An Early Look at the FCC’s New Administrative Law Judge
On Tuesday, July 9, Jane Hinckley Halprin will preside over the initial stages of her first hearing as the FCC’s administrative law judge to determine a series of questions regarding the role of a convicted felon in the ownership of four AM radio stations. Given the absence of any record on which to evaluate Judge Halperin’s style on the bench, we thought it would be a good time to take stock of what we can learn about Judge Halperin from her initial actions as an ALJ.
Although Judge Halperin had a distinguished career at the FCC before taking over for former ALJ Richard Sippel, much of that time was spent behind the scenes. Haplerin first joined the FCC in 1987 as a staff attorney in the former Common Carrier Bureau and has occupied positions in the former Mass Media Bureau, the Wireless Telecommunications Bureau, and the Office of General Counsel. In the 14 years before becoming an ALJ, Halperin worked as an Ethics Counsel in the Office of General Counsel, most recently leading the agency’s ethics team as Assistant General Counsel for Ethics.
Judge Halperin has only issued two substantive decisions since becoming an ALJ , but those decisions suggest that Halperin takes her role as an ALJ seriously and that her approach is both thorough and uncompromising.
The Sinclair Case
In her first action as an ALJ, Judge Halperin issued an Order terminating a hearing relating to applications filed by Sinclair Broadcast Group, Inc. (“Sinclair”) and Tribune Media Company (“Tribune”) to transfer control of certain subsidiaries of Tribune to Sinclair. The Hearing Designation Order identified four issues to be considered:
- Whether, in light of the issues presented [in the Hearing Designation Order], Sinclair was the real party-in-interest to the WON-TV, KDAF, and KIAH applications, and, if so, whether Sinclair engaged in misrepresentation and/or lack of candor in its applications with the Commission;
- Whether consummation of the overall transaction would violate Section 73.3555 of the Commission’s rules, the broadcast ownership rules;
- Whether, in light of the evidence adduced on the issues presented, grant of the applications would serve the public interest, convenience, and/or necessity, as required by Section 309(a) and 310(d) of the Act; and
- Whether, in light of the evidence adduced on the issues presented, the applications should be granted or denied
Shortly after the FCC designated the applications for hearing, Sinclair notified the Commission that its agreement with Tribune had been terminated, the parties were withdrawing their applications, and asked the agency to terminate the hearing. The FCC’s Enforcement Bureau weighed in a day later, indicating that it did not oppose dismissal of the pending applications and termination of the hearing proceeding.
Although Judge Halperin followed the Enforcement Bureau’s lead and terminated the hearing, she did not do so quietly. Rather, Judge Halperin wrote a detailed order in which she declared that “[a]llegations that Sinclair engaged in misrepresentation and/or lacked candor before the Commission are extremely serious charges that reasonably warrant a thorough examination, notwithstanding the decision to discontinue the transaction and withdraw the pending applications.” While she concluded that “the dissolution of the Sinclair/Tribune consolidation is a circumstance that would render a hearing at this time in the context of this proceeding an academic exercise,” Judge Halperin observed that “Sinclair’s alleged misconduct” was not nullified or excused by the termination but was “more appropriately considered in the context of a future proceeding in which Sinclair is seeking Commission approval.” Judge Halperin’s explicit decision not to fully resolve the matters in the Hearing Designation Order apparently served, in part, as the basis for a subsequent Media Bureau investigation.
Halperin’s most recent decision comes in the matter of Patrick Sullivan and Lake Broadcasting, Inc., another matter that raised the issue of felony control of a broadcast station. The FCC designated an application to assign FM Translator Station W238CE from Patrick Sullivan to Lake Broadcasting, Inc., an entity solely controlled by convicted sex offender Michael S. Rice, for hearing to determine the following issues:
- If any, of Michael S. Rice’s felony convictions on his qualifications and/or the qualifications of Lake Broadcasting, Inc., to be a Commission licensee;
- The effects, if any, of the misrepresentation and lack of candor by Michael S. Rice’s broadcast companies on his qualifications and/or the qualifications of Lake Broadcasting, Inc., to be a Commission licensee;
- Whether Michael S. Rice and/or Lake Broadcasting, Inc., is qualified to be a Commission licensee; and
- Whether the application for consent to the assignment of license for Station W238CE should be granted.
After discovery and resolution of pretrial motions, the prior ALJ held a three day hearing. On the afternoon of the third day of the hearing, however, Mr. Rice failed to return after the lunch breach, having “see[n] the handwriting on the wall” and directed his counsel to cease participating and seek dismissal of the assignment application.
The matter came to Judge Halperin for a decision after the prior ALJ retired. Judge Halperin held that the parties failed to address Mr. Lake’s alleged lack of candor and, therefore, did not satisfy their burden of proof on issue (b). Judge Halperin took particular issue with the parties’ abandonment of the case, however, declaring that “the circumstances of Mr. Rice’s abandonment of the case call into question the level of respect that he has for the Commission’s processes generally.” Judge Halperin noted that the sudden withdrawal came after three days of testimony and three years of extensive discovery and pre-hearing motions and concluded that such “effort to thwart final adjudication of his character qualifications in this proceeding is not conduct one would expect from an applicant intent upon complying with the Commission’s rules and processes.”
Accordingly, Judge Halperin’s initial decision denied the application, finding that “a determination cannot be made that Michael S. Rice is qualified to be a Commission licensee.”
While we are reluctant to read to much into just two decisions, there are some takeaways that could be valuable for parties appearing before Judge Halperin in the future.
First, Judge Halperin does not allow matters to linger. Upon assuming the role of ALJ, she quickly disposed of both the high profile Sinclair matter and the Lake matter that carried over from her predecessor.
Second, Judge Halperin takes matters of candor seriously (as, perhaps, should be expected of someone who served 14 years as Ethics Counsel). In both cases, Judge Halperin did not allow parties to escape unscathed after seeking to withdraw the applications that were designated for hearing for lack of candor. Rather, Judge Halperin issued two strongly-worded decisions that could have lingering effects for the parties.
Finally, Judge Halperin also appears to be a stickler for process, as evidenced by her harsh reaction to Mr. Lake’s sudden withdrawal in the middle of the hearing.
We may learn a lot more about Judge Halperin based on how she conducts her first hearing as an ALJ, and we will also be looking to see how she handles inter-party disputes, such as carriage complaints.