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FCC Mandamus Opposition - In Re: Legacy Commc'ns (D.C. Cir.)

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Released: May 16, 2013


Legacy Communications, LLC, et al., )
No. 13-1013




The Federal Communications Commission (“Commission” or “FCC”)
respectfully opposes the joint petition for a writ of mandamus filed by
Legacy Communications, LLC, Julie Epperson, JAB Broadcasting, LLC,
Bott Communications, Inc., E-String Wireless, Ltd., Horizon Christian
Fellowship, Independence Media Holdings, LLC, Delta Management
Corporation, Airen Broadcasting Company, Mattox Broadcasting, Inc.,
Absolute Communications, LLC, Programmers Broadcasting, Inc., Tri-State
Radio, LLC and William C. Doleman on January 18, 2013 (“Petition”).
Petitioners ask the Court to compel the Commission to refund filing fees that
Petitioners tendered with their applications for FCC broadcast licenses or,
alternatively, to compel immediate action by the Commission on Petitioners’

applications – filed three weeks ago – for administrative review of decisions
by the FCC’s staff denying the requested refunds.1
After Petitioners filed their mandamus petition, the FCC’s Office of
Managing Director (“OMD”), acting on authority delegated by the
Commission, denied Petitioners’ requests for refunds in a series of letter
rulings.2 We understand that each of Petitioners has asked the full
Commission to review those staff rulings.3

As we explain, Petitioners’ request that the Court compel payment of
refunds that the FCC’s staff denied is tantamount to a request for judicial
review of the staff rulings. Section 5(c)(7) of the Communications Act, 47
U.S.C. § 155(c)(7), however, deprives this Court of jurisdiction to review
those rulings and to compel refunds before the Commission has issued a
decision on the pending applications for review.

1 The mandamus petition and related papers identify “Delta Management
Corporation” as one of the Petitioners in this case. We assume that
Petitioners thereby intend to refer to Delta Media Corporation, as that entity
(not Delta Management Corporation) paid, and sought a refund of, long-
form broadcast application fees.
2 The OMD letter rulings denying the refund requests are set forth in
Attachment A to this opposition.
3 Commission counsel is in receipt of applications for review filed by nine of
the fourteen petitioners. Copies of those applications are set forth in
Attachment B. Counsel for Petitioners has informed Commission counsel
that all Petitioners have filed such applications.


Insofar as Petitioners ask the Court to compel agency action on their
refund requests, the staff already has acted on (and denied) the refund
requests, and there has been no unreasonable delay on Petitioners’
applications for review, which were filed only three weeks ago. Petitioners
have no right to mandamus when there is an adequate administrative appeals
process which they are pursuing.

Finally, on the merits, petitioners have not come close to making the
requisite showing that they have a “clear and indisputable” right, Cheney v.
United States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 381
(2004) (quoting Kerr v. United States Dist. Court for N. Dist. of Cal., 426
U.S. 394, 403 (1976)), to the “extraordinary remedy” of mandamus, Allied
Chem. Corp. v. Daiflon, 449 U.S. 33, 35 (1980).


1. Background

Congress has charged the Commission with “regulating . . .
communication by . . . radio so as to make available . . . a rapid, efficient,
Nation-wide, and world-wide . . . radio communication service with
adequate facilities at reasonable charges.” 47 U.S.C. § 151. To discharge
that responsibility, the Commission has authority, inter alia, to grant

licenses to applicants seeking to use the electromagnetic spectrum. 47
U.S.C. §§ 301, 308-09.

In the Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-
72, Title V, 100 Stat. 82, Congress established a schedule specifying the fees
regulated entities must pay the Commission for various FCC actions (such as
processing of license applications). 47 U.S.C. § 159(g). The Commission in
1987 incorporated in its rules the fee schedule prescribed by statute.
Establishment of a Fee Collection Program to Implement the Provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1985, Report and
Order, 2 FCC Rcd 947, 948-49 (¶¶ 8-10) (1987). See 47 C.F.R. § 1.1104.4
Since 1987, the FCC’s rules have included, among the charges specified in
the fee schedule, “long-form applications” for licenses in the broadcast
services. See 47 C.F.R. § 1.1104.5

In 1993, Congress authorized the Commission to conduct a
competitive bidding process (or auction) in order to choose among
competing applicants for spectrum for non-broadcast services. Omnibus

4 Pursuant to 47 U.S.C. § 159(b), the Commission has periodically adjusted
the particular fees due to reflect, among other things, increased costs of
processing applications. See, e.g., Assessment and Collection of Regulatory
Fees for Fiscal Year 2009
, Report and Order, 24 FCC Rcd 10301 (2009).
5 A “long-form application” is one that uses FCC Form 301 (“Application for
Construction Permit for Commercial Broadcast Station”).

Budget Reconciliation Act of 1993, Pub. L. No. 103-66, Title VI,
§ 6002(b)(1)(B), 107 Stat. 388 (1993). See 47 U.S.C. § 309(j)(1). As
directed, the Commission adopted rules implementing this new authority in
1994. Implementation of Section 309(j) of the Communications Act -
Competitive Bidding, Second Report and Order, 9 FCC Rcd 2348 (1994).

In December 1997, the Commission made a number of changes to its
competitive bidding rules. See Amendment of Part 1 of the Commission’s
Rules – Competitive Bidding Procedures, Third Report and Order and
Second Further Notice of Proposed Rulemaking, 13 FCC Rcd 374 (1997)
(“1997 Rulemaking Order”). These changes included the adoption of
section 1.2107(c) of the agency’s rules. That section provided that
“[n]otwithstanding any other provision in title 47 of the Code of Federal
Regulations to the contrary, high bidders need not submit an additional
application filing fee with their long-form applications.” 47 C.F.R.
§ 1.2107(c) (1998).6 The Commission stated that the rules it adopted in the
1997 Rulemaking Order, including section 1.2107(c), would “apply to all
auctionable services, unless [the Commission] determine[d] that with regard
to particular matters the adoption of service-specific rules [was] warranted.”
1997 Rulemaking Order, 13 FCC Rcd at 381 (¶ 5).

6 Unless otherwise specified, section 1.2107(c) in this opposition refers to the
rule adopted in 1997, and not the subsequent amendment to that rule.

the Commission’s competitive
bidding authority to permit the selection of initial licensees in commercial
broadcast services. Balanced Budget Act of 1997, Pub. L. No. 105-33,
§ 3002, 111 Stat. 251 (1997). In 1998, the Commission issued an order
adopting rules specifically governing auctions of broadcast licenses. See
Implementation of Section 309(j) of the Communications Act -- Competitive
Bidding for Commercial Broadcast and Instructional Television Fixed
Service Licenses, First Report and Order, 13 FCC Rcd 15920 (1998) (“1998
Rulemaking Order”). In that order, the Commission specified that “[t]he
statutorily established application fees will apply to the long-form
applications filed by winning bidders.” Id. at 15984 (¶ 164) (citing 47
C.F.R. § 1.1104) (emphasis added).

The Commission did not codify the fee requirement for long-form
broadcast applications of broadcast auction winners in the Code of Federal
Regulations.7 Nor did the Commission at that time formally amend section
1.2107(c) to reflect the adoption of this fee requirement. However, for more

7 The summary of the 1998 Rulemaking Order as initially published in the
Federal Register inadvertently omitted the requirement that long-form
applications be submitted with an application fee. 63 Fed. Reg. 48615-
48629 (Sept. 11, 1998). The Commission subsequently published a
corrected Federal Register summary that included this fee requirement. 78
Fed. Reg. 18527 (Mar. 27, 2013).

than a decade after its issuance, both the Commission and the regulated
industry understood the 1998 Rulemaking Order as having adopted an
uncodified rule that auction winners must pay a fee when submitting long-
form applications. After each auction for broadcast licenses, the
Commission issued a public notice specifying that the Commission’s rules
required the winning bidder to pay the requisite fee when submitting a long-
form application.8 And until 2009, the winning bidders of broadcast
auctions, including Petitioners, routinely tendered a fee with their long-form
applications without protest or challenge.

On October 21, 2009, Mildred R. Porter, a winning bidder in a
broadcast auction, requested a refund of the long-form application fee she
had paid two days earlier, arguing that no such fee was required under
section 1.2107(c). Letter from Lauren Colby, counsel for Mildred Porter, to
Steven Van Roekel, Managing Director, FCC (Oct. 21, 2009) (Petition, Att.
C). Several other winning bidders submitted similar refund requests.

8 See e.g., Auction of FM Broadcast Construction Permits Closes, 21 FCC
Rcd 1071, 1076 (2006) (citing 1998 Rulemaking Order, 13 FCC Rcd at
15984 ( ¶ 164) (“In accordance with the Commission’s rules, electronic
filing of FCC Form 301 [the long-form application] must be accompanied by
the appropriate application filing fee”). Accord Auction of FM Broadcast
Construction Permits Closes Winning Bidders Announced for Auction
Public Notice, 24 FCC Rcd 11903, 11908 (2009); Auction of FM Broadcast
Construction Permits Closes
, Public Notice, 22 FCC Rcd 518, 523 (2007);
Auction of Full Power Television Construction Permit Closes
, Public
Notice, 21 FCC Rcd 3010 (2006).


On March 3, 2011 – while these refund requests were pending – the
Commission sought to “clarify the rules on the payment of [long-form] filing
fees by winning bidders in auctions of construction permits in the broadcast
services.” Amendment of the Schedule of Application Fees Set Forth in
Sections 1.1102 through 1.1109 of the Commission’s Rules, Order and
Notice of Proposed Rulemaking, 26 FCC Rcd 2511, 2512 (¶ 2) (2011). The
Commission explained that it had “required” in its 1998 Rulemaking Order
winning bidders of broadcast auctions to submit fees when filing long-form
applications but that the language of section 1.2107(c) did not reflect that
subsequently adopted requirement. Id. The Commission therefore proposed
an amendment to section 1.2107(c) “[t]o resolve any inconsistency and to
conform [s]ection 1.2107(c) to the Commission’s determination in the [1998
Rulemaking Order ].” Id.

On March 14, 2011 – eleven days after the Commission explicitly
reaffirmed that filing fees were “required” for long-form broadcast
applications (id.) – a member of the FCC’s staff issued checks to Ms. Porter
and several other refund applicants, accompanied only by the unexplained

notation “not required to pay fee” printed on the body of the checks. See
Petition, Att. D.9

In an order released on June 20, 2011, the Commission formally
amended section 1.2107(c) to read as follows: “Except as otherwise
provided in § 1.1104, high bidders need not submit an additional application
filing fee with their long-form applications.” Amendment of the Schedule of
Application Fees Set Forth in Sections 1.1102 through 1.1109 of the
Commission’s Rules, Second Order, 26 FCC Rcd 9055 (2011) (emphasis
added). In adopting this rule amendment, the Commission explained that it
was “clarify[ing] that high bidders must still pay” broadcast long-form
application fees. Id. at 9055 (¶ 1). Several persons – none of whom are
Petitioners – petitioned the Commission to reconsider this order. The
Commission has not yet acted on those petitions.

II. The Refund Proceedings Before the FCC

The issuance of the refund checks by the FCC staff in 2011 generated
numerous requests for refunds from other persons who had paid long-form
application fees, including Petitioners, each of whom filed letters with the

9 The FCC’s Chief Financial Officer subsequently determined that the
refund checks had been processed in error, and accordingly sought
repayment of the mistakenly refunded fees. E.g., Letter from Mark
Stephens, OMD, FCC, to Mildred Porter (Mar. 27, 2013). This letter is set
forth in Attachment C to this opposition.

FCC’s staff between July 8, 2011 and August 9, 2011 asking for refunds of
long-form application fees that they had tendered between 2004 and 2009.

On March 27, 2013, the FCC’s Office of Managing Director
(“OMD”) issued a series of letter rulings denying the refund requests. See
Att. A. The OMD rejected the argument that section 1.2107(c) established
that Petitioners had not been required to pay a fee when submitting their
long-form applications. It explained that, after section 1.1207(c) was
adopted, the Commission specified in the 1998 Rulemaking Order that the
winning bidder in a broadcast service auction must pay the prescribed fee
when filing a long-form application. Id. Because Petitioners had “paid the
fees at the prescribed time and in the correct amounts,” they had an “actual
and timely knowledge” of the fee requirement adopted in the 1998
Rulemaking Order, and thus were “bound by its terms.” E.g., id. at 2.
Finding that Petitioners had properly tendered fees with their long-form
broadcast applications, the OMD concluded that no refunds were due.

On April 25, 2013, the Commission received applications from
Petitioners seeking review of the FCC staff’s refund denial rulings. See Att.
B. The Commission has not yet acted on the applications for review.




Mandamus is a “‘drastic’” remedy, “‘reserved for really extraordinary
causes.’” Cheney, 542 U.S. at 380 (quoting Ex Parte Fahey, 322 U.S. 258,
259-60 (1947)); Kerr v. United States, 426 U.S. 394, 402 (1976). A court
may issue mandamus only if the parties seeking the writ establish that “‘no
other adequate means [exist] to attain the relief [they] desire[].”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (quoting Cheney, 542
U.S. at 380). See Heckler v. Ringer, 466 U.S. 602, 616 (1984). Parties
seeking mandamus also must demonstrate that the agency has breached “a
‘clear, nondiscretionary duty,’” Your Home Visiting Nurse Servs. v. Shalala,
525 U.S. 449, 457 (1999) (quoting Heckler, 466 U.S. 602 at 616), and that
their “right to issuance of the writ is ‘clear and indisputable,’” Cheney, 542
U.S. at 381 (quoting Kerr, 426 U.S. at 403). See Pittston Coal Group v.
Sebben, 488 U.S. 105, 121 (1988). And even if the litigants “overcome[] all
these hurdles, whether mandamus relief should issue is discretionary.” In re
Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc). Under these
“exacting” standards, mandamus relief is unwarranted. In re Cheney, 544
F.3d 311, 313 (D.C. Cir. 2008).


A. This Court Lacks Jurisdiction To Review The Staff Denial


Petitioners seek a writ of mandamus compelling the Commission to
refund the application fees they paid. Pet. 18-19. In doing so, Petitioners
effectively seek review of the FCC staff rulings denying their requests for
refunds – and ask this Court to overturn those rulings. The Court, however,
lacks subject-matter jurisdiction to review those staff rulings.

Section 5(c)(7) of the Communications Act makes the filing of an
application for review by the full Commission “a condition precedent to
judicial review” of action by the agency’s staff. 47 U.S.C. § 155(c)(7). As
this Court has held, section 5(c)(7) prohibits the Court from exercising
jurisdiction over a Commission staff decision unless the litigant seeking
relief both has asked for and has obtained a Commission-level order
reviewing that decision. International Telecard Ass’n v. FCC, 166 F.3d 387
(D.C. Cir. 1999). Simply put, Congress “‘did not intend that the court
review a staff decision that has not been adopted by the Commission itself.’”
Id. at 388 (quoting Richman Brothers Records, Inc. v. FCC, 124 F.3d 1302,
1304 (D.C. Cir. 1997)).

Insofar as Petitioners invite the Court to invalidate the FCC staff
rulings denying Petitioners’ refund requests – before the Commission has
the opportunity to decide in the pending administrative review proceedings

whether or not the refunds should be issued – that relief is barred by section
5(c)(7) of the Communications Act, and the petition for mandamus should
be dismissed.


Petitioners Have Available, And Are Pursuing, Alternative

Means Of Obtaining Refunds.

In the alternative, Petitioners seek to compel the FCC to “take
immediate action” on their pending requests for refunds. Pet. 19. The
Commission, through its staff, has now done so. On March 27, 2013, FCC
staff denied Petitioners’ refund requests. See Att. A. On April 25, 2013,
Petitioners filed applications for review of the staff’s denials. See Att. B.
Because Petitioners have a means, which they are actively pursuing, of
seeking administrative review of the refund denials, mandamus is precluded.

To ensure that “the writ will not be used as a substitute for the regular
appeals process,” Cheney, 542 U.S. at 380-81, a writ of mandamus will not
lie against an agency where, as here, the parties seeking mandamus have an
alternative means to obtain the requested relief. See Heckler, 466 U.S. at
616. See also Mallard v. United States Dist. Court for Southern Dist. of
Iowa, 490 U.S. 296, 308 (1989).

That applies with full force here. Petitioners have an adequate
administrative remedy. If Petitioners remain aggrieved at the end of the
administrative review process before the full Commission, they can seek

judicial review of the Commission’s orders addressing their applications for
review. 47 U.S.C. §§ 155(c)(7), 402(a).

Moreover, Petitioners’ newly-filed applications for review have been
pending for less than three weeks. The Commission’s failure to issue a
ruling within a few weeks of receiving the applications for review cannot
colorably be considered the kind of “egregious” agency delay warranting the
grant of a writ of mandamus. See Telecommunications Research & Action
Center v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984).

In short, Petitioners’ failure to “exhaust[] all other avenues of relief,”
Heckler, 466 U.S. at 616, prevents mandamus relief here.

C. Petitioners Failed To Establish That They Have A

Clear And Indisputable Right To Refunds.

Even if Petitioners had exhausted their administrative remedies, they
cannot show that they have a “clear and indisputable” right, Cheney, 542
U.S. at 380, to the refunds they seek.
1998 Rulemaking Order expressly provided that “application fees
will apply to the long-form applications filed by winning bidders” in
broadcast auctions. 13 FCC Rcd at 15984 (¶ 164). The Commission has
applied this rule to every broadcast auction the agency has conducted – and
it has announced that fact in a number of public notices. See n.7, supra.
Moreover, the Commission twice has clarified that this rule, not section

1.2107(c), applies to long form applications filed in broadcast auctions.
Amendment of the Schedule of Application Fees, 26 FCC Rcd at 2512 (¶ 2);
Amendment of the Schedule of Application Fees, 26 FCC Rcd at 9055 (¶ 1).
And until 2009, Petitioners and all winning bidders of broadcast auctions, in
apparent recognition that the 1998 Rulemaking Order imposed a fee
requirement, paid long-form application fees without protest or challenge.

Petitioners contend that, in light of 47 C.F.R. § 1.2107(c), long-form
application fees for broadcast services are unlawful. But the Commission
has construed the 1998 Rulemaking Order as requiring the payment of fees
for long-form applications filed in broadcast auctions that is separate and
apart from section 1.2107(c). Amendment of the Schedule of Application
Fees, 26 FCC Rcd at 2512 (¶ 2); Amendment of the Schedule of Application
Fees, 26 FCC Rcd at 9055 (¶ 1). That construction reasonably harmonizes
the two provisions. It avoids rendering the fee requirement set forth in the
1998 Rulemaking Order wholly invalid, thus adhering to the well-
established “principle that every word of a legal text should be given effect.”
Carus Chem. Co. v. EPA, 395 F.3d 434, 441 (D.C. Cir. 2005). It also gives
effect to the established principle of construction that “[a] specific
provision” – in this case, the one that governs fees for broadcast services –
“controls over one of more general application.” Gozlon-Peretz v. United

States, 498 U.S. 395, 407 (1991). At a minimum, the Commission’s
reasonable construction of its own rules deserves deference. See, e.g.,
Laclede Gas Co. v. FERC, 997 F.2d 936, 943-44 (D.C. Cir. 1993) (quoting
Martin v. OSHA, 499 U.S. 144, 150 (1991) (recognizing “fundamental
principle that ‘an agency's construction of its own regulations is entitled to
substantial deference’ and must be given effect as long as it is reasonable.”)
(internal citations omitted).

Moreover, construing the 1998 Rulemaking Order to impose a fee
requirement effective despite section 1.2107(c) is consistent with the
regulatory history of section 1.2107(c). In the 1997 Rulemaking Order, the
Commission stated that section 1.2107(c) and the other rules it adopted
would apply unless the Commission subsequently adopted a different
service-specific rule. 1997 Rulemaking Order, 13 FCC Rcd at 382 (¶ 5).
The fee requirement in the 1998 Rulemaking Order for broadcast long-form
applications is the very type of service-specific rule that the Commission in
the 1997 Rulemaking Order envisioned would supersede the general rules
adopted in the 1997 Rulemaking Order.10 The staff’s refund denials thus are

10 Although paragraph 164 of the 1998 Rulemaking Order setting forth the
fee requirement was not published in the Federal Register until 2013 (see
n.7, supra), Petitioners’ payment of the fees set forth in that paragraph
demonstrates beyond any doubt that they had actual notice of the fee
requirement, such that they were bound by it. 47 C.F.R. § 0.445(e). See

not so clearly in error to warrant mandamus relief, even if the Court has
jurisdiction to review them in advance of the disposition of Petitioners’
administrative appeals.


Insofar as the petition asks the Court to compel payment of refunds, it
should be dismissed for lack of jurisdiction. Insofar as the petition seeks an
order compelling immediate Commission action on the pending applications

United States v. Mowat, 582 F.2d 1194, 1201-02 (9th Cir. 1978); United
States v. Aarons
, 310 F.2d 341, 348 (2d Cir. 1962).

for administrative review of the FCC staff’s denials of refunds, it should be

Sean A. Lev


Jacob M. Lewis

/s/ Laurel R. Bergold




May 15, 2013



In re: Legacy Communications, LLC )
No. 13-1013




I, Laurel R. Bergold, hereby certify that on May 15, 2013, I electronically
filed the foregoing Opposition to Petition for Writ of Mandamus with the
Clerk of the Court for the United States Court of Appeals for the D.C.
Circuit by using the CM/ECF system. Participants in the case who are
registered CM/ECF users will be served by the CM/ECF system.

Harry F. Cole

Anne G. Crump
Fletcher, Heald & Hildreth, PLC
1300 North 17th Street
11th Floor
Arlington, VA 22209
Counsel for: Legacy
Communications, et al.

/s/ Laurel R. Bergold

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