Motion No. 1

Administrative Procedure Act Violation

This is a challenge that attacks the very basis of the government's case. Here, it is contended that the forms used by parties to apply for radio station licenses are rules under the federal Administrative Procedure Act, and as such, they must be published in the Federal Register before their use can be made mandatory. Since the FCC license application forms have never been published in the Federal Register, a prosecution based on lack of their use must be dismissed.

47 USC, Sec. 301 only informs us who must have a radio license. The FCC must still create the license which must involve discussion of the information to be required to be submitted. 47 USC, Sec. 308(a):

"The Commission may grant construction permits and station licenses, or modifications or renewals thereof, only upon written application thereof received by it..."

47 USC, Sec. 308(b):

"All applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe..."

We can determine by this that while we are required to submit a written application to obtain a license, we are not informed of any specific information that would enable us to fulfill the requirement. We must have that information before we can move to complete a license application form.

The applicable regulation describing the content of an application is found within Title 47, Code of Federal Regulations. 47 CFR, Chap. 73.3514(a):

"Each application shall include all information called for by the particular form on which the application is required to be filed, unless the information called for is inapplicable, in which case this fact shall be indicated."

This gobbledygook tells us absolutely nothing that would enable us to determine the information neccessary to complete the license application form! Under this particular scheme, it becomes clear that the form itself implements the law.

Because the form implements the law, we can determine where it fits in the Administrative Procedure Act scheme. The Administrative Procedure Act, which is codified in Title 5, explains that such implementing forms conform to the definition of a "rule". 5 USC Sec. 551(4):

" 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency."

We are told in 5 USC, Sec. 552, that a "rule" is among the various items which must be published in the Federal Register Sec. 552(a),

"Each agency shall make available to the public information as follows:
    (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public -
       (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
       (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
       (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
       (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
       (E) each amendment, revision, or repeal of the foregoing."

      "Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register."

Although Sec. 552 permits "incorporation by reference", we are informed in 1 CFR Part 51 that matters which should be published in the Federal Register but which are deemed included therein "by reference" must be approved by the Director of the Federal Register and "proper language" so noting the "incorporation by reference" must appear within agency rules which are published in the Federal Register.

And finally, 5 USC, Sec. 558(b):

"A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law."

We can see that current statutes impose stringent requirements upon federal agencies to publish in the Federal Register descriptions of the agencies organizational structure as well as those substantive rules of general applicability duly promulgated by the agency. Any matter required by law to be published, but is not, cannot be the basis for the imposition of any sanction or penalty against anyone. The FCC license form, which is a rule, is void because of its non-promulgation and non-publication as a rule.