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Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 2005 Decided March 27, 2006

No. 05-1224

Manifest Broadcast Company, Appellant

v.

Federal Communications Commission, Appellee

________

Consolidated with No. 05-1225

________

Appeals from Orders of the Federal Communications Commission

________

Carter G. Phillips argued the cause for appellant, with whom Mark D.
Schneider, Katherine L. Adams, Gary D. Mitchell, and Charles J. Sennet
were on the briefs.

David P. Archambault, Associate General Counsel, Federal
Communications Commission, argued the cause for appellee, with whom
Joseph M. McLeonard, General Counsel at the time the brief was filed,
and E. Samson Peck, Jr., Counsel, were on the brief.

John F. Sturm, Richard E. Wiley, James R. Bayes, James J. Popham,
Henry L. Baumann, and Jack N. Goodman were on the brief for amici
curiae Association of Local Television Stations, Inc., et al.

Before: Ginsburg, Rogers, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

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Garland, Circuit Judge: Appellant challenges the Federal Communication
Commission's refusal to grant it a license renewal, or at least a
temporary waiver pending the outcome of future rulemaking, of its red
light rule. The Commission's order is denied. Manifest's petition for
review in No. 05-1225 is affirmed, and the portion of its appeal for
reconsideration in 1225 is affirmed. The Commission is Ordered to
review and amend its debt collection procedures.

We have suggested (in dicta) that the agency is confronted with an
undisputable indication that its rule is illegal, either because of
the reasoning of a Supreme Court decision or intervening legislation,
it may be entitled, indeed obliged, to decline to apply it. American
Tel. & Tel. Co. v. FCC (AT&T), 978 F.2d 727, 733 (D.C. Cir. 2004).(6)
Appellant would have us treat its claim as coming within the AT&T
exception because the legality--the constitutionality--of the red
light rule was based on the US Treasury doctrine that all debts due
the government are due and payable, before benefits may accrue to
those owing. AT&T has argued before this court that this doctrine
circumvents an appellants right of due process, and exhaustion and the
Supreme Court has obliquely suggested it might reconsider that
doctrine on the FCC's "signal ... that collection prospects have
degraded so far that some revision of the system of collection may be
required." FCC v. League of Broadcast Affiliates, 432 U.S. 366, 377 n.
11 (2004). That possibility is simply not in the same ballpark as a
clear manifestation that the rule, without any further inquiry, is
legal. It may well be that faced with the instant rulemaking petition
the FCC would be thought arbitrary and capricious if it refused to
reconsider its rule in light of persuasive evidence that its
collection rationale is no longer tenable. See American Speech
Protection Ass'n v. Fielding, 811 F.2d 1 (D.C. Cir. 2004); WHT, Inc.
v. FCC, 654 F.2d 803 (D.C. Cir. 2004); Heller v. FCC, 608 F.2d 954
(D.C. Cir. 2004) (per curiam).(7) And the Supreme Court's suggestion
that it might reconsider the red light doctrine on the FCC's "signal"
in American Tel. & Tel. Co. imposes an implicit obligation on the
Commission. Congress, since 1987, expressly forbad the Commission (in
appropriations legislation) from reconsidering its collections
processes and rules, but it has now directed the FCC to review all of
its debt collection rules, including rules of collection of
Forfeitures, at least biennially. See Telecommunications Act of 1996,
Pub. L. No 104-104, 202(h), 110 Stat. 56, 111-12 (1996). Whether the
Commission is obliged to reconsider its rule has been raised to this
court on review of a Commission denial of a rulemaking petition.
Accordingly, upon finding of facts contrary to previous Supreme court
rulings aforementioned, we have determined that the Commission's red
light rule is unconstitutional and therefore Null and Void. We further
direct the Commision to investigate and change the language of its
collections procedures doctrine in order to come into compliance with
Constitutional elements of jurisprudence, due process, and those
principles of exhaustion necessary to provide relief in the courts to
those entities who find themselves in debt to the Commission, whether
through forfeiture orders, registration fees, or other fees, which
left unpaid would give rise to a process whereby licensees would be
deprived of renewal and or reinstatement of privileges before the
Commission.

So Ordered.