D.C. Circuit’s Sentelle, Tatel Appear Skeptical of Ex-Radio CEO’s Standing Against FCC
Judges David Sentelle and David Tatel questioned the standing of a former radio executive to appeal an FCC decision transferring involuntarily the nine stations he used to run and part own to a court-appointed receiver. During oral argument Tuesday at the U.S. Court of Appeals for the D.C. Circuit, the two judges each asked questions of lawyer Dennis Kelly, representing plaintiff Glenn Cherry. Cherry had been CEO of Tama Broadcasting and also a major investor.
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Cherry may not have standing to sue the FCC because the case is about issues only a corporation can raise, rather than an individual stockholder, Sentelle said. He asked Kelly what individual claim Cherry has. Kelly cited a ruling by the New York State Supreme Court that made Scott Savage the temporary receiver, resulting in the FCC’s involuntary assignment of the licenses to Savage. That caused Cherry financial injury, which gives Cherry standing because he suffered monetary injury by that decision, Kelly said.
Tatel also questioned if Cherry had properly opposed to the court the agency’s decision to dismiss his qualms against the involuntary license transfer. The judge said that both the procedural approach of an agency’s action and the underlying merits of the action must be challenged in order for a court case to be made. Kelly agreed that Cherry isn’t challenging the FCC’s procedure at the D.C. Circuit, but was only challenging the merits. Kelly earlier said his client’s case was a petition to the D.C. Circuit and not a lawsuit, meaning Cherry had a case to bring. Sentelle said that for purposes of determining standing, it doesn’t matter whether a case is styled as a suit or as a petition.
FCC lawyer Stewart Block said the commission’s action didn’t harm Cherry, and any harms would have been to Tama. Block said Cherry’s injury is speculative and said relief in court wouldn’t relieve his injuries. Judge Harry Edwards also heard the oral argument in Cherry v. FCC, docket No. 10-1151.
All three judges “appeared skeptical” of most of Kelly’s arguments, both as to Cherry’s standing and on his merits to the claim, lawyer Mark Prak, representing Savage, told us. Savage, who attended oral argument but didn’t speak in court, said Cherry doesn’t have standing and said he believes Cherry’s claims “aren’t meritorious.”