Indian Peak Urges D.C. Circuit to Deny FCC’s Motion to Dismiss Petition for Review

The FCC’s Oct. 5 motion to dismiss Indian Peak Properties’ petition for review on grounds that the U.S. Appeals Court for the D.C. Circuit has jurisdiction to review only final orders of the commission (see 2310060029) “overstates the case law” by attempting to limit the D.C. Circuit’s jurisdiction “to only a review of a formal FCC adjudication” of an application for review, said Indian Peak’s counsel, Julian Gehman of Gehman Law, in his opposition Monday to the motion to dismiss (docket 23-1223).

The D.C. Circuit “has jurisdiction in other instances, as well, including in this appeal,” said Gehman’s opposition. The FCC “silently disposed of” Indian Peak’s application by having effectively taken “final action that it has not acknowledged,” it said. This is an instance where the D.C. Circuit has jurisdiction “even in the absence of a formal FCC ruling” on Indian Peak’s application for review, it said. The FCC’s motion to dismiss should be denied, it said.

The FCC “prejudiced” Indian Peak “by departing from the agency’s longstanding practice of answering status inquiries,” said Gehman’s opposition. Status inquiries are “enshrined” as an 1987 exception to the commission’s ex parte rules, it said. The FCC, in a 1997 revision, “expanded the scope of permissible status inquiries” to include inquiries to commission staff about compliance with procedural requirements, such as service and timeliness requirements, it said.

“To this day, a properly made status inquiry remains an exception to the general prohibition against ex parte presentations in contested proceedings,” said Gehman’s opposition. The status inquiry “is widely used,” it said. As a rule, FCC staffers “always respond to a proper status inquiry,” it said.

Indian Peak filed its application for review at the FCC Jan. 12, said Gehman’s opposition. After receiving no confirmation of filing or other indication the pleading was pending, Indian Peak emailed status inquiries May 8 and June 1 to FCC Chairwoman Jessica Rosenworcel's chief of staff and deputy chief of staff, with the second status inquiry also going to the FCC secretary, it said. Other than an out-of-office message, Indian Peak got no response to those status inquiries, it said. In 31 years of practice before the FCC, this is the first time that Gehman “has seen a status inquiry go unanswered,” the opposition said.

The FCC’s motion to dismiss claims Indian Peak should have sent the status inquiries to a mailbox maintained by the Media Bureau, said Gehman’s opposition. But that claim doesn’t “comport” with FCC Rule 0.283(b), which says the Media Bureau “lacks authority” to handle an application for commission review of actions taken under delegated authority, and the application for review should be referred to the FCC “en banc,” it said.

En banc consideration by the full FCC “necessarily goes” through Rosenworcel’s office, said Gehman’s opposition. If it had given substantive information about the status of Indian Peak’s application for review, the Media Bureau “arguably would have acted outside delegated authority,” it said. The chief of the Wireless Bureau, the other “responsible” FCC bureau, similarly lacks authority to act on an application for review, it said.

In view of the FCC’s rules, the bureaus that previously worked on Indian Peak’s pleadings “were prohibited from acting further,” beyond dismissing them for “improper form,” said Gehman’s opposition. Rosenworcel’s office “was the proper place to direct a status inquiry,” it said.

The FCC “went to some length” to establish the status inquiry “mechanism” for a party like Indian Peak to learn the status of its pleading, said Gehman’s opposition. Here, with its silence, the FCC didn’t “honor its own mechanism,” to the prejudice of Indian Peak, it said.

The commission’s "derogation" of its own status inquiry mechanism prejudiced Indian Peak, said Gehman's opposition. It put Indian Peak in a situation "with potentially dire consequence," while the commission refused to confirm that Indian Peak’s application for review was pending, it said. "In view of the severe penalty for guessing wrong and filing late," Indian Peak appealed to the D.C. Circuit, it said.

The commission is well aware of the penalty for late-filing direct challenges to FCC actions, as the agency routinely invokes the Hobbs Act’s 60-day deadline before the D.C. Circuit to get out-of-time appeals dismissed, said Gehman’s opposition. The commission “should be held to what its silence communicated, namely, that it has silently disposed of” Indian Peak’s application for review, it said. It urged denial of the FCC’s motion to dismiss.