Court Orders FCC to Respond in Fight with Council Tree on DE Rules
The 3rd U.S. Circuit Court of Appeals, in Philadelphia, ordered the FCC to respond within a week to a challenge to designated entity rules applied during 2006’s advanced wireless services auction. The court was acting on an October petition for mandamus by Council Tree and others. Council Tree previously asked the court to order FCC action on a reconsideration petition on the rules that Council Tree filed about 18 months ago.
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Council Tree, the Bethel Native Corp. and the Minority Media & Telecom Council petitioned the court to reconsider its September dismissal on jurisdictional grounds of their appeal of the rules. The DEs argued that the case has implications for future auctions, including January’s 700 MHz sale.
“We anticipate that the court will examine closely the reasons that the FCC has failed to comply, for more than 18 months, with its statutory obligation to rule definitively on the reconsideration petition,” Council Tree said. “Following that review, we look for the court to compel the FCC to act, either granting or denying our recon petition. And upon a formal FCC denial of our recon petition, our case will again be immediately reviewable.”
The FCC won’t act unless ordered to by the court, Council Tree said. “The FCC has tried every legal maneuver possible to insulate its decision from judicial scrutiny, while at the same time proceeding at full speed to sell new spectrum rights under deeply flawed DE rules,” the company said.
Odds are the court won’t overturn the AWS auction, lawyer not involved in the Council Tree case said Thursday, noting judges’ unpredictability. “I would be surprised if there was any risk to the AWS auction here,” said a wireless industry attorney. “The FCC will probably take the necessary steps to avoid such an adverse consequence.”
Council Tree also asked the 3rd Circuit to rehear its original appeal. Last month a three-judge panel said it lacked jurisdiction because Council Tree filed its challenge before the AWS auction order was final (CD Oct 1 p1).
“This case is of profound, immediate importance to the public interest,” Council Tree said. “One critically important wireless spectrum auction (Auction 66) has already been conducted… on the basis of the rules under challenge in this fully briefed and argued case… Based on the unusual facts and circumstances of this case, petitioners ask that the merits panel, or this court en banc if necessary, revisit and revise the opinion dismissing the petition on jurisdictional grounds.”