Groups Seek Ruling on Overturning AWS Auction Rules
Council Tree, along with Bethel Native Corporation and the Minority Media and Telecommunications Council, asked the 3rd Circuit Court of Appeals in Philadelphia to force the FCC to rule on their petition for reconsideration on the rules for the advanced wireless services auction, which has been pending since April 2006. Council Tree, on its own, asked the court to review the rules FCC is putting in place for the 700 MHz auction, which are largely based on the AWS auction rules. The pleadings leave open the possibility the court could overturn the AWS auction and delay the 700 MHz auction, scheduled to begin Jan. 24.
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In September, the 3rd circuit handed down a nondecision in the lawsuit, saying it lacks jurisdiction because Council Tree filed its challenge before the auction order was final (CD Oct 2 p1). 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.
The FCC’s rejection of the petition would clear the way for the DEs to ask the court to overturn the AWS auction rules, Council Tree said. “With our mandamus petition, we are looking forward to court action to compel an FCC ruling on our long outstanding recon petition, following which we'll have a clean procedural pathway for the 3rd Circuit to review this case on the merits,” Council Tree said. The petition for review of the 700 MHz auction rules would ensure that the commission “doesn’t repeat the experience” of the AWS auction “where DE participation languished, totaling just 4 percent of auction proceeds,” the company said.
The AWS petition tells the court that its decision has implications for FCC auctions for years to come. Given that the 700 MHz auction is to start in January, prompt action is necessary, the DEs said. “The public interest importance of the issues before this Court is extraordinary.”
“Absent the issuance of a writ of mandamus, it may be many more months, perhaps years, before this Court has the opportunity to render an on-the-merits decision concerning these rules, which the Commission continues to apply to critically important spectrum auctions, including the 700 MHz auction which is to commence in approximately three months,” the petition said. “For this reason, there is an unusually high degree of risk that rights to access the most valuable remaining frequency bands available for wireless broadband and other advanced wireless services will continue to be assigned under deficient rules.”
The DEs said the court has the authority under the All Writs Act to compel FCC action in aid of the court’s jurisdiction. The court should order the FCC to issue and publish in the Federal Register “a formal order denying petitioners’ arguments with a concise summary of the reasons therefor, and permitting petitioners to perfect an immediate appeal to this court.” In doing so, the court could “reach a decision on the merits based on briefs and arguments already before it, thereby serving the interests of judicial efficiency,” the DEs said.
In a second pleading, Council Tree, acting alone, asked the court to review the 700 MHz auction DE rules and reverse, vacate, and set aside the rules as the court sees fit. The rules don’t comply with “the mandate of the Communications Act that the Commission ensure the participation of designated entities in auctions and avoid excessive concentration of licenses in the hands of incumbent licensees,” Council Tree said. “Unless the defective rules are set aside, DE efforts to obtain financing and participate in Auction 73 will be damaged, in a manner totally inconsistent with DEs’ statutorily-protected opportunity to take part in what is expected by many to be the most significant spectrum auction in history.”