11-116(final).doc

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

In the Matter of ) WARREN C. HAVENS ) ) File Nos. 852997-853009 Applications to Provide Automated ) Maritime Telecommunications System ) File Nos. 853010-853014 Stations at Various Locations in Texas; and ) ) Applications to Provide Automated ) Maritime Telecommunications System ) Stations at Chafee, Aspen, Colorado Springs, ) Copper Mountain and Leadville, Colorado )

WARREN HAVENS’ RESPONSE TO FCC 11-116

Respondent Warren C. Havens (“Havens”), by and through undersigned counsel, hereby

responds to the Commission’s “Third Order on Reconsideration,” FCC 11-116, dated July 22,

2011 (the “Order”), which proposes to prevent Havens, “or any person or entity acting on behalf

of Havens,” from filing additional papers in two Application proceedings, File Nos. 852997-

853009 and 853010-853014 (collectively, the “Proceedings”), without first making a “Request

for Permission to File” (the “Request to File”) with the Commission. The proposed Request to

File would also compel Havens to publically acknowledge, in every filing subsequently made in

the Proceedings, that he has “abused the Commission’s processes.” As demonstrated below,

there has been no such abuse by Havens, and there is no legal and factual or equitable basis for

this dramatic sanction. Moreover, the FCC has acted unlawfully including to chill protected

rights under the U.S. Constitution and contrary to the Administrative Procedures Act and the

Federal Communications Act. Thus, the Order should be reversed and its assertions withdrawn

to mitigate damage to the public interest, Havens and companies he manages.1

1 This response is timely filed. See the attached Havens statement and its appendix regarding the extension of time granted to file this response.

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I. INTRODUCTION The Order charges: that after a December 2004 petition by Havens for relief under 47

USC §405 that was 1-day late, and that also sought alternative relief under 47 CF.R. §1.41 (relief

by informal action)2 Havens’ filing of 4 subsequent timely petitions in the following 6 years3

seeking the same formal or informal/discretionary relief , constitutes frivolous and repetitive

(and therefore sanctionable) pleading. As demonstrated below, the FCC’s determination that the

2004 petition was time barred and cannot be considered on its merits: (i) disregards the public

interest, (ii) disregards the fact there is no time limit at all for requests for relief under §1.41, and

(iii) is belied by the FCC’s failure to avail itself of the simple remedy (dismissal under

§1.106(p)) that the FCC would and should have invoked had Havens’ complaint truly wasted

staff resources .

In fact, (i) the FCC was months late in all but one of its decisions on Havens’ petitions in

these Proceedings under the same statute that it asserts time-bars Havens, 47 USC §405 (see

Havens Statement), and this glaring double standard renders the charge of abuse of process

unwarranted at the outset, (ii) Havens’ petitions were meritorious, including as shown in other

FCC decisions in 2011 (see Havens Statement), and (iii) in any case and conclusively, the FCC is

barred from this charge by the Administrative Procedures Act, and the rule it cites in support of

the charge is, on its face, inapplicable.

2 See DA 05-461, footnote 22. This references DA 04-3700 in which the FCC did process a request by Havens under §1.41 including by responding to the facts and arguments of Havens asserted in the public interest. While the FCC denied the relief Havens sought, it did deal with the presented facts and arguments, and it did not dismiss the request by finding it a late-filed request for reconsideration. 3 See Havens Statement.

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The subject Havens administrative appeals were legitimate exercise of First Amendment

petition rights, including under the Federal Communications Act (“FCA”) and related FCC rules

cited above for formal, informal, and declaratory relief. They were not frivolous repetition but

challenged, in the public interest, unlawful FCC action. The Order chills exercise of protected

rights and damages Havens and the companies he manages, and appears intended to do so.

Accordingly, Havens requests that the FCC reverse and withdraw the Order, and act upon the

underlying administrative appeal on the substance.

The Order suggests, without clarity, that its alleged “sole issue” is the tardiness of

Havens’ December 2004 petition (which the FCC dismissed as late in 2005) and suggests

further, without clarity, that facts that are “relevant” and which would otherwise excuse the

tardiness of this Petition do not constitute facts that pertain to the public-interest standard under

FCC rule §1.106(c)(2). As demonstrated below, this threshold assumption by the FCC is

misplaced.

As the attached Havens Statement further reflects, and as an objective reviewer can easily

comprehend, this case is not about frivolous repetition but concerns serious petitioning by

Havens and his companies not primarily for their private rights, but against repetitive FCC

violation of fundamental law including the FCA and the Administrative Procedures Act, due

process under the Fifth Amendment, and petition rights under the First Amendment.4

II. RELEVANT FACTUAL HISTORY Relevant facts are summarily presented in the Havens Statement attached hereto as

Exhibit 1. The summary of facts in the Havens Statement and those indicated herein by counsel

4 It is also clear that violation of rights protected under the Constitution give rise to so-called “Bivens” claims that may be pursued in a US District Court, including with regard to the FCC.

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for Havens are presented to indicate the legitimate substance of the subject Havens

administrative appeals, including as to the issue of processing the appeals after the one untimely

petition for reconsideration in late 2004. However, Havens does not waive or modify, for

purposes of further appeals including to a court, any element of the complete factual history

contained in the actual pleadings and related documents and events.

III. ARGUMENT

A. Introduction

It is well-settled that the right to petition government, protected by the First Amendment

to the United States Constitution, applies to petitions to government agencies such as the

Commission. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508,

510 (1972); United Mine Workers v. Pennington, 381 U.S. 657 (1962); U.S. Const. 1st

Amendment. In this regard, speech which is considered non-commercial in nature is accorded a

greater degree of protection than “commercial speech,” which is defined as “expression related

solely to the economic interests of the speaker and its audience,” or alternatively “speech

proposing a commercial transaction.” See, U.S. Dept. of Agriculture v. United Foods, Inc., 533

U.S. 405, 409 (2001); Connecticut Bar Ass’n v. US, 620 F.3d 81, 94 (2nd Cir. 2010). In this

case, Havens’ petitions were demonstrably not related solely to Havens’ economic interests.5

5 As shown in ULS records: (1) Environmentel LLC (formerly, AMTS Consortium LLC) won the AMTS B-block geographic license for the “Mountain” license area including all of the State of Colorado, and including all of the territory of the Colorado Applications for site-based B-block authorizations captioned above, in FCC Auction 57 in year 2004 and since then has held this license, but for certain assignments to Skybridge Spectrum Foundation (and recently, to a new entity owned by Environmentel LLC). Havens holds indirect majority economic interest in Environmentel LLC (he is the direct majority owner of Verde Systems LLC which has controlling majority interest in Environmentel LLC). (2) Verde Systems LLC (formerly Telesaurus VPC LLC) won the AMTS B-block geographic license for the “Mississippi River” area including all of the State of Texas, and including all of the territory of the Texas Rivers Applications for site-based B-block authorizations captioned above, in FCC Auction 61 in year 2005 and since then has held this license but for certain assignments to Skybridge Spectrum

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The relevant issue here is two-fold: (i) whether the Commission has the statutory,

regulatory or inherent authority to limit this presumptive right to petition via imposing the

Request to File requirement upon Havens (which in effect functions as a pre-filing injunction

against Havens); (ii) if the Commission does have such authority, whether it properly extends to

this case, given the facts recited above, the administrative history of this matter and pertinent

legal precedent.

As demonstrated below, there is a paucity of precedent supporting the Commission’s

authority to impose a pre-filing injunction against a proposed licensee or other interested party in

the first instance. More importantly, even assuming arguendo that the authority to impose such a

draconian remedy exists as an abstract proposition, the facts of this particular case do not

support the imposition of such a severe sanction, for the reasons discussed below.

B. There is no Statutory or Regulatory Authority for Imposition of a Prefiling, Pre-Request for Permission (or anything of the kind)

Neither the Administrative Procedures Act (“APA”), the Federal Communications Act

(“FCA”), nor the Commission’s regulations, support the entry of a pre-filing injunction as an

administrative sanction, as the Order proposes. The APA, in 5 USC § 558, “Imposition of

sanctions; determination of applications for licenses…” provides “(a) This section applies,

according to the provisions thereof, to the exercise of a power or authority, (b) A sanction may

not be imposed or a substantive rule or order issued except within jurisdiction delegated to the

Foundation. Havens holds the majority economic interests in Verde Systems LLC. After the above-noted geographic licenses were obtained by the Havens controlled and majority owned LLCs noted above in years 2004-2005 (and thereafter, some portions were assigned to the noprofit Foundation he manages as just noted), Havens has pursued the captioned Applications, continuing to submit administrative petition appeals. For these reasons, the potential commercial benefit that would accrue to Havens by virtue of his successful prosecution of the Petitions from which the Order arises is modest, at best. Thus, it is clear that Havens is petitioning agency action in a “non-commercial” capacity, as that term has been defined by the Supreme Court.

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agency and as authorized by law.” In this regard, no statute from the FCA is cited in the Order,

nor does any exist, that supports the proposed sanction for the alleged repetitive appeals. Thus,

under the APA, the Request to File requirement is invalid at the outset.

In addition, the rule cited in the Order in support of the proposed sanction, 47 C.F.R.

§1.52 does not in fact provide support for this sanction. This rule is directed in relevant part to

filings made by attorneys, not pro se filers such as Havens. In this regard, §1.52 states that “The

signature or electronic reproduction thereof by an attorney constitutes a certificate by him that he

has read the document; that to the best of his knowledge, information, and belief there is good

ground to support it; and that it is not interposed for delay . . . An attorney may be subjected to

appropriate disciplinary action, pursuant to §1.24, for a willful violation of this section or if

scandalous or indecent matter is inserted.” (emphasis added).6 Therefore, under the doctrine of

exclusio unius est inclusio alterius,” the regulation’s failure by its express terms to reference

filings by pro se litigants, mandates the conclusion that the regulation cannot be so extended by

implication. See, e.g., Campo v. A llstate Ins. Co., 562 F.3d 751, 757 (5th Cir. 2009); Chi. United

Indus. v. City of Chicago, 685 F. Supp. 2d 791, 809 (N.D. Ill. 2009). Indeed, this regulation

does not discuss any form of sanction that may be imposed against pro se litigants, let alone the

dramatic sanction of imposing a pre-filing injunction.

For each of these reasons, there is no statutory or regulatory basis for the sanction

proposed in the Order, and indeed, it is barred.

The FCC remedy that is provided for and that does not violate this APA bar is §1.106(p):

(p) Petitions for reconsideration of a Commission action that plainly do not warrant consideration by the Commission may be dismissed or denied by the relevant bureau(s) or office(s). Examples include, but are not limited to, petitions that:…(3) Rely on arguments that have been fully considered and rejected by the

6 Section 1.52 only obligates a pro se party to “sign and verify the document and state his address.”

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Commission within the same proceeding; [or]… (8) relate to an order for which reconsideration has been previously denied on similar grounds, except for petitions which could be granted under paragraph (c) of this section….

If the FCC believed what the Order asserts, then it could have simply, with virtually no

effort, “dismissed or denied” the offending petition 7 for “plainly… not warrant[ing]

consideration… that… rely of arguments that have been rejected [mere repetition]…for which

reconsideration has been previously denied.” The Order did the opposite, it labored to concoct

an unlawful sanction, and, by such, engaged in what it purports to object to: a waste of FCC

staff resources.

C. The Administrative Decisions Cited in the Order Are Not Apposite

The Commission also cites to several of its prior administrative decisions in support of

the contention that it may impose a pre-filing injunction against Havens. However, none of these

decisions is on point. For example, Radio Carrollton, 69 F.C.C. 2d 1139 (1978) did not involve

the issuance of a pre-filing injunction, or any equivalent remedy. Instead, it involved an analysis

of: (i) the circumstances under which a licensee’s petition to deny directed to a competitor can be

deemed a “strike petition;” and (ii) when the filing of such a “strike petition” may constitute

grounds upon which to revoke the filer’s authorization to operate the station which is the

intended beneficiary of the strike petition. In this regard, the Radio Carrollton decision was

expressly based upon “the premise that a person who uses improper means to impede action on

an application for competitive new service opens itself to the charge of abusing the

Commission’s processes,” and was founded upon the “extreme disfavor with which we viewed a

licensee’s efforts to impede the inauguration of new competitive broadcast service.” Id., at ¶22

and n. 26. (emphasis added). In this case, the concerns articulated in Radio Carrollton are clearly

7 Arguably, such a “plainly” baseless petition would not be subject to the 90-day decision deadline in 47 USC §405.

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absent, among other reasons because the petitions giving rise to the Order were not directed to a

competitor’s service. Thus, the particular anticompetitive concerns at issue in Radio Carrollton

(i.e., one licensee abusing the Commission’s processes in order to interfere with another

licensee’s business) are irrelevant to this case; see also, In re Litigation Recovery Trust, 17 FCC

Rcd 21852 (2002) (noting that a pre-filing injunctive remedy may be appropriate where a party

“abused the Commission’s processes in order to cause Comcast . . . to capitulate to LRT . .

.demands for compensation,” and where a pleading was filed “primarily to harass an applicant

rather than to air legitimate substantive objections.”)

The decision in Alexander Broad Co., 13 FCC Rcd 10355 (MMB 1998), likewise does

not constitute precedent upon which to justify the imposition of a pre-filing injunctive remedy.

First, since this decision was rendered by the Multi-Media Bureau under delegated authority, the

Commission is not bound to follow it. See, e.g., In The Matter Of Applications Of MDS Digital

Network, Inc., 19 FCC Rcd 23675, 23682 (2004); Jelks v. FCC, 146 F.3d 878, 881 (1998);

Continental Cellular, 6 FCC Rcd. 6834, 6836 n.25 (1991). Second, and more importantly, the

Alexander Broad decision contains only a cursory discussion of pre-filing injunctions, and thus is

of limited utility as precedent for the remedy sought by the Commission here.

Likewise, the decision captioned Commission Taking Tough Measures Against Frivolous

Pleadings, 11 FCC Rcd 3030 (1996) is directed only to the question of when a filing will be

deemed “frivolous . . . or . . . filed for the purpose of delay in proceedings before the

Commission or its staff.” It does not address the specific circumstance presented here – i.e.,

whether and to what extent the Commission may preemptively preclude a party from exercising

its First Amendment right to petition by instituting a pre-filing injunction. Moreover, this

decision is based upon 47 C.F.R. §1.52, which, as noted, is principally directed to filings by

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attorneys, not pro se litigants such as Havens. As such, this decision is likewise of limited

precedential value. Finally, the decision captioned Implementation of Cable Television

Consumer Protection Act, 9 FCC Rcd 2642 (1993), by its terms, is directed only to filings made

under the Cable Television Consumer Protection and Competition Act of 1992, and is therefore

also inapposite.

For each of these reasons, prior decisions by the Commission do not clearly support the

premise that the Commission has the authority to impose a pre-filing injunction such as the one

proposed in this case.

D. Assuming Arguendo that the Commission has the Authority to Enter a Pre-filing Injunction, the Entry of Such an Injunction in This Case Would not be Appropriate

Even assuming arguendo that the Commission has the authority to impose a pre-filing

injunction against a filer as an abstract proposition, the entry of such an injunction would be

inappropriate given the facts of this case. Case law from the United States Court of Appeals for

the District of Columbia Circuit (including the very case law to which the Commission cites in

its Order) undermines, rather than supports, the imposition of such an injunction in this case. For

example, in Urban v. United Nations, 768 F.2d 1497 (D.C. Cir. 1985) (cited in footnote 32 of the

Order), the U.S. Court of Appeals for the D.C. Circuit sanctioned the use of a pre-filing

injunction remedy against a “serial filer.” However, in that matter, the subject of the injunction

had filed 16 cases (in a three month time frame) and 28 separate appeals with the D.C. Circuit, a

number exponentially greater than the 14 filings over the course of 11 years at issue in this case.

Moreover, in upholding the pre-filing injunction at issue in Urban, the D.C. Circuit characterized

the allegations made by the serial filer as "irrational" and "incoherent," and amounting to

"meritless, fanciful claims." Id., at 1499. By way of a single example, the target of the

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injunction in Urban claimed that the court had jurisdiction on the basis that the claimant

was “from the "Milky Way Galaxy." Id., at 1499. The claimant also maintained that he was a

presidential candidate who had the right to stay the inauguration of President Reagan. Id; see also

In re Green, 669 F.2d 779 (D.C. Cir. 1981) (Injunction warranted where litigant had filed 600-

700 filings in a 10 year period) The differences between this case and Urban are so self-evident

that the point need not be belabored.

Likewise, in In re Powell, 851 F.2d 427 (D.C. Cir. 1988) (cited in footnote 32 of the

Order), the D.C. Circuit actually reversed the imposition of a pre-filing injunction against two

federal prisoners. In the course of reversing the injunction, the court acknowledged that such an

injunction “is an extreme remedy.” Id., at 431. The court proceeded to hold that a pre-filing

injunction against one of the claimants (Brown) was unsupported by law, notwithstanding the

fact that Brown had filed 13 district court complaints during a 15 month time period which were

“identical to or similar to those previously filed,” and were therefore “repetitious.”8 See also,

Hobley v. KFC U.S. Properties, Inc., 2006 U.S. Dist. LEXIS 6246 (D.D.C. January 31, 2006)

(denying pre-filing injunction even though the claimant had filed 12 duplicative claims which

were each dismissed); Speleos v. McCarthy, 201 B.R. 325 (D.D.C. 1996). The D.C. Circuit in

Powell further noted that:

Urban does not provide authority for the injunction issued in this case. Brown's filings, seven prior to the imposition of the injunction and thirteen in all, are not of the same magnitude and may not present the same obvious lack of merit evidenced by the complaints in Urban. The number of Brown's filings in the district court fall far short of the level of the Green filings -- over 600 in federal and state courts, of which thirty-eight were in our district court alone; or the Urban filings, which consisted of sixteen separate district court cases comprising one consolidated appeal, twenty-eight separate appeals, and fifty motions in the appellate court alone. Id., at 432.

8 Id., at 430, 432.

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The other claimant in the Powell case (Powell) had filed 14 district court complaints in a

two-year time period, and 16 total filings over a 28 month period. Nonetheless, the D.C. Circuit

likewise held that the pre-filing injunction imposed against Powell was improper:

If Powell's FOIA requests are oppressive and burdensome to the agencies to the point of harassment, then there must be some indication in the record supportive of such a conclusion. In this case, however, the record gives us no indication that the agencies believe that they are being harassed, or that would clearly support such a belief, and therefore, we cannot conclude that Powell's requests are perceived as burdensome and oppressive by the individual agencies . . . We are also unable to conclude that Powell's sixteen filings are so clearly harassment of the district court as to warrant issuing an injunction. It appears from our review that Powell's sixteen filings spanned a twenty-eight month period . . .Not unlike those of Brown, the complaints filed by Powell, though repetitious to the extent that many are FOIA actions, have not been found by the district court to be "irrational[]," "incoheren[t]," or to evidence a "complete lack of any substantive allegations," as were the complaints in Urban . . . Consequently, these factors do not warrant a finding of harassment . . . Powell's filings do suggest a litigious propensity, about which we are duly concerned, but on the present record we must conclude that the filings fall far short of the level of abuse of process manifested in Urban and Green. Although a litigant's litigiousness need not reach that level to trigger an injunction, the record here does not suggest a case in which the "orderly and expeditious administration of justice" has been so impeded as to require such an extreme sanction. Id., at 433-34. see also, In re: Martin Trigona, 592 F. Supp. 1566 (D. Conn. 1984)

A judicious examination of these authorities demonstrates why the imposition of a pre-

filing injunction in this case would be inappropriate.

First, while the Commission may disagree with the legal conclusions advanced by

Havens in his various filings, the Commission has never stated (nor could it possibly prove) that

Havens’ filings were “irrational,” incoherent,” “meritless,” “fanciful,” or anything equivalent.

As discussed more fully in the Havens Statement attached hereto, each of Havens’ Petitions for

Reconsideration and Applications for Review were based either upon bona fide arguments

including, inter alia, those relating to the proper application of §80.475(a) to the Texas and

Colorado Applications, and that the Wireless Bureau was selectively enforcing §80.475(a)’s

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Coverage Requirement against Havens while declining to enforce this requirement against his

competitors (including Regionet, Watercom, and Mobex, eventually all acquired by Maritime

Communications/ Land Mobile LLC, herein together the “AMTS Competitors”). Specifically, as

discussed more fully in the Havens Statement, with respect to the Colorado Proceedings, Havens

showed that the U.S. Army Corps of Engineers had defined the Arkansas Headwaters as a

distinct navigable waterway, and therefore that his Colorado Application met the Coverage

Requirement for this distinct waterway. The Commission cannot dispute that it has, as a matter

of course, adopted determinations made by the Army Corps of Engineers in defining the

geographic scope of inland navigable waterways (including, most notably, when it issued

licenses to Watercom along the Mississippi River and its tributaries). Nor does it dispute that

the Army Corps of Engineers is uniquely qualified to make such determinations. Yet, in denying

the Colorado Applications, the Wireless Bureau inexplicably discounted the Army Corps of

Engineers’ determination that the Arkansas Headwaters is a distinct navigable waterway, a

determination which is rendered all the more puzzling by the Commission’s admission in

response to Havens’ FOIA Request 2007-177 that the Commission was not in possession of any

engineering studies used to determine whether AMTS applications satisfied the coverage

requirements in former Section 80.475(a).

In their various determinations preceding the Order, the Wireless Bureau and

Commission have repeatedly held that the extent of their enforcement of the Coverage

Requirement with respect to other licensees (the AMTS Competitors, defined above) is

“irrelevant” to the issue of the enforcement of this requirement vis-à-vis Havens.9 But this is

simply a legal conclusion without any underlying rationale. In fact, disparate treatment by the

9 See, e.g., Order at pages 4-5.

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Commission has been expressly recognized by the D.C. Circuit as unlawful in appropriate

circumstances. See, e.g., Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965 (D.C. Cir. 1999). And

allegations and evidence of disparate treatment of licensees are particularly troublesome in

markets where there are only a few competitors (such as the AMTS market during the time

period relevant to the Proceedings). In other words, evidence suggesting that the Wireless

Bureau enforced the Coverage Requirement vis-à-vis Havens, while ignoring this requirement

vis-à-vis the AMTS Competitors, would not simply establish a case of administrative laxity, it

would also show that the Wireless Bureau was unlawfully benefitting one licensee to the direct

detriment of another.

When evaluating the “relevance” of Havens’ contentions in the Proceedings directed to

the disparate treatment of the AMTS Competitors, the Commission must also assess these

contentions within their broader factual context. Once before, the Commission has considered

issuing a pre-filing injunction against Havens, for making arguments substantially similar to

those made in the Proceedings, only to thereafter vindicate Havens’ position. Specifically, in In

the Matter of Mobex Network Services, LLC, 22 FCC Rcd 665 (2007), Havens argued that

Mobex (the successor-in-interest to Regionet) was failing to comply with the construction and

operation requirements set forth in 47 C.F.R. §80.49 and §1.955(a).10 As in this case, the

Commission warned Havens that he may “face summary dismissal of his pleadings or the

alternative of prior screening of his pleadings should he file abusive or harassing pleadings with

the agency.” Id., at 672. In other words, the issue in the Mobex matter (i.e., the Commission’s

failure to enforce AMTS station operational requirements as they applied to Mobex) was

analogous to the issue asserted in this case (i.e., the Commission’s failure to enforce AMTS

station operational requirements as they applied to Regionet and the other AMTS Competitors).

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Notwithstanding the Commission’s warning against Havens for advancing the arguments made

in the Mobex matter, these arguments were subsequently vindicated by the Enforcement

Bureau’s issuance of Order No. DA 11-64. As the Commission is aware, pursuant to this Order,

the Commission proposes to revoke all of the telecommunications licenses held by Maritime

Communications/Land Mobile, LLC (“MCLM”) (which is the successor to the AMTS licenses

of Mobex, Wattercom and Regionet) on the grounds, inter alia, that MCLM failed to maintain

valid operational stations. Havens contends that this failure by Regionet/Mobex/MCLM to

comply with the Commission’s construction/operation requirements under §§80.49 and

§1.955(a) cannot be viewed in isolation. This failure was, in fact, part of a broader derogation by

Regionet/Mobex/MCLM of the Commission’s regulations, and included their failure to comply

with the Coverage Requirement at issue here.

Further, this failure by Regionet-- and the FCC’s accommodation of it prior to when

Havens’ Texas Applications were submitted—is inextricably linked with the FCC’s asserted

defect in these applications (an alleged small shortfall in the Coverage Requirement, due to

Havens not being able to apply for the territory along the Gulf Coast already licensed to

Watercom-Regionet-Mobex). See the Havens Statement on this issue.

In its January 14, 2010 and July 22, 2011 Orders, the Commission also determined that

Havens’ arguments were purportedly “irrelevant” because of the untimeliness (by one day) of

Havens’ Petitions for Reconsideration directed to the Forebearance Petition. As noted, this

untimeliness was due to a technical problem beyond Havens’ control that delayed the electronic

transmission of the Petition to his legal counsel, a ground which has never been questioned. In

view of all these circumstances, Havens, at a bare minimum, had a good faith basis for

maintaining that the Forebearance Petition should have been considered on its merits. In this

10 See FCC Order DA 11-64, at ¶61.

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regard, the D.C. Circuit has, in several instances, held that a petition for reconsideration may be

considered by the Commission even when filed outside of the thirty-day period set forth in 47

U.S.C. §405. See, e.g., Graceba Total Communs. v. FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997)

(“we permit both constitutional and statutory challenges to an agency's application or

reconsideration of a previously promulgated rule, even if the period for review of the initial

rulemaking has expired.”); Gardner v. Federal Communications Com., 530 F.2d 1086 (D.C. Cir.

1976). By contrast, those cases in which reconsideration has been denied on the grounds of

“lateness” have typically involved inexplicable delays of far more than the one day delay at issue

here. See, e.g., In re Smithgall, 29 F.C.C.2d 89 (1971) (three years); In re Haskell, 42 F.C.C.2d

451 (1973) (ten months). Indeed, if petitions for reconsideration based upon new facts were

barred pursuant to 47 U.S.C. §405(a), 47 C.F.R. §1.106, (discussed infra, and stating in pertinent

part that a petition for reconsideration which “relies on facts or arguments not previously

presented to the Commission” may be considered by the Commission) would be rendered

entirely nugatory.

For each of these reasons, the Commission’s contention that Havens’ arguments directed

to Regionet were “irrelevant” is plainly misplaced.

Furthermore, to the extent the proposed injunctive remedy sought in the Order is

premised upon the alleged “repetitiveness” of Havens’ filings, it is likewise improper. The

above-cited authorities demonstrate that for “repetitiveness” to form the basis of a pre-filing

injunction, the number of filings must be of an order of magnitude immensely greater than the

number of filings at issue here. In this regard, the Commission is directed to Urban supra

(which involved 16 cases and 28 appeals in a 9 month time frame) and In re Green, 669 F.2d 779

(D.C. Cir. 1981) (600-700 filings in 10 year period). This case, by contrast, involves 14 petitions

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spread out over an 11 year period, hardly a comparable scale.11 Moreover, as discussed more

fully in the Havens Statement, to the extent Havens was required to reiterate arguments in

successive petitions for reconsideration, it was because the Commission repeatedly declined to

properly address these arguments on their merits. In other words, the Commission cannot on one

hand summarily discount a party’s bona fide arguments on the putative ground of “relevance,”

while on the other hand sanctioning the party for repeating these arguments in the hope that they

are considered on their merits. Moreover, the undisputed record reveals that the Wireless

Bureau’s Orders denying Havens’ Petitions, were partially based precisely on the ground that

certain arguments asserted by Havens in Reconsideration were being made for the first time,

including with new facts.12

Nor is the fact that Havens filed multiple petitions for reconsideration directed to the

same issue dispositive. Indeed, the Commission’s regulations expressly authorize the filing of

multiple petitions for reconsideration directed to the same issue in appropriate circumstances. In

this regard, 47 C.F.R. §1.106(p) states:

Petitions for reconsideration of a Commission action that plainly do not warrant consideration by the Commission may be dismissed or denied . . .Examples include, but are not limited to, petitions that . . . (8) relate to an order for which reconsideration has been previously denied on similar grounds, except for petitions which could be granted under paragraph (c) of this section. (emphasis added).

11 Only the late petition, and those subsequent, are subject of the alleged repetitiveness . 12See, e.g., DA 01-1115, at page 4 (“Havens argues that had he characterized his applications as providing AMTS service to the various tributaries of the Arkansas Headwaters, rather than the Arkansas Headwaters itself, the inland waterway coverage requirement would be met. Havens did not raise this argument earlier, and did not provide enough information in his application or petition for reconsideration for us to determine whether the proposed stations would provide the requisite coverage to these tributaries.”); DA 01-2509, at page 4 (“Havens newly argues that the grant of certain Regionet applications that did not include waiver requests demonstrates unequal treatment . . .”)

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The emphasized language clearly indicates that petitions for reconsideration may be

directed to issues for which reconsideration has previously been denied, if the requirements of

Section §1.106(c) have otherwise been met. This rule, in turn, states that:

(c) In the case of any order other than an order denying an application for review, a petition for reconsideration which relies on facts or arguments not previously presented to the Commission or to the designated authority may be granted only under the following circumstances: (1) The facts or arguments fall within one or more of the categories set forth in § 1.106(b)(2); or (2) The Commission or the designated authority determines that consideration of the facts or arguments relied on is required in the public interest. Finally, §1.106(b)(2) states (2) Where the Commission has denied an application for review, a petition for reconsideration will be entertained only if one or more of the following circumstances is present: (i) The petition relies on facts which relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters; or (ii) The petition relies on facts unknown to petitioner until after his last opportunity to present such matters which could not, through the exercise of ordinary diligence, have been learned prior to such opportunity.

As discussed more fully in the Havens Statement attached hereto, in this case, Havens

did not, in his Petitions for Reconsideration, simply regurgitate the identical facts and argument

made in prior stages of the Proceedings. To the contrary, he expressly invoked 47 C.F.R.

§1.106(c)(1) and (c)(2) as a ground for filing his Petitions for Reconsideration, based upon “facts

which relate to events which have occurred or circumstances which have changed since the last

opportunity to present such matters,” including, among other things, the results of FOIA 2007-

177. Havens also asserted, in good faith, that “consideration of the facts or arguments relied on

is required in the public interest.” In particular, Havens properly invoked the public interest in

ensuring that the Commission’s AMTS regulations are fully, fairly and consistently enforced,

consistent with the strictures of 47 U.S.C. §309(a) and precedent from the D.C. Circuit

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(including Clarksburg Publishing Co. v. FCC, 225 F.2d 511, 513 (D.C. Cir. 1955), L.B. Wilson,

Inc. v. FCC, 397 F.2d 717 (D.C. Cir. 1968), Hall v. FCC, 237 F.2d 567, 571 (D.C. Cir. 1956)

and Southwestern Publishing Co. v. FCC, 243 F.2d 829 (D.C. Cir. 1957)). Even assuming

arguendo that Havens was incorrect in his contention that vital public interest concerns were

implicated in this case, the Commission cannot credibly maintain or demonstrate that this

contention by Havens was “frivolous,” particularly in light of FCC 11-64 and its vindication of

Havens’ position with respect to Regionet/Mobex MCLM.

III. CONCLUSION

As the Court in Powell correctly noted, a pre-filing injunction “is an extreme remedy,”

particularly since once a party has been publically besmirched with the designation “serial filer,”

this mark of disapprobation follows the party on all future proceedings (and will invariably be

cited by opponents and competitors). This extreme remedy has never previously been levied in a

factual context remotely similar to this case. For the reasons discussed above, the Commission

should not break with well-established precedent to levy such an injunction in this case.

Accordingly, the Commission should not adopt the proposed “Request to File” remedy,

should reverse and withdraw the Order on this issue, and should process the underlying

administrative appeals based on their substance and in the public interest.

Respectfully submitted, NOSSAMAN, LLP _/s/_Tamir Damari___________________ Tamir Damari 1666 K Street NW, Suite 500 Washington, D.C. 20006 (202) 887-1442 Attorney for Warren C. Havens