D.C. Circuit to Hear Case with Big Import for 700 MHz Auction
A case the U.S. Appeals Court, D.C., will hear Feb. 9 could bring the DTV transition to a screeching halt. Public Citizen filed a constitutional challenge to the 2005 Deficit Reduction Act (DRA), which sets a Feb. 17, 2009, hard date for transition. The transition would free 700 MHz spectrum the FCC expects to auction later this year, with some of that spectrum reserved for public safety use. In a brief it filed in the case, CTIA enumerated implications for the DTV transition and auction.
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DRA is unconstitutional because the House and Senate passed differing versions that never were reconciled, Public Citizen said. In its amicus brief, CTIA countered that case law is well established indicating the enrolled signatures of the Speaker of the House and president pro tem of the Senate suffice to certify that a bill has passed both chambers.
“Odds are low that this case would be overturned, but with the courts nothing is guaranteed,” a lawyer said.
Marshall Field v. Clark, an 1892 case, established the controlling case law, CTIA said. “In turning back the very same argument advanced by Public Citizen, the Supreme Court took into account the practical and far-reaching consequences that would result from invalidating an enrolled bill,” CTIA said: “Invalidating the DRA would jeopardize a broad range of important public interests that Congress sought to promote… A variety of public and private interests related to wireless communications are directly implicated.”
Overturning DRA would stop the DTV transition, blocking access for first responders to 24 MHz of 700 MHz spectrum set aside for them following transition. It also throw into a cocked hat the auction of another 60 MHz scheduled to be sold to commercial operators, CTIA said. This would “ interfere with the integrity of the auction process… and with the settled expectations of those intending to participate in the auction.” Many carriers decided not to bid in the AWS auction in favor of pursuing the 700 MHz spectrum, so voiding the DRA would “fundamentally disrupt the entire wireless industry,” CTIA warned.
The issue is an easy call, Public Citizen told the court. “Some constitutional provisions are open to interpretation,” the group said: “One constitutional requirement that is not ambiguous, however, is the requirement that every bill pass both houses of Congress before it can be presented to the President and become law. The Deficit Reduction Act of 2005 was presented to the President in violation of that requirement: The Senate passed one version of a bill, the House another, and then the Senate’s version was presented to the President, who signed it. Under the Constitution, that bill has not become a law.”
Key House members, including Speaker Pelosi (D-Cal.) and Commerce Committee Chmn. Dingell (D-Mich.) filed in support of Public Citizen.