WASHINGTON-Southern California specialized mobile radio entrepreneur James Kay Jr. last week won a partial victory at the Federal Communications Commission regarding the FCC ordered take back of his Part 90 frequencies and the associated $75,000 fine.
A commission review of Administrative Law Judge Richard Sippel’s order that revoked Kay’s long-disputed channels “establishes that genuine, disputed issues of material fact were raised by Kay’s declaration that he did not maintain historical loading information but that he had produced all of his business records. The Wireless Telecommunications Bureau attempted to refute Kay’s declaration during oral arguments before the ALJ but its substantial representations were not supported by documentary evidence or other materials which could be officially noticed, and many of the crucial factual representations were made by a non-attorney. We therefore vacate the summary decision and remand the case for further proceedings.”
What Kay gains now is the evidentiary hearing for which he has fought since July 1996, along with the right to continue to run his business in the interim and the dismissal of his fine. “This is the first fair thing the commission has done in my direction in three years,” Kay told RCR.
In an order released Feb. 20, FCC General Counsel William Kennard wrote that Judge Sippel’s decision, rendered last summer and refuted by Kay, “was not appropriate or justified in this case” because it was inconsistent with basic commission rules. First, it assumed that all parties were in agreement with the evidence presented. Second, no evidentiary hearing was granted in light of the fact that “substantial or material question(s) of fact” were raised.
Kay had argued that the ALJ had “ignored his declaration while treating the bureau’s papers and arguments with indulgence.” The bureau relied on the licensing knowledge and testimony of Terry Fishel, head of the commission’s Gettysburg, Pa., licensing operation. In the order, Kennard noted that Fishel’s testimony that Kay had set up his licensing records in such a way as to keep information away from the FCC “implicates questions about [Kay’s] motives, intent and good faith that cannot be resolved against Kay without a hearing.” Kennard also ruled that Kay’s eventual submission of records, raised enough questions of material fact to warrant an evidentiary hearing.
Kay also had asked that Judge Sippel not preside over any evidentiary hearing, but because he had never submitted paperwork to disqualify the judge, Sippel will be assigned to the hearing. Kay’s attorneys will file a motion that the judge recuse himself and that another ALJ replace him on the grounds that ex parte correspondence exists that shows Sippel is biased against Kay.
