WASHINGTON-Nextel Communications Inc. and the Washington, D.C., law firm of Brown & Schwaninger once again have taken their running battle to the Federal Communications Commission, with Nextel this time fighting an application for review filed last month by the attorneys.
The FCC dismissed a petition for special relief filed by Brown & Schwaninger in 1996 regarding the Wireless Telecommunications Bureau’s granting of certain specialized mobile radio licenses to Nextel subsidiaries partly because it was filed seven months after the fact and constituted, in reality, a petition for reconsideration. The law firm then filed an instant application for review, and Nextel has asked the FCC to dismiss this filing as well “because Brown & Schwaninger have no standing to challenge the bureau’s licensing decisions or to file the instant application.”
Nextel pointed out that there is some question as to on whose behalf both the original 1996 licensing petition and the current filing were filed. In the first instance, Brown & Schwaninger admitted soliciting support of their licensing petition because it was not filed by client request and “even after naming these asserted parties-in-interest, Brown & Schwaninger did not articulate any specific interests of any of their clients affected by any of the challenged Nextel applications.”
The new instant application, Nextel wrote, has been filed by the lawyers “on their own behalf,” which Nextel believes is against commission rules in that, as attorneys, they own no licenses that could be affected by Nextel nor are they protected by the Communications Act.
In addition, Nextel called attention to what it called Brown & Schwaninger’s “disturbing pattern of filings and conduct before [the FCC].” According to Nextel, the FCC and the courts have dismissed a number of lawsuits filed by the law firm regarding alleged perjury, proposed sanctions against other communications attorneys and defamation, a motion that Brown & Schwaninger pulled back itself after Nextel had spent time and money to fight.
Letters and documents included in Nextel’s petition show that Brown & Schwaninger were retained last fall by the Kenney family in Arizona, private radio licensees, to file a “timely response” to a pending petition to deny at the FCC. “According to the Kenney family, however, Brown & Schwaninger accepted a $1,500 retainer fee, but failed to file a timely response, as provided for in their retainer agreement, and failed to explain its failure to do so.” The family ended up hiring another attorney and petitioned the commission to accept a late-filed pleading that pointed to the Brown & Schwaninger problem as the reason for missing the original deadline.
“[The Kenney family] learned that said counsel may have had an undisclosed relationship with [the party that filed the original petition to deny against the family] and thus a conflict of interest in this proceeding,” wrote Steven M. Kenney. Kenney wrote that one of Brown & Schwaninger’s clients suggested that Kenney retain the law firm to fight the pending petition to deny, and he did so on her recommendation. When the contracted-for response was not filed, Kenney discovered that the client (through Brown & Schwaninger) had supported the party filing the petition to deny, “making adverse false statements about [the Kenney family].”
In light of its own experience and that of others, Nextel asked the FCC to dismiss the instant application because it was filed on Brown & Schwaninger’s own behalf instead of on a client’s. In addition, Nextel concluded, the application should be dismissed because of “the pattern of behavior Brown & Schwaninger have established before the commission.”
