You Can’t Always Get What You’ve Had

Odd title, but true in this case. Sometimes, what the FCC staff has done for you or others many times before suddenly comes to a screeching halt, and there is no explanation. And sometimes, that occurrence is odd enough to prompt a legal challenge (when there is time and money for that).

Let’s explain. We were not surprised by a recent FCC decision refusing to apply the Mattoon Waiver to a proposed major change move of an FM translator for use with an FM station (the waiver was specifically designed for AM stations). But what caught our eye was how the full Commission dealt with the Audio Division’s prior processing of several applications granting the very waiver the Division had denied to the challenging applicant.

The applicant had appealed the Audio Division’s refusal to grant the requested waiver, citing to the several cases where such waivers had previously and regularly been granted. But the full Commission was not persuaded by those prior actions, noting that in 2013, the Media Bureau had directed the Audio Division to cease granting such waivers because Mattoon Waivers were only to be granted in connection with an FM translator’s use with an AM station. And although those earlier grants were final and could not be rescinded, the Commission noted that it was nevertheless well established that erroneous staff actions do not bind the Commission.

We are not unfamiliar with that technical legal position, or its close cousin–that informal staff pronouncements are not to be relied upon. But staff actions in other applications are often cited to us as support that a planned application will be granted. As this decision teaches, there is always an asterisk to be placed next to such “precedent.” So, the next time you want to file an application based upon waivers that the staff appears to be granting (and we certainly don’t discourage those), do so with the full knowledge that the staff and the Commissioners can simply call the earlier ones erroneous, and refuse yours.

Regulatory agencies. Sigh.