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This excerpt taken from the SIRI 8-K filed Mar 21, 2007. Syncor
Int’l Corp. v. Shalala, 127 F.3d 90, 94
(D.C. Cir. 1997) (citations omitted) (“By issuing a policy statement,
an agency lets the public know its current enforcement or adjudicatory approach.
The agency retains the discretion and the authority to change its position—even
abruptly—in any specific case because a change in its policy does not
affect the legal norm.”); FCC v. Pottsville Broad. Co., 309 U.S.
134, 138 (1940) (public interest standard of the Communications Act is “a
supple instrument for the exercise of discretion by the expert body which
Congress has charged to carry out its legislative policy”).
50 this transaction. It is settled law that the Commission may waive any of its rules on its own motion or upon request, if good cause is shown.155 Moreover, agencies have discretion to decide significant issues through adjudication, rather than rulemaking, provided the decision (1) is a product of reasoned decision making, and (2) gives adequate notice to the parties subject to the decision.156 Accordingly, to the extent necessary, the Applicants specifically request that the Commission waive, modify, or otherwise alter the subject statement from the 1997 licensing order to the extent necessary to permit this merger. The Commission is authorized to waive its rules when “[t]he underlying purpose of the rule(s) would not be served or would be frustrated, by application to the instant case, and [] a grant of the requested waiver would be in the public interest.”157 In this case, waiver of the rule is appropriate because the preservation of two separate satellite radio licensees is no longer required to “help assure sufficient continuing competition,” which was the purpose of the original restriction.158 As detailed above, the ___________________________________ 156 See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 203 (1947); Chisholm v. FCC, 538 F.2d 349, 365 (D.C. Cir. 1976) (noting that where parties have actual notice of a rule change and an opportunity to submit comments on it, requiring the FCC to “go through the motions of notice and comment rulemaking” would represent an “empty formality”). See also 47 C.F.R. § 1.412(a)(3) (providing that while notice “ordinarily” will be given by publication in the Federal Register, this is not necessary if “all persons subject to the proposed rules are named and have actual notice of the proposal as a matter of law”). 157 47 C.F.R. § 1.925(b)(3)(i); see also, e.g., Ne. Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (stating that waiver is appropriate where rigid compliance with the rule is inconsistent with the public interest). 158 |
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