Gee, Tom, your opinion sure seems to have changed since I had a conversation with you and Frank Fallon at Boxboro. Nonetheless, you have some valid questions and I'll attempt to address them. October 6 is the deadline to file our notice of appeal. Chris can file that. However, we would lose valuable time in our initial preparations over the next three weeks if we waited until October 5 to decide what we want to do. It is not my intention to push anyone into a hurried decision in this matter, and I want to make sure all questions are answered, all minds are clear and everyone is comfortable with our decision, but that said we need to act as expeditiously as possible. Chris is "interviewing" three law firms. When he has completed that evaluation, a recommendation will be made to the board. The EC recommendation was my memo to the Board. That was the exact same memo they received and acted upon. All of the EC action is captured in written email. I insisted that each person respond in writing via email to ensure we had some documentation of their action. If you want a formal written motion beyond what has already been given to you in writing I will be happy to draft one, and will go back and get a formal EC motion in place beyond what we already have documented. You are voting to file an appeal as outlined in my memo. The points to be argued are contained in that memo. We (Dave, Chris and I) have provided our best estimate for the appeal based on what we have been told by the Wilmer Hale law firm. I do not consider this an open ended check book. Chris is negotiating with not only the Wilmer Hale firm but a couple of others as well. We intend to counter their proposals with a "not to exceed" amount. I'll defer to Chris to give you his opinion on 3-6, however Chris has already addressed this yesterday. Chris - please restate here again. I have no expertise to decide where we should file the appeal. I am going on the advice of Chris who says it is. 73 Joel W5ZN -----Original Message----- From: Tom Frenaye [mailto:frenaye@pcnet.com] Sent: Tuesday, September 12, 2006 10:46 PM To: arrl-odv 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