James A. Kay, J R. v. Federal Communications Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 2, 2008 Decided May 23, 2008
No. 03-1072
J AMES A. K AY, J R.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION ,
APPELLEE
Consolidated with 05-1290
Appeals of Orders of the Federal Communications
Commission
Robert J. Keller argued the cause and filed the briefs for
appellant.
Pamela L. Smith, Counsel, Federal Communications
Commission, argued the cause for appellee. With her on the
brief were Matthew B. Berry, General Counsel, Joseph R.
Palmore, Deputy General Counsel, and Daniel M. Armstrong,
Associate General Counsel. Gregory M. Christopher and
Roberta L. Cook, Counsel, entered appearances.

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Before: TATEL , GARLAND and KAVANAUGH , Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH .
KAVANAUGH , Circuit Judge: In 1991, the Federal
Communications Commission granted a five-year, private
land mobile radio station license to Francisco Padilla. That
same year, it granted a similar five-year license to Vince
Cordaro. James Kay reached agreements with Padilla and
Cordaro for them to assign their licenses to him. Kay then
filed assignment applications with the Commission. But
Padilla and Cordaro did not apply to renew their five-year
licenses, and the Commission failed to act on Kay’s
assignment applications before the Padilla and Cordaro
licenses expired in 1996. The Commission then dismissed
Kay’s assignment applications because an expired license
cannot be assigned. See In re Transit Mix Concrete &
Material Co., 16 F.C.C.R. 15,005, 15,006 ¶ 2, 15,007 ¶ 5
(2001).
Kay petitioned the Commission to review the dismissals.
The Commission denied his petitions, reasoning that neither
Padilla nor Cordaro had filed “a timely renewal application”
and that “a pending assignment application does not extend
the expiration date of an underlying Commission license.” In
re Kay, 18 F.C.C.R. 2366, 2367 ¶ 5 (2003) (Kay-Padilla); In
re Kay, 18 F.C.C.R. 7585, 7586 ¶ 5 (2003) (Kay-Cordaro).
The Commission explained that Padilla and Cordaro should
have renewed their licenses before the licenses expired if they
intended to assign them to Kay.
Before this Court, Kay maintains that the Commission
should have considered his assignment applications despite

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the expiration of the licenses. He relies on the Administrative
Procedure Act, which says in relevant part: “When the
licensee has made timely and sufficient application for a
renewal or a new license in accordance with agency rules, a
license with reference to an activity of a continuing nature
does not expire until the application has been finally
determined by the agency.” 5 U.S.C. § 558(c); see also Pan-
Atl. S.S. Corp. v. Atl. Coast Line R.R. Co., 353 U.S. 436, 439
(1957). In Kay’s view, because he filed timely applications
for assignments of the licenses before they expired, § 558(c)
prevented the licenses from expiring until the agency ruled on
his assignment applications.
Kay’s argument flouts the plain text of the APA. By its
terms, the statute does not apply to him – first, because he is
not a “licensee,” and second, because he did not apply for “a
renewal or a new license.” Rather, he is a potential assignee
who applied for assignments of existing licenses. Cf. Miami
MDS Co. v. FCC, 14 F.3d 658, 659-60 (D.C. Cir. 1994) (“The
policy behind the third sentence of [§ 558(c)] is that of
protecting those persons who already have regularly issued
licenses . . . .”) (internal quotation marks and emphasis
omitted).
Resisting the plain text of § 558(c), Kay argues that there
is “virtually no significant difference between an assignment
of license application and an application for a new license.”
Kay Br. at 13. But the text of § 558(c) refers only to
applications for license renewals and new licenses, which are
distinct from applications for license assignments. And the
basic problem for Kay’s argument is that, as the Supreme
Court has emphasized time and again, courts have no
authority to rewrite the plain text of a statute. See, e.g.,
Arlington Central Sch. Dist. Bd. of Educ. v. Murphy, 126 S.
Ct. 2455, 2459 (2006); Hartford Underwriters Ins. Co. v.

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Union Planters Bank, N.A., 530 U.S. 1, 6 (2000). Section
558(c) of the APA is not exempt from this general principle
of statutory interpretation.
Section 558(c) prevents the unfairness that would result if
agency delay caused a licensee to lose a license despite
having filed a timely renewal application. See Miami MDS
Co., 14 F.3d at 659-60. But there is no unfairness in the
assignment context because a potential assignee may simply
demand, as a condition of the assignment contract, that the
potential assignor (the license holder) seek a timely renewal
from the Commission. That is what Kay should have done
here; his quarrel is properly with Padilla and Cordaro, not the
Commission. *
Affirmed.
* Kay also argues that 47 U.S.C. § 310(d) requires assignment
applications to be treated the same as new-license applications, and
that the Commission’s failure to treat them the same was
discriminatory. Because Kay did not raise those arguments before
the Commission, this Court does not have jurisdiction to consider
them. See 47 U.S.C. § 405(a); Qwest Corp. v. FCC, 482 F.3d 471,
474 (D.C. Cir. 2007).

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