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):
47 USC, Sec. 308(b):
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):
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):
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),
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):
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.