Ky. Station License Remains Alive, Despite FCC Claims to Contrary, Says Licensee’s Reply

The FCC’s July 3 opposition to Gerald Parks' March 22 mandamus petition wrongly argues that the U.S. Appeals Court for the D.C. Circuit lacks jurisdiction to grant Parks his requested relief because the FCC’s Media Bureau canceled his license for AM radio broadcast station WEKC Williamsburg, Kentucky, in August 2020 (see 2307050035), said Parks’ reply Tuesday (docket 23-1078). But Parks' license remains very much in effect while his 2012 renewal application remains pending, said the reply.

Parks' case is "the type of rare instance" that merits mandamus relief, said the reply. He filed the reply six days early, "given the urgency of the situation" in which he finds himself, it said. The D.C. Circuit "needs to step in now to compel an action unlawfully withheld" by the FCC. It needs to thereby stay the damage created by the FCC’s failure to continue the station license in effect while Parks' 2012 renewal application remains pending, it said.

The bureau based its cancellation on the fact that Parks didn’t file by Aug. 1, 2020, a second station license renewal application on top of his still-pending April 2012 station license renewal application, said the Parks reply. In the FCC’s “telling,” the agency’s “undisputed failure” to give public notice of the August 2020 dismissal of the 2012 renewal application until Parks’ counsel raised the issue in 2022 is merely ministerial, and it doesn’t leave the 2012 renewal application pending, and so it should “accordingly be ignored” by the D.C. Circuit, it said.

The “central premise” of the FCC’s opposition, that its public notice failure “should be treated as an inconsequential ministerial detail, is untenable,” said the reply. As Parks’ petition made clear, public notice of agency action -- and the FCC’s dismissal of a license renewal application is most certainly agency action -- is a “bedrock requirement” of Section 405(a) of the Communications Act, it said.

FCC compliance with the public notice requirement in Section 405(a) “is necessary to trigger a broadcast applicant’s reconsideration rights at the agency under that same Section 405(a),” said the Parks reply. “Until such public notice is given, and the statutory 30-day reconsideration period has run without the affected party filing a petition, an application remains pending,” it said. “Importantly, the life of the underlying license is protected throughout the application’s pendency” by another bedrock provision of the statute, Section 307(c)(3), it said.

The two “fundamental statutory provisions,” Sections 405(a) and 307(c)(3), “work together to mandate” that the FCC continue the station license in effect, said the Parks reply. They don’t allow the bureau to move to cancel the license through actions “that are incurably premature under the statutory scheme Congress has established to govern FCC actions,” it said.

The facts of the case “amply justify” prompt D.C. Circuit “exercise of its mandamus power,” said the reply. It seeks an order directing the FCC “to cease what has now stretched into a year-and-a-half-long, unlawful withholding” of station operational authority during the “continued pendency” of the 2012 renewal application. The “simple fact” is, the commission “skipped a critical step in the statutory process,” and it can’t “now pretend this step was unnecessary,” or merely ministerial, it said.

A linchpin of the FCC’s position before the D.C. Circuit is that the 2012 renewal application “is no longer pending,” said the Parks reply. But the FCC’s opposition itself “undercuts this assertion in multiple ways,” it said. It concedes that timely public notice of the FCC’s dismissal of that application wasn’t given, it said.

The FCC’s opposition also elects to try to defend the “bafflingly inconsistent actions” the bureau took on the 2012 renewal application, said the Parks reply. The bureau first dismissed the application in August 2020 without public notice, then reinstated and granted it with public notice, but without explanation, in March 2022, and then rescinded that grant in a February 2023 letter ruling released to the public, it said.

But the FCC opposition’s acknowledgment that the bureau has taken multiple actions on the 2012 renewal application demonstrates, “however unwittingly,” that that application has in fact “remained pending since the day it was filed in April 2012,” said the Parks reply. It’s also “still very much subject to agency reconsideration and review,” it said.

The opposition indeed acknowledges Parks currently has on file with the FCC a timely March 9, 2023, petition for further reconsideration of the bureau’s “confoundingly inconsistent, multiple reversals of course” on the 2012 renewal application, said the Parks reply. The “bald assertion” by the FCC’s general counsel before the D.C. Circuit that no Parks’ application is currently pending before the commission can’t make “this definitive agency record disappear,” it said.