743 F.3d 860
D.C. Cir.2014Background
- FCC adopted hearing aid compatibility rules for digital wireless handsets (2003); deadline for compliance was September 18, 2006.
- Small carriers (Tier III) sought waivers when compliant models were not readily available by deadline.
- FCC granted waivers with nunc pro tunc effect to many but not to the petitioners (Blanca, CTC, Farmers) in 2008 Order on Review.
- On reconsideration (2012), FCC again denied waivers for petitioners.
- Petitioners argued arbitrary, capricious treatment and challenged procedural regularity of FCC adjudication.
- Petition for review followed the FCC’s 2012 denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FCC's denial of waivers was arbitrary and capricious | petitioners (Blanca, et al.) | FCC reasonably applied diligence standards | denial affirmed |
| Whether FCC properly distinguished petitioners from other waiver recipients | petitioners were similarly situated | petitioners differed in diligence | FCC adequately explained distinctions and denial upheld |
| Whether APA/notice-and-comment requirements were triggered by the FCC's waiver rationale | new rule argued; APA notice required | waiver adjudication is adjudicatory, not rulemaking | APA notice not required; adjudicatory decision |
| Whether ex parte/untimely filings tainted reconsideration | ex parte filing violated rules | violation was harmless | harmless error; no reversal |
| Whether PRA concerns invalidated the FCC's consideration of CTC's declaration | PRA requirement implicated | PRA not violated or penalties not imposed | PRA challenge rejected |
Key Cases Cited
- BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir. 2003) (limited review of agency waiver decisions; deference to agency discretion)
- Morris Commc’ns, Inc. v. FCC, 566 F.3d 184 (D.C. Cir. 2009) (differential treatment must be explained; arbitrariness standard applied)
- Mountain Solutions, Ltd. v. FCC, 197 F.3d 512 (D.C. Cir. 1999) (adjudicatory decision, not APA rulemaking, overruling requirement)
- Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) (APA notice-and-comment not required for adjudicatory actions)
- Lichoulas v. FERC, 606 F.3d 769 (D.C. Cir. 2010) (harmless error doctrine for agency ex parte communications)