Court Kills Council Tree Bid to Stay AWS Auction
The 3rd U.S. Appeals Court, Philadelphia, Thurs. rejected a call by Council Tree, Bethel Native Corp. and the Minority Media & Telecommunications Council to halt a coming advanced wireless services auction. The court ruled only a day after oral arguments, setting the advanced wireless services auction back on track for its scheduled Aug. 9 start.
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The court’s swift decision marks a major win for Chmn. Martin, as well as FCC Gen. Counsel Sam Feder, who argued the case himself (CD June 29 p6). It also benefits carriers, especially T-Mobile, which needs spectrum to stay competitive as a national carrier. The big loser was Council Tree, which didn’t apply to bid in the auction.
“Petitioners have not established that a stay is necessary to prevent irreparable harm,” the court order said. “A stay is decidedly contrary to the public interest… We address only these prongs of the test; our confidence in our assessment of these 2 issues makes it unnecessary for us to consider petitioners’ likelihood of success on the merits of their petition for review.”
The court agreed with FCC and carrier arguments that the public interest “militates strongly in favor of letting the auction proceed without altering the rules of the game” with the auction less than 6 weeks away.
“As the FCC and the intervenors note, this auction represents the culmination of an 18-month process of relocating govt. users from the spectrum that is the subject of Auction 66, and will advance the public interest by helping to modernize the nation’s broadband infrastructure, which ‘lags dramatically behind other industrialized nations,'” the court said.
In a bit of good news for Council Tree, the panel making the decision seems to have questions about ultimately upholding the DE order. Council Tree has asked the FCC to reconsider the order in a petition now before the agency.
“We share petitioners’ concern that the further notice may not have sufficiently apprised interested parties that the Commission was contemplating changes in the DE eligibility and unjust enrichment rules of the sort that it ultimately adopted in the second order,” the court said in a footnote: “However, this is a complicated question, as to which we form no opinion… We leave its resolution up to the panel that considers the petition for review, which remains pending.”
“It was the last major piece of uncertainty that seemed to be out there,” a regulatory attorney said: “I'm not aware of anything else that could hold the auction up… It certainly seems to mean that the DEs who waited thinking that they might get the stay that didn’t file an application are out of luck… The FCC may not reopen the filing window.”
“The 3rd Circuit seems to be pretty on board with the idea that the most important thing is getting this important spectrum out there soon,” a 2nd regulatory source said.
The court recognized a lot of the infirmities in this record but a stay is a tough standard to meet, and we knew that going in,” Council Tree said: “As always, the Commission has a tough job in making these decisions and their legal team served them well.”
Stifel, Nicolaus said in a note the decision is good news for carriers, especially T-Mobile. But the firm observed: “The court could still overturn the FCC’s new, more restrictive rules governing what small businesses receiving auction credits may do with their spectrum, and this creates some modest, residual overhang on the auction results.”
“There is no question that American wireless consumers, including those residing in rural areas, will greatly benefit from the rapid deployment of new technologies, products, and services that the soon-to-be available spectrum will support,” CTIA said.