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HAVENS Applications to Provide Automated Maritime Telecommunications System 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 ) ) ) ) ) ) ) ) ) ) )

File Nos. 852997-853009 File Nos. 853010-853014

WARREN HAVENS RESPONSE TO FCC 11-116 Respondent Warren C. Havens (Havens), by and through undersigned counsel, hereby responds to the Commissions 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. 852997853009 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 Commissions 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 Thus, the Order should be reversed and its assertions withdrawn to mitigate damage to the public interest, Havens and companies he manages.1

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 FCCs 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 FCCs 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.

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.

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

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

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 W orkers 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 A griculture v. United Foods, Inc., 533 U.S. 405, 409 (2001); Connecticut Bar A ssn 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

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 Bblock 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 Commissions 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 Commissions 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 . . . A n 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 regulations 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

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 licensees 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 filers 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 Commissions processes, and was founded upon the extreme disfavor with which we viewed a licensees 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

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 competitors service. Thus, the particular anticompetitive concerns at issue in Radio Carrollton (i.e., one licensee abusing the Commissions processes in order to interfere with another licensees 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 Commissions 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 A lexander 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 A pplications 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 A lexander 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 A gainst 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 A ct, 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 600700 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.

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 prefiling 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 Commissions 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--vis Havens.9 But this is simply a legal conclusion without any underlying rationale. In fact, disparate treatment by the

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--vis Havens, while ignoring this requirement vis--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 Commissions failure to enforce AMTS station operational requirements as they applied to Mobex) was analogous to the issue asserted in this case (i.e., the Commissions failure to enforce AMTS station operational requirements as they applied to Regionet and the other AMTS Competitors).


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Notwithstanding the Commissions warning against Havens for advancing the arguments made in the Mobex matter, these arguments were subsequently vindicated by the Enforcement Bureaus 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 Commissions 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 Commissions regulations, and included their failure to comply with the Coverage Requirement at issue here. Further, this failure by Regionet-- and the FCCs accommodation of it prior to when Havens Texas Applications were submittedis inextricably linked with the FCCs 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

See FCC Order 11-116(final).doc

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 Commissions 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 partys 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 Bureaus 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 Commissions 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).

Only the late petition, and those subsequent, are subject of the alleged repetitiveness

See, 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 2007177. 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 Commissions 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. W ilson, 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