M2Z Case to Be Heard by D.C. Appeals Court
M2Z and the FCC head to court Monday for oral arguments before the Court of Appeals for the District of Columbia Circuit. It’s scheduled to hear M2Z’s case that the FCC should have awarded the company a license, without an auction, to build a free broadband service in the 2055-2075 MHz band, the so called AWS-3 band. FCC Chairman Kevin Martin said last week that the agency could put a stop to the litigation by approving the AWS-3 order now on circulation (CD Dec 31 P1).
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Martin told reporters last week he doesn’t believe the FCC missed a statutory deadline to address M2Z’s filing seeking to use the band. “Obviously, the litigation would go away to the extent that the commission just went and adopted an order at this point,” Martin said. “Because of self- imposed deadlines, because of litigation, I think it’s something we should continue to move forward on one way or another.”
M2Z pointed to sections 7 and 10 and related provisions of the Communications Act in asking the court to rule that the FCC violated the law by not finalizing a decision in the case. The provisions “ensure that entities like M2Z who propose innovative communications services to serve the public interest are not left in limbo by agency inaction or held hostage by a never-ending regulatory process,” the company said. “Because the Commission violated the text and intent of the Act, and because it did so in an order rife with unreasoned administrative fiat, its decision is arbitrary and capricious and cannot stand.”
M2Z told the court a decision was long overdue. It argued that since it proposed a “new service” using “new technologies,” the FCC was required to make a decision within a year of its proposal on whether the free broadband plan was in the public interest. That means, it said, the FCC should have reached a decision in May 2007, a year after its original filing. The commission should have been able to make a decision “with ease” since “it had a fully developed record by Spring 2007,” the company said. But “despite this record, and despite the fact that it had already kept M2Z waiting for a year, the Commission dropped the ball,” it said.
The company said the FCC denied outright that M2Z’s proposal was innovative or new, and ignored the question of whether the proposal was in the public interest: “This is no exaggeration or hyperbole: The Commission’s Order, with 14,100 words and 117 footnotes, did not cite one filing in support of M2Z; nor did it mention any of the evidence M2Z submitted.”
In its response to M2Z filed with the court, the FCC denied that the company’s proposal was innovative or new, which would have triggered a section 7 requirement that the regulator act within a year on the petition. The commission noted that the wireless Internet service M2Z would offer “currently is being offered by other service providers to consumers using both licensed and unlicensed spectrum.” The FCC also said it had found that the “the transmission speeds proposed by M2Z are unremarkable compared to other broadband services currently being deployed.” It also said there was “nothing new” about the technology M2Z would deploy. The agency also told the court it had determined that neither M2Z’s proposal nor a similar proposal by NetfreeUS would “better serve the public interest” than making the band available through auction.