**UNITED STATES OF AMERICA**

**DEPARTMENT OF COMMERCE**

**NATIONAL TELECOMMUNICATIONS**

**AND INFORMATION ADMINISTRATION**

**WASHINGTON, D.C.**

**Presidential )**

**Spectrum Policy ) NTIA Docket No. 040127027-4027-1**

**Initiative )**

**MOTION**

**FOR THE CORRECTION OF PROCEDURAL INFIRMITIES**

**BY THE AMHERST ALLIANCE,**

**NICKOLAUS E. LEGGETT N3NL**

**AND**

**LEE McVEY, P.E. W6EM**

**THE AMHERST ALLIANCE is a nationwide citizens' advocacy group, founded
on September 17, 1998 in Amherst, Massachusetts. Amherst supports Low
Power Radio in particular and media reform in general.**

**THE AMHERST ALLIANCE will soon be submitting in this Docket a set of
substantive Written Comments, signed by MELISSA S. LEAR of New York. She
is Special Assistant to the President.**

**However, in view of NTIA's omission from the public record of the
entire text of a vital report that was recently filed in this Docket,
the task of drafting the present Motion has been seized by the President
of Amherst. He has assumed personal responsibility for this Motion
because Amherst views the unexpected and unexplained disappearance of
this report from public view as a stunning violation of "due process of
law" and a matter of profound gravity.**

**The current President of THE AMHERST ALLIANCE, Don Schellhardt of
Connecticut, is an attorney with over 20 years of experience in
Government Relations and 5 years of experience in trial law, including
criminal cases. He holds a B.A. in Government and English from Wesleyan
University and a Juris Doctor degree from George Washington University.
He is also a Member of the Bar in two States.**

**NICKOLAUS E. LEGGETT N3NL of Virginia is a research analyst, technical
writer, inventor, co-author (with his wife Judith Leggett) of several
award-winning scientific papers and an Amateur Radio Service operator.**

**LEE McVEY, P.E. W6EM of Florida is a Professional Engineer, with
experience at Federal Government agencies, and an Amateur Radio Service
operator.**

**All three parties have already submitted independent filings in NTIA
Docket 040127027-4027-01. Nickolaus Leggett N3NL filed his own request
for an extension of the comment period, while Lee McVey, P.E. W6EM
submitted individual Written Comments and also joined THE AMHERST
ALLIANCE in a 21-party Motion for a comment deadline extension.**

**The Notice of Inquiry in this Docket concerns NTIA's implementation of
the Presidential Spectrum Policy Initiative (PSPI), which was launched
by President Bush in an Executive Memorandum on May 29, 2003. The
Executive Memorandum was released to the public on June 5, 2003.**

**To date, all requests for an extension of the comment period have been
denied by NTIA. In the case of the 21-party Motion, NTIA considered the
proposed comment period extension for less than two days before denying
the Motion.**

**The three parties to the current Motion hereby reiterate *both* their
support for a comment period extension *and* their assertions that the
presently scheduled comment period is clearly inadequate in light of the
profound issues involved.**

**Having reiterated these previously expressed points, THE AMHERST
ALLIANCE, Nickolaus Leggett and Lee McVey now submit the present Motion
to seek correction of two *additional* procedural infirmities.**

**THE MISSING-IN-ACTION REPORT**

> **NTIA is obligated by law to include, in the publicly viewable record
> of filings in NTIA Docket 040127027-4027-01, as posted for**

**commenting parties and others at
[http://www.spectrumreform.ntia.doc](http://www.spectrumreform.ntia.doc/),
the *full text* of the report which was submitted to the NTIA a filing
by the Center for Strategic & International Studies (CSIS) in
Washington, D.C. This report, entitled "Spectrum Management For The
21^st^ Century", was written by CSIS in October of 2003 and apparently
submitted to NTIA on March 12, 2004 (although the filing was not posted
for public inspection and review until the following week).
Unfortunately, the publicly viewable record of this filing includes
*only* the text of the March 12 cover letter. Not one word of the report
itself was included in NTIA's publicly viewable record of the CSIS
filing, even though the cover letter from CSIS makes it clear that CSIS
intends and expects its report to be considered as part of the basis for
whatever decisions NTIA may make in this Docket.**

**While *any* evidence which is submitted for the *public* record, in a
*public* proceeding, should be *publicly viewable,* in full, inclusion
of the entire CSIS report may be particularly important. We make this
statement because there is *persuasive* evidence \-- not convincing
evidence, but persuasive evidence \-- that representatives of CSIS may
have influenced the shaping of the Executive Memorandum which launched
the PSPI, and may, possibly, have influenced the NTIA's NOI as well.**

> **For one thing, we are struck by the similarity in titles:**

**"Spectrum Policy For The 21^st^ Century" (Presidential Executive
Memorandum, June 2003)**

**"Spectrum Management For The 21^st^ Century" (CSIS report, October
2003)**

**"United States Spectrum Management Policy For The 21^st^ Century"
(NTIA Docket, February 2004)**

**In addition, having had the opportunity to read *only* the Executive
Summary of the CSIS report, we have nevertheless noticed**

**some significant substantive similarities between the philosophical
underpinnings of the President's Executive Memorandum and the apparent
philosophical underpinnings of the CSIS report. Of course, this *could*
be a coincidence.**

> **As indicated, we are not convinced that CSIS/White House interaction
> actually occurred. Nor are we stating, or implying, that such**

**interaction would be unlawful or improper if it did occur. Subject to
certain legal restrictions, anyone may lobby the White House and/or
NTIA.**

***However,* when *the* *evidence* presented during such lobbying
becomes the basis for an official Notice Of Inquiry and/or a Notice of
Proposed Rulemaking, then *that* *evidence* must either be disclosed to
the public \-- so that commenting parties are able to address it \-- or
else the evidence must be disregarded by the applicable government
agency in its decision-making. Under most non-emergency conditions, the
information and arguments being considered by a regulatory agency must
be *either* *disclosed* *to the public \-- or ignored.***

***If* in fact information and arguments presented by CSIS have
influenced Executive Branch decision-making on the PSPI, then it becomes
*even more vital* for commenting parties to have full, free and
immediate access to the case which CSIS has made.**

> **Although nothing in the publicly viewable record of the CSIS filing
> advises commenting parties to visit
> [www.csis.org](http://www.csis.org/) in order to read the**

**omitted report, Don Schellhardt of THE AMHERST ALLIANCE visited the
CSIS Web Site, on his own initiative, in an effort to find the
Missing-In-Action report. Unfortunately, the CSIS Web Site posts *only*
the report's Executive Summary. Parties who want to read the rest of the
report are required to pay \$16.95 \-- and, presumably, must also wait a
certain number of days to receive it.**

> **Given that the CSIS filing was submitted on March 12, and posted by
> NTIA on March 15, *and* given that the current comment deadline**

**is March 18, the time lag alone would effectively defeat attempts by
commenting parties to read, review and address the CSIS report in what
is left of the current comment period. In addition, it is legally
questionable for NTIA to effectively require members of the *public* to
pay \$16.95 apiece, to a *private* merchandiser, in order to read
something which has been knowingly placed in the *public* record.**

> **We realize that CSIS might prefer to avoid "giving away" free access
> to a report that it can otherwise sell for \$16.95 per copy.**

**Nevertheless, this is one of those tradeoffs that commenting parties
sometimes have to accept.**

> **Barring emergency conditions, certain clearly pressing national
> security concerns and/or confidential proprietary information, none
> of**

**which are a factor here, Federal Government agencies are required by
law to base their decisions *solely* upon a record which is fully
viewable by the public. They are *also* usually required by law to make
documents in that public record viewable by the public in time to allow
a reasonable opportunity for public comment \-- *before* the agency's
decisions are made.**

> **Therefore: When a commenting party asks a government agency to
> accept evidence it has submitted, and to make that evidence**

**part of the basis for a decision by that agency, then the commenting
party must accept that the submitted evidence will become part of "the
public domain" \-- viewable "for free" by anyone who looks up the public
record. Surely this legal fact of life will not come as a surprise to
the former United States Secretary of Energy who co-signed the CSIS
filing.**

> **In any event, action should be taken by NTIA, *immediately,* to
> place the *full text* of the CSIS report into the public record**

**of NTIA Docket 040127027-4027-01.**

> **THE MISSING-IN-ACTION *REPLY* COMMENTS PERIOD**

**In addition to denying two different requests extend the time period
for submission of *Written* Comments, NTIA has apparently neglected to
establish any kind of time period *at* *all* for the submission of
*Reply* Comments.**

> **That is: Although the time frame is seriously inadequate, NTIA has
> at least provided *some* kind of a time period for the submission**

**of Written Comments on NTIA's Notice Of Inquiry. However, NTIA has not
provided *any* kind of a time period for Written Comments on the Written
Comments.**

> **For example, even if the Missing-In-Action CSIS report is posted on
> NTIA's Spectrum Reform Web Site today (March 17),**

**Amherst, Nickolaus Leggett and Lee McVey, and other potential
commenting parties, will have only one day to review and address the
report. Further, if (as often happens in a regulatory proceeding) one or
more commenting parties wait until the last possible minute to file
their Written Comments, other commenting parties will have no time at
all to rebut, endorse or otherwise address those last-minute filings.**

> **To avoid such a potential preclusion of exchanges *between*
> commenting parties, Federal regulatory agencies *routinely***

**provide a *Reply Comments* period. The normal length is 30 days,
although longer Reply Comments periods are not unknown.**

> **It is not too late for NTIA to establish a Reply Comments period \--
> and we urge it to do so. In this regard, we note that, except**

**when an emergency rulemaking is involved, Federal regulatory agencies
generally regard establishment of a Reply Comments period as a necessary
step for compliance with the Administrative Procedure Act.**

> **ANSWER TO A POSSIBLE ASSERTION**

**In its 2-day denial of the Motion by 21 parties for extension of the
*Written* Comments period, NTIA stated, through its General Counsel,
that a comment deadline extension would not permit NTIA to meet a June
1, 2004 deadline for completing its deliberations. That deadline, it was
noted, has been set by the President of the United States, in his
previously referenced Executive Memorandum.**

**Naturally, it occurs to the signatories of this Motion that the same
rationale might be employed to justify denial of these additional
requests. In case this possible response is being considered, we ask
NTIA to first consider two important points.**

**(A) In the event that an injunction is sought against actions which
are undertaken as a result of NTIA's deliberations in this Docket, the
court will decide the Motion for an injunction in general accordance
with the "equity" traditions of Americanized British common law. In an
"equity" proceeding, one question which might arise is whether the
plaintiff has "clean hands" (a moral status which includes, among other
characteristics, a record of having made a "good faith" effort to
exhaust all other remedies before going to court). As a tangential
aspect of this inquiry, the court might also consider whether *the*
*Defendant* has made a "good faith" effort to avoid the conflict which
is being laid before the court.**

**Certainly NTIA's peremptory consideration and dismissal of the
21-party Motion for an extended Written Comments period will work to
NTIA's detriment in any future judicial comparison of which party has
"clean hands". An equally peremptory consideration and dismissal of the
present Motion will further undercut the standing of NTIA, and under
some conceivable circumstances the standing of the entire Federal
Executive Branch, in a possible court conflict over a possible
injunction request.**

**It may also be relevant, in such a possible proceeding, for the court
to consider which party has contributed the most to the alleged urgency
of the present deliberations in this Docket. The Executive Memorandum
which initiated the PSPI was issued by President Bush in late May of
2003, released to the public in June of 2003 and made the subject of
NTIA's Notice Of Inquiry in February of 2004. Thus, NTIA waited 8 months
\-- two thirds of the total time frame established by the President \--
before *beginning* the solicitation of public comments. Then NTIA
limited the public to 6 weeks for *Written* Comments, with no
opportunity for Reply Comments at all.**

**Therefore: NTIA *itself* has created an artificial urgency, which it
has then used to justify denying adequate time for the preparation and**

**development of effective input from affected parties. We ask NTIA: Why
should commenting parties be asked to pay the price for NTIA's**

**leisurely pace from June through January? Why should commenting
parties be allowed only 1 week to prepare input for every 5 weeks that
NTIA**

**took to develop the NOI?**

**(B) More importantly, NTIA needs to recognize that even the order of a
President is not The Last Word in the law.**

**A President's authority to set deadlines for Executive Branch
agencies, like his or her ability to issue other orders, is limited to
what the**

**statutes *and* the Constitution allow. As the old saying goes: "Your
right to swing your fist ends where my nose begins." A President's**

**authority, however, is even more restricted. Before a President can
even start to swing the metaphorical fist, he or she must first find a
statutory**

**and/or Constitutional provision which authorizes that action. Thus, a
President is both forbidden to *exceed* the limits of the law *and*
forbidden to**

**act without an identifiable legal authorization.**

**In *this* case, a continued NTIA policy of ending all public input on
the PSPI on March 18 \-- in an artificial, *self-created* rush to meet
the**

**President's deadline \-- would deprive commenting parties of "due
process of law". Given the overall factual context, including the total
(and**

**unexplained) absence of a Reply Comments period, NTIA would be in
violation of the Administrative Procedure Act. Further, since the**

**Administrative Procedure Act is in substantial part a codification of
various court decisions which interpreted the "due process" clause of
the**

**Constitution, NTIA would be violating the Constitution as well.**

**To cite a Presidentially established deadline as an excuse for these
violations is to argue, implicitly, that the will of the President of
the**

**United States is, and should be, enough to override *both* the
Administrative Procedure Act *and* the Constitution itself.**

**Does NTIA *really* want to continue to assert, or even imply, that the
President, and/or the President's agents, need not heed "due**

**process of law"?**

**Of course, failure to make the CSIS report publicly viewable would add
to the damage caused by the truncated comment period. In**

**addition, in the case of the Missing-In-Action CSIS report, there is
no connection at all to the date of the President's deadline.**

**CONCLUSIONS**

**For the reasons set forth herein, THE AMHERST ALLIANCE, Nickolaus E.
Leggett and Lee McVey urge NTIA to:**

(1) **Act *immediately,* as required by "due process of law", to place
    the *full text* of the CSIS report into the publicly viewable**

**record of the filings in this Docket;**

***And***

(2) **Establish a *Reply* Comments period of at least 30 days, as also
    required by "due process of law".**

**Further, we reiterate our respective requests for extension of the
*Written* Comments period. We call upon NTIA to reconsider,**

**in light of the points raised within this new Motion, its previous
denial of Nickolaus Leggett's request for a deadline extension and its
peremptory**

**denial of the Motion filed by Amherst, Lee McVey and 19 other
parties.**

**Respectfully submitted,**

**Don Schellhardt, Esquire**

**President, THE AMHERST ALLIANCE**

**For THE AMHERST ALLIANCE**

**P.O. Box 186**

**Cheshire, Connecticut 06410**

[**pioneerpath@earthlink.net**](mailto:pioneerpath@earthlink.net)

**Nickolaus E. Leggett N3NL**

**1432 Northgate Square**

**#2A**

**Reston, Virginia 20190-3748**

[**nleggett@earthlink.net**](mailto:nleggett@earthlink.net)

**W. Lee McVey, P.E. W6EM**

**1301 86^th^ Court**

**Bradenton, Florida 34209-9309**

[**lee.mcvey@prodigy.net**](mailto:lee.mcvey@prodigy.net)

**Dated:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**March 16, 2004**