North American Catholic Educational Programming Foundation, Inc. v. Womble Carlyle Sandridge & Rice, PLLC
800 F. Supp. 2d 239
D.D.C.2011Background
- NACEPF applied for ITFS licenses in Las Vegas in 1992; CCSD filed a competing waiver request in 1993.
- CCSD already held eight ITFS channels while the rule limit was four; a waiver was sought to permit more channels.
- MMB granted CCSD's waiver; CCSD was tentatively selected after contested procedures; NACEPF petitioned for reconsideration.
- AFR to the full FCC denied in 2003; FCC held waiver appropriate under precedent and public interest.
- NACEPF filed a petition for reconsideration in 2004; FCC denied again in 2004.
- Howard Barr filed the notice of appeal on behalf of NACEPF in November 2004; the D.C. Circuit dismissed the appeal as untimely in January 2006; NACEPF subsequently filed this legal malpractice suit in 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation in legal malpractice claim | NACEPF would have won on remand if the Circuit vacated. | No causal link; the Circuit would not have vacated irrespective of timing. | Causation rejected; dismissal affirmed. |
| Waived WAIT Radio/Northeast Cellular arguments | Arguments based on WAIT Radio/Northeast Cellular were implicated by the public-interest discussion. | Arguments were not properly raised before the FCC and thus waived. | Waiver found; arguments not preserved. |
| FCC precedent followed was unlawful | FCC precedent was inconsistent with legal standards and thus unlawful. | Even if precedents were followed, they were not unlawful; challenges fail. | Arguments rejected; no basis to find unlawful precedent. |
| Evisceration by waiver argument | FCC's frequent waivers constitute unlawful evisceration of the four-channel rule. | WAIT Radio's warning does not compel reversal; waiver policy was rational. | Argument rejected; not shown improper evisceration. |
Key Cases Cited
- WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) (waivers must be considered with meaning and not perfunctory; need for rational standard)
- Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990) (requirement to articulate public-interest rationale and special circumstances)
- NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008) (special circumstances as restraint against arbitrary waiver decisions)
- Time Warner Entm't Co. v. FCC, 144 F.3d 75 (D.C. Cir. 1998) (agency must show why issues are implicated and provide rationale)