Re FCC " Order Affirming Sanction Against Warren C.

Havens" Thisis published on SCRIBD in part to counteract the FCC's misleading publications of this Order and related matters. Contrary to FCC website's summary, the FCC did not on balance "affirm" its sanction order, but backed off of it. Thereafter, the FCC Office of General Counsel came up with this, virtually conceding that the saction order was unlawful, exactly as I argued (which was simple under applicable law): See FCC 12-113, which I attach last below, and before that, my comments to FCC OGC (which was not answered, as is ususal): See Warren C. Havens, 27 FCC Rcd 2756, 2759 10 (2012) (Section 1.52 directly authorizes sanctions for filing frivolous pleadings against attorneys and at least by implication justifies sanctions against non-attorneys.)." Emphasis added. A federal agency cannot issue Orders, especially Sanction Orders, under a rule it thinks "at least by implication" "justify" the Order. That is assumption of power for arbitraray and capricious purpose and action, contary to and one reason for creation of the federal Administrative Procedures Act. But got to give the FCC a prize for a hearty attempt at the age-old cardinal rule of power- use it againt anyone that challenges and does not play ball, regardlness of whether that use is lawful or not. That is history of power, no surpise at all. The only antidote is active citizens, also shown in history. That is to say, the FCC withdraw the basis for its so-called sanction-- but it keeps the sanction order in place for an unlawful stigma and chill. That chills anyone attempting simply to act lawfully before the FCC against FCC malfeasance. The message is: do not cross the FCC beyond what it likes, regardless of the law, or you will get an unlawful "sanction" applied to attempt to damage your ability act in your business circles, and further before the FCC. This matter will be before the US courts in due course. There are still pending FCC proceedings to prior to the court action. The underlying issue is FCC malfeasance and some big interests and money. It is shown in the underlying proceedings and related proceedings, not hard to grasp with basic research. My pleadings in these matters, going back years, lay these out. Below is further discussion and some of the more recent pleadings. W. Havens

OrderAffirmingSanctionAgainstWarrenC.HavensHavensacceptanceoftheaward,but appealsthereof(andnominationsofalternativehonorees). THEFOLLOWINGAREAMONGTHEDOCUMENTSFILEDBYWARRENHAVENSungratefully APPEALINGTHEFCC"SANCTION"ORDERawardstoWARRENHAVENS. TheFCCofcoursecontrolsitspublications,andithasfeaturedbyspecialpublicationtheHavens SanctionsOrders. Sanctionsisahighlyusefulgovernmenttermthathasoppositemeanings,eitherauthoritative approvalandencouragement,ordisapprovalandpenalty.Inmycase,wherethereisnopenalty imposed(seebelow),itmustmeanapprovalandencouragement.SinceIamthefirstpersonto receivethissanctionshonorunder1.52inthishistoryoftheFCC,itisahighhonorindeed. Inappreciationofthehighhonor,IpublishthisonSCRIBDsothatpersonssearchingandfinding thisFCCHavensSanctionsmayalsofindmyungratefulattempttocastofftheaward. Itwouldnotbeproperformetokeepthisawardtomyself,giventhefarmoreworthyarmiesof communicationslawprofessionalsthatscrewFCClawandthepublicinterestforasufficientfee, andagoodselectionofFCCstaffandauthoritiesthatdolikewiseforunstatedinterestsandCYOA. INTHEFCCSOCALLED"SANCTIONS"ORDERSOFWARRENHAVENS,THEFCC: (1)ATTEMPTEDTOAPPLYITSRULE1.52,WHICHPERTAINSONLYTO ATTORNEYS,TOAPROSEINDIVIDUAL,WARRENHAVENS(itlateradmittedinarelatedFOIAOrder thatthisruledidnotactuallyapplyatall,butwouldnotrescindthesanctionsorders); (2)FORNOCAUSEBUTALLEGEDREPETITIONOFREQUESTSTORECONSIDERTHESUBSTANCE OFLICENSEDENIALSDUETOADMITTEDMISTAKESOFITSPASTLAWFIRM,HOGAN&HARTSON, TOSUBMITONEREQUESTONTIME, (3)WHERETHERULETHATDOESAPPLYTOSUCHREPETITIOUSPLEADINGS,PARTOF1.106, WASNOTAPPLIED(ITALLOWS,SIMPLYDISMISSAL), (4)WHERETHEFCCAPPLIEDARULEITNEVERAPPLIEDTOANYCOMPETITORINTHESUBJECT RADIOSERVICEATANYTIME(ANDHARSHLYAPPLIEDITAGAINSTHAVENS,WHERETHATCAUSED BLOCKAGEOFTHEMARKETBYINCUMBENTSTHATFAILEDTOEVENDEMONSTRATETHATTHEY HADVALID,CONSTRUCTEDANDINSERVICELICENSES,

(5)ANDWHERETHESUBJECTRULEONRECONSIDERATRIONSANDPRECEDENTTHEREUNDER ALLOWRECONSIDERATIONSINTHEPUBLICINTERESTEVENIFTHEREQUESTISLATE,1.106(C)(2), WHICHWASAMPLYSHOWN. ACAREFULBUTEVENSUMMARYREADINGOFTHESUBJECTFCC"SANCTIONS"ORDERCOMPARED TOTHEFACTSINTHISCASE,ANDTHELAWTHATI,WARRENHAVENS,CITEINTHESEAPPEALS, 80.475(a)(1999)SHOWTHATTHEFCCISCLEARLYWRONG,ANDISIMPOSINGASANCTIONTHAT HASNOSUBSTANCEBEHINDIT(seebelow),BUTISATHREATTOIMPOSEANUNLAWFULCHILLa formofcharacterstigmatizationTOprivateinterestFIRSTAMENDMENTRIGHTS,FIFTH AMENDMENTDUEPROCESSANDPROPERTY(LICENSINGINTHISCASE)RIGHTS,ANDMOREOVER, TOATTEMPTTOQUASHFURTHEREXPOSINGOFFCCULTRAVIRESRULECHANGESTHATPOLLUTE ALLFCCLICENSEAUCTIONSSINCE2005thisisathreattothecorepublicintereststandard thatliesbehindtheentireCommunicationsActandallofthelicensesgrantedintheseauctions thatarethefoundationofalargeportionofpublicwirelessinthenation. TheFCCofficialsengagedinsuchactionlackbothlegalauthorityfortheseactions,andimmunity fromprosecutionfordamagescausedtoMr.Havensprotectedprivaterightsandinterests,andto thepublicinterestsalsoinvolved,andIhavestatedthatinmyappeals. ThismattershouldeventuallybepresentedtotheDCCircuitCourtand/ortoaUSDistrictCourt. ItwasalreadypresentedtotheDCCircuitCourtsincetheFCCwouldnotstipulatetothe proceduralvalidityofmypendingappealsofthesubjectFCC"sanction"orders,whereuponthe FCCdismissedtheappealwithoutprejudicetomyrefilingituponFCCfinalordersonmyappeals, whichiswhatIaskedtheFCCtostipulateto,sowewouldnotwastethecourt'stime. Tolerablegovernmenthastobeearned,andinhistoryandnowthatisneverbyanythingshortof challenging,atpersonalrisk,badactionsbypersonswhoassumepublicofficethenoverstepthe powersvestedinthembythepublic.Inthecriticalfieldofcommunications,thoseactivebefore theFCC,Congress,thepress,andothershavetobeespeciallyvigilant.TheFCChasfartoomuch powervestedinit,andtheletgo,byCongress.Thisleadstoabuseofpowerandactionssuchas thisnonsenseHavenssanctionseriesofOrdersthatimposenosanctionatall(onlyastatement thatthenextpleadingmustbenonfrivolous,butstatedornot,thatisthelegalstandard anyway)butdoesattempttochillprotectedrightsandbypubliccharacterstigmatization speciouslyasifHavensdidsomethingwrongasifsomesubstantivesanctionwasimposed. Governmentsdon'tcare,individualsdo.ATrampAbroad,MarkTwain.

Exhibits follow.

Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) WARREN C. HAVENS ) ) Applications: to Provide Automated Maritime ) Telecommunications System Stations at ) Various Locations in Texas, and ) ) Applications to Provide Automated Maritime ) Telecommunications System Stations at ) Various Locations in Colorado )

File Nos. 852997-853009 [852998 excluded]

File Nos. 853010-853014

REQUEST FOR PERMISSION TO FILE Pursuant to Commission Memorandum Opinion and Order FCC 12-26 issued on March 12, 2012, requiring Warren C. Havens to request permission of the Wireless

Telecommunications Bureau to file further documents relating to or in connection with Application File Nos. File Nos. 852997-853009 and 853010-853014, Warren C. Havens (Havens, Petitioner or I) submits this request.[*] Attached is a petition related to MO&O DA 12-1376 (the 8-12 Order). I hereby certify that the claim or claims I present in attached are not frivolous or made in bad faith, and are in good faith. For reason I submit in the attached and submitted earlier in this proceeding, I object to the requirement to submit this request for permission to file. Respectfully submitted, /s/ Warren C. Havens, pro se

[*] I do not believe that the 8-12 Oder is correct that my request for leave to file submitted with the pleading that resulted in the 8-12 Order was not a Commission requirement in the Reduced Sanctions Order (defined in the Recon), or that the Bureau can decide this issue. 1

Federal Communications Commission Washington, D.C. 20554 In the Matter of WARREN C. HAVENS Applications to Provide Automated Maritime Telecommunications System Stations at Various Locations in Texas, and Applications to Provide Automated Maritime Telecommunications System Stations at Chaffee, Aspen, Colorado Springs, Copper Mountain, and Leadville, Colorado To the Secretary Attention: Chief of the Wireless Bureau "WB"
Errata Copy*

) ) ) ) ) ) ) ) ) ) ) )

File Nos. 852997-853009 [852998 excluded] File Nos. 853010-853014

Petition for a New Case under Section 1.41, And Under the First and Fifth Amendment In relation to the MO&O, 12-1376 of August 21, 2012 And all Previous Decisions by the FCC Relating to the Captioned Applications Warren C. Havens (Havens or I) hereby petition regarding the captioned Order (the 8-12 Order) (the Petition). I submit concurrently today (i) a Petition for Reconsideration of the 8-12 Order, and (ii) an application for review to the Commission regarding issues posed herein, in case the Commission decides to process those (and since, part of my arguments below, is that the Bureau did not have authority to act for the Commission as it did in the 8-12 Order), I request that this Petition be processed by the WB or the Commission, in lieu of these other two submissions, but I submit them for good cause, since in my view the FCC has seriously breached its procedural and substantive rules, in the captioned case, to the point that there is no law I can rely upon as to how the FCC will act on this matter, but under ultra vires rule changes it makes up as it goes, to continue to avoid the serious issues involved. Introduction and Summary Based on the new facts presented hereinthe FCCs own recent decisions and admissions, including at the Commission level, I request and have a right to a new trial, that is, ----* Deletions in strikeout, and additions in text boxes. .

to processing over, from the start, the captioned applications, and the related issues that arose, including whether any of my appeals were properly deemed late and fully rejected (as to the substance) and whether any were frivolous and sanctionable (even if the FCC has any rule basis for sanctions, which it does not, and now effectively admits). This is presented below. The 8-1 Order turns backwards the actual history. It states, Havens has been challenging the Commissions denial of his applications for certain AMTS licenses for more
," those

than a decade and alleges that was sanctionable, since one day, the law firm of Hogan & Hartson,
the subject

then Havens counsel, missed a filing deadline if an appeal was considered under the rule on reconsiderationbut not under the rule 1.41 which Havens also filed under. From that point on, the FCC abrograted its duties to decide on the substance in the public intereston the core rule on AMTS and the reason for its creation, and to follow and equally apply its practice to process requests that have serious intent and content (and the FCC has admitted this case does that) under section 1.41. The fact is that the FCC is sanctionable, and that it has flagrantly violated Fifth Amendment equal rights, property rights, and due process, and Fifth Amendment petition and speech rightsthreatening and chilling them. The Commission could not respond to the actual arguments Havens made (with counsel) in responding to the two Commission sanction orders (Sanction 1 Order and Retracted Sanction Order)1, and thus has kicked the bucket downstairs to the Bureau, but this time to just saynothing (but with no authority shown for the Bureau to deal with a petition filed with the Commission). While this was underway, after the Retracted Sanctions 2 Order, Havens appealed to the DC Circuit Court, and asked the FCC
a certain as to

Office of General Counsel to stipulate that it would not take the position that the Havens Petition
FCC 11-116 March 12, 2012 MO&O 2 1ThisRetractedSanctionsOrderretractedmuchoftheSanctionsOrder1thatwas particularlyoffensiveandunsustainableunderlaw.Itpretendedthatthiswasmerelya betterstatementofSanctions1Order,butitwasamajorretraction.ItrequiredHavensto certifythatfurtherfilingsastothecaptionedlicenseapplicationswasingoodfaith.But thatisalreadyimpliedinrulesection1.52(aprosefilermustsignsigningalwaysmeans thefilingisbythepartyandtheypartyisingoodfaith)andotherrulesoftheFCC. 3

for Reconsideration pending as to Sanctions 2 Order that would bar appeal thereof, once decided.* In the 8-12 Order, the FCC now does what it could have done the first time it found any Havens filing as to the captioned applications defective: just dismissed under section 1.106(p): The FCC rejected previously (see arguments of Havens challenging the Sanctions Order 1, and the FCC response thereto), now it accepts it. It has that remedy all along, had it sought to follow its rules. Instead, it chose to concoct sanctions law, and modify section 1.52 by ultra vires rule change, not since it had any burden by the Havens filings (since section 1.106(p) was a simple solution- if the filings lacked merit, etc.) but since the Havens filings exposed serious, prolonged, and accelerating FCC malfeasance, extended to flagrant violation of Fifth Amendment protected rights. It thus concocted sanctions with no lawful authority to do so. This Petition is submitted under the First and Fifth Amendments (in addition to FCC rule section 1.41) for reasons given in my past pleadings in this Case (the entire case involving the captioned applications) and further discussed in the Appendix hereto. The following exhibits are referenced and incorporated herein including the arguments therein: (1) Exhibit 1: Regarding Bureau Order on Requests under Sec. 1.41: Order, DA 121131. (2) Exhibit 2: Regarding FCC Order on FOIA 2012-190: Memorandum Opinion and Order, FCC 12-113. (3) Exhibit 3: Regarding Administrative Law Judge Order regarding glossary: Order, FCC 12M-39. These FCC decisions require grant of this request for reasons given in the Exhibits cover memos, and for the further reasons presented below related to these Exhibits. I refer to and incorporate herein all my filings in the captioned matter above, without limitation. Further Discussion Regarding Exhibit 2. In footnote 19 states, the Commissioners signing this FOIA Order
----* The OFC would not stipulate, but the Circuit Order stated in its order on dismissal that I had the rights I sought in the stipulation. In this refusal to stipulate, the FCC, again, acted contrary to law, efficient dealings, and the public interest.. this had

state (emphasis added): See Warren C. Havens, 27 FCC Rcd 2756, 2759 10 (2012) (Section 1.52 directly authorizes sanctions for filing frivolous pleadings against attorneys and at least by implication justifies sanctions against non-attorneys.). This demonstrates that the FCC admits that its two sanctions orders, subject of this case, were order by rule implication. That is unlawfulit has no basis in actual law, and is an abuse of discretion: the FCC has no discretion to sanction but where it is specifically authorized under law. That is stated in the Administrative Procedures Act: I have cited this and argued under it in this case in past pleadings and need no t do so again here. Regarding Exhibit 1. An Order on 1.41 Requests regarding rule section 80.475(a): it effectively means that rule section 80.475(a) had no real effect at all, at the application or licensing or construction or service stage. This is clear by reading this order along with the requests its decided, and the petition for reconsideration of the Order and the two Replies. Thus, the FCC has now made clear that it had no basis to reject my applications captioned above, unless it is chooses to directly violate Fifth Amendment equal protection rights. The fact is, as this Order now, for the first time, makes irrefutable, the FCC has never applied this rule to my competitors that obtained AMTS licenses nationwide, but it applied it to me (when it did not
(I met the rule requirement, under any reasonable interpetation and the public interest reasons of the rule)

even apply). Regarding Exhibit 3. The cover memo presents this. Further, the 8-12 Order, as indicated above, demonstrates that the FCC never had any basis for its complaints of being burdened by Havens petitions that the FCC found late(since it would not process one petition under section 1.41 (as it does in all other like cases) and since it would not apply rule 1.106(c)(2) as the rule means and it otherwise interprets it (see below)
(and thus for the sactions orders)

because all it has to do is dismiss the pleadings as the Bureau did in the subject 8-12 Order. For reasons in related to the three Exhibits, and the further last reasons given above, the FCC must grant this request and conduct a new case as more fully requested above. 5
these

----The Bureau erred in deciding on appeal that was addressed to the Commission. Havens was challenging a new Commission Orderthe revised sanctions Order. The PtRcon was the first time that Havens could address this new Order proposing sanctions. The This modified sanction Order was different from the prior Orders in the proceedings dealing with different matters.
8-12 It an

Nothing in the Order that states the Commission delegated to the WTB the taks under the
, 1.106(p) to respond to the Recon and dismiss it. Therefore, there is no rule the Order cites under subject appeal

delegation of authority shown in the Order by the Bureau to act on this matter presented to the Commission. The 8-12 Order violates 47 USC 405(a)(2) because it is beyond the 90-day period for a decision on the Recon. Also, 47 USC 405(a) states that a party to an FCC order that is adversely affected may petition for reconsideration only to the authority making the order and that authority may grant or deny the reconsideration. The statute does not provide that Havens may have submitted the
appeal

8-12

subject Recon to the Bureau, but he had to submit it to the Commission, because the Commission
m 2 8-12 Order

issued the Modified Sanction Order. The statute also says that the authority that made the order and received the recon is to decide on the recon. Therefore, the decision on the Recon by the Bureau conflicts with this statute. ----In In re Applications of Stockholders of CBS Inc., FCC 96-478, 11 FCC Rcd 19746; 1996 FCC LEXIS 6981; 5 Comm. Reg. (P & F) 1050, December 17, 1996 Released, the Commission properly found: Under Commission rules, a petition for reconsideration which relies on facts not previously presented to the Commission may be granted only if these facts relate to 6

events which have occurred or circumstances which have changed since the last opportunity to present such matters, or if these facts were unknown to petitioner until after its last opportunity to present such matters. n5 Should these circumstances not be present, the rules nevertheless allow grant of the petition for reconsideration should the Commission determine that consideration of the facts relied on by petitioner is in the public interest. Id. at 1.106(c)(2). n5 See 47 C.F.R. 1.106(c)(1). That is precisely what I have argued in this case as to the one time the FCC found that my appeal
computer systems failure

was late (due to a law firms error only) and it did not, inexplicably, process the appeal under section 1.41 as I requested at that time. The Commission simply chose to unlawfully construe this simple rule, 1.106(c)(2) to me, when it knew the real meaning of this rule (it is clear on its face) and it properly applied to rule to others. Thus, in a proper processing of this case, under this request, the FCC must apply this rule properly and equally to me, and by that, accept the one, just noted, purportedly late appeal, as well as all pleadings after that in this case in which I submitted relevant substance in the public interest. And for the same reason, the FCC must retract the sanctions orders, and spurious findings that I acted frivolously.

Appendix This is a summary as to the presentation of this Petition directly under the Fifth and First Amendments, as well as under FCC rules. I intend to pursue this case on this basis, to an appeal in court, to the degree the FCC will not properly deal with the substance of this case under its rules, including section 1.41. 1. Congress does not have the power to abridge the right to sue government for

redress . But it can create alternatives, including under the Communications Act, that people are induced to use, so long as it does not abridge the basic right to sue for redress. The right (of petition) embraces dissent, and "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen." "[D]eprivation of it would at once be felt by every freeman as a degradation." This writer accepts the political wisdom and practical truth of the above quotation from a case on a US Court of Appeals. 2. If there is to be personal or official immunity, within federal agencies including

the FCC, then there must be alternatives consistent with the Petition Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).(3) Chief Justice Burger proposed that "Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose fourth amendment rights been violated." 403 US at 422. His error is in thinking such a system should originate in Congress, or be limited to fourth amendment rights. U.S. v. Lee, 106 U.S. 196 (1882), recognized a right similar to that in Bivens, arising out of the Due Process and Just Compensation Clauses. 8

Justice Harlan's concurring opinion in Bivens is that a direct action should lie for violation of any Constitutional Right. The question is not "judicial vs congressional power to create such a system." The first amendment says "Congress shall make no law abridging ... the right of the people ... to petition government for a redress of grievances". 3. The judiciary treats the Right of Petition when exercised in the courts by stringent
to

tests to protect First Amendment Rights requiring government meet standards of "compelling state interest"; "clear and present danger", and striking laws for "vagueness" and "over breadth" that fail the tests. 4. FCC rule section 1.41 is a minimum requirement to allow petitions under the First

and Fifth Amendments (and other Constitutional rights, that may related to FCC matters). Where a petition is presented, under this rule, or any other ruleincluding under 47 USC 405 (and related FCC rules on petitions for reconsideration to the WB and applications for review to the Commission)as were all of my petitions in this long case captioned abovethe government (here, the FCC) has obligations to respond, if the substance has merit under these protected rights. It cannot shrug off its duties as to the protected rights with a procedural-defect ruse, as it has done here, which is especially offensive since the petitions are to expose government malfeasance, not only to see rights of the citizen. That citizen whistleblower action cannot lawfully be violated, either. (A party subject to an agency licensing and control, is even more of an insider or otherwise in a position to blow the whistle than an employee.) ///
k

Respectfully submitted, /s/ _____________________ Warren C. Havens, pro se 2509 Stuart Street Berkeley, CA 94705 Ph: 510-841-2220 September 20, 2012 [The exhibits and attachments to this filing are being filed separately via ULS.]

10

Declaration I, Warren Havens, hereby declare, under penalty of perjury, that the foregoing Request under Section 1.41, including any Exhibits and Attachments, was prepared pursuant to my direction and control and that all the factual statements and representations of which I have direct knowledge contained herein are true and correct. This Declaration was on executed September 20, 2012. /s/ Warren Havens [Submitted Electronically. Signature on File] ______________________________ Warren Havens

11

Certificate of Service

I, Warren Havens, certify that on this 20th day of September 2012, I caused to be served by placing into the USPS mail system with first class postage affixed, unless otherwise noted, a copy of the foregoing Request Under Section 1.41, including any attachmentsandexhibits,tothefollowing: Robert J. Keller Law Offices of Robert J. Keller, P.C. P.O. Box 33428 Washington, DC 20033 Counsel of record of Maritime Communications/Land Mobile LLC Debtor in Possession (MCLM DIP or MCLM) /s/ Warren Havens [Submitted Electronically. Signature on File] ___________________________________ WarrenHavens 1.ThemailedcopybeingplacedintoaUSPSdropboxtodaymaybeafterbusinesshours andthereforemaynotbeprocessedbytheUSPSuntilthenextbusinessday. 2.InthepastMCLMfiledcommentsonpreviousOrdersinvolvingsanctionsinthis proceeding.PetitionerdoesnotbelieveMCLMDIPisapartyinthisproceedingbasedon itspastactionsandinactions.However,outofanabundanceofcaution,Petitionerserves MCLMDIPatthistime,withoutwaivinganyclaimsorrightsastoMCLMDIPnotbeinga partywithstanding. 3.Mr.KellerhasrepresentedinFCCproceedingunderFCC1164,docket1171,thatas counseltoMCLMDIPheisbarredforvariousreasonsformanydirectexchangeswith WarrenHavens,andmayonlydealanattorneyatlawthatrepresentsMr.Havensorany companyMr.HavensservesasPresidentorotherauthorizedrepresentativeposition.If Mr.KellerrespondsforMCLMDIPtothispleading,Petitionerreservestherightto challengetheresponse,citingthejustnotedrepresentationanddocumentingit(andon othergroundsthatmayexist). EndofCertificateofService.

CertificateEndNotes

12

NEXT DOCUMENT FOLLOWS.

See notes on page 1 to this multi-documement file.

Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) WARREN C. HAVENS ) ) Applications: to Provide Automated Maritime ) Telecommunications System Stations at ) Various Locations in Texas, and ) ) Applications to Provide Automated Maritime ) Telecommunications System Stations at ) Various Locations in Colorado )

File Nos. 852997-853009 [852998 excluded]

File Nos. 853010-853014

REQUEST FOR PERMISSION TO FILE Pursuant to Commission Memorandum Opinion and Order FCC 12-26 issued on March 12, 2012, requiring Warren C. Havens to request permission of the Wireless

Telecommunications Bureau to file further documents relating to or in connection with Application File Nos. File Nos. 852997-853009 and 853010-853014, Warren C. Havens (Havens, Petitioner or I) submits this request.[*] Attached is a petition related to MO&O DA 12-1376 (the 8-12 Order). I hereby certify that the claim or claims I present in attached are not frivolous or made in bad faith, and are in good faith. For reason I submit in the attached and submitted earlier in this proceeding, I object to the requirement to submit this request for permission to file. Respectfully submitted, /s/ Warren C. Havens, pro se

[*] I do not believe that the 8-12 Oder is correct that my request for leave to file submitted with the pleading that resulted in the 8-12 Order was not a Commission requirement in the Reduced Sanctions Order (defined in the Recon), or that the Bureau can decide this issue. 1

Federal Communications Commission Washington, D.C. 20554 In the Matter of WARREN C. HAVENS Applications to Provide Automated Maritime Telecommunications System Stations at Various Locations in Texas, and Applications to Provide Automated Maritime Telecommunications System Stations at Chaffee, Aspen, Colorado Springs, Copper Mountain, and Leadville, Colorado To the Secretary Attention: Chief of the Wireless Bureau Petition for Reconsideration of MO&O, 12-1376 of August 21, 2012
and Conditional Application for Review** Errata copy *

) ) ) ) ) ) ) ) ) ) ) )

File Nos. 852997-853009 [852998 excluded] File Nos. 853010-853014

Warren C. Havens (Havens or I) hereby petition regarding the captioned Order (the 8-12 Order) (the Petition). I submit concurrently today a related petition. The below text that asks for a new case or the like, in this pleading means a reconsideration. of the 8-12 Order. Introduction and Summary Based on the new facts presented hereinthe FCCs own recent decisions and admissions, including at the Commission level, I request and have a right to a new trial, that is, to processing over, from the start, the captioned applications, and the related issues that arose, including whether any of my appeals were properly deemed late and fully rejected (as to the substance) and whether any were frivolous and sanctionable (even if the FCC has any rule basis for sanctions, which it does not, and now effectively admits). This is presented below. The 8-1 Order turns backwards the actual history. It states, Havens has been challenging the Commissions denial of his applications for certain AMTS licenses for more
,"

than a decade and alleges that was sanctionable, since one day, the law firm of Hogan & Hartson,
----* Deletions in striketout and additions in text boxes. ** The "Conditional Application for Review" (in the alternative) is explained in the concurently filed petition on 9-20-2012. It is not different from this text. The questions posed, and my answers, are apparent in this text.

to processing over, from the start, the captioned applications, and the related issues that arose, including whether any of my appeals were properly deemed late and fully rejected (as to the substance) and whether any were frivolous and sanctionable (even if the FCC has any rule basis for sanctions, which it does not, and now effectively admits). This is presented below. The 8-1 Order turns backwards the actual history. It states, Havens has been challenging the Commissions denial of his applications for certain AMTS licenses for more
," those [This area is deliberately blank.]

than a decade and alleges that was sanctionable, since one day, the law firm of Hogan & Hartson,
the subject

then Havens counsel, missed a filing deadline if an appeal was considered under the rule on reconsiderationbut not under the rule 1.41 which Havens also filed under. From that point on, the FCC abrograted its duties to decide on the substance in the public intereston the core rule on AMTS and the reason for its creation, and to follow and equally apply its practice to process requests that have serious intent and content (and the FCC has admitted this case does that) under section 1.41. The fact is that the FCC is sanctionable, and that it has flagrantly violated Fifth Amendment equal rights, property rights, and due process, and Fifth Amendment petition and speech rightsthreatening and chilling them. The Commission could not respond to the actual arguments Havens made (with counsel) in responding to the two Commission sanction orders (Sanction 1 Order and Retracted Sanction Order)1, and thus has kicked the bucket downstairs to the Bureau, but this time to just saynothing (but with no authority shown for the Bureau to deal with a petition filed with the Commission). While this was underway, after the Retracted Sanctions 2 Order, Havens appealed to the DC Circuit Court, and asked the FCC
a certain as to

Office of General Counsel to stipulate that it would not take the position that the Havens Petition
,FCC 11-116, ,the March 12, 2012 MO&O, 2 1ThisRetractedSanctionsOrderretractedmuchoftheSanctionsOrder1thatwas particularlyoffensiveandunsustainableunderlaw.Itpretendedthatthiswasmerelya betterstatementofSanctions1Order,butitwasamajorretraction.ItrequiredHavensto certifythatfurtherfilingsastothecaptionedlicenseapplicationswasingoodfaith.But thatisalreadyimpliedinrulesection1.52(aprosefilermustsignsigningalwaysmeans thefilingisbythepartyandtheypartyisingoodfaith)andotherrulesoftheFCC. 3

for Reconsideration pending as to Sanctions 2 Order that would bar appeal thereof, once decided.* In the 8-12 Order, the FCC now does what it could have done the first time it found any Havens filing as to the captioned applications defective: just dismissed under section 1.106(p): The FCC rejected previously (see arguments of Havens challenging the Sanctions Order 1, and the FCC response thereto), now it accepts it. It has that remedy all along, had it sought to follow its rules. Instead, it chose to concoct sanctions law, and modify section 1.52 by ultra vires rule change, not since it had any burden by the Havens filings (since section 1.106(p) was a simple solution- if the filings lacked merit, etc.) but since the Havens filings exposed serious, prolonged, and accelerating FCC malfeasance, extended to flagrant violation of Fifth Amendment protected rights. It thus concocted sanctions with no lawful authority to do so. This Petition is submitted under the First and Fifth Amendments (in addition to FCC rule section 1.41) for reasons given in my past pleadings in this Case (the entire case involving the captioned applications) and further discussed in the Appendix hereto. The following exhibits are referenced and incorporated herein including the arguments therein: (1) Exhibit 1: Regarding Bureau Order on Requests under Sec. 1.41: Order, DA 121131. (2) Exhibit 2: Regarding FCC Order on FOIA 2012-190: Memorandum Opinion and Order, FCC 12-113. (3) Exhibit 3: Regarding Administrative Law Judge Order regarding glossary: Order, FCC 12M-39. These FCC decisions require grant of this request for reasons given in the Exhibits cover memos, and for the further reasons presented below related to these Exhibits. I refer to and incorporate herein all my filings in the captioned matter above, without limitation. Further Discussion Regarding Exhibit 2. In footnote 19 states, the Commissioners signing this FOIA Order
----* The OFC would not stipulate, but the Circuit Order stated in its order on dismissal that I had the rights I sought in the stipulation. In this refusal to stipulate, the FCC, again, acted contrary to law, efficient dealings, and the public interest.. this had

state (emphasis added): See Warren C. Havens, 27 FCC Rcd 2756, 2759 10 (2012) (Section 1.52 directly authorizes sanctions for filing frivolous pleadings against attorneys and at least by implication justifies sanctions against non-attorneys.). This demonstrates that the FCC admits that its two sanctions orders, subject of this case, were order by rule implication. That is unlawfulit has no basis in actual law, and is an abuse of discretion: the FCC has no discretion to sanction but where it is specifically authorized under law. That is stated in the Administrative Procedures Act: I have cited this and argued under it in this case in past pleadings and need no t do so again here. Regarding Exhibit 1. An Order on 1.41 Requests regarding rule section 80.475(a): it effectively means that rule section 80.475(a) had no real effect at all, at the application or licensing or construction or service stage. This is clear by reading this order along with the requests its decided, and the petition for reconsideration of the Order and the two Replies. Thus, the FCC has now made clear that it had no basis to reject my applications captioned above, unless it is chooses to directly violate Fifth Amendment equal protection rights. The fact is, as this Order now, for the first time, makes irrefutable, the FCC has never applied this rule to my competitors that obtained AMTS licenses nationwide, but it applied it to me (when it did not
(I met the rule requirement, under any reasonable interpetation and the public interest reasons of the rule)

even apply). Regarding Exhibit 3. The cover memo presents this. Further, the 8-12 Order, as indicated above, demonstrates that the FCC never had any basis for its complaints of being burdened by Havens petitions that the FCC found late(since it would not process one petition under section 1.41 (as it does in all other like cases) and since it would not apply rule 1.106(c)(2) as the rule means and it otherwise interprets it (see below)
(and thus for the sactions orders)

because all it has to do is dismiss the pleadings as the Bureau did in the subject 8-12 Order. For reasons in related to the three Exhibits, and the further last reasons given above, the FCC must grant this request and conduct a new case as more fully requested above. 5
these

----The Bureau erred in deciding on appeal that was addressed to the Commission. Havens was challenging a new Commission Orderthe revised sanctions Order. The PtRcon was the first time that Havens could address this new Order proposing sanctions. The This modified sanction Order was different from the prior Orders in the proceedings dealing with different matters.
8-12 It an

Nothing in the Order that states the Commission delegated to the WTB the taks under the
, 1.106(p) to respond to the Recon and dismiss it. Therefore, there is no rule the Order cites under subject appeal

delegation of authority shown in the Order by the Bureau to act on this matter presented to the Commission. The 8-12 Order violates 47 USC 405(a)(2) because it is beyond the 90-day period for a decision on the Recon. Also, 47 USC 405(a) states that a party to an FCC order that is adversely affected may petition for reconsideration only to the authority making the order and that authority may grant or deny the reconsideration. The statute does not provide that Havens may have submitted the
appeal

8-12

subject Recon to the Bureau, but he had to submit it to the Commission, because the Commission
m 2 8-12 Order

issued the Modified Sanction Order. The statute also says that the authority that made the order and received the recon is to decide on the recon. Therefore, the decision on the Recon by the Bureau conflicts with this statute. ----In In re Applications of Stockholders of CBS Inc., FCC 96-478, 11 FCC Rcd 19746; 1996 FCC LEXIS 6981; 5 Comm. Reg. (P & F) 1050, December 17, 1996 Released, the Commission properly found: Under Commission rules, a petition for reconsideration which relies on facts not previously presented to the Commission may be granted only if these facts relate to 6

events which have occurred or circumstances which have changed since the last opportunity to present such matters, or if these facts were unknown to petitioner until after its last opportunity to present such matters. n5 Should these circumstances not be present, the rules nevertheless allow grant of the petition for reconsideration should the Commission determine that consideration of the facts relied on by petitioner is in the public interest. Id. at 1.106(c)(2). n5 See 47 C.F.R. 1.106(c)(1). That is precisely what I have argued in this case as to the one time the FCC found that my appeal
computer systems failure

was late (due to a law firms error only) and it did not, inexplicably, process the appeal under section 1.41 as I requested at that time. The Commission simply chose to unlawfully construe this simple rule, 1.106(c)(2) to me, when it knew the real meaning of this rule (it is clear on its face) and it properly applied to rule to others. Thus, in a proper processing of this case, under this request, the FCC must apply this rule properly and equally to me, and by that, accept the one, just noted, purportedly late appeal, as well as all pleadings after that in this case in which I submitted relevant substance in the public interest. And for the same reason, the FCC must retract the sanctions orders, and spurious findings that I acted frivolously.

Appendix This is a summary as to the presentation of this Petition directly under the Fifth and First Amendments, as well as under FCC rules. I intend to pursue this case on this basis, to an appeal in court, to the degree the FCC will not properly deal with the substance of this case under its rules, including section 1.41. 1. Congress does not have the power to abridge the right to sue government for

redress . But it can create alternatives, including under the Communications Act, that people are induced to use, so long as it does not abridge the basic right to sue for redress. The right (of petition) embraces dissent, and "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen." "[D]eprivation of it would at once be felt by every freeman as a degradation." This writer accepts the political wisdom and practical truth of the above quotation from a case on a US Court of Appeals. 2. If there is to be personal or official immunity, within federal agencies including

the FCC, then there must be alternatives consistent with the Petition Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).(3) Chief Justice Burger proposed that "Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose fourth amendment rights been violated." 403 US at 422. His error is in thinking such a system should originate in Congress, or be limited to fourth amendment rights. U.S. v. Lee, 106 U.S. 196 (1882), recognized a right similar to that in Bivens, arising out of the Due Process and Just Compensation Clauses. 8

Justice Harlan's concurring opinion in Bivens is that a direct action should lie for violation of any Constitutional Right. The question is not "judicial vs congressional power to create such a system." The first amendment says "Congress shall make no law abridging ... the right of the people ... to petition government for a redress of grievances". 3. The judiciary treats the Right of Petition when exercised in the courts by stringent
to

tests to protect First Amendment Rights requiring government meet standards of "compelling state interest"; "clear and present danger", and striking laws for "vagueness" and "over breadth" that fail the tests. 4. FCC rule section 1.41 is a minimum requirement to allow petitions under the First

and Fifth Amendments (and other Constitutional rights, that may related to FCC matters). Where a petition is presented, under this rule, or any other ruleincluding under 47 USC 405 (and related FCC rules on petitions for reconsideration to the WB and applications for review to the Commission)as were all of my petitions in this long case captioned abovethe government (here, the FCC) has obligations to respond, if the substance has merit under these protected rights. It cannot shrug off its duties as to the protected rights with a procedural-defect ruse, as it has done here, which is especially offensive since the petitions are to expose government malfeasance, not only to see rights of the citizen. That citizen whistleblower action cannot lawfully be violated, either. (A party subject to an agency licensing and control, is even more of an insider or otherwise in a position to blow the whistle than an employee.) ///
k

Respectfully submitted, /s/ _____________________ Warren C. Havens, pro se 2509 Stuart Street Berkeley, CA 94705 Ph: 510-841-2220 September 20, 2012 [The exhibits and attachments to this filing are being filed separately via ULS.]

10

Declaration I, Warren Havens, hereby declare, under penalty of perjury, that the foregoing Request under Section 1.41, including any Exhibits and Attachments, was prepared pursuant to my direction and control and that all the factual statements and representations of which I have direct knowledge contained herein are true and correct. This Declaration was on executed September 20, 2012. /s/ Warren Havens [Submitted Electronically. Signature on File] ______________________________ Warren Havens

11

Certificate of Service

I, Warren Havens, certify that on this 20th day of September 2012, I caused to be served by placing into the USPS mail system with first class postage affixed, unless otherwise noted, a copy of the foregoing Request Under Section 1.41, including any attachmentsandexhibits,tothefollowing: Robert J. Keller Law Offices of Robert J. Keller, P.C. P.O. Box 33428 Washington, DC 20033 Counsel of record of Maritime Communications/Land Mobile LLC Debtor in Possession (MCLM DIP or MCLM) /s/ Warren Havens [Submitted Electronically. Signature on File] ___________________________________ WarrenHavens 1.ThemailedcopybeingplacedintoaUSPSdropboxtodaymaybeafterbusinesshours andthereforemaynotbeprocessedbytheUSPSuntilthenextbusinessday. 2.InthepastMCLMfiledcommentsonpreviousOrdersinvolvingsanctionsinthis proceeding.PetitionerdoesnotbelieveMCLMDIPisapartyinthisproceedingbasedon itspastactionsandinactions.However,outofanabundanceofcaution,Petitionerserves MCLMDIPatthistime,withoutwaivinganyclaimsorrightsastoMCLMDIPnotbeinga partywithstanding. 3.Mr.KellerhasrepresentedinFCCproceedingunderFCC1164,docket1171,thatas counseltoMCLMDIPheisbarredforvariousreasonsformanydirectexchangeswith WarrenHavens,andmayonlydealanattorneyatlawthatrepresentsMr.Havensorany companyMr.HavensservesasPresidentorotherauthorizedrepresentativeposition.If Mr.KellerrespondsforMCLMDIPtothispleading,Petitionerreservestherightto challengetheresponse,citingthejustnotedrepresentationanddocumentingit(andon othergroundsthatmayexist). EndofCertificateofService.

CertificateEndNotes

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Su bje c t : Fr o m : To: Cc: Dat e :

release of the Maritime CD, under just-issued FCC 12-113 Warren Havens (warren.havens@sbcglobal.net) gary.schonman@fcc.gov; Joel.Kaufman@fcc.gov; Pamela.Kane@fcc.gov; brian.carter@fcc.gov; jstobaugh@telesaurus.com; Monday, September 17, 2012 9:45 AM

M r . S c h o n m a n , M r . K a u f f m a n , R e : F C C 1 2 1 1 3 . FOIAControlNo.2012190. W i l l y o u n o w r e l e a s e t h e C D ( t h e s u b j e c t o f t h i s F O I A r e q u e s t ) , g i v e n t h e d e c i s i o n i n t h e a t t a c h e d ? I f n o t , p l e a s e e x p l a i n w h a t f u r t h e r d e l a y a n d p r o c e d u r e y o u b e l i e v e w i l l a p p l y ? T h e R e q u e s t e r ' s a d d r e s s i s b e l o w . A c o p y s h o u l d n o t b e s e n t b y c e r t i f i e d m a i l , o n l y r e g u l a r m a i l o r F e d E x b u t w i t h o u t s i g n a t u r e r e q u i r e m e n t . ( U n l e s s y o u w a n t t h e d e l i v e r y t o b e r e j e c t e d , a n d d e l a y e d , t h e n f o l l o w t h a t i n s t r u c t i o n . ) I f i n s t e a d y o u w a n t t o p o s t t h e i t e m s f r o m t h e C D i n t h e d o c k e t 1 1 7 1 , w e c a n g e t t h e m t h e r e . ( O n c e r e l e a s e d u n d e r F O I A , t h e y a r e p u b l i c . A n d t h e y a r e r e l e v a n t t o t h i s H e a r i n g . ) R e F o o t n o t e 1 9 : W a s t h a t y o u r B u r e a u ' s d r a f t i n g o r r e c o m m e n d a t i o n ? T h i s i s o b j e c t i o n a b l e a n d p r e j u d i c i a l . F i r s t , I h a v e t h a t s o c a l l e d s a n c t i o n O r d e r ( a p r e f i l i n g i m p o s i t i o n o f s o r t s , t h a t s a y s l i t t l e o t h e r t h a n w h a t 1 . 5 2 s a y s a n y w a y , a s t o p r o s e f i l e r s ) o n a p p e a l w h i c h t h e f o o t n o t e f a i l s t o n o t e , a n d I a p p e a l e d t h i s t o t h e D C C i r C o u r t ( d i s m i s s e d , d u e t o a p e n d i n g r e c o n s i d e r a t i o n b u t I m a d e i t c l e a r I w i l l e v e n t u a l l y a p p e a l t o t h e D C C i r a g a i n , a s s u m i n g t h e F C C c o n t i n u e s o n t h i s a s h e h a s b e e n . T h i s f o o t n o t e p r e s e n t s t h i s a s e s t a b l i s h e d p r e c e d e n t , a n d i t i s n o t . T h i s f o o t n o t e 1 9 i s m i s u s e o f t h i s F C C p u b l i c a t i o n , a n d a f u r t h e r F i r s t A m e n d m e n t t h r e a t c h i l l t o F i r s t A m e n d m e n t a n d F i f t h A m e n d m e n t r i g h t s . T h e F C C u s e s m i s u s e s t h i s s i m p l e F O I A m a t t e r a s a p l a t f o r m t o f u r t h e r j a b a t m e f o r u n l a w f u l g o v e r n m e n t p u r p o s e s . T h e i s s u e i n f o o t n o t e 1 9 i s n o t r e l a t e d t o t h e s a n c t i o n s a g a i n s t a t t o r n e y s I r a i s e d i n t h i s F O I A c a s e . T h e M C L M a p p e a l w a s f r i v o l o u s i n d e e d , f o r r e a s o n s s h o w n i n t h e O r d e r ' s s u b s t a n c e . B u t f r i v o l o u s o r n o t , t h i s F o o t n o t e 1 9 i s m a l f e a s a n c e . T h i s f o o t n o t e i s u s e f u l , h o w e v e r i t a d m i t s " . . . a n d a t l e a s t b y i m p l i c a t i o n " . A f t e r m u l t i p l e B u r e a u a n d C o m m i s s i o n o r d e r s o n t h i s , h e r e i s i t i s : r u l e , s a n c t i o n a n d c i l l b y " i m p l i c a t i o n " a b u s e o f a u t h o r i t y . U S S u p r e m e C o u r t h a s r e j e c t e d r u l e b y i m p l i c a t i o n , a n d c e r t a i n l y y o u c a n n o t t h r e a t e n p r o t e c t e d r i g h t s w i t h i t . T h i s m a t t e r i s c l e a r t h e F C C a p p l i e d r u l e 8 0 . 3 8 5 b t o m e h a r s h l y , w h e n i t d i d n o t p r o p e r l y a p p l y , t o k i l l m y a t t e m p t s a t A M T S l i c e n s i n g f u l l y w i t h i n t h e l a w , a n d t o t h i s d a y , t h e F C C r e f u s e s t o a p p l y t h i s s a m e r u l e t h e r e a s o n s A M T S w a s c r e a t e d t o c o m p e t i t o r s w h o y o u y o u r s e l f t h e F C C s t a f f s t a t e h a v e s e r i a l l y a n d g r a v e l y c h e a t e d . T h e F C C , n o t H a v e n s , i s s a n c t i o n a b l e i n t h i s m a t t e r : t h i s i s n o t g o v e r n m e n t u n d e r l a w .

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I f y o u d i s a g r e e w i t h t h e a b o v e r e F o o t n o t e 1 9 , p l e a s e l e t m e k n o w . T h a n k y o u , W a r r e n H a v e n s President SkybridgeSpectrumFoundation 2649BenvenueAve,3 BerkeleyCalifornia94704 www.scribd.com/warren_havens/shelf 5108412220x30|5108487797direct

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Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of SKYBRIDGE SPECTRUM FOUNDATION On Request for Inspection of Records ) ) ) ) ) )

FCC 12-113

FOIA Control No. 2012-190

MEMORANDUM OPINION AND ORDER Adopted: September 13, 2012 By the Commission: I. INTRODUCTION Released: September 14, 2012

1. In this Memorandum Opinion and Order, we dismiss an Application for Review (AFR) by Maritime Communications/Land Mobile, LLC (MCLM).1 MCLM seeks review of a decision by the Enforcement Bureau (EB)2 granting a Freedom of Information Act (FOIA) request by Skybridge Spectrum Foundation (Skybridge).3 We find that MCLM is not authorized by our rules to file an application for review. We also deny Skybridges motion for sanctions, which is contained in Skybridges opposition to MCLMs AFR. II. BACKGROUND

2. Skybridges FOIA Request relates to matters at issue in EB Docket No. 11-71, an enforcement proceeding involving MCLM. EB and Skybridge are also parties to that proceeding.4 During the discovery phase of the proceeding, the presiding administrative law judge (ALJ) considered requests by EB and Skybridge for the production of 12 boxes of documents. Initially, the ALJ ordered MLCM to provide the documents to EB and gave Skybridge the option of receiving copies of the documents for half the cost of reproduction or of receiving the originals (after they had been inspected by EB) for inspection and copying.5 Subsequently, the ALJ issued a modified order so that both EB and Skybridge could receive an electronic version of the documents, with standardized page numbering, burned on a CD. 6 The ALJ ordered MCLM to produce the CD containing the documents to EB and ordered MCLM and Skybridge to continue negotiations on terms and conditions for production of the CD

See Application for Review of Freedom of Information Action, filed April 23, 2012, by MCLM (AFR). See also Opposition and Motion for Sanctions, filed May 7, 2012, by Skybridge Spectrum Foundation (Motion).
2 3 4

See Letter from Gary Schonman, Special Counsel, to Warren Havens, President (Apr. 11, 2012) (Decision). See Letter from Skybridge Spectrum Foundation to FCC FOIA Officer (Feb. 18, 2012) (Request).

The parties to the proceeding include not only Skybridge but other entities affiliated with Skybridge. We will refer to all of these parties as Skybridge.
5 6

See Order, FCC 12M-8 (ALJ Feb. 7, 2012). See Order, 12M-11 (ALJ Feb. 16, 2012).

Federal Communications Commission

FCC 12-113

to Skybridge.7 The negotiations were necessary in part to determine whether Skybridge would pay a portion of the cost for preparing the CD.8 3. Skybridges negotiations with MCLM yielded no agreement,9 and, instead, Skybridge filed its FOIA Request, seeking a copy of the CD that MCLM had produced to EB.10 EB granted Skybridges request and found that, because the cost of processing the Request was de minimis, no fees would be assessed.11 In granting Skybridges Request, EB noted that, not only had MCLM not claimed that the contents of the CD were confidential, but also EB had independently reviewed the CD and found that it contained no material covered by any FOIA exemption.12 EBs order provided that, if MCLM believed that EBs treatment of the FOIA request was in error, MCLM could appeal EBs Decision pursuant to 47 C.F.R. 0.461(i). On April 23, 2012, MCLM filed its AFR. On May 7, 2012, Skybridge opposed MCLMs AFR and included a motion for sanctions against MCLM and its attorney on the grounds that the AFR is frivolous.13 III. DISCUSSION

4. We find that neither of the provisions in our rules allowing for the appeal of FOIA decisions authorizes MCLMs appeal, which will therefore be dismissed. Section 0.461(j)14 provides that Except as provided in [ 0.461(i)], an application for review of an initial action on a request for inspection of records . . . may be filed only by the person who made the request. Inasmuch as Skybridge, not MCLM, filed the Request, section 0.461(j) does not give MCLM the right to file an application for review. 5. Nor does MCLMs appeal lie under section 0.461(i), which states: If a request for inspection of records submitted to the Commission in confidence under 0.457(d), 0.459, or another Commission rule or order is granted in whole or in part, an application for review may be filed by the person who submitted the records to the Commission . . . . Although EB indicated that MCLM could file an application for review under section 0.461(i),15 the plain language of this section provides for a right of appeal only where records have been submitted to the Commission in confidence. MCLM, however, did not request confidential treatment when it submitted
7 8

See id. at 2.

See Transcript, EB Docket No. 11-71 at 402-03, 410-12 (discussion of Skybridges willingness to pay a portion of duplication costs).
9

See Request, Exhibit 1 (e-mail from Warren Havens to [Robert] Keller (Feb. 17, 2012). See Request at 1. See Decision at 3. See id. See Motion at 1-5. See 47 C.F.R. 0.461(j).

10 11 12 13 14 15

See Decision at 3 (If [MCLM] believes our treatment of this FOIA request is in error, it may file an application for review of of this action with the FCCs Office of General Counsel within 10 days of the date of this letter. 47 C.F.R. 0.461(i).

Federal Communications Commission

FCC 12-113

the material contained on the CD and did not subsequently claim confidentiality when EB specifically gave MCLM the opportunity to do so.16 Further, MCLMs AFR does not claim that the CD contains exempt material Instead, MCLM argues that EBs grant of the FOIA Request is invalid because its effect is to contravene the ALJs authority to control discovery in the enforcement proceeding.17 Because MCLM does not claim that the material that would be released under FOIA is confidential, MCLMs AFR is beyond the scope of appeals authorized by section 0.461(i) and is dismissed. 6. Separate and independent from our dismissal, we note that, if we were to reach the merits, we would deny the AFR. Contrary to MCLMs view, Skybridges rights under the FOIA are wholly independent of whatever discovery rights it may have. As EB noted in its decision, a FOIA request may be denied only if a FOIA exemption applies, and none applies here.18 7. We will also deny Skybridges Motion to the extent it seeks more than dismissal of the AFR. Skybridge asserts that MCLMs AFR violates 47 C.F.R. 1.52, which requires persons who file pleadings to believe in good faith that there are good grounds to support the pleading.19 Skybridge contends that MCLMs AFR is frivolous and that MCLM and its counsel should therefore be barred from participation in the FOIA proceeding and the enforcement proceeding. We disagree. While MCLMs AFR is not compliant with the rules, we do not find the pleading frivolous or abusive, particularly in light of EBs apparent invitation to file the AFR. IV. ORDERING CLAUSES

8. ACCORDINGLY, IT IS ORDERED that Skybridges Opposition and Motion for Sanctions, filed May 7, 2012, IS GRANTED to the extent it seeks dismissal of MCLMs application for review and otherwise IS DENIED. 9. IT IS FURTHER ORDERED that the Application for Review of Freedom of Information Action, filed by MCLM on April 23, 2012, IS DISMISSED with prejudice as procedurally defective. MCLM may seek judicial review of this action, pursuant to 5 U.S.C. 552(a)(4)(B). 10. The officials responsible for this action are the following: Chairman Genachowski and Commissioners McDowell, Clyburn, Rosenworcel, and Pai. FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch Secretary

16

See Letter from Gary Schonman, Special Counsel to Robert J. Keller, Esq. (Feb. 23, 2012) (informing MCLM of Skybridges FOIA request); Letter from Robert J. Keller to Gary Schonman, Special Counsel (Mar. 5, 2012) (MCLMs response).
17 18

See AFR at 1 (Questions Presented for Review).

See Percy Squire, 26 FCC Rcd 14930, 14933 8 (2011) (stating that the FOIA requires agencies to disclose their records unless the records are subject to an exemption, notwithstanding the alleged relationship between the FOIA request and litigation).
19

See Warren C. Havens, 27 FCC Rcd 2756, 2759 10 (2012) (Section 1.52 directly authorizes sanctions for filing frivolous pleadings against attorneys and at least by implication justifies sanctions against non-attorneys.).

Here is the FCC final determination on the so-called Havens Sanction Order. FCC thinks that, well, maybe, this 3 rule "justified" "by implication" a saction. Really? - That is Wizard of Oz dung. It was all along. More than that, I was right on the underlying 13 appeals. And that is the FCC's problem, since that uncovered FCC malfeasance.