The Battle for Portland, Maine

I. INTRODUCTION Portland, Maine, sits serenely on the banks of Casco Bay. It suffers few of the typical problems of large metropolitan areas. The city is clean; the traffic is manageable; there is no apparent crime problem; and people generally know one another. In 1985, however, the FCC began the competitive process of deciding who would be licensed to provide cellular telephone service to Portland, and chaos and irony reigned. Thirteen years later, after a bitter legal battle among local telephone companies, a provider was finally selected. At one point or another, all three branches of government became involved: Congress, the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit, a federal district court in Maine, the Solicitor General's Office, the Office of Legal Counsel and Civil Division (OLC) within the Department of Justice, as well as the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). The license itself changed hands three times during the case and, in essence, three different telephone systems were constructed. The FCC observed that "the litigiousness of the parties in this proceeding [was] staggering."(1) At times, the case appeared to come straight out of Alice in Wonderland. For instance, the originally licensed entity, PortCell, was stripped of its operating authority for failing to make a sufficient showing that it could finance and build the Portland system even though it had already successfully financed, built, and operated the system. Moreover, the financing on which PortCell relied came from a NYNEX-owned company. NYNEX encountered no particular difficulty in financing and building much larger, more complex cellular systems in New York and Boston; yet, apparently, Portland was just too much. Ultimately, the case was decided not on the basis of whether PortCell complied with the financial showing regulation, but whether the FCC itself complied with a preexisting federal law, the Paperwork Reduction Act (PRA), in adopting the regulation in the first place. That law, unlike many other statutes, tolerates no violations. Noncompliance simply renders the regulation at issue unenforceable notwithstanding any other law. Despite this override, it still took an act of Congress to clarify how and when the public protection provision could be used. The Washington Post wrote a half-page story about the case.(2) This Article attempts to tell the whole story from one lawyer's viewpoint and to piece together how the judicial branch, Congress, and administrative agencies function when there is an intervening change in law during an actively litigated case. II. BACKGROUND A. The 1980 Paperwork Reduction Act In 1942, Congress enacted the Federal Reports Act (FRA)(3) to control the growing amount of federal paperwork created by administrative agencies. From the beginning, the FRA provided that federal agencies could not "conduct or sponsor the collection of information ... from ten or more persons" unless the "pertinent regulations" were first submitted for review to what was then the Bureau of the Budget.(4) There were no penalties imposed on agencies for violating the FRA, and it was honored in the breach. In the 1970s, concern over this enforcement problem and the increasing time and expense of complying with federal agency paperwork requests led to the establishment of the Commission on Federal Paperwork (Commission).(5) As a result of the Commission's recommendations,(6) the Paperwork Reduction Act of 1980 (1980 PRA)(7) was enacted as a successor to the FRA. The Act combined a paperwork clearance process with a comprehensive, government-wide paperwork management framework managed by the OMB through its OIRA. The heart of the statute, section 3507, provided that: (a) An agency shall not conduct or sponsor the collection of information unless in advance of the adoption or revision of the request for collection of such information-- (1) the agency has (C) submitted to the Director [of OMB] the certification required under section 3506(c)(3), the proposed collection of information, copies of pertinent statutory authority, regulations, and other related materials as the Director may specify; . …