MRA, Skitronics Face Tough Questioning in Lawsuit Against FCC
Judges appeared skeptical Fri. of arguments by wireless licensees Mobile Relay Assoc. (MRA) and Skitronics before the U.S. Appeals Court, D.C., that the FCC had treated them in an “arbitrary and capricious” manner by not allowing them to transfer operations to what they view as preferable spectrum as part of the ongoing 800 MHz rebanding.
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MRA and Skitronics offer specialized mobile radio (SMR) using small, site-based licenses, typical of many smaller companies that operate at 800 MHz. Skitronics, for example, operates 2-way dispatch services for taxicab companies and other small businesses in the Carolinas. When the FCC handed down its massive rebanding order in 2004, it divided 800 MHz licensees into categories - separating commercial from public safety use to minimize interference, which was the goal of the order. MRA and Skitronics operate non-cellular systems, but wanted to relocate to spectrum reserved for more high density carriers like Sprint Nextel that offer “cellular” service. The band was preserved by the FCC for enhanced SMR, or ESMR, services.
In their lawsuit against the FCC, MRA and Skitronics accused the Commission of not treating like systems alike. “The issue before the court is whether, in the course of such rebanding, the FCC can skew the regulatory playing field among for-profit SMR licensees to favor certain ones and hamstring others,” the companies said in written arguments to the court. The companies said the FCC could allow all SMR licensees that plan to deploy high-density cellular systems to deploy in the ESMR band without posing a threat to public safety.
Judge David Sentelle was especially tough in his questioning of attorney David Kaufman, who argued the case for the licensees. Sentelle noted the 2 companies never made their systems cellular, as did the licensees relocated to the enhanced SMR band. He asked whether in defining “similarly situated” the FCC had to give systems “a chance to become” similar: “Someone else evolved to B. Are you saying they have to give you a chance to become B?” Judge David Tatel raised similar questions. “The question we have to address, they [the FCC] were trying to separate cellular from non- cellular,” he said. “They weren’t similarly situated.”
Former FCC Gen. Counsel Christopher Wright, arguing on behalf of intervenors including Sprint Nextel, said that since only 2 companies protested their designation under rules for SMR licensees the FCC could handle the matter “by waiver, if at all.” Wright said the order had proved a success. “It’s remarkable that you have only 2 parties out there complaining,” he said. “That doesn’t usually happen.”