UNITED STATES OF AMERICA,            :
                                                                :
v.                                                             :               Case No. 97-470-CR-T-25(B)
                                                                :
ARTHUR L. KOBRES,                             :
                                                                :
Defendant.                                                :

                                MOTION FOR JUDGMENT OF ACQUITTAL
                                            BASED ON PRA VIOLATIONS
                                                        (Motion No. 2)

 Comes now the Defendant Arthur L. Kobres, by and through his trial counsel, Lowell H. Becraft, Jr., and does hereby move this Honorable Court for an order granting judgment of acquittal in Kobres' favor on all counts in the indictment in this case on the basis that 44 U.S.C., §3512 precludes this prosecution. As grounds herefor, Kobres shows as follows:

 1. Each count of the indictment herein avers that Kobres violated 47 U.S.C., §§ 301 and 501 and the method by which he violated these laws was by his alleged transmission of radio signals without having first obtained a license to do so from the Federal Communications Commission;

 2. The requirement for Kobres to obtain such a license from that Commission is predicated upon 47 U.S.C., §308, which in turn depends upon the regulations codified at 47 C.F.R., §§ 73.3511, et seq.;

 3. The regulations codified at 47 C.F.R., §§ 73.3511, et seq., constitute "collections of information" pursuant to the 1995 Paperwork Reduction Act, 44 U.S.C., §§ 3501, et seq., and this latter act requires the display of OMB control numbers upon all regulations of this nature;

 4. Since the regulations at 47 C.F.R., §§ 73.3511, et seq., fail to display OMB control numbers, the public protection provisions of 44 U.S.C., §3512 apply, and therefore  Kobres was not legally required to obtain a radio transmission license from the Commission; without such legal requirement, judgment must be granted to Kobres.

 Wherefore, the premises considered, Kobres moves this Court to enter judgment of acquittal in his favor. In support of this motion, the following brief is offered.

 Respectfully submitted this the 24th day of February, 1998.
 
 

 

Local Counsel:
Marcelino J. Huerta, III
201 East Kennedy Blvd., St. 1108
Tampa, Florida 33602
 

UNITED STATES OF AMERICA,            :
                                                                :
v.                                                             :               Case No. 97-470-CR-T-25(B)
                                                                :
ARTHUR L. KOBRES,                             :
                                                                :
Defendant.                                                :

                    BRIEF IN SUPPORT OF MOTION FOR JUDGMENT OF ACQUITTAL
                                      BASED UPON PRA VIOLATIONS

 Kobres has moved this Court for judgment in his favor on the grounds that this prosecution violates 44 U.S.C., §3512; this brief is submitted in support of that motion.

 A. The Legislative History of the Paperwork Reduction Acts.

 President Roosevelt commissioned the Central Statistical Board to study the problem of governmental paperwork on May 16, 1938, 1 and the Board's study thereafter became the basis for the Federal Reports Act of 1942 (herein "FRA") 2 which constituted the first attempt by Congress to regulate the information collection activities of federal agencies. The FRA granted authority to the Bureau of the Budget to approve the requests of federal agencies seeking to collect information, 3 and it prohibited any federal agency from engaging in such conduct if the Director did not approve the proposed collection of information. 4 The act granted rule the making authority necessary for its implementation, 5 and on February 13, 1943, such rules were promulgated. 6 These rules clearly encompassed both forms used by federal agencies to collect information as well as agency regulations.

 A weak attempt to strengthen the FRA was made in 1973, 7  and revisions to Circular No. A-40 which implemented the FRA were made on May 3, 1973, again on February 10, 1976, and finally on November 5, 1976. In late 1974, Congress established a Commission on Federal Paperwork and directed it to study and report needed changes in the laws, regulations and procedures which would insure that information essential for the functioning of federal agencies was obtained with a minimal amount of burden, duplication and cost. 8

 On October 3, 1977, after lengthy and careful study of the matter of paperwork requirements mandated by federal agencies, the Federal Paperwork Commission submitted the last of its many reports. 9 This Report concluded that while the existing FRA seemed sufficient to control the use of forms by federal agencies to collect information, it was insufficient to control the source for the use of such forms, i.e., agency regulations. 10 Prior to this report, it had been suggested that Congress clarify and strengthen the FRA "to allow the clearance agency to challenge the need for regulatory information."11 The Commission readily perceived that changing the rule making process of federal agencies was essential to reduce paperwork burdens:

Still later, another report concluded as follows:

 While legislation was proposed in 1976 to address the problem of federal paperwork burdens, it was not until 1979 that a major effort was undertaken in this respect. In hearings upon a paperwork reduction bill introduced in the Senate, Senator Lawton Chiles stated:

And while Senator Chiles stated the purpose of this proposed legislation, Senator Lloyd Bentson explained some of the problems the legislation was designed to address:

Senator Bentson's sentiments in this regard were echoed by Gerald L. Hegel, of the Association of Records Managers and Administrators:

 Plainly, this legislative history reveals a Congressional intent to make not only agency forms but also agency regulations subject to the control of the Office of Management and Budget ("OMB"). The  intent and purpose of the proponents of such a law was to force federal agencies to comply by submitting their information collection requests to OMB for approval, and this approval by OMB was to be evidenced by the proper display of an OMB control number upon the item seeking information. If an agency did not comply, then the law was to have some "teeth": unapproved collections of information were to be considered "bootleg" requests that the public could ignore with impunity.

 B. The 1980 and 1995 Paperwork Reduction Acts.

 On December 11, 1980, the Paperwork Reduction Act of 1980 (herein "PRA") was approved; see Public Law 96-511, 94 Stat. 2812, previously codified at 44 U.S.C., §§ 3501, et. seq.  This act in substance required all federal agencies to submit to the Director of O.M.B. all "collections of information" for his approval and the assignment of O.M.B. control numbers; see §3507.  Subsection (f) of this section provided as follows:

Section 3502(4) defined the term "collection of information" generally as the obtaining of facts or opinions by a federal agency "through the use of written report forms, ... reporting ... requirements, or other similar methods calling for ... answers to identical questions".  An "information collection request" was defined in §3502(11) to mean "a written report form, application form, schedule, questionnaire, reporting or record keeping requirement, or other similar method calling for the collection of information".

 The chief method of securing compliance by federal agencies with this act was §3512, which provided:

Clearly just from the act itself, federal agencies were required to submit to OMB all information collections requests for its approval, which was evidenced by the display of an OMB control number. If any collection of information failed to make the required display, the public was authorized to ignore the request with impunity. Indeed, the Senate Committee on Governmental Affairs expressly so stated:

 The Public Protection Clause of the PRA was intentionally designed to enlist the support of the American public in helping OMB secure compliance with the commands thereof by the federal agencies. This was repeatedly stated in the many reports on this legislation, but was perhaps stated best by President Carter when he signed the bill on December 11, 1980:

There can thus be no dispute that this act by clear legislative intent and express statutory provision was specifically designed to afford the American public a statutory right to refuse to provide to a federal agency information which had not been approved by OMB, and approval was to be demonstrated by the proper display upon the request of a control number. This right to refuse to provide information not approved by OMB could be exercised without running the risk of the imposition of penalties of any kind, civil or criminal.

 The implementation of regulations for the PRA was hotly contested, and 54 federal agencies and 90 members of the public offered comments and criticisms of the proposed regulations. 19  The major issue of concern related to whether agency regulations, current as well as those to be promulgated in the future, were subject to the requirements of the act, the federal agencies contending that only forms were covered by the act. This contention was rejected by O.M.B., which found:

The initial regulations for the PRA thus expressly subjected agency regulations to the PRA clearance and approval process; see 5 C.F.R., §1320.14.

 The act clearly required that forms seeking the collection of information must be approved by O.M.B. and had to display O.M.B. control numbers. But, regarding the instances in which specific "reporting requirement" regulations would likewise be subject to the PRA, the report stated:

Stated differently, if a reporting requirement regulation simply mentions a form, both the regulation and the form must be separately approved by O.M.B., although sometimes both will display the same O.M.B. control number.

 The first regulations promulgated for the PRA on March 31, 1983 (48 Fed. Reg. 13689), 5 C.F.R., part 1320, were specific in the requirements placed upon the information collection activities of federal agencies.  Section 1320.4(a) of these regulations provided that:

Section 1320.7 contained important definitions.  A "collection of information" was defined as including forms and reporting requirements, the latter being defined as "a requirement imposed by an agency on persons to provide information to another person or to the agency".  By the plain terms of this definition, a "reporting requirement" encompassed a regulation which required the provision of information. The "display" of OMB control numbers meant the printing of such numbers in the upper right hand corner on forms. For regulations, the "display" of the control number was required to be a "part of the regulatory text or as a technical amendment".  Section 1320.14 of these regulations plainly commanded federal agencies to obtain and display O.M.B. control numbers for agency regulations subject to the act.

 Subsequent regulations for the PRA prove the above contention precisely; see 53 Fed. Reg. 16623, May 10, 1988.  Section 1320.5 of this edition of the PRA regulations provided that:

 In May, 1995, Congress substantially amended the PRA in an obvious effort to rectify problems which had arisen under the earlier 1980 act. 20 Such apparently confusing terms like "collection of information requests" and "collection of information requirements" were avoided in this new act, which contained at §3502(3), the following definition of the term "collection of information":

Under §3507 of the new act, Congress has continued its prior prohibition that no federal agency may solicit information without approval of the Director of OMB, which is indicated by "a control number to be displayed upon the collection of information." Like its predecessor, the new act also contains a public protection provision in §3512:

 Under the new PRA regulations, a "collection of information" is defined in 5 C.F.R., §1320.3(c), as "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons ... ‘Collection of information' includes any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information. As used in this Part, ‘collection of information' refers to the act of collecting or disclosing information, to the information to be collected or disclosed, to a plan and/or an instrument calling for the collection or disclosure of information, or any of these, as appropriate."  There can be no doubt that existing agency regulations are subject to the PRA because §1320.12 of the PRA regulations clearly commands that they be submitted to OMB for approval.

 This legislative and regulatory history plainly demonstrates that collections of information do appear within regulations adopted by various federal agencies and consequently, those regulations must be approved by OMB. Further, regulations subject to the PRA must display a control number, either in the text of the regulation itself or in a preamble to that text; see 5 C.F.R., §1320.3(f).

 C. Litigation Under the PRA.

 One of the first substantive appellate decisions acknowledging the statutory right of the public to "regulate the regulators" was United States v. Smith, 866 F.2d 1092, 1098-99 (9th Cir. 1989). Here, a miner working on federal lands was charged with and convicted of failing to submit to the Forest Service's District Ranger a "Plan of Operations" commanded by a Forest Service regulation published at 36 C.F.R., §228.4. The Ninth Circuit noted that neither the form or regulation in question displayed a control number required by the PRA and its regulations. In defining the parameters of the PRA, that court held:

Here, because the Forest Service's applicable "collections of information" lacked the display of OMB control numbers, the Ninth Circuit reversed Smith's conviction as mandated by §3512.

 Within a month of the decision in Smith, the PRA defense was pleaded in another case also involving a miner on federal lands who was similarly being charged with a failure to submit a "Plan." On appeal from the conviction in that case, the Court in United States v. Hatch, 919 F.2d 1394 (9th Cir. 1990), held that compliance with the PRA was a jurisdictional prerequisite to the imposition of criminal penalties. Since the regulation at issue in Hatch likewise failed to display a control number, Hatch's conviction was reversed.

 In Action Alliance of Senior Citizens of Greater Philadelphia v. Sullivan, 930 F.2d 77 (D.C. Cir. 1991), at issue was a regulation promulgated by the Department of Health and Human Services requiring regulated entities to make available to the agency upon request certain "self evaluation reports." Here, the Court concluded that even this regulation which only indirectly required that information eventually be made available to an agency was within the scope of the PRA and subject to OMB approval.

 The Supreme Court has had the opportunity to address the PRA in Dole v. United Steelworkers of America, 494 U.S. 26, 110 S.Ct. 929 (1990). When the regulations for the PRA were first adopted in March, 1983, those rules required federal agencies to submit to OMB not only those "information collection requests" which were to be submitted directly to the agencies, but also those requests concerning the provision of information to parties other than the federal agencies. These latter types of "disclosure" regulations were at issue in Dole, and of course the Court held that OMB did not have authority over such disclosure rules. 21 But, in making this decision, the Court was required to define precisely what types of "information collection requests" were within the authority of OMB:

 The principle of law which manifests itself within these four cases may be succinctly stated. As the Supreme Court concluded in Dole, a regulation subject to the PRA is one which commands that information be provided directly to a federal agency. The decision in Action Alliance expands the definition of those regulations within the scope of the PRA to those which mandate availability of information to an agency. And both Smith and Hatch demonstrate the consequence of the failure of a regulation subject to the PRA to display a control number: no civil or criminal penalty for a violation of the regulation may be imposed.

 There have been some decisions regarding the application of the PRA to various tax forms and instruction booklets. For example, in United States v. Bentson, 947 F.2d 1353 (9th Cir.  1991), and United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991), those defendants sought to apply the Dole-Smith-Hatch rule to the instruction booklet for tax form 1040. But here, the very same Circuit which created the Smith-Hatch rule rejected such challenges ("The PRA was not meant to provide criminals with an all-purpose escape hatch... If, in enacting the PRA, Congress had intended to repeal 26 U.S.C., §7203, it could have done so explicitly;" see Hicks, 947 F.2d, at 1359).

 In United States v. Dawes, 951 F.2d 1189, 1192 (10th Cir. 1991), that court was confronted with the PRA issue being raised by these convicted tax crime defendants. Here, the Tenth Circuit declared that income tax regulations "simply assist taxpayers to complete tax forms" and "are subsidiary to and mere administrative appendages of the tax form. They function only to aid the taxpayer in providing the information required by the 1040 form." For this reason, the Dawes court concluded that tax regulations don't need OMB control numbers. See also United States v. Neff, 954 F.2d 698 (11th Cir. 1991). These cases dealing with federal income tax legislation, which is a far different legislative scheme than that involving FCC statutes and regulations, are readily distinguishable for this reason.

 D. Compliance by the FCC with the PRA.

 The FCC regulations which are relevant for this case are codified at 47 C.F.R., part 73. Pursuant to the PRA regulations, the FCC has adopted a tabular list of its collections of information which have been assigned OMB control numbers; see 47 C.F.R., §0.408. This list identifies all of the part 73 FCC regulations which have been assigned control numbers, and those regulations are 47 C.F.R., §§ 73.30, 73.37, 73.45, 73.51, 73.61, 73.68, 73.69, 73.99, 73.158, 73.661, 73.687, 73.932, 73.961, 73.1125, 73.1207, 73.1212, 73.1250, 73.1350,  73.1510, 73.1560, 73.1590, 73.1610, 73.1615, 73.1620, 73.1635, 73.1680, 73.1690, 73.1740, 73.1820, 73.1870, 73.1920, 73.1930, 73.1942, 73.1943, 73.2080, 73.3523, 73.3525B, 73.3526, 73.3527, 73.3538, 73.3544C, 73.3550, 73.3588, 73.3589, 73.3594, and 73.3613. Noticeably absent from this list are the assignments of OMB control numbers for the regulations at issue here, §§ 73.3511, 73.3512, 73.3513 and 73.3514. The FCC is acutely aware of the requirement for its regulations to have control numbers, because it admits as much at 47 C.F.R., §0.408:

  Does the FCC understand precisely which of its regulations must be approved by OMB? An examination of certain regulations which do have these control numbers more than adequately demonstrates that it does. For example, §73.51 contains the following collection of information:

Section 73.68 contains several collections of information:

 Section 73.69 contains the following collection of information:

In section 73.158, there are at least two collections of information, one of which provides:

 Section 73.1510 entitled "Experimental authorizations," contains the following collection of information:

 Section 73.1680 (relating to emergency antennas) requires the submission of certain information:

Section 73.1690 concerning modifications of transmission systems provides that, in order for modifications to be made, certain defined information must be provided:

Section 73.3538, entitled "Application to make changes in an existing station," provides for information to be submitted regarding the making of changes at radio stations:

All of these regulations do have OMB control numbers assigned to them and the reason why is related to their obvious requirements that information and even forms be submitted to the FCC. It is also interesting to note that §73.3538(b) quoted above acknowledges that §73.3511 is a collection of information.

 The regulations applicable here are no different from those quoted above. For example, §73-3512 requires information to be submitted to the FCC:

Section §73-3514 provides:

There can be no dispute that these extremely important regulations do in fact constitute collections of information under the PRA; but the problem arises from the fact that they lack assigned OMB control numbers. The law expressly allows members of the public like Kobres to "regulate the regulators" and this is done by "ignoring with impunity" those collections of information which fail to display an OMB control number.

 For the reason that the FCC has failed to obtain OMB approval for the collections of information codified at 47 C.F.R. , §73.3511, et seq., the public protection provisions of 44 U.S.C., §3512 operate here so as to foreclose this prosecution. Consequently, judgment must be granted in Kobres' favor.

 Respectfully submitted this the 24th day of February, 1998.
 

 
Local Counsel:
Marcelino J. Huerta, III
201 East Kennedy Blvd., St. 1108
Tampa, Florida 33602
 
 

 Hand delivered in open court to the prosecution.

END NOTES:

    1 S. Rep. No. 479, 77th Cong., 1st Sess., (1941). The Central Statistical Board later became a part of the Bureau of the Budget, whose name was eventually changed to the Office of Management and Budget ("OMB").

    2 P.L. 77-831, 56 Stat. 1078 (1942), codified at 44 U.S.C.,  § 3501, et seq. (1981).

    3 44 U.S.C., § 3509 (1976).

    4 44 U.S.C., §§ 3506, 3509(2) (1976).

    5 44 U.S.C., § 510 (1976).

    6 Circular No. A-40, having application solely to federal agencies, was never published within the Federal Register. These regulations and subsequent amendments were effective until March 31, 1983, when regulations for the PRA were adopted.

    7 See P.L. 93-153, 87 Stat. 576, § 409 (1973).

    8 See P.L. 93-556, 88 Stat. 1789 (1974), codified at 44 U.S.C., § 3501 (1982).

    9 A Report of the Commission on Federal Paperwork, Final Summary Report (Oct. 3, 1977).

    10 Id., at 606.

   11 Report of the Comptroller General, "Status of GAO's Responsibilities Under the Federal Reports Act," May 28, 1976, at 20.

   12 Final Report, at 613.

   13 The Reports Clearance Process, A Report of the Commission on Federal Paperwork 43 (1977).

   14 Paperwork and Redtape Reduction Act of 1979: Hearing before the Subcomm. on Governmental Affairs, at 12, 96th Cong., 1st Sess. (1979).

   15 Id., at 131, 132.

   16 Id., at 165.

   17  Senate Report No. 96-930, 1980 U.S. Code Cong. and Admin. News 6241, at 6292.

   18 Presidential Documents, Administration of Jimmy Carter, December 11, 1980, at 2795.

   19 See preliminary remarks to such regulations, 48 Fed. Reg. 13666 (March 31, 1983).

    20 See P.L. 104-13, 109 Stat. 163, currently codified at 44 U.S.C., §3501, et seq.

    21  Resolution of this particular problem was an objective of the 1995 PRA.
 


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