ADVANCED WANTS FCC TO REOPEN DBS SPECTRUM CASE
Advanced Communications plans long-shot bid to get FCC to reopen case that denied fledgling DBS company extension of time to launch satellite system, CEO Dan Garner told us: “There is a lot of law and no justice.” Advanced filed petition last month to reopen case based on “previously unavailable” evidence. It said it never had opportunity to pursue remedies for order through discovery or depositions or otherwise present evidence on issues advanced in petition. It also asked FCC to stay proceedings on EchoStar takeover of Hughes Electronics and DirecTV until issue was settled because EchoStar and DirecTV ended up with spectrum from auction. Satellite attorney told us lawsuit was “desperate Hail Mary,” saying chances for success “were slim and none and slim had just left town.”
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Advanced wants “in the DBS game,” Garner said: “I don’t mind being a partner” with DirecTV or EchoStar. He said he had “raised a ton of money” to start service. Advanced argued that 2 Commissioners who participated in Oct. 1995 order had provided affidavits that supported theory that FCC decision to deny its petition was based expectation govt. would receive substantial revenue from auction of Advanced locations and frequencies. (Commission changed rules in 1993 to allow spectrum auctions).
Decision violated Communications Act that prohibits FCC from issuing orders based upon receiving money from spectrum auctions, Garner said. He conceded filing was last-ditch effort to salvage DBS service for his company: “It’s the bottom of the 9th and I need a hit. Time is running out.” He said FCC’s actions at time were politically motivated. “I'm from Arkansas, but I'm no friend of Bill Clinton and Al Gore. I'm pretty sure they had something to do with this.”
Garner said Advanced “can prove” its case if Commission “would just open the door.” He said he was among first to find way for satellite operators to gain access to programming. Advanced said it spent millions of dollars on technology to provide digital service. “Hughes said it couldn’t work. Now everybody has copied” his model, Garner said.
Advanced received first license in 1986 along with license and orbital locations for satellites in 1991. FCC gave Advanced 3-year extension to launch satellites. During period, company negotiated with EchoStar, but 2 companies ended up in litigation and Advanced entered into agreement with TCI. TCI agreed to provide satellites to Advanced in exchange for transponder capacity. Under TCI agreement, Advanced’s permit was to be assigned to TCI subsidiary Tempo in exchange for stock.
Advanced asked Commission for 2nd extension in Dec. 1994, but it was denied in April 1995 by newly formed International Bureau even though DirecTV and Dominion had been granted 2nd extensions, filing said. Commission denied request because Advanced had failed to comply with due diligence regulation. Advanced appealed denial of extension to U.S. Appeals Court, D.C., and while that was pending FCC conducted auction of Advanced’s DBS spectrum. MCI, bidding jointly with News Corp, obtained most of spectrum for $682.5 million and EchoStar received rest for $52.3 million.
Appeals court ruled against Advanced in May 1996. In Oct. 2001, Advanced petitioned D.C. Appeals Court for writ of mandamus directing FCC to declare Advanced order void after receiving affidavits of former Comrs. James Quello and Andrew Barrett. D.C. Court rejected argument and 8th Circuit, St. Louis, ruled D.C. court already had decided issue.