FCC Motion to Dismiss - Saito v. FCC and USA (9th Cir.)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
) Case No. 14-71611
Federal Communications Commission
and United States of America,
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
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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).
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).
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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,
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
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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
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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’
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the General Counsel found that “Saito has not shown that he has standing to
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
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.
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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.
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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
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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
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
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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.
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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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The Court should dismiss this case forthwith.
Jonathan B. Sallet
David M. Gossett
Acting Deputy General Counsel
Richard K. Welch
Deputy Associate General Counsel
/s/Maureen K. Flood
Maureen K. Flood
Federal Communications Commission
Washington, DC 20554
July 3, 2014
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Federal Communications Commission
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
File No. EB-06-IH-2112
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
MEMORANDUM OPINION AND ORDER
Adopted: April 11, 2014
Released: April 11, 2014
By the General Counsel:
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.
BACKGROUND AND DISCUSSION
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
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
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
Order to Show Cause designated the Enforcement Bureau (EB) as a party to the proceeding.6
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
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.
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.
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
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.
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Federal Communications Commission
rules inasmuch as Saito was not a party to the hearing proceeding below.14
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
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
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.
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.
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.
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
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
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).
Case: 14-71611 07/03/2014 ID: 9156110 DktEntry: 10 Page: 19 of 21
Case: 14-71611 07/03/2014 ID: 9156110 DktEntry: 10 Page: 20 of 21
Monday, June 16, 2014 9:10 AM
FW: Pendleton C. Waugh (EB Docket No. 07-147)
Privileged FCC Document
Non‐Public: For Internal Use Only
Attorney Work Product of David S. Senzel
From: David Senzel
Sent: Wednesday, April 16, 2014 11:45 AM
To: 'email@example.com'; 'firstname.lastname@example.org'; 'email@example.com'; 'firstname.lastname@example.org';
'email@example.com'; Gary Oshinsky; Anjali Singh
Cc: Richard Sippel; Austin Randazzo; Mary Gosse
Subject: Pendleton C. Waugh (EB Docket No. 07‐147)
Please be advised that the Office of General Counsel has released the attached order.
David S. Senzel
Office of General Counsel
Case: 14-71611 07/03/2014 ID: 9156110 DktEntry: 10 Page: 21 of 21
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Federal Communications Commission and the
United States of America,
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
841 Bishop Street
Honolulu, HI 96813
Counsel for: Toshiaki Saito
/s/ Maureen K. Flood
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