Auction Challenge Raises APA Question Supreme Court Must Resolve, Council Tree Says
The Supreme Court should consider Council Tree’s challenge to the AWS-1 and 700 MHz auction results, in part to clear up longstanding questions about how courts should interpret Section 706 of the Administrative Procedure Act, the designated entity (DE) said in a reply brief to the high court. The 3rd U.S. Court of Appeals in Philadelphia found problems with the FCC’s revised DE rules challenged by Council Tree, but left intact the auction results (CD Aug 25 p1).
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The FCC’s reply brief said the 3rd Circuit was right not to overturn the results, which the commission said would have been an “extraordinarily disruptive remedy” involving $30 billion worth of transactions (CD March 8 p8).
"The Government makes little effort, and even less headway, in attempting to deny the widely recognized division and confusion among the courts of appeals over whether courts have discretion under Section 706 to decline to set aside unlawful agency action,” Council Tree said in a brief. It also was signed by fellow appellants Bethel Native Corp. and the Minority Media and Telecommunications Council. The question raised in the case “has deep, historic roots and is the subject of an ongoing, animated debate among the courts of appeals, within the D.C. Circuit, and in the academic literature,” they said.
The FCC’s position that the court shouldn’t grant cert was based on “narrow grounds, attempting to show that this case is not a proper vehicle for resolving undeniably important questions regarding the scope of courts’ remedial authority under the APA,” Council Tree argued. The commission “does not deny the petition’s showing that prior to the 1990s, courts (including this Court) accepted as a matter of course that an unlawful agency action must be vacated,” the DE said. Council Tree pointed out that the Supreme Court threw out a $17 billion FCC auction in 2003 when it overturned a 2001 auction of spectrum licenses held by NextWave. Council Tree has spent years challenging DE rules that the commission created before the two most recent major spectrum auctions. The 3rd Circuit held three oral arguments before last year’s decision.
"With the completion of our briefing cycle, we're now just weeks away from a cert decision that will afford the Supreme Court an opportunity to hear a case that has broad importance not just for the FCC, but also for the conduct of all government agencies,” said Council Tree CEO Steve Hillard. “The law says that when a court finds unlawful and vacates agency rules, as the Third Circuit Court of Appeals did in our case this past summer, then the court ’shall’ also vacate associated agency actions, in this case FCC auctions 66 and 73 conducted under those unlawful rules. Simply put, our case asks whether ’shall’ means ’shall’ in the law.”