Barry P. Lunderville v. Federal Communications Commission, et al.

Whether an ad hoc rule, created for the sole -. - benefit of one of a number of identically situated parties, resulted in unequal protection of all others, including Petitioner. At issue is an interpretation of Federal Communications Commission ("FCC") Rules governing auctions of broadcast licenses whereby imposition of socalled "bid-withdrawal" penalties calculated on withdrawn bids of four million dollars or more is forgiven. However, the bid withdrawn by one participant in a 2004 FCC auction of broadcast properties was the only proffer meeting the exceptionally high threshold established seemingly for the one. All other withdrawn bids, including the Petitioner's, fell far short, triggering maximal penalties. Whether absence of 'invidious discrimination' against the Petitioner obviates his claim of unequal protection. At issue is the selective application of the ad hoc FCC rule described in Question 1. The First Circuit Court of Appeals deemed the rule to have disqualified the Petitioner and other similarly situated bidders from claiming unequal treatment, but only, curiously, if discriminatory, 'invidious' actions based on race, ethnicity, nationality, gender, sexual preference, age, religion, or other broad demographics meant by the term held sway. None was indicated. The Petitioner and joint parties claimed unequal protection based only on loss of property (business capital), not on class discrimination.