Applicants, FCC Face Off in Critical ITFS Case

The Savannah case has been cited often as an example of why the FCC needed to change its rules governing how the ITFS airwaves are assigned. “Policy-wise, they've created a scenario where nobody in education is using these [Ga.] channels,” said an attorney who is following the case. “If the FCC prevails it will likely be several more years before the frequencies will be used.”

In 1992, the FCC granted Effingham County Middle School and Statesboro High School in Ga. construction permits to start building ITFS stations to offer educational broadcasts. They never did. In 1995 the licenses expired. SCAD and the diocese noted that the spectrum wasn’t being used and filed applications for the licenses.

In a complicated sequence of events that led to the legal challenge, Effingham and Statesboro put in a late application seeking an extension of time. In 1999, the Media Bureau reclassified their request for more time as a request for reinstatement. The bureau also found that the 2 parties should be protected from other applicants for the spectrum because they filed “timely applications to reinstate the permits.” In 2002, the FCC rescinded the original permits but also said that SCAD and the diocese shouldn’t benefit because the window had closed for filing an application.

In 2003, the FCC signed off on an order denying SCAD’s petition for review, with Comrs. Martin and Copps dissenting vigorously. Martin said “neither the letter nor the spirit of the Commission’s regulations dictate[s] such a result.”

A 3 judge panel Fri. waded through largely technical arguments during oral arguments. One key issue in the eyes of the judges based on their questions was how the Commission was interpreting Sec. 319(b) of the Communications Act, which states that a construction permit “will be automatically forfeited if the station is not operational” in the time provided “unless prevented by causes not under the control of the grantee.” The FCC said in a legal brief on the case its “established practice” is to not consider a permit as having lapsed until “the agency has so ‘declared.'”

But judges focused quickly on FCC rule language implementing Sec. 319(b), which states that the Commission will enter a forfeiture “as of the expiration date.” Judge Stephen Williams said he wondered about the meaning of these “5 words,” asking FCC attorney Grey Pash: “Is there any context where those words mean what they seem to mean?” Pash said the Commission’s decision in the case was purely “procedural” with no “ulterior” motives.

Judge Merrick Garland appeared skeptical of claims by SCAD that the FCC’s interpretation of the statute rises to a level that the decision should be overturned. Garland noted the “respect” the court pays agencies in making these kinds of decisions. “It’s got to be a pretty unreachable reading of the statute for us to overturn it,” he said.

But Robert Rini, who argued the case for the ITFS plaintiffs, told us he was encouraged that the judges asked pointed questions about FCC rules for when a party is held to forfeit a spectrum license. “The case is really all about when the forfeiture dates to. Does it date to the expiration date or to when [the FCC] says it does?” Rini said: “My basic point was the FCC failed to follow its rules.”

Meanwhile, a much anticipated rulemaking on proposed rule revisions for ITFS/MMDS spectrum appeared in the Federal Register Fri. The notice seeks comments on how to handle markets where licensees don’t complete a transition to newly assigned frequencies during a 3-year transition period. Comments are due Jan. 10 and replies Feb. 8. The FCC approved the orders June 10.