[00:00:00] Speaker 00:
Case number 22-1016, Levine Schwab Partnership, doing business at Schwab Multimedia LLC, Appellate, versus Federal Communications Commission.

[00:00:11] Speaker 00:
Mr. Adamchak for the Appellate, Ms.

[00:00:13] Speaker 00:
May for the Appellate.

[00:00:17] Speaker 03:
Good morning, Your Honors.

[00:00:18] Speaker 03:
May it please the Court.

[00:00:19] Speaker 03:
My name is Kenan Amchak.

[00:00:21] Speaker 03:
I represent the Appellate, Levine Schwab Partnership, doing business at Schwab Multimedia LLC.

[00:00:27] Speaker 03:
Your Honors, I'd like to reserve three minutes for rebuttal.

[00:00:30] Speaker 03:
My client is before the court today because the FCC acted arbitrarily and capriciously in denying Schwab's tolling extension request for its AM broadcast station's construction permit at the height of the COVID-19 pandemic.

[00:00:43] Speaker 03:
Justice and equity require that the FCC's order be vacated, the denial of tolling be reversed, and the station's construction permit and its pending modification applications be reinstated.

[00:00:55] Speaker 03:
This court must find the favor that held it for three reasons.

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First, the FCC failed to provide SWAB with fair notice of its departure from its liberal tolling standards established in the Third World War.

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These liberal tolling standards created a legitimate reliance interest for SWAB, which reasonably followed in its fourth tolling request.

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Second, in denying SWAB's tolling request, the FCC failed to provide an explanation

[00:01:18] Speaker 03:
for the application's disparate tolling treatments to Schwab, both internally between Schwab's tolling requests and externally with those of other similarly situated broadcasters.

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This court has long held that such agency actions are arbitrary and capricious and undermine the integrity of the administrative process.

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Finally, the FCC blind swat is robbed by denying tolling based on the conjured and unargued basis of silence.

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Nevertheless, the SEC permits to be granted for site losses beyond a permittees control under the agency's waiver state.

[00:01:51] Speaker 03:
Unilateral actions of Schwab's landlord revoking its site access by the diplexing issues were being resolved beyond Schwab's control.

[00:01:59] Speaker 03:
Schwab's arguments that its site loss serves as a valid toll and wear basis are judiciable because the FCC first determined in Sue Espante that site loss was the proximate cause of Schwab's construction delays and simultaneously denied Schwab the opportunity to review that finding by raising the issue in a final Etsy order.

[00:02:20] Speaker 03:
As for my first point, fairness required that the FCC provides Schwab with exacting tolling fairness for the forth tolling requirement.

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I spoke to the SEC and this court have observed.

[00:02:31] Speaker 03:
Yes, your honor.

[00:02:34] Speaker 03:
Schwab has standing before this court because the denial of Schwab's solar request and the subsequent expiration of its construction permit is redressable by a favorable decision because it would return Schwab to an opportunity to construct the station.

[00:02:48] Speaker 04:
What do you mean for standing purposes we have to

[00:02:53] Speaker 04:
assume that there's merit in your arbitrary and capricious arguments just for the sake of resolving standing, but I'm not sure that we have to ignore the site loss issue when we assess standing, do we?

[00:03:10] Speaker 03:
No, Your Honor.

[00:03:12] Speaker 03:
We don't have to worry about the site loss issue because the restoration of the construction permit, the readdressability by nearly restoring the construction permit, restores an opportunity to construct.

[00:03:22] Speaker 03:
Construction permits are malleable, and they can be modified up until time of the expiration date by moving to other sites.

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So just because TWAD can't build at the first site, it can if it's a minor modification application to restore it.

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So long as those applications are granted up until the time of the expiration date, they can move to another site and build there.

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On remand, the FCC cannot use their discretion

[00:03:50] Speaker 03:
to deny grant of those minor modification applications, as the court previously found in NTCH.

[00:03:57] Speaker 01:
Is your first application to transfer still pending for the FCC?

[00:04:04] Speaker 01:
When they granted then ungranted and put into pending status?

[00:04:08] Speaker 03:
All those applications have been now dismissed, Your Honor, as a result of the forcefully orders

[00:04:14] Speaker 01:
So even the one that was pending has also been dismissed?

[00:04:17] Speaker 01:
All of them have been dismissed.

[00:04:18] Speaker 01:
Okay, so you don't have anything pending before the FCC, right?

[00:04:20] Speaker 03:
Nothing, Your Honor, because the underlying construction permit had expired the pending modification applications followed that they had to be dismissed as well.

[00:04:30] Speaker 03:
So we're asking Your Honor for reinstatement of those minor modification applications to pending status as a result of the restoration of the construction permit.

[00:04:40] Speaker 05:
I want to follow up on Judge Wilkins' question.

[00:04:43] Speaker 05:
Imagine that we rule in your favor.

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And imagine that everything that possibly go right for you, in terms of getting this station built, goes right.

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Walk me through how that would happen.

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And let me know when the thing that's happening, it's certain to happen, or it's just something that you hope.

[00:05:08] Speaker 05:
Yes, Your Honor.

[00:05:09] Speaker 05:
So, and maybe start by how long it

[00:05:13] Speaker 05:
you would need to get it done.

[00:05:15] Speaker 03:
You would need and we request the restoration to the status quo, which would be six months and 22 days permit.

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Schwab will require the second modification application grant as it demonstrated in its petition for reconsideration.

[00:05:32] Speaker 05:
I know I'm interrupting you, but I'm going to let you finish.

[00:05:36] Speaker 05:
I just want to make sure I understand.

[00:05:38] Speaker 05:
We can't bring that second modification to you today.

[00:05:41] Speaker 03:
under no it would have to be granted on okay please please carry yeah from man uh so uh assuming that the uh construction permit is reinstated the tolling order is vacated in reverse uh uh we were asking schwab we returned to a position where i had six months 22 days struck

[00:06:01] Speaker 03:
And on remand, we would request expedited treatment of the second modification application where TWOG has authority to build.

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TWOG has demonstrated in the petition for recon provided a copy of a site lease at that site.

[00:06:17] Speaker 03:
Bob is ready and willing and able to build up that site as soon as that permit is granted.

[00:06:22] Speaker 05:
And I don't want to interrupt you.

[00:06:24] Speaker 05:
Was that the end?

[00:06:25] Speaker 05:
Yeah.

[00:06:25] Speaker 05:
Okay.

[00:06:25] Speaker 05:
So then the second modification, that would be modification that allows you to build at a site that's different than the original site, right?

[00:06:32] Speaker 05:
Correct.

[00:06:33] Speaker 05:
And have you a guarantee from the owner of that site that you can build?

[00:06:40] Speaker ?:
Yes.

[00:06:41] Speaker 05:
And you,

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Think you could get this built in six months and 22 days.

[00:06:48] Speaker 03:
Yes.

[00:06:48] Speaker 03:
It's a very small tower.

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It's about 50 feet high.

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Uh, they can get it that it would six months and 22 days.

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It's plenty of time to get all that done.

[00:06:58] Speaker 03:
What evidence in the record is there of that?

[00:07:01] Speaker 03:
Uh, in the petition for recon, there is a site lease that is triggered upon FCC approval of the second modification.

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And once that goes forward, they will be able to build.

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They will still need to acquire tower equipment, but they are ready to go.

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As the record also shows, they've acquired for equipment with manufacturers.

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And as soon as they've been working in the past four months, as soon as they get that granted to build the ground.

[00:07:36] Speaker 03:
But the site lease is in the record.

[00:07:38] Speaker 05:
If it took the FCC, let's say,

[00:07:41] Speaker 05:
six months and 12 days to grant the second modification?

[00:07:46] Speaker 05:
Would that leave you 10 days to build the tower?

[00:07:50] Speaker 05:
Yes, it would.

[00:07:51] Speaker 05:
And how quickly does the FCC usually move on something like a second modification?

[00:07:57] Speaker 03:
Uh, the FCC, uh, it varies.

[00:08:00] Speaker 03:
Uh, if you request expedited treatment, I've seen applications granted within a month, within weeks.

[00:08:05] Speaker 03:
Uh, if you don't, they could take months.

[00:08:09] Speaker 03:
Uh, so it, but, uh,

[00:08:11] Speaker 03:
uh, on remand, the Schwab would, uh, request expedited treatment and just to give you a chance to kind of rebut whatever answer the government, whatever worst case scenario the government might give.

[00:08:25] Speaker 05:
When I asked them this question, I'm going to ask them, what are the, what are the reasons why that second modification request might be denied?

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And

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Would you come back and say there are no plausible reasons that a second modification would be denied?

[00:08:43] Speaker 03:
As far as I know, Your Honor, there are no reasons why that application would be denied to second mod.

[00:08:49] Speaker 03:
I know there was issues with the first mod, but I can go back and review and file a 28-J letter to explain and look closer at that issue.

[00:08:58] Speaker 01:
Has anyone filed objections to that one?

[00:09:00] Speaker 03:
To the second modification application, I do not believe, Your Honor, only to the first.

[00:09:04] Speaker 01:
And just to clarify, I thought sometimes time periods were told during dependency of administrative proceedings.

[00:09:10] Speaker 01:
So would your six months be told while you're waiting for the FCC to act on the expedited motion for site approval or not?

[00:09:20] Speaker 03:
I believe so, your honor, under 28 B2, I'm sorry, 3598 B2, it can be toll for administrative delays resulting from challenges to the CP.

[00:09:34] Speaker 01:
And?

[00:09:34] Speaker 01:
Challenges to the CP, so I'm not recalling what the CP is.

[00:09:37] Speaker 03:
Oh, I'm sorry, the construction part, your honor.

[00:09:40] Speaker 01:
I believe that- We don't know about challenges, but we don't know about delays while you're waiting for a site transfer motion to be approved.

[00:09:48] Speaker 03:
No, not for delays for a site transfer.

[00:09:50] Speaker 03:
and so forth.

[00:09:51] Speaker 03:
It would have to be a challenge directly to the social worker.

[00:09:54] Speaker 01:
Presumably, if you were to prevail, the FCC wouldn't drag its feet to deliberately sabotage your efforts.

[00:10:01] Speaker 01:
That would be quite untoward by the government.

[00:10:05] Speaker 03:
Yeah.

[00:10:05] Speaker 03:
So as with regards to Fair Notice, the FCC provides squad with exacted standards for the foretolling requests.

[00:10:14] Speaker 03:
As both the FCC and the court have observed, sudden departure from prior standards creates a reliance concern towards notice.

[00:10:20] Speaker 03:
Schwab reasonably understood the third tolling order to require that it merely filed a status report requesting continued tolling treatment due to the pandemic.

[00:10:30] Speaker 03:
As for my second point, under the melody music standard, the FCC may not treat similarly situated parties differently without adequate explanation.

[00:10:38] Speaker 03:
The FCC applied different tolling standards to Schwab and the fourth tolling request is to either the second or third tolling request.

[00:10:44] Speaker 03:
Not only was the FCC internally consistent, the FCC also applied different standards to Schwab than to its tolling request of similarly situated broadcasters, wherein the FCC found that COVID was the reason for the construction delays, and the landlord's denial of site access was a legitimate tolling win.

[00:11:04] Speaker 03:
As for my final point, site loss, the FCC blindsided Schwab by denying tolling for site

[00:11:10] Speaker 03:
Contrary to the FCC's arguments, the FCC has always considered waiver construction deadlines based on site loss on a case-by-case basis under the general waiver suit.

[00:11:20] Speaker 03:
Here, the FCC failed to provide Schwab with a requisite hard book at Schwab's case by examining whether its landlord's actions were outside of Schwab's control.

[00:11:29] Speaker 01:
What did you do to establish a good cause for

[00:11:34] Speaker 01:
the waiver that you, if your request for tolling were to be construed as a waiver, what did you, in your fourth application, what did you demonstrate there to establish good cause?

[00:11:47] Speaker 03:
In the fourth tolling request, to demonstrate good cause, we demonstrated that it would be, grant of the waiver would give us more time to construct in light of the ongoing delays.

[00:12:00] Speaker 03:
The good cause, it was, the idea was that

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And broadcast stations already have a hard time getting themselves built.

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It's just the basic nature of their technology.

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You have to use a whole tower to radiate the signal.

[00:12:18] Speaker 03:
is basically as the FCC observed in their AM revitalization plan, AM broadcast stations have a lot of trouble and that type of transmission is going away.

[00:12:36] Speaker 03:
So good cause would give TWAB enough time in face of all these circumstances beyond its control that are preventing its ability, despite its diligent efforts to get construction, more time to get construction.

[00:12:48] Speaker 03:
So that would be the good cause.

[00:12:51] Speaker 05:
When you were trying to show, um, I guess on the reconsideration of the fourth polling request that COVID was the reason you couldn't get anything built, I would have thought one way to show that was just email a contract and say, I want you to build a radio tower at this address.

[00:13:15] Speaker 05:
And then the contractor might reply back.

[00:13:18] Speaker 05:
Oh, I'm too full because there's COVID backlog or I can't do it because I don't have workers willing to work during the pandemic or there's a lockdown, whatever the answer is.

[00:13:28] Speaker 05:
But I think you didn't do that because you can't ask a contractor to build on a site where you don't have permission.

[00:13:41] Speaker 05:
Is that why?

[00:13:44] Speaker 03:
Your honor, I do not know why they did not ask, uh, uh, uh, uh, demonstrate any evidence of communicating with, uh, uh, tower crews as why, uh, they, uh, they, uh, whether or not they could build it a site, uh, whether or not they had authority to build it a site.

[00:14:02] Speaker 03:
My understanding is they were in communication with, uh, various tower crews, but for whatever reason that evidence wasn't presented in the record.

[00:14:10] Speaker 03:
I do not know how to answer the question of whether or not they could build at a specific site, whether or not they have authority.

[00:14:19] Speaker 05:
Well, there was no site where they had permission to build during the period of time in question, correct?

[00:14:29] Speaker 03:
They still had at least at the original site.

[00:14:32] Speaker 03:
They didn't have permission to build the original site.

[00:14:35] Speaker 03:
They did not.

[00:14:36] Speaker 03:
They were trying to work out a technical issue to gain the, yeah.

[00:14:40] Speaker 05:
Okay.

[00:14:41] Speaker 05:
Did they have permission to build on the original site during, say, 2020?

[00:14:47] Speaker 03:
No, you're wrong.

[00:14:55] Speaker 03:
So, as to the Harlow standard,

[00:14:59] Speaker 01:
Were they still trying to sort out the... Is there any evidence in the record that they were doing something to address the diplexing issue in 2020 or 2021 at the original site, or had that been abandoned as well?

[00:15:12] Speaker 03:
The only evidence in the record of them continuing to work for the diplexing site

[00:15:17] Speaker 03:
was in each minor modification applications, they address the fact that there were issues at the site that hopefully they could go back and resolve.

[00:15:27] Speaker 03:
They also went back and addressed these in their pleadings in the petition for reconsideration.

[00:15:32] Speaker 01:
Did they explain what they were doing to try to resolve them other than they hoped to resolve them?

[00:15:36] Speaker 03:
I do not know, Your Honor.

[00:15:38] Speaker 03:
From what I understand, they were in still in negotiations with the Latin landlord and the other broadcast stations that were also using that site to resolve the issue.

[00:15:48] Speaker 03:
Do not know the specifics, but I can get back to you on that.

[00:15:51] Speaker 01:
It's just the years to obtain tolling for an extension of tolling under the act of God provision.

[00:16:00] Speaker 01:
You're supposed to show steps that were

[00:16:02] Speaker 01:
proposed to be taken to resolve impediments that haven't taken or you propose to take to resolve impediments to construction.

[00:16:11] Speaker 03:
Are you referring to 733598D, Your Honor?

[00:16:14] Speaker 01:
I don't have the numbers memorized.

[00:16:16] Speaker 01:
Just know that the regulation where it says if you get an initial extension under act of God, and then if you want to extend it further, you have to make a more particularized showing of three things.

[00:16:28] Speaker 01:
And the third is that you have to show what you've

[00:16:32] Speaker 01:
what steps you've taken or proposed to take to address the asserted impediments to construction?

[00:16:39] Speaker 03:
Yes, Your Honor.

[00:16:40] Speaker 03:
That rule, Schwab recently believed that rule was not applicable to them for the fourth towing request, because in the third towing request, it just merely asked for a status report of the continued treatment.

[00:16:52] Speaker 03:
And given the fact that the third towing order granted the third towing request based on

[00:16:59] Speaker 03:
as the FCC put it, generalized grievances.

[00:17:01] Speaker 03:
It would believe they were under a liberal tolling standard so that 3598 didn't apply.

[00:17:06] Speaker 01:
If the grant of the third tolling request said if construction cannot resume within six months, so first of all, I guess you had to show that construction was not able to resume within those six months,

[00:17:19] Speaker 01:
And when I say a status report requesting continued tolling treatment, there's nothing in there that says we're not applying regulations that require a particular showing for an extension.

[00:17:33] Speaker 01:
It doesn't say we're suspending our usual requirements.

[00:17:36] Speaker 01:
You just have to mail something in and ask for an extension.

[00:17:42] Speaker 01:
There's nothing in that third tolling, grant of the third tolling request that says our ordinary standards aren't going to apply.

[00:17:50] Speaker 03:
Yes, your honor.

[00:17:51] Speaker 03:
But at the same time, the third towing request was granted under liberal standards as the FCC admitted in the order.

[00:18:00] Speaker 01:
So that didn't mean, but they never said we're going to keep these liberal standards going.

[00:18:05] Speaker 01:
Did they?

[00:18:06] Speaker 01:
Where did they say how long we're going to keep these liberal standards going?

[00:18:09] Speaker 03:
They did not.

[00:18:10] Speaker 01:
Okay.

[00:18:10] Speaker 01:
And then the letter that you rely upon doesn't say anything about not applying existing regulations.

[00:18:18] Speaker 01:
and it's prefaced with if construction couldn't begin in the previous six months, which suggests a showing, then the status report, there's no reason to read status report as inconsistent with complying with the regulation.

[00:18:30] Speaker 01:
I'm trying to understand why your client thought all it had to do was request another extension and not make the regulatorially required showing.

[00:18:39] Speaker 03:
Because as I said, they understood the order to not require a height standard

[00:18:47] Speaker 03:
because it was granted based on generalized grievances.

[00:18:53] Speaker 03:
And notwithstanding the fact that the order also said they needed to show that construction did not complete, they read that the second, that sentence of status report continued treatment as just saying that, because as the SEC said in other cases,

[00:19:11] Speaker 03:
They'll either cite 7398D or they'll lay out what you actually need to do in your next steps for other broadcasters that were granted totally.

[00:19:21] Speaker 03:
So as Schwab saw it was, oh, we just need to request a status update.

[00:19:27] Speaker 03:
Yacht construction did not occur.

[00:19:30] Speaker 03:
We've got to remember things are still in flux in September 2020.

[00:19:33] Speaker 03:
There are no vaccines.

[00:19:36] Speaker 03:
The vast majority of people were working from home.

[00:19:39] Speaker 03:
This court was still removed.

[00:19:41] Speaker 03:
So, in this time of uncertainty, they felt that the SEC would continue to apply their liberal toy standards going forward.

[00:19:53] Speaker 01:
Okay.

[00:19:53] Speaker 01:
Thank you.

[00:19:54] Speaker 01:
We'll give you a couple minutes for rebuttal.

[00:19:56] Speaker 01:
Thank you.

[00:20:18] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:20:20] Speaker 02:
I'm Rachel Proctor-May for the FCC.

[00:20:23] Speaker 02:
And I'll start with standing.

[00:20:24] Speaker 02:
As Your Honors noted, the opportunity presented by a permit doesn't have value if you can't take advantage of that opportunity.

[00:20:36] Speaker 02:
And there's nothing in the record that shows that it's more than speculative that Schwab could take advantage of that opportunity.

[00:20:43] Speaker 02:
There's the three sites that have been identified.

[00:20:46] Speaker 02:
The first two failed for technical reasons, and there is nothing in the record that suggests that those technical reasons have ever been resolved.

[00:20:57] Speaker 02:
The third site, which Schwab put in the application for with its petition for reconsideration, has never gone through FCC approval, not for an exercise of policy making discretion, but for technical compliance with the various requirements that are applicable.

[00:21:16] Speaker 02:
The application is in the JA at 227 and it'll give you a sense of the kinds of things that the commission is going to review the application.

[00:21:30] Speaker 02:
Schwab's council represented that the owner has guaranteed that construction can happen upon FCC approval.

[00:21:42] Speaker 02:
What the record shows is that the lease, this is JA-160, the lease has not been executed.

[00:21:50] Speaker 02:
It's signed by Schwab, but not the lessor.

[00:21:53] Speaker 02:
And it says that the agreement is void until the approvals, but it doesn't specifically say that there is a trigger provision or show that the... Are you talking about the first original site?

[00:22:03] Speaker 02:
No, this is for the 2020 site.

[00:22:07] Speaker 02:
So the one where the...

[00:22:14] Speaker 05:
second modification, they would possibly be able to build on the site.

[00:22:19] Speaker 05:
And you're saying they haven't even gotten assigned lease for that site.

[00:22:24] Speaker 05:
According to this record, it is not clear that they have executed a lease or will get the... How fast does the FCC usually decide second modification request for expedited decision making?

[00:22:37] Speaker 05:
Something like the second modification

[00:22:40] Speaker 02:
It can happen very quickly.

[00:22:42] Speaker 02:
Um, I have been told by the bureau that, uh, they would not hold the time that they'd be reviewing this against the permit.

[00:22:51] Speaker 05:
So they would, so that if they get this second modification granted, let's say in seven months, they'll still have six months and 22 days.

[00:22:58] Speaker 02:
That is my understanding.

[00:23:00] Speaker 05:
Okay.

[00:23:00] Speaker 05:
And what are some reasons to deny that second modification?

[00:23:03] Speaker 05:
Not that specific, but just in general, why, why, why does something like that get denied?

[00:23:08] Speaker 02:
A lot of times it has to do with transmission issues.

[00:23:13] Speaker 02:
So, for example, there was a ground conductivity issue that hung up the second application.

[00:23:18] Speaker 02:
That just means, as I understand it, the radio frequency emissions are interfering with other transmissions that need to occur.

[00:23:29] Speaker 05:
I think it was probably their burden, not yours.

[00:23:33] Speaker 05:
Their burden to show that.

[00:23:36] Speaker 05:
it's likely the second modification request will be granted, um, which would then make an order by us able to redress there.

[00:23:46] Speaker 05:
Um, but from your perspective, how likely is it in the run of the mill modification or a new site?

[00:23:56] Speaker 02:
I cannot answer that question because we haven't reviewed its application.

[00:24:01] Speaker 05:
Do they get granted 99% of the time, 1% of the time, 50-50?

[00:24:09] Speaker 02:
I do not know the statistic on that.

[00:24:12] Speaker 02:
Again, it's their burden.

[00:24:13] Speaker 02:
I would say that it is not

[00:24:17] Speaker 02:
completely unusual for site issues to, for sites to run into issues getting approved.

[00:24:24] Speaker 02:
So for example, in addition to the, the issues with the second modification here, the WMLB case that is cited, that also ran into issues with their first approved site getting.

[00:24:37] Speaker 05:
And if we think of their original site as site number one, and then we think of the next place they tried to get permission site number two,

[00:24:46] Speaker 05:
they struck out on site number two, right?

[00:24:49] Speaker 05:
It turned out that got granted and then denied.

[00:24:52] Speaker 02:
Correct.

[00:24:53] Speaker 02:
Yeah, that was the ground conductivity.

[00:24:57] Speaker 02:
Schwab also suggests that it might be able to sell the permit.

[00:25:03] Speaker 02:
But again, there's nothing in the record as to whether there's any market value for a AM radio construction permit that is about to expire.

[00:25:11] Speaker 02:
So we would intend that's also speculative.

[00:25:15] Speaker 04:
Isn't there

[00:25:17] Speaker 04:
I thought that there was a case that was cited in the papers of an example of an AM construction permit being sold or at least being marketable.

[00:25:35] Speaker 02:
Oh, yes, construction permits can be marketable.

[00:25:38] Speaker 02:
But again, it swabs the burden to demonstrate a likelihood.

[00:25:42] Speaker 02:
of redress.

[00:25:43] Speaker 02:
And here, again, where the permit is about to expire, where Schwab has been unable to get this over the finish line since 2016, it remains speculative whether this construction permit is marketable, particularly in Los Angeles, where there's well-documented issues with getting AM radio stations going.

[00:26:05] Speaker 02:
So turning to the merits.

[00:26:12] Speaker 02:
I'll start with the showing of the pandemic-based delay.

[00:26:19] Speaker 01:
As you noted... Or maybe it's related.

[00:26:22] Speaker 01:
How often do companies get to the level of fourth polling requests?

[00:26:29] Speaker 01:
I also don't know that.

[00:26:30] Speaker 01:
Don't know that.

[00:26:31] Speaker 01:
Okay.

[00:26:31] Speaker 02:
I just didn't know if it was... Briefing extensions, they just keep coming in or... The purpose of the commission's framework

[00:26:40] Speaker 02:
is to avoid the issue of sequential tolling requests.

[00:26:44] Speaker 02:
The streamlining orders in 1998 and 1999 were trying to solve the problem of endless iterative requests for extensions.

[00:26:55] Speaker 02:
And so that's why they put together this system of strict criteria under which automatic tolling is required, and then require a showing of exceptional circumstances beyond affirmative control to get a waiver.

[00:27:10] Speaker 02:
admits the site loss can only be considered under that waiver standard.

[00:27:15] Speaker 02:
So I'm going to transition to the site loss since we're on that.

[00:27:19] Speaker 02:
Schwab's main argument is that the landlord's actions were outside of the permittees control.

[00:27:27] Speaker 02:
But that's not what the commission looks at in assessing whether the construction delay was outside of the permittees control.

[00:27:34] Speaker 02:
The commission looks to factors such as

[00:27:39] Speaker 02:
timing and the permittee's diligence, because if you haven't done everything in your control to resolve the impediment, you can't say that the construction delay was outside of your control.

[00:27:51] Speaker 02:
This is discussed in the church planters' opinion in the brief.

[00:27:58] Speaker 01:
One of your main arguments was that they hadn't raised waiver before the commission.

[00:28:03] Speaker 01:
But it's certainly we're arguing about tolling and it's rather confusing because the commission itself sort of

[00:28:16] Speaker 01:
uses both terms, waiver and tolling interchangeably.

[00:28:19] Speaker 01:
Would warrant the tolling of construction time, entertain requests for waiver of our strict tolling provisions, tolling through waiver.

[00:28:33] Speaker 01:
And so it seems to me a bit much then to pin a lot of weight on the fact that they use the word tolling rather than waiver because waiver just seems to be sort of this

[00:28:46] Speaker 01:
formalistic way of asking for tolling.

[00:28:50] Speaker 01:
Now, substantially a different showing, you can argue about that, but it does seem to me that the action needs to be not whether they ask for waiver or tolling, given the interchangeability of those terms and the commission's own words, but whether they met the waiver standards.

[00:29:06] Speaker 01:
Is that right?

[00:29:07] Speaker 01:
It's hard to say they didn't argue it when they were talking about tolling.

[00:29:10] Speaker 01:
And so the question really is whether they met the standards for a

[00:29:15] Speaker 01:
site loss or tolling.

[00:29:18] Speaker 01:
Right.

[00:29:20] Speaker 02:
Two points on that.

[00:29:23] Speaker 02:
Schwab did not seek an extension based on site loss at all.

[00:29:28] Speaker 02:
It didn't seek tolling.

[00:29:29] Speaker 02:
It didn't seek waiver for a site loss.

[00:29:32] Speaker 02:
And so the site loss only came up as one of the reasons that the commission concluded that it had not shown that the pandemic was the cause of the lake and that it didn't happen.

[00:29:43] Speaker 02:
a site to build on.

[00:29:46] Speaker 02:
And so it's not a formalistic distinction to say that Schwab simply didn't raise site loss.

[00:29:54] Speaker 02:
And so there was nothing in the record to speak to whether there was a rare and exceptional circumstance beyond its control.

[00:30:01] Speaker 02:
And then just to get to the interchange of the sometimes confusing use of tolling and waiver, it is true that when you

[00:30:11] Speaker 02:
waive the tolling rules, the result is that the deadline is tolled and that some of the use of language is not as clear as it would be.

[00:30:19] Speaker 02:
However, they still are two separate rules.

[00:30:23] Speaker 02:
And in the context of this order, it was very clear in discussing the site loss that the commission was only considering tolling under the rules, rule-based tolling.

[00:30:38] Speaker 02:
And that's because the commission recognized the possibility of waiver as distinct from tolling under the rules, that's in footnote six and also in footnote 51, using both firms tolling and waiver.

[00:30:54] Speaker 02:
And so in discussing the site loss, it only addressed tolling.

[00:30:58] Speaker 02:
In addition, the application for review was only challenging the denial of tolling.

[00:31:05] Speaker 02:
And so it's hard to,

[00:31:06] Speaker 02:
say that that statement was a decision on when a waiver might be applicable because a waiver just simply wasn't an issue.

[00:31:17] Speaker 01:
So returning to the- Is the FCC planning to re auction this?

[00:31:22] Speaker 01:
I'm sorry.

[00:31:23] Speaker 01:
Is the FCC planning to re auction this?

[00:31:27] Speaker 02:
The FCC has not made plans about

[00:31:30] Speaker 02:
whether it will or will not re-option it.

[00:31:32] Speaker 02:
However, even if it doesn't re-option it, the spectrum could still be put to use.

[00:31:37] Speaker 02:
For example, another AM license holder could file a modification application to enable it to use the spectrum to expand.

[00:31:52] Speaker 02:
So returning to the...

[00:31:55] Speaker 02:
The issue of whether Schwab showed that the pandemic had interfered with its construction.

[00:32:01] Speaker 02:
Obviously, Schwab was on notice of the commission's standard for extensions of waiver requests.

[00:32:10] Speaker 02:
And Schwab's argument is simply that the commission should have applied a more lenient standard.

[00:32:16] Speaker 02:
As you observed, Your Honor, the Bureau never said it was waiving the rules.

[00:32:22] Speaker 02:
It said status report, which on its face implies

[00:32:25] Speaker 02:
basically what the rules require.

[00:32:27] Speaker 02:
And then as to the third tolling request, there was no- Was I right or was I wrong?

[00:32:33] Speaker 01:
I mean, a status report doesn't sound like an application for extension of tolling under the regulations.

[00:32:39] Speaker 01:
Status report sounds like, hey, just let us know how things are going.

[00:32:44] Speaker 01:
Because it's a COVID pandemic and yeah, we're all still, things are still quite locked down and unsettled in September of 2020.

[00:32:53] Speaker 02:
Um, it still implies more than a bear notification.

[00:32:58] Speaker 02:
Um, and so then the reasonable thing to do would be to look to the published rules and, um, and follow those requirements because did everybody else get that?

[00:33:08] Speaker 01:
Did everyone, did other companies get that?

[00:33:10] Speaker 01:
They've got initial March, April, spring of 2020 extensions based on the pandemic.

[00:33:17] Speaker 01:
Did everyone else, I mean, I assume this was like a standardized letter that was issued for extensions at the time.

[00:33:23] Speaker 01:
So at that time, March 2020, as we all recall, the world's reached to a halt.

[00:33:29] Speaker 01:
And so, yes.

[00:33:30] Speaker 01:
I'm assuming this was standardized language that was used.

[00:33:33] Speaker 01:
That's all I'm asking.

[00:33:34] Speaker 02:
I do not know if the language was standardized.

[00:33:37] Speaker 02:
I understand from the Bureau that people were panicking and putting in requests for tolling or waiver in various forms.

[00:33:47] Speaker 02:
And the Bureau was granting them immediately because of the urgency of the situation.

[00:33:52] Speaker 01:
There's no reason that you'd use specialized language for, so we can assume this is standard.

[00:33:57] Speaker 01:
I'm just curious, because it is curious language.

[00:34:01] Speaker 01:
It doesn't say, you know, make a submission subject to, I'm sorry, he cited the number, whatever the long number for the regulation is in the subsection on second rounds for active got extensions.

[00:34:16] Speaker 02:
Sure, but I think the natural read is not that if the commission

[00:34:22] Speaker 02:
does not say the rule applies, you can assume it doesn't apply.

[00:34:26] Speaker 02:
It's that if the commission doesn't say it's waived, you should assume that it does apply.

[00:34:35] Speaker 02:
And so that's one of the reasons why Schwab couldn't draw any inferences just from the term status report.

[00:34:42] Speaker 02:
The other reason is that in its fourth tolling request,

[00:34:46] Speaker 02:
the one that it filed in September 2020, it cited the commission's, it was the Bureau's public notice regarding waivers for COVID-based issues.

[00:35:00] Speaker 02:
And in that, the Bureau made very clear that anyone seeking an extension based on COVID needed to make a specific individualized showing of the effects of the pandemic on the permittee.

[00:35:12] Speaker 02:
So there was no reason for Schwab to have looked back

[00:35:16] Speaker 02:
the third tolling.

[00:35:17] Speaker 05:
If they had had site to build on in September 2020, Schwab had had a site that they could begin building on immediately in September 2020.

[00:35:30] Speaker 05:
And they asked for tolling on the grounds that there's a pandemic and so they can't get built in time.

[00:35:39] Speaker 05:
I wouldn't think that they would have to demonstrate very much because

[00:35:45] Speaker 05:
you could just turn on the news or open a news.

[00:35:49] Speaker 05:
And I mean, there were states that were pretty open in September 2020.

[00:35:55] Speaker 05:
Uh, but California was not one of those states.

[00:35:58] Speaker 05:
And so to me, everything just keeps coming back to the site loss problem.

[00:36:04] Speaker 05:
They, they couldn't build in September 2020 pandemic or no pandemic because they had no place to build it.

[00:36:10] Speaker 05:
If they have a place to do it, why am I wrong that

[00:36:15] Speaker 05:
They couldn't have just told the FCC, California is in the middle of a pandemic, and they've made it really hard for a lot of people to do a lot of things.

[00:36:26] Speaker 05:
Perhaps for very good policy reasons, they've made it really hard for a lot of people to do a lot of things.

[00:36:33] Speaker 02:
That would require a waiver of the commission's rules.

[00:36:37] Speaker 02:
So that's why they couldn't do it.

[00:36:39] Speaker 02:
If they had asked for a waiver, they could have potentially asked for one.

[00:36:41] Speaker 02:
But it's showing.

[00:36:43] Speaker 02:
What's wrong with the showing that it made?

[00:36:45] Speaker 02:
is that when it had the opportunity to put in its showing of how the pandemic had affected it, it didn't show that the pandemic had actually interfered with being able to get crews to the site.

[00:37:00] Speaker 05:
And the reason is... I get that they didn't make concrete showings and I get that they may have not used the word waiver or mislabeled this

[00:37:11] Speaker 05:
bureaucratic requirement versus that bureaucratic requirement.

[00:37:13] Speaker 05:
But just kind of from a big, big picture, if we're just trying to figure out, you know, should this type of thing be granted by the FCC, not granted by the FCC?

[00:37:22] Speaker 05:
It seems like in September, 2020, the prospect that COVID made it difficult, if not impossible, build the kinds of things on the timelines that they used to be built was racist.

[00:37:37] Speaker 02:
Um,

[00:37:38] Speaker 02:
I think a helpful thing would be to compare Schwab's showing to the kinds of showings that other permittees made.

[00:37:45] Speaker 02:
It is possible to show.

[00:37:47] Speaker 05:
Why wasn't race absent?

[00:37:53] Speaker 02:
Because of the reasons that this framework is in place.

[00:38:00] Speaker 02:
The commission was trying to prevent this endless seeking of extensions of time.

[00:38:09] Speaker 02:
And so when it put together that framework, it recognized that there may be, in the case of Acts of God, there may be disasters, but that you don't get to just keep saying, hey, I suffered a disaster until forever.

[00:38:21] Speaker 02:
You have to make a specific showing of how the disaster continues to affect

[00:38:27] Speaker 05:
Don't you think in the context of California and September 2020 that disaster was ongoing?

[00:38:33] Speaker 02:
It was a, the pandemic had, was obviously still continuing.

[00:38:40] Speaker 02:
However, it, and also just before I go too deep into this, obviously site loss is a completely sufficient- I think I'm with you on site loss.

[00:38:49] Speaker 02:
Yeah, site loss is a completely sufficient basis to affirm, but on the pandemic,

[00:38:57] Speaker 02:
The Bureau gets into more of this than the Commission did, but there were plenty of businesses that were available to work.

[00:39:06] Speaker 02:
The filings that Schwab put in that list the different COVID restrictions demonstrate that there were businesses that were able to operate

[00:39:21] Speaker 02:
radio stations was one of the essential services and also construction support of that.

[00:39:28] Speaker 02:
So I think it wasn't, the commission was not required to assume that Schwab could build just because of the pandemic.

[00:39:38] Speaker 01:
Thank you very much.

[00:39:39] Speaker 01:
Thank you.

[00:39:43] Speaker 01:
Okay, Mr. Adamchak, we'll give you two minutes.

[00:39:49] Speaker 03:
The first point I want to address is redressability.

[00:39:53] Speaker 03:
As the court returns the Competitive Enterprise Institute versus National Highway Traffic Safety Association, the party may not approve grant of the request of relief certain to redress the injury.

[00:40:05] Speaker 03:
And the court must also assume success on the merits

[00:40:08] Speaker 03:
and that the FCC would not use this discretion to deny grant of the application.

[00:40:12] Speaker 03:
So the fact that the FCC is saying that we can't, it's too speculative because we do not have a current site to build that we cannot be successful on the merits based on the, sorry, excuse me, that the relief request won't redress our injury.

[00:40:30] Speaker 03:
Our injury was being deprived of the ability to construct our station.

[00:40:34] Speaker 03:
We are requesting by the vacator of the order, the restoration of the construction permit.

[00:40:39] Speaker 03:
That will restore Schwab's deprived opportunity to construct.

[00:40:45] Speaker 03:
And as I said earlier, the construction permit only conveys the right to construct.

[00:40:51] Speaker 03:
It can be modified.

[00:40:54] Speaker 03:
It could be sold.

[00:40:56] Speaker 03:
And on remand, we have to assume minor mod grants for the station being sold and those applications being granted.

[00:41:12] Speaker 03:
As for my second point, as for deference, the FCC acted unreasonably here.

[00:41:18] Speaker 03:
It should not be a court of deference as to the terminology and the intent of what steps Schwab needed to take next and third fully.

[00:41:27] Speaker 03:
As we alluded to earlier, there was a lot of uncertainty going on at the time between March and September 2020 as to

[00:41:39] Speaker 03:
But the FCC, in that uncertainty, the confusion on the ground, clearly the FCC needed to lay out guideposts for what Schwab needed to do next.

[00:41:51] Speaker 03:
Translator notice did not provide that.

[00:41:52] Speaker 01:
It kind of feels like fighting about what particular showing needed to be made.

[00:41:57] Speaker 01:
It's not like you're debating where to put the chairs on the deck of the Titanic when really the problem is

[00:42:04] Speaker 01:
You were asking for an extension and after way more than three years, you didn't have a place to build at the time you applied for the fourth extension.

[00:42:18] Speaker 03:
Yes, Your Honor, that's true.

[00:42:19] Speaker 01:
And that's the basis for your decision.

[00:42:20] Speaker 01:
Yes.

[00:42:21] Speaker 01:
Why should we give you more time you still don't have a place to build?

[00:42:24] Speaker 03:
Because as the FCC alluded to way back in the streamlining orders, we will grant extensions in a case by case basis for circumstances beyond a permit

[00:42:34] Speaker 01:
Could you show, did the pandemic make acquisition of a new site beyond your control?

[00:42:40] Speaker 01:
I don't think so, because you talked about work, you were working on the site, the mall site, the second site.

[00:42:46] Speaker 01:
So the pandemic wasn't interfering with your ability to acquire a second site.

[00:42:53] Speaker 03:
It was interfering with our ability

[00:42:56] Speaker 03:
to move forward and to put things into place to actually build the site.

[00:43:01] Speaker 01:
But first you had to show the FCC you had a site and you didn't do that in your motion.

[00:43:07] Speaker 03:
We need to show that we had a site.

[00:43:09] Speaker 03:
We only needed to show a following of purging requests that if the pandemic continued to delay construction.

[00:43:14] Speaker 01:
All right.

[00:43:16] Speaker 01:
Great, thank you.

[00:43:17] Speaker 03:
Thank you, Your Honors.

[00:43:18] Speaker 01:
Thank you very much.

[00:43:19] Speaker 01:
The case is submitted.