The Federal Communications Commission denied Southern California SMR entrepreneur James Kay Jr.’s appeal to disqualify Administrative Law Judge Richard Sippel from presiding over an evidentiary hearing Kay won the right to have earlier this year.
Kay’s attorneys filed a motion March 26 asking that the judge excuse himself from the hearing, which involves the take back of Kay’s Part 90 frequencies. His attorneys requested that another ALJ replace him on the grounds that ex parte correspondence exists, and Sippel has an admitted bias against Kay. Sippel denied the motion, and Kay’s attorneys appealed to the FCC.
Sippel originally invoked an order that recalled Kay’s long-disputed specialized mobile radio channels, but the FCC vacated the summary decision and remanded the case for further proceeding because the Wireless Telecommunications Bureau failed to produce documentary evidence. Kay now receives the evidentiary hearing for which he has fought since July 1996.
In their appeal to the FCC, Kay’s attorneys contended that Sippel must have received and did not disclose, contrary to the FCC’s ex parte rules, a letter that contained prejudicial information about Kay. They also claimed that the judge in effect made an admission, after the FCC remanded the original case, that he was biased.
The FCC found that documentary evidence corroborated with Sippel’s claims that he never received the letter until it was submitted by Kay in his disqualification motion. The commission also ruled that the comments Sippel made after the FCC’s remand that he would look at the case in a “fresh new way” were taken out of context. “That ALJ’s words simply reflect a pledge that he is able to judge the case in the future uninfluenced by his prior erroneous ruling, not an admission of prior bias,” the commission wrote.
Kay’s appeal also relied on several findings and comments in the summary decision, but they did not establish personal bias and prejudice, wrote the FCC.
