must receive .coveraee) y{3r-+z
at least 60 percent continuos
ätR:Ä-inEili5ã) ;rri bã ner. we nnd that rhis coverage fequirement cannot be Eer by tbe_propoq{ {lv{s
Augusø, slanding alone. ln addition, the Commission's rules do not provide l:or the
ltcenlmg -oI a
station
must also Þe dlsmßsç'd'
singlÈstation-AMTs . Id. al 19916-Ú n 10. Therefore, the application for this station

Havens V FCC (Mobex-MCLM AMTS Stations), DC Circuit Court, Havens Opening Brief

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Case: 02-1359 Document: 1284309 Filed: 12/21/2010 Page: 1

No. 02-1359, 02-1360

IN THE UNITED STATES COURT OF APPEALS FOR THE

FEDERAL COMMUNICATIONS COMMISSION,

PETITION FOR REVIEW FROM

Tamir Damari (D.C. Bar No. 455744)

Attorneys for Petitioner

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Communications Commission and Amicus Curiae Mobex Network Services, LLC.

Rulings: Two rulings of the Federal Communications Commission dated

October 25, 2002. 17 FCC Rcd 21263, 17 FCC Rcd 21269.

Related Cases: None.

I. JURISDICTIONAL STATEMENT .........................................................1

II. STATEMENT OF THE ISSUES PRESENTED FOR

IV. SUMMARY STATEMENT OF THE CASE, COURSE OF

A. Appeal No. 02-1359 .......................................................................3

B. Appeal No. 02-1360 .......................................................................4

A. Background Facts and Facts Common to Each Appeal .................5

C. Facts Relating Particularly to Appeal 02-1360 ............................15

VII. STANDING ............................................................................................22

VIII. ARGUMENT ..........................................................................................22

1. Standard of Review Under the Administrative

2. The Commission Must Act Consistently and in

3. In Each Case in Which a Commission License is

the License Grant is in the Public Interest, and

1. The FCC Erred By Denying Petitioner’s

b. Assuming Arguendo that §1.106(b) is

c. Petitioner’s Petition for Reconsideration

e. In any event, the Bureau Could Not

2. The FCC Erred by Denying Petitioner’s

a. Petitioner was a Party to the Proceeding at

b. Assuming Arguendo that §1.106(b) is

c. In Any Event, the Bureau Could Not

CERTIFICATE OF SERVICE ............................................................................57

CERTIFICATE REGARDING WORD-COUNT ...............................................58

47 C.F.R. $80.38s(a\2). ........'..'.......'.'.7

In re Application of Southern Broadcast Corp. of Saraso¡a, 16 FCC Rcd

In re Applications of Metrocall, Inc.,11 FCC Rcd 21208 (1996).'..'.'...........'.'33, 53

* In re Applications of Tucker,4FCC Rcd 2816 (1989) .........'. ..'35'39

In re Citadel Broadcasting Co.,22 FCC Rcd 7083 (2007) ... ...........54

In re Orion Telecom,l4 FCC Rcd 3837 (1999)............ ..... ....'.'.....'.' 6

In re Weblink Wireless, Inc., 17 FCC Rcd 24642 (2002). '....'.".37, 38

In re: Application of Regionet TVireless License, LLC, For Renewal of

In re; Application of RegionetWireless License, LLC, Granted Applications

In re : Indiana Community Radio Corp., 23 F CC Rcd 1 0963 (2008)......'....' .'.'. "'.' 5 4

Commission's Rules to Allocate Spectrum for an Automated Inland

Grenco, Inc.,28 FCC 2d 166 (1971)..... ....................3 I

Report and Order,

for this Court’s appellate jurisdiction is 47 U.S.C. §402(b)(6) (authorizing review

Federal Communications Commission granting or denying a license).

Two final decisions, correlating to each of these consolidated appeals, were

rendered by the Federal Communications Commission (the “Commission”) on

Granted Applications to Provide Automated Marine Telecommunications Systems

WRV374 to Provide Automated Marine Telecommunications System Service to the

disposing of all parties’ claims.

II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Did the Commission err on October 25, 2002 by denying Petitioner’s

Application for Review of a December 17, 2001 decision by the Commission’s

Wireless Telecommunications Bureau (the “Bureau”), which denied Petitioner’s

Petition for Reconsideration of the Bureau’s grant to Regionet Wireless Licensee,

LLC (“Regionet”) of certain applications for Automated Marine

Telecommunications System (“AMTS”) service, on the grounds that Petitioner had

purportedly failed to demonstrate compliance with 47 C.F.R. §1.106(b)(1), thereby