The U.S. Appeals Court, D.C., has authority under the reopening d...

by Judge Merrick Garland during oral argument (CD Dec 9 p5) in light of earlier rulings by the court in PanAmSat v. FCC and related cases. CTIA is challenging a 2004 FCC order in which the Commission claimed authority to impose National Historic Preservation Act (NHPA) obligations on construction of wireless towers by cellular and PCS carriers licensed on a geographic basis. The group also is challenging an agency decision to extend wireless providers’ historic preservation obligations to properties “potentially eligible” for inclusion in the National Register of Historic Places. But the court has jurisdiction in CTIA v. FCC (05-1008) only if the 2004 FCC order constitutes a “reopening” of the case. “The FCC’s order differentiates between the FCC’s statutory authority to impose NHPA obligations, and the ‘public interest question’ whether the FCC should… continue to impose such obligations,” CTIA said. The FCC reopened the first question, explaining for the first time its rationale for imposing NHPA obligations on construction of wireless towers not federally funded or licensed, CTIA said. Former Comr. Kathleen Abernathy and then-Comr. Martin dissented from the order “without suggesting that the majority had refused to address the issue,” it said. In a Bureau-level order, CTIA said, the FCC later relied on the consideration of its statutory authority in the 2004 order to deny review of that issue in another proceeding. “All of that demonstrates that the FCC intended to and did in fact reopen this issue in order to achieve a definitive resolution of the statutory question,” CTIA said: “That is doubtless why the FCC, which routinely raises jurisdictional issues before this Court, did not do so in this case, either in its briefs or at oral argument.” FCC’s brief on the issue is due Dec. 19; CTIA’s reply, Dec. 22.