Council Tree Ruling Leaves Uncertainty over 700 MHz, AWS Auctions
The 3rd Circuit Court of Appeals in Philadelphia handed down what amounts to a nondecision in a Council Tree lawsuit against the FCC that could have overturned the advanced wireless services auction. The court said it lacks jurisdiction because Council Tree filed its challenge before the auction order was final. The decision left the firm free to mount another challenge, and Council Tree indicated it will pursue its case against the FCC.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
A ruling in the FCC’s favor would have marked a major victory for T-Mobile and other winners in the AWS auction and removed some of the uncertainty hanging over the 700 MHz auction. The inconclusive outcome -- along with Verizon Wireless’ lawsuit on open-access rules for part of the spectrum -- means that whether the auction will eventually be overturned remains in question, industry and regulatory sources said Friday.
Council Tree said Friday it will seek a writ of mandamus from the 3rd Circuit ordering a prompt commission ruling on the company’s petition for reconsideration, which was filed in May 2006.
“In our view if the Court had felt comfortable in the FCC’s position, they would have gone ahead and ruled in the Commission’s favor,” the company said. “While we are naturally disappointed that the Court did not make a decision on the merits of our case, their ruling is a strictly procedural matter that represents a speed-bump on the path to a subsequent Court decision on the merits.”
Council Tree said the FCC can take “little comfort” in the decision. “It leaves the merits of the case unresolved, and does nothing to dissipate the legal cloud that persists over the FCC’s DE rules,” the company said.
Stifel, Nicolaus said in a research note the case has implications for the upcoming 700 MHz auction as well as the AWS auction. “There was some risk of upsetting the results of the AWS auction, which was of particular concern to T- Mobile,” the firm said. “The court’s analysis is entirely a procedural one which will strike non-lawyers as jabberwocky.”
The court heard arguments on a stay of the auction in summer 2006, before the AWS auction started, and on the case itself in May. “It is not unusual for courts to dispose of things on these highly technical grounds,” said an industry attorney, and it’s “a way of not getting to the merits if they don’t want to get to the merits.”