WASHINGTON-As preparations were under way to inaugurate a new president, the federal appeals court last week heard oral argument on a case that dates back to the Reagan administration when licenses were allocated not by auctions but by lotteries.
Alee Cellular Communications is asking the U.S. Court of Appeals for the District of Columbia Circuit to require the Federal Communications Commission to review its revocation of the New Mexico 3-Catron Rural Service Area license because it gave “decisional deference” to an administrative law judge ruling that said three Alee witnesses lied when they said they believed a problem with the license application had been resolved.
Alee believes that if the FCC reviews the materials without giving the decisional deference to the ALJ, it might come to the conclusion that it can lawfully award the New Mexico license to Alee. Alee did not ask the court to award it the New Mexico license just that the court send the case back to be reviewed anew by the FCC.
During the argument, the court did not seem to be persuaded by the Alee argument. Chief Judge Harry T. Edwards said the FCC seemed to have carefully reviewed both the ALJ’s testimony and the documentary record.
“I don’t see what the problem is. … It makes sense in light of the record,” said Edwards.
The main question in the case is whether Alee’s principals knew that one of their partners was not a U.S. citizen and whether they intentionally attempted to hide this fact from the FCC.
Alee claims that three witnesses testified at the administrative hearing that they were told during a Dec. 19, 1988, conference call that there had been an alien problem but that it had been resolved.
The ALJ, however, said the witnesses (and others in the multilayered case) “were perfectly willing, indeed anxious, to bend the truth and/or outright lie.”
The FCC later accepted the ALJ’s opinion saying that it was buttressed by documentary evidence including an amended filing that did not change the name of the alien.
Alee’s case is, as the FCC says in its brief, “the tail end of a very complex licensing proceeding that began with a lottery for cellular telephone licenses.” The ALJ became involved when it was discovered that many license applicants had entered agreements that would have allowed for all of the partners to gain financially from the granting of licenses to only some of the applicants.
It was during the course of this hearing that the issue of whether one of Alee’s partners was an alien-at the time non-U.S. citizens were prohibited outright from holding communications licenses-was also examined. While the FCC eventually overturned the ALJ’s decision, it upheld the revocation based on Alee’s lack of candor.
