Tom, let me answer a few of your questions as best I can. I said before I think Dick Norton has asked very important, probing questions that should be asked and answered before deciding how to proceed. First, the timeline. I calculated that we had to have a Petition for Review filed by October 6. That is, as you say, just a one or two page notice saying "we're appealing" and attaching copies of the BPL Report and Order and Memorandum Opinion and Order (which is what we are appealing- anything in those two documents). The timing of that PFR is subject to some debate; Ms. Walker, one of the crackerjack appellate lawyers at Wiley, Rein and Fielding who I met with on Monday morning told me she was certain that it was due 60 days from the date of publication of the MO&O in the Federal Register, not 60 days from the date of the release of the MO&O. I didn't check that in detail, I just assumed the most conservative deadline for working purposes. I will check that, but she is most likely correct. The PFR may be due as late as October 22 (a Sunday, so October 23). After that, there are miscellaneous pleadings filed, including statements of issues, notices of intent to intervene by other parties, either on behalf of FCC or us, and certain other minor procedural filings. The briefing schedule is undetermined, but is usually several months after the filing of the PFR. Then oral Argument is scheduled. The whole process would normally take the better part of a year. We can't know the briefing schedule now, since the Court sets it after the PFR and other documents are filed. Why do we have to get our appellate firm retained as soon as possible? Because the handling of this case is not just preparing a brief, a reply brief, and an oral argument. It also involves dealing with interveners, recruiting some for our side, and working with us and others to strategize the appeal. It would not do to retain a firm to help us with this on the eve of the PFR. We are well along on a "beauty contest" of law firms. I view this as a contest between two large firms expert in court appeals, but Joel, Dave, Paul Rinaldo and I met about this and included two other options for outside firms that we are exploring. My rationale for recommending the WilmerHale firm and the Wiley, Rein and Fielding firm are as follows, which I am excerpting from a memo I sent to Joel, Dave, Kay and Rick yesterday: First, some background. I represented a client named Mark Abrams in a commercial antenna case in Rancho Palos Verdes, CA (where W6AM’s historic station was located) a few years ago. Frankly, we kicked RPV’s butt in a big way, both in the California state courts (through the Supreme Court of California) and the Federal Courts in California. After we won the Federal District Court part of the antenna case, I argued that Abrams should be entitled to attorney’s fees under the Civil Rights Act. The US District Court refused to award attorney’s fees, saying that the Telecommunications Act of 1996 had other remedies that precluded a “Section 1988” attorney’s fee award. We appealed the denial of attorney’s fees to the United States Court of Appeals for the 9th Circuit and won. I was proud of that, because I argued the case and the 9th Circuit decided in our favor notwithstanding case decisions in the 3rd and 7th Circuits that went the other way. But because of that, the Supreme Court granted certiorari. And we realized we were in deep poop, because the Supremes didn’t grant cert just to affirm the 9th Circuit Court of Appeals. The 9th Circuit is generally regarded as the “Mr. Magoo” of U.S. Courts of Appeal. CTIA, whose members are mostly cellular carriers, realized that the outcome of that case would have a huge impact on their members, and it was a ray of hope that the carriers could, in antenna siting cases under the Telecom Act, as the result of the Abrams case, get their attorney’s fees awarded to them. So CTIA decided to underwrite the entire Supreme Court appeal. It was decided that two law firms would be involved: one representing Abrams, and the other representing the carriers as interveners. So we had a beauty contest of appellate, and more particularly Supreme Court litigators. CTIA’s general counsel, Abrams, me, Abrams’ regular comm. lawyer, and attorneys for about five cellular carriers interviewed about a dozen or more law firms over two long days. Two were preeminent and at the end, the choice was easy: WilmerHale (including Clinton Administration Solicitor General Seth Waxman, and partners Bill Lake and Jonathan Frankel) and Wiley, Rein & Fielding (including appellate litigator Andy McBride and partners Helgi Walker, and Kate Todd). Waxman represented Abrams and McBride represented the intervener carriers. Both performed like champs, but the real work on the briefs was done by Lake and Frankel for WilmerHale, and Walker and Todd for WRF. I worked with both groups and was thoroughly impressed with each. Walker and Todd were both Supreme Court clerks, and they are sharp as razors. We lost miserably, 9-0, in the Supreme Court. But it was of course the case that lost and not the lawyers. Had it been 5-4 I might have thought otherwise. These two firms are spectacularly good at appellate work, which is a specialty, of course. That was the experience that led me to conclude that WilmerHale and WRF are the two firms best able to help us in the BPL case. I believe that we should not try to win this case without help from an outside firm that does this work all the time. But it is expensive, and these two firms are perhaps the most expensive alternatives of the four alternatives we considered. A third is a firm in McLean, VA which won a recent case on behalf of a model rocketry assocaition challenging a determination of the Bureau of Alcohol, Tobacco, Firearms and Explosives, where ATFE had classified certain model rocket fuel as a banned explosive, but didn't justify its decision adequately. We think there are strong parallels between that case and the BPL decision. A group of judges in the D.C. Circuit which typically affirm agency decisions reversed ATFE in that case. We are talking to that firm now. Another alternative involves the use of an assocation general counsel that Dave is familiar with in D.C. I don't know who will make the decision. I am doing the beauty contest so far and will report to Dave, who will meet with whoever he deems necessary. I assume that Dave will make a recommendation to the President thereafter. I don't know the cost estimate of all the options yet. On the low side, we could do this with consultation from competent outside counsel for probably between $70-$100, and I believe that WilmerHale's estimate, with Dave's prudent cushion added on, totalling about $300K, is probably the high side. If the Board wants me to prosecute this appeal, with or without help, I will of course do it. I will make the necessary time, this case in particular and ARRL in general being my highest priority, and I am rather comfortable in the U.S. Courts of Appeal. I have been there a dozen or so times and sometimes have prevailed against the FCC, though never in a rulemaking challenge. I would recommend that we have an appellate specialist, and more particularly, a telecom appellate specialist, handle this case. I view this as comparable to health strategy: you don't go to your GP for surgery. You go to a surgeon, even if the health problem is serious and the surgeon might not return you to health by the surgery, because the health problem is too unpleasant to live with. I didn't always feel this way, but when I was brash enough to believe that I could do an appeal as well as the appellate specialists, I was much younger and less schooled. I feel differently now, and Dave, who suffered through my growing pains on this subject during the 220 MHz appeal, will so attest. Our Wilmer memo described three issues. Dave wisely urged the addition of the fourth, which was the 40 dB/decade issue. We added that because it offers the best chance, post-remand, of influencing the FCC to change its course. No one is putting a percentage on our chances of winning here. It is fair to say that the WRF firm was more pessimistic about our chances than was the Wilmer firm when I met with them. Dick Norton's conclusions about the chances of success are probably spot on: the FCC wins most appeals in rulemaking cases because the court of appeals gives great deference to agency expertise. In rulemaking cases, agencies have great flexibility. But where they don't justify their decisions, they get reversed and remanded. We think we have a good argument that FCC didn't do this decision correctly, and that therefore they are not due the deference normally given to an agency rulemaking decision. I don't think our chances are better than 50-50, and perhaps somewhat less. But we have a decent argument, and both WilmerHale and WRF don't take cases on that are dog losers. They can't afford to do that. Each thinks we have a good enough case to proceed. The D.C. Circuit is clearly the right place to be. This is a technical agency appeal. The D.C. Circuit deals with technical agency appeals all the time. That is not true with other circuits. We are advised by both firms I have spoken with that, by all means, the D.C. circuit is the place to be. There is no issue of "hometowning" in favor of FCC because it is here. That doesn't happen in agency appeals of this nature. Finally, the alternative of mandamus is not a good substitute for an appeal of the R&O and MO&O, though it might be a good additional strategy. We can do those if the right factual situation comes up. We are not in good shape on individual interference cases now. Even Manassas is reportedly "very quiet". Ed Hare is there right now doing some measurements and field tests. But the cases are not in good factual shape now; there are few ongoing interference complaints (because many of the sites where interference existed have been shut down) and we are finally getting some response from the Enforcement Bureau at what may be the wrong time! What is our best argument in the Court appeal? In my view, it is that which is outlined in the memo attached to my response to Dick Norton's e-mail, updated with the FCC's rather glaring attack on licensed services complaining about interference to mobile operations. If we could get APCO or another public safety entity to intervene on our behalf, that would sweeten the case considerably. Hope this helps, Tom. 73, Chris W3KD -----Original Message----- From: frenaye@pcnet.com To: arrl-odv@reflector.arrl.org Sent: Tue, 12 Sep 2006 11:46 PM Subject: [arrl-odv:14505] Re: Appeal At 02:27 PM 9/12/2006, W5ZN wrote:
I have now received affirmative votes from 12 Directors: [cut] A question has been posed by Director Norton that has been answered that he is pondering.
I have heard nothing from Frenaye or Butler.
I'm still thinking about it. Hate to be a pain, but I do have a few questions. Sorry if they've been asked and answered before. Having the ODV reflector fail for a few days didn't help me get to a fast decision, I'm still catching up on some of the messages. 1) Your original message on September 6th didn't have a deadline, though you indicated we had to decide by October 6th (a full month), and that sooner was better. Is there more of a rush to this than you've indicated? I understand it's important to get a law firm on board buy your memo said we hadn't made a final selection yet. I thought all we had to file on October 6 was a pro-forma filing saying we are appealing and will be filing a full brief within 60-90 (?) days. 2) With voting, I've gotten used to have a clear motion on the table. Your memo said - Again, the question before you, the ARRL Board of Directors, is “Do you agree with the EC recommendation to pursue a judicial appeal?" Did the EC word a motion? Was there an EC conference call and minutes or was this all informal via e-mail? Will the results of the EC action and this Board vote be formalized somehow in minutes of the corporation? Am I voting on: Yes or No to file an appeal? To file an appeal and lock in the "four main points" described in the memo? An open ended checkbook (with a $300k estimate)? or all of the above?
Gentlemen, the clock is ticking and we need to make a decision. I realize we now have 12 affirmative votes and we are preparing to move forward, but I would like to hear from every Director one way or the other.
3) Do we really think we can prevail on any of the "four main points" you noted? (Aren't points #3 and #4 really related? Chris' memo [attached to yours] said Wilmer, et al, suggested just three main points.) What would it cost us if Chris (or his firm) was to do the work? It's hard for me to compare. Are we assuming his work would have a less of a chance of being successful? Does he have the time to handle it? What does the expensive pedigree from bigger firms really buy us? I'm all for it if it really increases our chances for prevailing. If Chris costs less than $100k (which I assume is true), would we be better off using the $200k we save by investing in creating more hams? Who will be choosing the law firm we use? 4) What of the discussion in Chris' memo - "As to mandamus in individual enforcement cases, they thought more of that option than I did." Did the EC take any position on that? Is anything being planned? Will we use Chris for that or is that an extra-cost (or included) item for the selected law firm? 5) What is the expected timeline for this process? i.e. when do file our brief, when do we expect to have the court hear the case and how long do they usually take to rule? Is there an appeal process if we're not happy with the Court of Appeals results? Cost estimates? 6) Is the DC Court the right place for the appeal? I'd think the FCC would have the upper hand in their home town. All that aside, my gut says to go ahead. I'd still like to hear back on my questions first though. Thanks! -- Tom ===== e-mail: k1ki@arrl.org ARRL New England Division Director http://www.arrl.org/ Tom Frenaye, K1KI, P O Box J, West Suffield CT 06093 Phone: 860-668-5444 ________________________________________________________________________ Check out the new AOL. Most comprehensive set of free safety and security tools, free access to millions of high-quality videos from across the web, free AOL Mail and more.