DC Circuit Mostly Upholds FCC Decisions Prior to AWS-4 Auction

court to vacate Auction 96. Instead, the court ordered the FCC to consider the carrier’s petition for review of the grant of waivers to Dish Network. Oral argument was Oct. 8 (see 1910080050). In December 2013, the FCC granted Dish the relief it sought to decide on the operations of its AWS-4 spectrum, but the waiver was conditioned on Dish’s bid of nearly $1.6 billion in the H-block auction the next month. Judges Merrick Garland, David Tatel and Thomas Griffith issued a joint opinion. “We deny NTCH’s petitions for review of both the initial order modifying Dish’s AWS-4 licenses and the order setting the Auction 96 procedures,” they said: “Because the Commission wrongly dismissed NTCH’s application for review of the Bureau’s grant of the waivers,” the court vacated the commission order, remanding the claims. The FCC was wrong to dismiss NTCH’s application for review because of a lack of standing, the court said: “Because the Commission never reached the merits of NTCH’s challenge to the waiver, neither shall we. Having concluded that the Commission erred in its threshold analysis, we ‘remand to the agency for additional investigation or explanation.’” NTCH is weighing its options, said its lawyer Donald Evans of Fletcher Heald. “While we are pleased about the reversal on the waiver part of the case, we were surprised and disappointed that the Court did not address the merits of the ‘cash for waivers’ deal that the FCC made with DISH,” Evans emailed. The court defended the FCC’s overall decisions, challenged by NTCH. The court has said in the past it will “accept the Commission’s ‘technical judgment[s]’ when supported ‘with even a modicum of reasoned analysis, absent highly persuasive evidence to the contrary,’” the judges said. “This deferential standard of review makes NTCH’s task a daunting one.” The FCC chose “to modify Dish’s licenses largely because of the ‘technical judgment’ … that same-band, separate-operator sharing of the spectrum would be impractical.” The court said it couldn’t find, as NTCH asked, that the FCC’s failure to consider stripping Dish of its satellite rights was unreasonable. “Boiled down, NTCH claims that the Commission should have expanded the rulemaking’s scope to consider NTCH’s preferred resolution of the problem,” the court said: “But the Commission need not ‘resolve massive problems in one fell regulatory swoop.’ … Here, the Commission reasonably limited the rulemaking proceeding to proposals to expand terrestrial uses of the AWS-4 Band.”