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FCC Motion to Dismiss - Saito v. FCC and USA (9th Cir.)

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Released: July 14, 2014
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Case: 14-71611 07/03/2014 ID: 9156110 DktEntry: 10 Page: 1 of 21

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Toshiaki Saito

)

Petitioner,

)

)

v.

) Case No. 14-71611

)

Federal Communications Commission

)

and United States of America,

)

Respondents. )

MOTION TO DISMISS

The Federal Communications Commission (“FCC” or “Commission”)

respectfully moves the Court to dismiss this case for lack of jurisdiction. Petitioner

Toshiaki Saito has petitioned for review of a Memorandum Opinion and Order

issued by the FCC’s General Counsel – a staff-level action taken under delegated

authority. See Pendleton C. Waugh, et al., Memorandum Opinion and Order, 2014

WL 1410218 (OGC April 11, 2014) (“Order”) (attached as Exhibit A). But the

Communications Act plainly states that “[t]he filing of an application for review”

with the full Commission is “a condition precedent to judicial review” of any

action taken by Commission staff “pursuant to a delegation” of FCC authority. 47

U.S.C. § 155(c)(7). Saito did not file a timely application with the Commission for

review of the Order. Therefore, the Court should dismiss this case for lack of

1

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jurisdiction. See Int’l Telecard Ass’n v. FCC, 166 F.3d 387 (D.C. Cir. 1999);

Richman Bros. Records, Inc. v. FCC, 124 F.3d 1302 (D.C. Cir. 1997).

BACKGROUND

On July 20, 2007, the FCC commenced a hearing proceeding before an

administrative law judge (“ALJ”) to determine whether Commission licensees

Preferred Acquisitions, Inc. (“PAI”), its parent company, Preferred

Communications Systems, Inc. (“PCSI”) (collectively “Preferred”), and three

individuals that the FCC believed owned and controlled those licensees (Pendleton

C. Waugh, Jay R. Bishop, and Charles M. Austin), were qualified to remain

Commission licensees. See Pendleton C. Waugh, et al., Order to Show Cause, 22

FCC Rcd 13363 (2007). The Order to Show Cause designated the FCC’s

subordinate Enforcement Bureau as a party to the proceeding, and assigned the

Bureau the burden of proving that Preferred’s licenses should be revoked.1 Id., 22

FCC Rcd at 13385. As provided by the FCC’s rules, see 47 C.F.R. § 1.221(b), it

was published in the Federal Register on August 1, 2007. See 72 Fed. Reg. 42088

(Aug. 1, 2007), correction published at 72 Fed. Reg. 45049 (Aug. 10, 2007).

After discovery, but prior to the administrative hearing, all of the parties

other than Waugh reached a settlement agreement. See Joint Request for Approval

1 The Enforcement Bureau “[s]erve[s] as trial staff in formal hearings conducted

pursuant to 5 U.S.C. § 556 regarding applications, revocation, forfeitures and other

matters designated for hearing.” 47 C.F.R. § 0.111(b).

2

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of Settlement Agreement and Termination of Proceeding, EB Docket No. 07-147

(filed Aug. 5, 2009). Among other requirements, the settlement agreement

provided that Waugh “shall not work for, contract for, consult for, or hold any

ownership interest (outright or beneficial interests through stocks, warrants, voting

trusts, or any other mechanism) in PCSI, PAI, any Affiliate of PCSI, and/or any

Affiliate of PAI.” Pet., Ex. E, Attachment (¶ 21). Shortly thereafter, the ALJ

released an order approving the settlement agreement and terminating the hearing

proceeding. See Pendleton C. Waugh, et al., Order, FCC 09M-51 (ALJ Aug. 6,

2009).

Waugh immediately objected on the basis that he was not invited to

participate in settlement negotiations. In response, the ALJ required the

Enforcement Bureau to submit additional pleadings describing Waugh’s

participation (or non-participation) in settlement discussions, and an explanation

for why it would be in the public interest to leave unresolved the issues involving

Waugh. See Pendleton C. Waugh, et al., Memorandum Opinion and Order, FCC

09M-53 (ALJ Aug. 20, 2009). After reviewing the Bureau’s submissions, the ALJ

renewed his approval of the settlement and once again terminated the hearing

proceeding. See Pendleton C. Waugh, et al., Memorandum Opinion and Order,

FCC 09M-57 (ALJ Sept. 25, 2009). However, on October 1, 2009, a group of

3

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Preferred shareholders appealed the ALJ’s decision to the full Commission, and on

October 26, 2009, Waugh followed suit. Order ¶ 3.

While the administrative appeals were pending, Petitioner Toshiaki Saito

filed a letter with the FCC claiming that he is a creditor of, and was defrauded by,

Waugh. In his August 13, 2010 letter, Saito urged the FCC to revoke the licenses

held by PCSI and PAI, auction those licenses, and from the proceeds repay Saito

the amounts he claims to be owed by Waugh. Order ¶ 5.

On September 9, 2011, Waugh’s counsel informed the FCC that Waugh had

died. Id. ¶ 4.

On January 27, 2012, Saito filed a Petition to Intervene in the Preferred

license revocation proceeding. See Pet., Ex. B. The petition renewed the

arguments set forth in his August 13, 2010 letter. Id.

In its role as trial staff, the Enforcement Bureau filed an opposition to

Saito’s petition, arguing that his request for intervention was untimely. See

Enforcement Bureau’s Opposition to Petition to Intervene and Revoke Licenses,

EB Docket No. 07-147 (filed Feb. 13, 2012) (“Bureau Opp.”). The Bureau noted

that under the FCC’s rules, see 47 C.F.R. § 1.223(b), petitions to intervene must be

filed within 30 days of Federal Register publication of the hearing designation

order or a summary thereof. Accordingly, the Bureau argued, Saito should have

4

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filed by August 31, 2007 (i.e., 30 days after the August 1, 2007 publication of the

Order to Show Cause in the Federal Register). Bureau Opp. 2-3.

The Bureau also opposed the grant of Saito’s petition under section 1.223(c)

of the FCC’s rules, 47 C.F.R. § 1.223(c), which provides that a petition to

intervene beyond the 30-day limit must “set forth the interest of the petitioner in

the proceeding, show how such petitioner’s participation will assist the

Commission in the determination of the issues in question, … and must set forth

reasons why it was not possible to file a petition within the time prescribed” by the

rule. Bureau Opp. 3-4. The Bureau found no merit to Saito’s claim that he was

unaware of the ongoing proceeding, noting that the Order to Show Cause was duly

published in the Federal Register. See 47 C.F.R. § 1.221(b). Saito thus had

constructive notice, even if he did not have actual notice. Bureau Opp. 4. The

Bureau further asserted that Saito failed to articulate an “interest” in the hearing

proceeding. The Bureau acknowledged that Saito, as a creditor, may have an

interest in recouping his investments. Id. 3. But because the purpose of the license

revocation proceeding was to determine whether Preferred had the requisite

qualifications to hold FCC licenses under the Communications Act, 47 U.S.C.

§ 301, et seq., and the Commission’s rules, the Bureau argued that the hearing was

the wrong forum to provide Saito’s requested relief. Bureau Opp. 3-4.

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Subsequently, both Waugh’s estate and the Preferred shareholders withdrew

their appeals to the settlement agreement and asked the FCC to terminate the

license revocation proceeding. Order ¶ 4. The Enforcement Bureau concurred in

those requests. Id.

On April 11, 2014, the FCC’s General Counsel, acting on authority

delegated by the Commission,2 dismissed the appeals and terminated the license

revocation proceeding involving Preferred. Order ¶¶ 4, 9, 24. In the same

Memorandum Opinion and Order, the General Counsel “also dispose[d] of certain

collateral matters” – including Saito’s letter and petition to intervene. Id. ¶ 5. The

General Counsel first declined to “entertain Saito’s August 13 letter, which” he

found “is not authorized by [the FCC’s] rules inasmuch as Saito was not a party to

the hearing proceeding below.” Id. ¶ 6 (citing 47 C.F.R. § 1.302(a)) (granting only

parties to a proceeding the right to appeal an ALJ’s ruling terminating a hearing

proceeding). The General Counsel then denied Saito’s untimely petition to

intervene, explaining that it “was filed more than four years after the Order to

Show Cause was published in the Federal Register,” and that “Saito ha[d] not

shown why it was not possible for him to seek intervention earlier.” Id. Finally,

2 See 47 C.F.R. § 0.251(c) (“The General Counsel is delegated authority in

adjudicatory hearing proceedings which are pending before the Commission en

banc to act on all requests for relief, and to issue all appropriate orders, except

those which involve final disposition on the merits of a previously specified issue

concerning an applicant’s basic qualifications or two or more applicants’

comparative qualifications.”).

6

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the General Counsel found that “Saito has not shown that he has standing to

intervene.” Id.

ARGUMENT

Saito seeks judicial review of a Memorandum Opinion and Order issued by

the FCC’s General Counsel, which denied Saito’s late-filed petition to intervene in

a license revocation hearing. The Court lacks subject matter jurisdiction to review

that staff-level ruling.

Section 5(c)(7) of the Communications Act sets forth an exhaustion

requirement. That provision 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). Section 5(c)(7) prohibits the Court from

exercising jurisdiction over an FCC staff decision unless the litigant seeking relief

both has asked for and has obtained a final Commission-level order reviewing that

decision. Int’l Telecard Ass’n, 166 F.3d 387. 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 Bros. Records, 124 F.3d at

1304).

Saito acknowledges that he has not filed an application for review, but sets

forth several arguments to excuse his failure to satisfy the statutory exhaustion

requirement in section 5(c)(7). Each lacks merit.

7

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First, Saito asserts that the Court should not strictly enforce the statutory

exhaustion requirement because the FCC did not serve him by mail with a copy of

the Order. Pet. 11-14. However, the FCC’s rules provide that “orders of the

Commission, or its staff acting on delegated authority, are mailed or delivered by

electronic means….” 47 C.F.R. § 0.445(a) (emphasis added). Consistent with that

rule, the FCC emailed the Order to Saito’s counsel of record (Kevin W. Herring

and Steven R. Gray of Ashford & Wriston) on April 16, 2014. See Exhibit B.

Saito contends that “such potential electronic means of delivery may only be

allowed upon consent of the parties” – consent that Saito allegedly did not grant.

Pet. 13 & n.18. In support, Saito relies on Rule 1.47(d), which provides

“[d]ocuments that are required to be served must be served in paper form, even if

documents are filed in electronic form with the Commission, unless the party to be

served agrees to accept service in some other form.” 47 C.F.R. § 1.47(d)

(emphasis added). Saito’s reliance on that rule is misplaced. Subsection (d) of

Rule 1.47 imposes service requirements on parties to FCC proceedings, not the

FCC itself. This is made clear by subsection (a) of the same rule, which

(consistent with Rule 0.445(a)) provides that “[d]ocuments that are required to be

served by the Commission in agency proceedings (i.e., not in the context of judicial

proceedings, Congressional investigations, or other proceedings outside the

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Commission) may be served in electronic form.”3 47 C.F.R. § 1.47(a) (emphasis

added). Subsection (a) does not mention, let alone require, service by mail. The

FCC’s reasonable interpretation of its own rules is entitled to deference. Talk Am.

Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011); Auer v. Robbins, 519

U.S. 452, 461 (1997).

Saito never claims that he lacked timely, actual notice of the Order – only

that he was not served with the Order by mail. See Pet. 11-14. This is an

important distinction, because courts have held that “a defect in mailing

notification will have legal consequence only where the delay in notification in fact

makes it impossible reasonably for the party to comply with the filing statute.”

Gardner v. FCC, 530 F.2d 1086, 1092 n.24 (D.C. Cir. 1976) (finding the FCC

improperly rejected a petition for rehearing on grounds of untimeliness when the

late filing was due, in substantial measure, to the agency’s failure to give petitioner

personal notice of any kind); see also Energy Probe v. U.S. Nuclear Regulatory

Comm’n, 872 F.2d 436, 438 (D.C. Cir. 1989) (declining to waive statutory

3 In “amend[ing] Section 1.47 of [its] rules to allow the agency to serve parties to a

proceeding in an electronic format,” the FCC expressed a desire to “streamline

Commission processes and improve efficiency.” Amendment of Certain of the

Commission’s Part 1 Rules of Practice and Procedure and Part 0 Rules of

Commission Organization, 26 FCC Rcd 1594, 1603 (¶ 22) (2011); see also id. n.69

(explaining that the FCC will “make conforming changes to Section 0.445” of its

rules). Those efficiency gains would be lost if the agency was also required to

serve parties by mail, as Saito contends it must.

9

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deadline where agency’s delay providing notice did not prevent petitioner from

filing a timely petition for review).

Saito has failed to make that showing. Under the FCC’s rules, the deadline

for filing an application for review was May 11, 2014, or 30 days after the April

11, 2014, release of the Order.4 Saito does not dispute that he received actual

notice of the Order on April 16, 2014, see Exhibit B, leaving him a substantial

amount of time (approximately 26 days) to file an application for review.

Second, Saito argues that the Court should excuse the statutory exhaustion

requirement because he would face “irreparable injury” if forced to file an

application for review with the FCC. Pet. 14-16. Saito contends that it will take

“an additional several years for the Commission to ‘pass on’ the matter,” which

“would diminish exponentially the value of any eventually received relief.” Id. 15.

However, in the event Saito properly filed an application for review and the agency

unreasonably delayed ruling upon it, Saito could file a petition for a writ of

mandamus to compel agency action. See In re: California Power Exchange Corp.,

245 F.3d 1110, 1124-25 (9th Cir. 2001) (in determining whether mandamus relief

is warranted, the court “consider[s],” among other factors, “the nature of the

interests prejudiced by delay”) (internal citation omitted). Given this means of

4 See 47 C.F.R. § 1.115(d) (“the application for review … shall be filed within 30

days of public notice of such action, as that date is defined in section 1.4(b)”); 47

C.F.R. § 1.4(b)(2) (holding that the “release date” is the date of public notice for

non-rulemaking documents).

10

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relief, the mere possibility of agency delay does not excuse his failure to exhaust

his administrative remedies, as required by statute.

Third, Saito argues that it would be futile to file an application for review

with the FCC, because the full Commission is biased toward affirming the

settlement agreement proffered by the Enforcement Bureau. Pet. 16-18. Saito’s

reliance on out-of-circuit precedent notwithstanding, id. 18-20, this Court has held

that there is no futility exception to statutory exhaustion requirements like section

5(c)(7) of the Communications Act. See Fones4All Corp. v. FCC, 550 F.3d 811,

818 (9th Cir. 2008) (“Because the Telecommunications Act does require

exhaustion, [the Court] cannot rely on a judicially created futility exception to

evade the statutory exhaustion requirement” in 47 U.S.C. § 405), reh’g denied,

Fones4All Corp. v. FCC, 561 F.3d 1031 (9th Cir. 2009); accord, In re: FCC 11-

161, 2014 WL 2142106, *116 (10th Cir. May 23, 2014) (courts may not “read

futility or other exceptions into statutory exhaustion requirements where Congress

has provided otherwise”) (quoting Booth v. Churner, 532 U.S. 731, 741 n.6

(2001)).

In any event, Saito’s claim is unavailing. On multiple occasions, the full

Commission, after reviewing the record before it, has taken a position contrary to

that of its subordinate Bureaus. See, e.g., Hometown Media, Inc., 11 FCC Rcd

19677 (1996) (denying exceptions filed by the Mass Media Bureau to an ALJ’s

11

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initial decision granting a license renewal); James A. Kay, Jr., 17 FCC Rcd 1834,

1850-53 (2002) (denying exceptions filed by the Wireless Telecommunications

Bureau to an ALJ’s initial decision finding that a licensee did not violate certain

FCC rules). Saito offers no basis for his assertion that the Commission would be

biased toward approving the Enforcement Bureau’s settlement agreement with

Preferred. Saito thus cannot overcome this Court’s “presum[ption] that the agency

[will] act[] with regularity.” Smith v. U.S. Forest Serv., 33 F.3d 1072, 1077 n.2

(9th Cir. 1994) (citing Louisiana Ass’n of Indep. Producers and Royalty Owners v.

FERC, 958 F.2d 1101, 1118-19 (D.C. Cir. 1992)).

Finally, Saito contends that the statutory “exhaustion requirement should not

be strictly enforced here because the Opinion and Order approving the Settlement

Agreement conflicts with the statutory prohibition that the General Counsel lacks

authority to issue an order involving ‘final disposition on the merits of a previously

specified issue concerning an applicant’s basic qualifications.’” Pet. 21 (citing 47

C.F.R. § 0.251(c)).5 Saito’s argument is baseless, because the General Counsel did

not exceed the authority delegated to him by the FCC’s rules. The General

Counsel merely consented to withdrawal of the appeals filed by the Preferred

5 Saito cites judicial precedent that permits interlocutory review when an agency

exceeds its statutory authority or violates a petitioner’s constitutional rights. Pet.

20-21. Here, however, Saito alleges that the General Counsel exceeded a

limitation on his authority set forth in section 0.251(c) of the FCC’s rules. Id. As

such, the precedent relied upon by Saito is inapposite.

12

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shareholders and Waugh. Order ¶¶ 4, 9. Finding no opposition to the settlement

agreement, he then administratively terminated the license revocation proceeding.

Id. ¶¶ 4, 24. Moreover, the settlement agreement does not constitute either

adjudication on the merits, or a factual or legal determination by the FCC,

regarding Preferred’s compliance or noncompliance with the requirements of the

Communications Act or the Commission’s rules or orders.6 Because neither the

settlement agreement nor the Order addressed Preferred’s “basic qualifications” to

hold FCC licenses, the General Counsel did not issue a “final disposition on the

merits” of the issues designated for hearing, in violation of Rule 0.251(c), when he

terminated the Preferred license revocation proceeding.

In sum, the Communications Act makes clear that an application for review

of a staff-level action must be filed with and resolved by the Commission before

that action can be challenged in court. 47 U.S.C. § 155(c)(7). Saito failed to

satisfy this fundamental jurisdictional prerequisite. His petition for review should

therefore be dismissed for lack of jurisdiction.

6 See Pet., Ex. E, p. 1-2 (“The Parties agree that each of the non-government parties

by signing the Settlement Agreement, have not made any admission of any

violations of the Act or of any Commission Rule arising from the actions,

omissions, admissions as described in the Order to Show Cause.”) & Attachment,

p. 5 (¶ 12) (“The Parties agree that this Settlement Agreement is for settlement

purposes only and that signing does not constitute an admission by PCSI, PAI,

Charles M. Austin, and Jay R. Bishop of any violation of the Act or the

Commission’s Rules arising from their actions or admissions as described in the

Order to Show Cause.”).

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CONCLUSION

The Court should dismiss this case forthwith.

Respectfully submitted,

Jonathan B. Sallet

General Counsel

David M. Gossett

Acting Deputy General Counsel

Richard K. Welch

Deputy Associate General Counsel

/s/Maureen K. Flood

Maureen K. Flood

Counsel

Federal Communications Commission

Washington, DC 20554

(202) 418-1753

July 3, 2014

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Exhibit A

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Federal Communications Commission

DA 14-492

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

PENDLETON C. WAUGH, CHARLES M.

)

EB Docket No. 07-147

AUSTIN, and JAY R. BISHOP

)

)

PREFERRED COMMUNICATION

)

File No. EB-06-IH-2112

SYSTEMS, INC.

)

NAL/Acct. No. 200732080025

)

Licensee of Various Site-by-Site Licenses in

)

FRN No. 0003769049

the Specialized Mobile Radio Service.

)

)

PREFERRED ACQUISITIONS, INC.

)

FRN No. 0003786183

)

Licensee of Various Economic Area Licenses

)

in the 800 MHz Specialized Mobile Radio

)

Service

)

MEMORANDUM OPINION AND ORDER

Adopted: April 11, 2014

Released: April 11, 2014

By the General Counsel:

I.

INTRODUCTION

1.

By this memorandum opinion and order, we dismiss appeals filed by the late

Pendleton C. Waugh (Waugh)1 and by a group of Preferred Communications Systems, Inc.

(PCSI) shareholders led by Michael D. Judy2 (Shareholders). The appeals seek review of a

Memorandum Opinion and Order by Chief Administrative Law Judge Richard L. Sippel (ALJ)

that approved a settlement agreement and terminated a license revocation proceeding.3 Waugh’s

estate and the Shareholders have withdrawn their appeals. We also deny a petition by an

individual named Toshiaki Saito to intervene in this proceeding and dismiss as moot a petition to

modify the protective order in this proceeding.

II.

BACKGROUND AND DISCUSSION

2.

The Commission initiated this proceeding4 to determine whether Commission

1 See Appeal from Presiding Officer’s Final Ruling, filed October 26, 2009, by Waugh (Waugh Appeal).

See also Enforcement Bureau’s Opposition to Pendleton Waugh’s Appeal, filed November 10, 2009;

Opposition to Pendleton Waugh’s Appeal, filed November 10, 2009, by PCSI; and Reply to Oppositions,

filed November 20, 2009, by Waugh.

2 See Appeal, filed October 1, 2009, by Michael D. Judy (Shareholders Appeal). See also Enforcement

Bureau’s Opposition to Michael D. Judy’s Appeal, filed October 14, 2009.

3 See Pendleton C. Waugh, Memorandum Opinion and Order, FCC 09M-57 (ALJ Sept. 25, 2009) (Final

Termination Order).

4 See Pendleton C. Waugh, Order to Show Cause and Notice of Opportunity for Hearing, 22 FCC Rcd

13363, 13363 ¶ 1 (2007) (Order to Show Cause).

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Federal Communications Commission

DA 14-492

licensees Preferred Acquisitions Inc. (PAI) and its parent company PCSI, and three individuals

that the Commission believed owned and controlled those licensees, Waugh, Jay R. Bishop

(Bishop), and Charles M. Austin (Austin), were qualified to remain Commission licensees.5

The

Order to Show Cause designated the Enforcement Bureau (EB) as a party to the proceeding.6

3.

Following discovery, the parties engaged in settlement negotiations. On August

5, 2009, EB, joined by the parties other than Waugh, filed a settlement agreement with the ALJ

for approval.7

On August 6, 2009, the ALJ released an order approving the settlement agreement

and terminating the hearing.8

In response to objections by Waugh, the ALJ, on August 20, 2009,

ordered further proceedings, 9 and, upon conclusion of these further proceedings, the ALJ, on

September, 25, 2009, issued the Final Termination Order, which renewed his earlier order

approving the settlement agreement. Subsequently, two sets of parties filed appeals to the Final

Termination Order. On October 1, 2009, the Shareholders filed an appeal, and, on October 26,

2009, Waugh filed an appeal, both appeals challenging the approval of the settlement agreement.

4.

On September 9, 2011, Waugh’s counsel informed the Commission that Waugh

had died on August 27, 2011.10

Subsequently, Waugh’s estate and Shareholders both filed

pleadings withdrawing their appeals and asking the Commission to terminate this proceeding.11

Both pleadings report that EB concurs in the dismissal of the appeals and the termination of the

proceeding. Good cause having been shown, we grant the requested relief.

5.

We also dispose of certain collateral matters. On August 13, 2010, a creditor of

Waugh’s named Toshiaki Saito (Saito) filed a letter claiming that Waugh defrauded him and

owes him substantial sums of money.12

He urges the Commission to revoke the PSCI and PAI

licenses, auction them off, and transfer the proceeds to Saito for amounts owned by Waugh.

Subsequently, on January 27, 2012, Saito filed a Petition to Intervene, making the same

arguments.13

6.

We will not entertain Saito’s August 13 letter, which is not authorized by our

5 PAI and PCSI hold licenses in the Specialized Mobile Radio Service, which was established by the

Commission to provide land mobile communications on a commercial basis and is governed by Part 90 of

the Commission’s Rules. The Commission evaluates the character qualifications of licensees pursuant to

47 U.S.C. § 308(b). See generally Character Qualifications, 102 FCC 2d 1179 (1986).

6 See Order to Show Cause, 26 FCC Rcd at 13386 ¶¶ 60, 63.

7 See Joint Request for Approval of Settlement Agreement and Termination of Proceeding,” filed August 5,

2009, by EB, PCSI, PAI, Austin, and Bishop. The settlement agreement is reprinted as an attachment to

Pendleton C. Waugh, Order, FCC 09M-51 (ALJ Aug. 12, 2009).

8 See Pendleton C. Waugh, Order, FCC 09M-51 (ALJ Aug. 6, 2009).

9 See Pendleton C. Waugh, Order, FCC 09M-53 (ALJ Aug. 20, 2009).

10 See Letter from William D. Silva to Joel Kaufman, Esquire, Associate General Counsel (Sept. 9, 2011).

11 See Notice of Withdrawal of Appeal of Estate of Pendleton C. Waugh, filed February 12, 2014; Notice of

Withdrawal of Apeal and Request to Terminate Proceeding, filed February 12, 2014, by Shareholders.

12 See Letter from Toshiaki Saito to Julius Genachowski (Aug. 13, 2010).

13 See Petition to Intervene and Revoke Licenses, filed January 27, 2012, by Saito (Petition to Intervene).

See also Enforcement Bureau’s Opposition to Petition to Intervene and Revoke Licenses, filed February 13,

2012; Petitioner’s Reply to Enforcement Bureau’s Opposition to Petition to Intervene and Revoke

Licenses, filed February 21, 2012, by Saito; Enforcement Bureau’s Motion to Strike [the reply], filed

February 20, 2012; Petitioner’s Opposition to Enforcement Bureau’s Motion to Strike Enforcement

Bureau’s Opposition, filed March 6, 2012, by Saito.

2

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Federal Communications Commission

DA 14-492

rules inasmuch as Saito was not a party to the hearing proceeding below.14

Moreover, the

Commission is not the proper forum for litigating Saito’s claims against Waugh (or potentially his

estate). We also deny Saito’s Petition to Intervene. Saito’s petition is untimely.15

The petition

was filed more than four years after the Order to Show Cause was published in the Federal

Register, and Saito has not shown why it was not possible for him to seek intervention earlier.

Further, Saito has not shown that he has standing to intervene.16

7.

As an additional matter, on June 23, 2010, PCSI, PAI, and Austin filed a petition

seeking to release in a judicial proceeding certain documents that are subject to the protective

order in this administrative proceeding.17

In their petition, PCSI, PAI and Austin explain that

they are defendants in a civil lawsuit filed in the State of Delaware and that the Delaware judge

has ordered them to provide the documents to the plaintiffs. The petition, however, is

unnecessary, because the Protective Order does not prevent the petitioners from complying with

the state court order. We therefore dismiss the petition as moot.

III.

ORDERING CLAUSES

8.

ACCORDINGLY, pursuant to the authority delegated by 47 C.F.R. § 0.251(c),

IT IS ORDERED, That the Petition to Intervene and Revoke Licenses, filed January 27, 2012, by

Saito IS DENIED.

9.

IT IS FURTHER ORDERED, That the Appeal from Presiding Officer’s Final

Ruling, filed October 26, 2009, by Waugh; and the Appeal, filed October 1, 2009, by Michael D.

Judy on behalf of the Shareholders ARE DISMISSED.

10.

IT IS FURTHER ORDERED, That the Petition to Release Documents that are

Subject to Protective Order,” filed June 23, 2010, by PCSI, PAI and Austin IS DISMISSED as

moot.

24. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Jonathan B. Sallet

Acting General Counsel

14 See 47 C.F.R. § 1.302(a) (granting only parties to a proceeding the right to appeal an administrative law

judge’s ruling terminating a hearing proceeding). See also The Trustees of the University of Pennsylvania

Radio Station WXPN(FM) Philadelphia, Pennsylvania, 69 FCC Rcd 1394, 1430 n.80 (1978) (nonparty may

not file exceptions to an initial decision).

15 47 C.F.R. § 1.223(b) (petitions to intervene must be filed within 30 days after publication of the hearing

designation order).

16 The provisions of 47 C.F.R. §§ 1.223(b) and (c) require petitions to intervene to show the petitioner’s

interest in the proceeding.

17 See Petition to Release Documents that are Subject to Protective Order, filed June 23, 2010, by PCSI,

PAI and Austin. See also See Comments in Support of Petition to Release Documents that Are Subject to

Protective Order, filed June 28, 2010, by Waugh; Enforcement Bureau’s Response to Petition to Release

Documents that are Subject to Protective Order and Supporting Comments” (July 6, 2010).

3

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Exhibit B

image20-00.jpg612x792

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Dwayne Hamblin

From:

David Senzel

Sent:

Monday, June 16, 2014 9:10 AM

To:

David Senzel

Subject:

FW: Pendleton C. Waugh (EB Docket No. 07-147)

Attachments:

Waugh order.pdf

 

 

Privileged FCC Document 

Non‐Public: For Internal Use Only 

Attorney Work Product of David S. Senzel 

 

‐‐‐‐‐Original Message‐‐‐‐‐ 

From: David Senzel  

Sent: Wednesday, April 16, 2014 11:45 AM 

To: 'whitneywaugh@aol.com'; 'barclay.knapp@gmail.com'; 'jaybishop@aol.com'; 'kherring@awlaw.com'; 

'sgray@awlaw.com'; Gary Oshinsky; Anjali Singh 

Cc: Richard Sippel; Austin Randazzo; Mary Gosse 

Subject: Pendleton C. Waugh (EB Docket No. 07‐147) 

 

Dear Parties: 

 

Please be advised that the Office of General Counsel has released the attached order. 

 

 

David S. Senzel 

Attorney 

Office of General Counsel 

 

 

 

1

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14-71611

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Toshiaki Saito,

Petitioner

v.

Federal Communications Commission and the

United States of America,

Respondents.

CERTIFICATE OF SERVICE

I, Maureen K. Flood, hereby certify that on July 3, 2014, I electronically

filed the foregoing Motion To Dismiss with the Clerk of the Court for the

United States Court of Appeals for the Ninth 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.

Adam G. Lang

Durrett, Rosehill & Ma, LLP

Suite #1101

841 Bishop Street

Honolulu, HI 96813

Counsel for: Toshiaki Saito

/s/ Maureen K. Flood

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

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