FCC Turns Down Amateur Licensee’s Appeal

In a Memorandum Opinion and Order (MO&O) released on February 20, the FCC turned down an appeal by William F. Crowell, W6WBJ, of Diamond Springs, California, of an Administrative Law Judge’s (ALJ) dismissal of Crowell’s amateur radio license renewal application. Chief ALJ Richard L. Sippel, ruled in 2018 that Crowell “failed to prosecute his application by refusing to attend a hearing scheduled by the judge,” and that this warranted dismissal of Crowell’s 2007 renewal application. The FCC Wireless Telecommunications Bureau had designated Crowell’s renewal application for hearing based on allegations that he had violated the Communications Act and FCC rules by causing intentional interference and by transmitting one-way communications, indecent language, and music on amateur frequencies. The hearing was set to be held in Washington, DC, and Crowell filed a notice of appearance certifying that he would appear and present his case.The case was interrupted by what the FCC in the MO&O called “a hiatus of several years, during which Crowell’s petition to disqualify the Judge was pending.”

In August 2016, the FCC imposed a $25,000 fine on Crowell for intentional interference and transmitting prohibited communications. The FCC said in a Forfeiture Order (FO) that the penalty “is based on the full base forfeiture amount as well as an upward adjustment reflecting Mr. Crowell’s decision to continue his misconduct after being warned that his actions violated the Communications Act and the Commission’s rules.” The FCC noted that Crowell did not deny making the alleged transmissions but argued in large part that they were protected by the First Amendment of the Constitution,” the Forfeiture Order said. The February 20 MO&O does not reference the Forfeiture Order nor its disposition.

When the renewal application litigation resumed in 2017, Crowell asked that the hearing be moved to the Sacramento, California, area, arguing that he could not afford to travel to Washington. Sippel denied the motion.

“In the Dismissal Order, the Judge responded to Crowell’s refusal to attend a hearing in Washington, D.C., by granting the Enforcement Bureau’s motion to dismiss Crowell’s application,” the FCC said in its MO&O. The ALJ held that Crowell’s refusal to attend a hearing in Washington, DC, “constituted a failure to prosecute and thereby effectively violated Section 1.221(c) of the rules, which requires dismissal if an applicant fails to commit to appear on the date fixed for hearing.” The Judge agreed with the Enforcement Bureau that many of the arguments Crowell raised on appeal “are not properly before us in reviewing the Dismissal Order and should be disregarded.”

Crowell’s amateur license expired in 2007, but he has been permitted, under FCC rules, to operate while his renewal application remains pending.

FCC Seeks to Streamline its Hearings Process

The FCC is asking for public comments on procedural changes that, if adopted, would streamline many administrative hearings under the Communications Act of 1934, as amended.“Currently, these hearings typically are conducted like trials in civil litigation and include, among other things, live testimony before an administrative law judge, cross-examination of witnesses, and an initial decision by the administrative law judge that is subject to review by the Commission,” the FCC said in a Notice of Proposed Rulemaking (NPRM) in EB Docket 19-214. The FCC said its proposals “are designed to supplement the Commission’s current administrative law judge referral process and promote more efficient resolution of hearings.”

If adopted, the proposals would:

  • Codify and expand the use of a process that would rely on written testimony and documentary evidence in lieu of live testimony and cross-examination.
  • Enable Commission staff to act as a case manager that would supervise development of the written hearing record when the Commission designates itself as the presiding officer at a hearing.
  • Dispense with the preparation of an intermediate opinion, whenever the record of a proceeding can be certified to the Commission for final decision.

According to the FCC, the proposed procedures would expedite its hearing processes, consistent with the requirements of the Communications Act and the Administrative Procedure Act (APA) while ensuring transparency and procedural fairness.

The FCC’s current hearing rules provide that “any hearing upon an application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate.” The FCC noted that it has, on numerous occasions, curtailed the use of oral testimony and cross-examination in particular proceedings, in order to expedite the hearing process.

“In our experience, disputes in Commission proceedings typically involve criticisms by one party of the evidence proffered by another party or the legal significance of that evidence, not actual conflicts in testimony between two witnesses concerning outcome-determinative facts,” the FCC said.

“We contemplate codifying and expanding the use of a written hearing process that can be used in most adjudicative proceedings, including those conducted by an administrative law judge. In particular, we propose to authorize the presiding officer to conduct a written hearing whenever factual disputes can be adequately resolved on a written record.”

Among other proposed changes, the FCC would prohibit staff members who have taken an active part in investigating, prosecuting, or advocating in a case from serving as a case manager and from advising or assisting the case manager in the same case.