Petition for Writ of Certiorari — Tsaconas v. Federal Communications Commission

Wuprema Court, U.S.

We og FITTED

93-454 .

ibe DEC 9 1993

OFFICE CF THE CLEAN

No. ita: te Se oe st

SUPREME COURT OF THE UNITED STATES

October, 1993 Term

PAULA TSACONAS, DOUG BURBECK, JOSEPH J.

JAN LOIS, JR., CHANNING JONES III, JAMES

H. KARLS, MILTON KRAMLICH, JOHN LEE,

HAROLD J. MYERS, NAMAQUA LIMITED

PARTNERSHIP, NOVA COM PARTNERS, JOHN

PANOZZO, SIERRA COM PARTNERS, ARNOLD LEONG

D/B/A SOBRANTECH, HELLA TSACONAS, WARREN

HAVENS, KENNETH MERIN, AIR CABLE LIMITED

PARTNERSHIP

Petitioners,

Vv.

FEDERAL COMMUNICATIONS COMMISSION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petition for Writ of Certiorari.

Richard S. Myers, Esq.

Counsel of Record

Law Offices of Richard S. Myers

1030 15th Street, N.W., Suite 908

Washington, D.C. 20005

(202) 371-0789

QUESTIONS PRESENTED FOR REVIEW

Did the Federal Communications FCC

("FCC") violate Fifth Amendment

procedural due process rights of

Petitioners by conducting a criminal

investigation of them while

Simultaneously adjudicating their rights

in a civil administrative proceeding when

Congress has granted no authority to the

FCC to conduct criminal investigations?

Did the FCC violate Petitioners’

Fifth Amendment equal protection rights

by classifying them as an "Application

Mill" and making them part of its effort

to eliminate "Application Mills" through

adjudications in which the Fcc made

findings that Petitioners violated the

FCC’s rules?

If the FCC violated Petitioners’

procedural due process and equal

protection rights, did such

ii

constitutional violations create an

exception to the exhaustion of

administrative remedies doctrine,

enabling the lower court to exercise

jurisdiction over appllants’ cases?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR

Dts ois es 6 6 6.44 6 «Ae

TABLE OF AUTHORITIES. . .. .- vi

REFERENCE TO OFFICIAL OR OFFICIAL

DEGNTER. 1 s 6 0 8 8 eee et WES

CONCISE STATEMENT OF GROUNDS ON WHICH

COURT’S JURISDICTION IS

ll ee ae ee ee”

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED IN THE CASE. ... + X

CONCISE STATEMENT OF THE

was « 6 608 ete “se « &

DIRECT AND CONCISE ARGUMENT AMPLIFYING

REASONS RELIED ON FOR ALLOWANCE OF THE

se ee a a ee ee

E« Introduction. .. . 12

II. The FCC’s criminal

investigation in conjunction

with a civil adjudication

violated Petitioners’ due

process rights. .. 13

III. The FCC’s classification of

Petitioners as an "Application

Mill" violates the 14th

Amendment’s Equal Protection

ieee. «2 & « «6 6 «Se

IV. Petitioners should not be

required to exhaust

iv

re

APPENDIX.

administrative remedies when

the FCC violates the

Petitioners’ constitutional

rights of procedural due

process and equal

protection. .... 26

Conclusion. .... 30

A-1

TABLE OF AUTHORITIES

Cases

Buffalino v. Kennedy, 322 F.2d 1016, 1018

(D.C. Civ, 3963) 6 2 «& 6 © 21

Bulluck v. Washington, 468 F.2d 1096,

1100 n.9 (D.C.Cir. 1972). <.«« é

Ciechon v. City of Chicago, 686 F.2d 511,

522 n.14 (7th Cir. 1982)... 17

Fitzgerald v. Hampton, 467 F.2d 755, 768

(D.C.Cir. 1972). - +--+ + + +2l, 27

Garrett v. Lehman, 751 F.2d 997, 1002

(9th Cir. 1905), 2 + = 8 * .20

Gibson v. Berryhill, 411 U.S. 564, 768

(1973). ata. S 27

Gulf Oil Corp. v. United States Dept. of

Energy, 663 F.2d 296, 306 (D.¢c.Cir.

S064), 3 + + 2 Ree eee

Oyler v. Boyles, 368 U.S. 448, 456

(1988hs 6 4 8 4 eee

United States v. LaSalle National Bank,

437 U.S. 298 (1978). - + «+ > <A, Bey Oe

U.S. v. Professional Air Traffic

Controllers, 653 F.2d 1134, 1142 (7th

Cie, SO0E)s 2 8 + * o> eZee

Withrow v. Larkin, 421 U.S. 35

(1975). «© «+28 6 * © # eee bee | 21

vi

14

18

26

28

47

47

47

47

47

Statutes

§2.

§3056.

§§7801, 7803.

§533.

§155(d) (7).

§301 et seg.

§402(c).

§$94.15(b) (1).

§94.63.

vii

-21

-10

REFERENCE TO OFFICIAL OR UNOFFICIAL

REPORTER

None of the decisions issued by the

U.S. Court of Appeals for the District of

Columbia Circuit or the Federal

Communications Commission are published

in an official or unofficial reporter.

“7%

ase +

CONCISE STATEMENT OF GROUNDS ON WHICH

THIS COURT’S JURISDICTION IS INVOKED

This Court has jurisdiction under 28

U.S.C. §1254(1) which provides, "Cases in

the court of appeals may be reviewed by

the Supreme Court by the following

methods: (1) By writ of certiorari

granted upon the petition of any party to

any Civil or criminal case, before or

after rendition of judgement or decree."

The U.S. Court of Appeals for the

District of Columbia Circuit dismissed

Petitioners’ appeal on June 29, 1993 and

denied a Petition for Rehearing on

September 10, 1993.

ix

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND

REGULATIONS INVOLVED IN THE CASE

United States Constitution, Fifth

Amendment.

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in land or naval

forces, or in the Militia, when in

actual service in time of War or

public danger; nor shall any person

be subject for the same offence to

be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property without

due process of law; nor shall

private property be taken for public

use, without just compensation.

CONCISE STATEMENT OF THE CASE

Mr. Warren Havens is the owner of

Sierra Communications, a business

involved in the development of radio

communications systems licensed by the

FCC. Mr. Havens established client

relationships with other individuals

interested in communications-related

businesses. One such business involves

Multiple Address Systems ("MAS"). In

such systems, data is transmitted on

frequencies in the 900 MHz band to and

from a "master" station and several

"remote" stations scattered throughout

the service area.

The FCC, through its Private Radio

Bureau ("Bureau"), accepts applications

for MAS construction permits. Mr.

Havens, on behal*® of himself and sixteen

clients, prepared and filed MAS

applications with the Bureau. The

applications were filed during January

and February, 1992.

By letters sent in February and

March, 1992 [hereinafter the "February-

March Letters"] the Chief of the Bureau’s

Microwave Branch ("Branch Chief"), began

dismissing Petitioners’ applications.

The Branch Chief sent individual

dismissal letters to the Petitioners

stating that the applications were

defective because "{i]t is apparent from _

studying [the engineering] analyses that

they are photocopied and the frequencies

requested have not been certified in

original form by your frequency

coordinator as required by Rule 94.63."

The Petitioners affected by the February-

March Letters thereafter filed petitions

with the Bureau seeking reconsideration

of the dismissals, arguing that the FCC’S

rules do not require a frequency

certification to be "certified in

original form."!

By letters sent in April, 1992

(hereinafter the "April Letters"], the

Branch Chief issued letters dismissing

the remainder of the MAS applications

prepared by Mr. Havens. Unlike the

February-March Letters, the April Letters

alleged that “unauthorized changes" had

been made to the frequency coordinations

contained in the MAS application and "had

been tampered with," and that the

applications lacked valid frequency

coordination. The Petitioners affected

by the April Letters thereafter filed

petitions with the Bureau seeking

reconsideration of the dismissals,

arguing that the allegation of

' The rule requiring certification of

frequencies is actually 47 C.F.R.

§94.15(b)(1), not Rule 94.63 as stated in

the dismissal letters.

3

"tampering" was meritless.

On June 10, 1992, counsel for the

Petitioners telephoned the Licensing

Chief who stated that he was working with

the General Counsel to decide to what

extent to coordinate with the Justice

Department in these cases. Counsel asked

the Licensing Chief for the basis for the

Justice Department’s involvement. The

Licensing Chief responded that the FCC

felt that the applicants had made a

representation of frequency coordination

at the time of filing which was not true.

As of June 10, 1992, the Petitioners

thus were aware that they were the

subject of an FCC criminal investigation,

and possible prosecution by the Justice

Department, based on allegations of

"tampering" with, or otherwise

misrepresenting, the frequency

coordination showings made in their

license applications. In the proceedings

below, Petitioners made specific

allegations that the FCC was engaged ina

criminal investigation and prosecution of

Petitioners in coordination with the

Justice Department. The FCC never

addressed such allegations.’

On August 7, 1992, counsel spoke

again with the Licensing Chief by phone.

The Licensing Chief indicated that,

following his meeting with the Branch

Chief, the Bureau’s position was "still"

that the applications were part of an

Appellants’ allegations regarding

a criminal prosecution were made in their

March 15, 1993 response tc the FCC’s

motion to dismiss appellants’ petition for

review before the United States Court of

Appeals for the District of Columbia

Circuit. The allegations were supported

by a declaration made under penalty of

perjury by appellants’ counsel who

confirmed the Licensing Chief’s

statements. The FCC’s March 19, 1993

reply to appellants’ response was totally

Silent regarding these allegations.

5

"application mill" and lacked proper

frequency coordination. Counsel asked

the Licensing Chief for the definition of

an “application mill." The Licensing

Chief responded, "We both know what that

means." The Licensing Chief also stated

that reinstatement of the applications

was “rather slim."

By letters sent on August 25, 1992

("August Letters"), the Licensing Chief

requested a detailed explanation of the

frequency validation process followed

with respect to Petitioners’

applications. It should be emphasized

that the August letters were sent

subsequent to the Licensing Chief’s

statements about coordinating with the

Justice Department regarding Petitioners’

alleged misrepresentation of frequency

coordination.

Petitioners responded to the August

Letters by filing a joint supplement to

their petitions.

During this period, the Bureau Chief

and an FCC Commissioner expressed their

general views concerning “applications

mills." On April 29, 1992, the Bureau

Chief gave a speech deriding “application

mills," i.e. people who are “active in

the business of preparing applications

for the benefit of third parties who have

no connection with the communications

business aside from a strong desire to

get rich quick with no effort." (Ralph

A. Haller, Chief, Private Radio Bureau,

Speech to Land Mobile Communications

Council, April 29, 1992)

Soon thereafter, in a speech given

on June 24, 1992, an FCC Commissioner

mentioned the Private Radio Bureau

Chief’s speech, and echoed the Chief’s

attitude about "application mills,"

stating: "The application mills, I fear,

have proven extremely adept at overcoming

almost every obstacle we throw their way

--- and will always show such perverse

aptitude.” (Ervin S. Duggan,

Commissioner, Federal Communications

Commission, Speech to American Mobile

Telecommunications Association SMR

Leadership Conference, June 24, 1992.)

The full Commission expressed similar

feelings about “application mills" ina

Memorandum Opinion and Order released in

July, 1992 concerning the narrowband 220-

222 MHz service licensed by the Bureau.

There, the FCC justified "good cause" for

shortening the Federal Register notice of

the application filing window:

...{WJe note that through the

Report and Order, we expressed

our concern that a deluge of

applications would be filed by

speculators and so-called

“application mills" seeking not

to develop bona fide narrowband

systems but to obtain access to

spectrum that could later be

sold for a profit. [footnote

omitted}. (Memorandum Opinion

and Order, In the Matter of

Amendment of Part 90 of the

Commission’s Rules .. .,

Adopted June 18, 1992; Released

July 16, 1992) -

In sum, the FCC’s attitude regarding

“application mills" was expressed

consistently by the Private Radio

Bureau’s processing staff, the Private

Radio Bureau’s Licensing Chief, the

Private Radio Bureau’s Chief, at least

one individual FCC Commissioner, as well

as by the full Commission during the

processing of the MAS applications

prepared by Mr. Havens.

By letters dated December 15 and 16,

1992 ("December Letters"), the Licensing

Chief denied Petitioners’ petitions.

On January 14, 1993, Petitioners

filed separate notices of appeal with the

United States Court of Appeals for the

9

District of Columbia Circuit.

Jurisdiction was based upon 47 U.S.C.

§402(c). The cases were consolidated

under Case No. 93-1032.

On March 5, 1993, the FCC’sS Office

of General Counsel filed a motion to

dismiss the cases on the ground that the

Petitioners had not exhausted

administrative remedies pursuant to 47

U.S.C. §155(da)(7) by filing an

application for review of the Bureau’s

December Letters dismissing their

applications. Petitioners filed a

response to the motion to dismiss, and

the FCC filed a reply. The court granted

the motion on June 29, 1993, holding that

Petitioners’ arguments did not support

their contention that they were not

required to exhaust their administrative

remedies prior to seeking judicial

review. The court denied Petitioners’

10

————————————

-~

~~

petition for rehearing on September 1

,

1993.

li

piace

DIRECT AND CONCISE ARGUMENT AMPLIFYING

REASONS RELIED ON FOR ALLOWANCE OF THE

WRIT

I. Introduction.

This case involves important

questions of federal law which have not

been, but should be, settled by this

Court. The questions are: (1) did the

FCC’s conduct of @ criminal investigation

and prosecution of Petitioners during the

pendency of the FCC’s adjudication of

their license applications violate

Petitioners’ procedural due process

rights guaranteed by the Fifth Amendment

of the Constitution?; (2) did the FCC’s

labelling of Petitioners as an

“application mill" during the

adjudication of their license

applications deny Petitioners equal

protection of the laws guaranteed by the

Fourteenth Amendment of the

Constitution?; and (3) if Petitioners’

due process and equal protection rights

were violated, did such a violation

provide a basis for an exception to the

doctrine of exhaustion of administrative

remedies?

These questions are one of first

impression of this Court. Their

importance is highlighted by the fact

that the FCC is the agency of the Federal

Government authorized to issue licenses

to individual persons and businesses for

the use of the radio spectrum. The

proper and constitutional exercise of the

FCC’s licensing function is of growing

importance due to society’s increasing

reliance on wireless communication

services.

II. The FCC’s criminal

investigation in conjunction

with a civil adjudication

violated Petitioners’ due

process rights.

13

Whether the FCC should be permitted

to conduct criminal investigations of

applicants appearing before it implicates

due process concerns which this Court

should address. Not to undertake a

review of these issues would allow the

FCC, and other similarly situated

agencies, free reign to engage in

criminal investigations of applicants

before the agency.

In Withrow v. Larkin, 421 U.S. 35

(1975), this Court addressed whether a

combination of criminal and civil

functions necessarily creates a risk of

bias in administrative adjudication, in

turn violating the procedural due process

rights of individuals appearing before

the agency. This Court stated:

Not only is a biased decisionmaker

constitutionally unacceptable but

"our system of law has always

endeavored to prevent even the

probability of unfairness." In re

14

Murchinson, supra, at 136; cf. Tumey

v. Qhio, 273 U.S. 510, 532 (1927).

In pursuit of this end, various

situations have been identified in

which experience teaches that the

probability of actual bias on the

part of the judge or decisionmaker

is too high to be constitutionally

tolerable. Among these cases are

those in which the adjudicator has a

pecuniary interest in the outcome

and in which he has been the target

of personal abuse or criticism from

the party before him.

Withrow, 421 U.S. at 47 (footnotes

omitted). This Court indicated that the

individual alleging that a combination of

functions creates an unconstitutional

risk of bias in administrative

-adjudication must overcome:

- . a presumption of honesty and

integrity in those serving as

adjudicators; and it must convince

that, under a realistic appraisal of

human weakness, conferring

investigative and adjudicative

powers on the same individuals poses

such a risk of actual bias or

prejudgment that the practice must

be forbidden if the guarantee of due

process is to be adequately

implemented.

Id. However, this Court also stated:

15

That is not to say that there is

nothing to the argument that those

who have investigated should not

then adjudicate. The issue is

substantial, it is not new, and

legislators and others concerned

with the operations of

administrative agencies have given

much attention to whether and to

what extent distinctive

administrative functions should be

performed by the same persons.

Id. at 51-52.

As Withrow suggests, this Court’s

review of the constitutionality of a

combination of functions performed by

administrative agencies relies upon the

agency’s legislative authority. In

Withrow, the state statute specifically

delineated the civil adjudicatory and

criminal prosecutorial functions of a

state board and authorized their

combination. Withrow, 421 U.S. at 37-38.

Accordingly, the authorizing statute of a

board or agency is a guidepost for

determining whether a combination of

16

functions, and in particular a

combination of civil and criminal

functions, is permissible.’

In United States v. LaSalle National

Bank, 437 U.S. 298 (1978), this Court

addressed whether Congress had authorized

the use of administrative summonses in

investigating possible criminal

violations of the Internal Revenue Code.

This Court concluded that Congress by

statute had authorized the Internal

Revenue Service ("IRS") to use

administrative summonses for the purpose

of investigating criminal conduct. This

Court found that Congress had not

categorized tax fraud investigation into

Civil and criminal components but created

a tax enforcement system in which

. See, e.g., Ciechon v. City of

Chicago, 686 F.2d 511, 522 n.14 (7th Cir.

1982).

17

criminal and civil elements are

“inherently intertwined." The Court also

found that a rule was in place whereby

the IRS could issue an administrative

summons only before it recommended

criminal prosecution to the Department of

Justice, thus protecting the standards of

criminal litigation discovery. Id. at

308-311.

The Government may pursue either

civil remedies or criminal sanctions eit

statutory provisions permit." U.S. Vv.

Professional Air Traffic Controllers, 653

F.2d 1134, 1142 (7th Cir. 1981). Under

present law, it is the function of the

Justice Department and the Federal Bureau

of Investigation, not other departments

or agencies, to investigate and prosecute

criminal acts against the United States,

unless “investigative jurisdiction has

been assigned by law to such departments

18

and agencies." 28 U.S.C. §533 (1993) .4

* The full text of 28 U.S.C. §553

(1993) provides:

The Attorney General

may appoint officials

(1) to detect and

prosecute crimes

against the United

States;

(2) to assist in the

protection of the

person of the

President;

(3) to conduct such

other investigations

regarding official

matters under the

control of the

Department of Justice

and the Department of

State as may be

directed by the

Attorney General.

This section does not

limit the authority of

departments and

agencies to

investigate crimes

against the United

States when

investigative

jurisdiction has been

assigned by law to

such departments and

agencies.

19

Examples of federal agencies which have

been assigned investigative jurisdiction

include the Treasury Department (26

U.S.C. §§7801, 7803), the U.S. Coast

Guard (14 U.S.C. §2) and the Secret

Service (18 U.S.C. §3056). Without

statutory authority, it is improper for

an agency to determine criminal questions

in the context of a civil action. United

States v. Jalas, 409 F.2d 358, 360-361

(1969).

The purpose of civil adjudication is

to determine whether a person meets

eligibility requirements for the award of

a government benefit, not to punish the

person as a criminal. Garrett v. Lehman,

751 F.2a 997, 1002 (9th Cir. 1985). In

absence of statutory authority, civil

[Emphasis added].

20

j SE

adjudication is the sole function that

the FCC should be allowed to perform.

See Jalas, 409 F.2d at 360-361.

In the instant case, the FCC has

combined civil adjudicatory and criminal

investigatory functions without any

authority or guidance from Congress.°

The Communications Act of 1934, as

amended, is silent regarding the FCC’s

authority to perform such functions. See

47 U.S.C. §301 et seq. (1993). Statutory

authorization for the combination of

functions, the foundation of the Court’s

decisions in Withrow and LaSalle, is

> In determining whether bias exists

in adjudication, unrebutted allegations

support that it does exist. Buffalino v.

Kennedy, 322 F.2d 1016, 1018 (D.C. Cir.

1963); Fitzgerald _v. Hampton, 467 F.2d

755, 768-769 (D.C. Cir. 1972). The FCC at

no point denied being engaged in a

criminal action which targeted Appellants,

thus demonstrating that the FCC combined

its civil adjudicatory function with

criminal investigative and prosecutorial

functions in Appellants’ cases.

21

absent in Petitioners’ cases.

The absence of statutory guidance

directing the FCC how to use criminal

investigative power creates an

intolerable risk of bias in Petitioners’

cases, in turn resulting in a violation

of Petitioners’ Fifth Amendment right of

procedural due process. It should be

left to Congress to decide the

circumstances and procedures under which

the FCC may participate in criminal

investigations and prosecutions during

the pendency of a civil adjudication, or

whether the FCC should perform such a

function at all. Until that time, this

Court should find that the FCC’s

performance of criminal investigative

functions creates such a risk of bias in

its adjudicative decisions that the

procedural due process protection of the

Fifth Amendment is not satisfied.

22

III. The FCC’s classification of

Petitioners as an "Application

Mill" violates Petitioners’

right of Equal Protection.

Although the Fourteenth Amendment’s

equal protection clause does not apply

directly to actions taken by the federal

government, the Fifth amendment embodies

equal protection principles and is

applicable to the federal government.

Bulluck v. Washington, 468 F.2d 1096,

1100 n.9 (D.C.Cir. 1972).

It is well established that

selectivity of enforcement violates equal

protection when it is deliberately based

upon an unjustifiable standard such as

race, religion or other arbitrary

Classification. Oyler v. Boyles, 368

U.S. 448, 456 (1962).

The instant case presents an

invidious form of discrimination against

Petitioners. Without any authority from

23

eres

Congress, the FCC’s decision-makers at

every level have carved out a special

category of applicant for differential

treatment: an applicant that files

through an "application mill." Based on

this special category, the FCC has

arbitrarily applied its rules and

selectively sought enforcement of

criminal laws against the Petitioners.

The FCC has never defined an

“application mill." The FCC has

arbitrarily created a classification and

decided to use virtually any means it can

get away with to eliminate applicants

falling within that classification, even

if it takes criminal investigation and

prosecution while the FCC is still in the

process of adjudicating their

24

applications.°®

The FCC cannot deny that it has

Classified the Petitioners as part of an

"application mill." On November 18,

1993, the FCC issued a News Release

announcing the lower court’s decision to

grant the FCC’s motion to dismiss in this

case. The News Release equates the

dismissal of the Petitioners applications

with the FCC’s effort to eliminate

“application mills." Clearly, the

Classification exists. More importantly,

the classification is not rationally

related to a legitimate governmental

® Although different kinds of "race"

and "religion" may be defined, the

Classification of persons according to

such definitions in particular contexts

may be arbitrary and unconstitutional. In

contrast, "Application ‘’Mills’" may not

even be subject to any meaningful

definition, making any classification

according to that term arbitrary and

unconstitutional per se.

25

emeetetnaninnietianes aie

interest.

Congress has not authorized such

discrimination. Indeed, because Congress

has not even addressed “application

mills" by legislation, the FCC has an

even greater burden in justifying its

discrimination in Petitioners’ cases.

The FCC offered no reason for

finding that “Application ‘Mills’" should

be eliminated. Instead, the agency has

relied entirely upon its own desire to do

so. Without more, the Petitioners have,

by the FCC’s dismissal of their

applications, been deprived of their

rights under the Fifth Amendment to the

Constitution.

IV. Petitioners should not be

required to exhaust

administrative remedies when

the FCC violates the

Petitioners’ constitutional

rights of procedural due

process and equal protection.

An exception to the requirement of

26

exhaustion of administrative remedies

exists where an agency has very clearly

violated an important constitutional or

statutory right. Fitzgerald v. Hampton,

467 F.2d 755, 768 (D.C.Cir. 1972). Court

intervention prior to completion of the

agency proceeding is justified if a

procedural infirmity exists which is

"fundamental." Id. at 768-769. Further,

a party need not await a final agency

decision if the preliminary agency action

clearly and unambiguously violates

statutory or constitutional rights.

Gibson v. Berryhill, 411 U.S. 564, 768

(1973). The purposes of exhaustion are

not served where something has gone

“fundamentally awry" with the way in

which the agency proceeding itself was

being conducted. Gulf Oil Corp. v.

United States Dept. of Energy, 663 F.2d

296, 306 (D.C.Cir. 1981).

27

The exhaustion requirement allows an

agency to correct its own substantive

mistakes. In Petitioners’ cases,

however, the mistakes lie in the nature

of the agency’s own process, and are of

such a magnitude as to create a

constitutionally intolerable structural

flaw in that process. Petitioners were

identified as potential criminals by the

agency’s designated authority in contacts

with its superior authority. Those

contacts were wholly outside the lawful

procedures for a quasi-judicial civil

adjudication which the designated

authority and the superior authority were

required to follow meticulously. From

the moment the designated authority

contacted the superior authority’s Office

of General Counsel and injected a

criminal prosecution into a civil

adjudication, constitutional review by

28

the superior authority became impossible.

To require Petitioners to go before an

agency already infected by bias would be

to require them to pursue a

constitutionally inadequate remedy.

Further, Petitioners were placed

into the classification of "application

mill" contrary to their right of equal

protection. The stigma attached to this

classification by the FCC meant that

further meaningful review at the agency

was impossible.

Accordingly, the Petitioners have

been subjected to two constitutional

violations. Under these circumstances,

exhaustion of administrative remedies

should not be required, and the

Petitioners should be allowed to argue

the merits of their applications for

radio station licenses before the Court

of Appeals.

29

vs Conclusion.

For the foregoing reasons, the

instant petition should be granted, and

this Court should review the decision of

the U.S. Court of Appeals for the

District of Columbia which dismissed

Petitioners' consolidated cases for lack

of jurisdiction.

Respectfully submitted,

~~

\ A

1 ‘ +

i \ FN \\ L Lo

\ a We Woy \ \ \ va ee

pres YY \

Richard S. Myers ji

(Admission Pending to the Bar of the

Supreme Court)

Law Offices of Richard S. Myers

1030 15th Street, N.W., Suite 908

Washington, D.C. 20005

(202) 371-0789

30