WASHINGTON-The ongoing case between California two-way licensee James A. Kay Jr. and the Federal Communications Commission could be solved within the next several weeks if an administrative law judge decides to revoke Kay’s 164 Part 90 licenses.
The paper trail between FCC attorneys and those representing Kay increased last week following an oral argument and discussion held Jan. 31 by Administrative Law Judge Richard L. Sippel regarding the pending motion for a summary decision on the case. The judge posed technical questions to the Wireless Telecommunications Bureau and to Kay attorney Barry A. Friedman of Thompson, Hine and Flory to determine if Kay’s failure to produce loading information “would affect the ability to litigate the substantive issues set to be tried, other than the Section 308 issue that is the subject of the Bureau’s summary decision motion.”
Judge Sippel will review the written transcript of the hearing before making his decision on the summary decision for revocation.
In conjunction with the hearing, Kay filed a bench memorandum reiterating his position regarding submitting information and the motives of the bureau. He asked that the revocation motion be denied and that a “full evidentiary hearing” be scheduled following discovery.
The background: After failing to receive certain loading information from Kay despite numerous orders for compliance, the bureau had asked Judge Sippel to end the case once and for all by revoking all of Kay’s licenses. On Jan. 22, the bureau outlined its reasons for such a petition, noting that it “fully recognizes the seriousness of its request.” However, after trying to obtain the pertinent information from Kay for more than a year, “Kay’s callous disregard for the commission’s processes and his cavalier attitude toward his responsibilities as a licensee can no longer be tolerated.
“Even if Kay, at this late date, were to suddenly produce the requested loading information, he has secured by his pattern of conduct … that the issue should be resolved against him,” the bureau wrote.
In his response to the bureau’s motion, Kay stated once again that the bureau “has failed to produce any evidence demonstrating that Kay has violated any of the commission’s rules that form the basis of the issues set forth,” in that “the bureau makes no effort to identify any facts that support the issues set forth” and that “the bureau has vigorously opposed every effort by Kay to obtain discovery … In short, Kay cannot defend himself against charges which he is not aware of.”
Kay also charged the bureau with blocking any of his attorneys’ efforts to take depositions from witnesses, saying the bureau had “taken the additional step of advising such witnesses that they are not to speak with Kay or his attorneys regarding these proceedings in the absence of a court-ordered subpoena.” Kay concluded by asking the judge to issue a partial summary decision in his favor.
Subsequent to these filings, the bureau filed an opposition to Kay’s motion for leave to file a reply, and Kay moved to strike that opposition.
If the judge, who reportedly has a reputation for settling cases in an expeditious manner, does rule in favor of the bureau, it would put Kay out of business, possibly depriving him of his livelihood. According to FCC attorney Gary Schonman, who is handling the case for the bureau, there is reasonable doubt, however, that the judge would make such a ruling, due to the complexity of the case. The case could move to the hearing stage this spring.
Kay has been trying to sell his channels since July 1995.
