DE Group Asks to Withdraw FCC Petition with Court Review Pending
Council Tree, Bethel Native Corporation (BNC) and the Minority Media and Telecommunications Council told the FCC they wanted to withdraw a petition for expedited reconsideration of the designated rules for the upcoming advanced wireless services auction, because action on their complaint has shifted to the 3rd U.S. Appeals Court, Philadelphia (CD June 30 p1). The AWS auction is to begin Aug. 9. Neither Council Tree nor BNC filed applications to bid in the auction.
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“Petitioners are focusing their efforts on the only meaningful avenue available to them -- the petition for review in the 3rd Circuit,” the designated entities (DEs) told the FCC. A source familiar with the DEs’ case told us Tues. the appeals court has already made clear it believes it has jurisdiction to act on an appeal of the DE order regardless of what action the Commission takes on the petition.
“The issues reviewed in the order remain of critical importance and warrant judicial review at the earliest possible time, particularly given the Commission’s decision to proceed with Auction 66,” the DEs said. “Because the Commission has already decided the merits of the petition, with the draconian consequence of shutting Council Tree and BNC out of Auction 66, petitioners urge the FCC to take immediately the de jure action it has already taken defacto, and dismiss the petition.”
The 3rd Circuit has set up a briefing schedule in the Council Tree case, under which Council Tree must make its brief on Aug. 29. Final briefs are due at the court mid-Oct.
Meanwhile, Blooston Rural Carriers -- which filed a separate petition asking the Commission to reconsider the DE rules -- told the FCC in a filing that though it isn’t seeking a delay of the AWS auction, it continues to believe carriers didn’t have adequate notice before the FCC changed its DE rules. The Blooston carriers are particularly concerned about changes to the rules that would prevent DEs from selling off spectrum for 10 years after the auction without paying a financial penalty.
“It is respectfully submitted that the Commission must present the public with a more focused rule proposal, once it has gathered input in response to such a broad and unfocused inquiry, before adopting such a significant rule change,” the group said. “It is respectfully submitted that the Commission must not let the urgency of the AWS auction prevent the correction of rules that will have such far reaching consequences; and that the reconsideration process allows the Commission to address many of the issues raised by the Blooston Rural Carriers outside of the AWS auction process.” The group added: “Indeed, refinement of some of these rules, even after the auction, will help the eventual AWS license winners.”