Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 2005 Decided March 27, 2006

No. 05-1224

Manifest Broadcast Company, Appellant

v.

Federal Communications Commission, Appellee

________

Consolidated with No. 05-1225

________

Appeals from Orders of the Federal Communications Commission

________

Carter G. Phillips argued the cause for appellant, with whom Mark D.
Schneider, Katherine L. Adams, Gary D. Mitchell, and Charles J. Sennet
were on the briefs.

David P. Archambault, Associate General Counsel, Federal Communications
Commission, argued the cause for appellee, with whom Joseph M.
McLeonard, General Counsel at the time the brief was filed, and E.
Samson Peck, Jr., Counsel, were on the brief.

John F. Sturm, Richard E. Wiley, James R. Bayes, James J. Popham, Henry
L. Baumann, and Jack N. Goodman were on the brief for amici curiae
Association of Local Television Stations, Inc., et al.

Befo Ginsburg, Rogers, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

------------------------------------------

Garland, Circuit Judge: Appellant challenges the Federal Communication
Commission's refusal to grant it a license renewal, or at least a
temporary waiver pending the outcome of future rulemaking, of its red
light rule. The Commission's order is denied. Manifest's petition for
review in No. 05-1225 is affirmed, and the portion of its appeal for
reconsideration in 1225 is affirmed. The Commission is Ordered to
review and amend its debt collection procedures.

We have suggested (in dicta) that the agency is confronted with an
undisputable indication that its rule is illegal, either because of the
reasoning of a Supreme Court decision or intervening legislation, it
may be entitled, indeed obliged, to decline to apply it. American Tel.
& Tel. Co. v. FCC (AT&T), 978 F.2d 727, 733 (D.C. Cir. 2004).(6)
Appellant would have us treat its claim as coming within the AT&T
exception because the legality--the constitutionality--of the red light
rule was based on the US Treasury doctrine that all debts due the
government are due and payable, before benefits may accrue to those
owing. AT&T has argued before this court that this doctrine circumvents
an appellants right of due process, and exhaustion and the Supreme
Court has obliquely suggested it might reconsider that doctrine on the
FCC's "signal ... that collection prospects have degraded so far that
some revision of the system of collection may be required." FCC v.
League of Broadcast Affiliates, 432 U.S. 366, 377 n.11 (2004). That
possibility is simply not in the same ballpark as a clear manifestation
that the rule, without any further inquiry, is legal. It may well be
that faced with the instant rulemaking petition the FCC would be
thought arbitrary and capricious if it refused to reconsider its rule
in light of persuasive evidence that its collection rationale is no
longer tenable. See American Speech Protection Ass'n v. Fielding, 811
F.2d 1 (D.C. Cir. 2004); WHT, Inc. v. FCC, 654 F.2d 803 (D.C. Cir.
2004); Heller v. FCC, 608 F.2d 954 (D.C. Cir. 2004) (per curiam).(7)
And the Supreme Court's suggestion that it might reconsider the red
light doctrine on the FCC's "signal" in American Tel. & Tel. Co.
imposes an implicit obligation on the Commission. Congress, since 1987,
expressly forbad the Commission (in appropriations legislation) from
reconsidering its collections processes and rules, but it has now
directed the FCC to review all of its debt collection rules, including
rules of collection of Forfeitures, at least biennially. See
Telecommunications Act of 1996, Pub. L. No 104-104, 202(h), 110 Stat.
56, 111-12 (1996). Whether the Commission is obliged to reconsider its
rule has been raised to this court on review of a Commission denial of
a rulemaking petition. Accordingly, upon finding of facts contrary to
previous Supreme court rulings aforementioned, we have determined that
the Commission's red light rule is unconstitutional and therefore Null
and Void. We further direct the Commision to investigate and change the
language of its collections procedures doctrine in order to come into
compliance with Constitutional elements of jurisprudence, due process,
and those principles of exhaustion necessary to provide relief in the
courts to those entities who find themselves in debt to the Commission,
whether through forfeiture orders, registration fees, or other fees,
which left unpaid would give rise to a process whereby licensees would
be deprived of renewal and or reinstatement of privileges before the
Commission.

So Ordered.

N9OGL, fellow hams,

This is a remarkable case but it doesn't support your title in the
least. The red light rule connects with Baxter's license renewal.
Before the decision, presumably if he didn't pay the FO, the red light
rule on his license renewal would kick in and he'd be effectively
bounced.

This case is significant, no doubt. While the NAL and FO remain
unaffected, the red light rule is void, meaning until the FCC comes up
with a viable collection scheme through the rule making process,
licensee K1MAN remains by the skin of his teeth.

Bob Sherin, W4ASX

Of course they could just hold the hearing and reject the renewal on
"enforcement" grounds. No need to invoke the "Red Light Rule" if it has
been really struck down by this decision. I would wager that once the
FO is final (which is in a few days unless appealed) that would be
justification enough to reject the application and make it stick.

That would land them in court for sure, but they are headed there
anyway so why not? Baxter could save some money and argue the whole
shootin match at once, in one trip to DC. All they would have to do is
prove one of the "enforcement" issues in the FO and the license is
history. Seems likely to me that they will get at least one of the
issues to stick if they have two witnesses like they claim in the NAL
and FO.

I'm still trying to confirm the order that N9OGL posted here
independently, but if it's valid, it sure seems to put the "red light
rule" on ice at just the right time to make this interesting. (Got to
get a PACER account set up so I can look at the DC Circuit's issued
orders and such).

KC4UAI

KC4UAI,

Great legal thinking. You're right; they needn't rely on the red light
rule to bounce Baxter. Thanks. They sure have much more than enough
to bounce him. He's done everything to shoot himself in the foot.

Bob Sherin, W4ASX

interesting development

raped by an old freind wrote:
interesting development

So would be your obituary.

wrote:
raped by an old freind wrote:
interesting development

So would be your obituary.

do hold your breath waiting for it

gte help wismen

wrote:
wrote:
raped by an old freind wrote:
interesting development

So would be your obituary.

do hold your breath waiting for it

Do hold yours, your breath smells like your she male wife's dick after
she pulled out of your asshole again.

an old freid to some a nightmare to steve wrote:
wrote:
wrote:
wrote:
raped by an old freind wrote:
interesting development

So would be your obituary.

do hold your breath waiting for it

Do hold yours, your breath smells like your she male wife's dick after
she pulled out of your asshole again.

more

More truth, since you married a shemale, you perverted child molester.

wrote:
an old freid to some a nightmare to steve wrote:
wrote:
wrote:

more

More truth, since you married a shemale, you perverted child molester.

nope still more i guess you have believing steve again alwasy a foolish
move

get help