Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Case No. 10-71808
Petitioners,
v.
Respondents.
NOSSAMAN LLP
PATRICK J. RICHARD (SBN 131046)
(Counsel of Record)
prichard@nossaman.com
TAMIR D. DAMARI
Table of Contents
Page
I. INTRODUCTION........................................................................... 1
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I. INTRODUCTION
wireless license applications (the “Rule Change”). This Rule Change is ultra
fully below, the FCC and the Bureau have promulgated and implemented an
demonstrated infra, this policy (i.e., the Rule Change) is a binding final legislative
entities, critical infrastructure companies and others. To this end, they obtain and
use licenses procured from the FCC. When the FCC receives license applications
for commercial purposes that are mutually exclusive, such as applications for the
same frequency in the same area, (and for other reasons), the Federal
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obtain bidding credits at FCC-administered auctions based upon their revenue size
(since the amount of the credit is added to the entity's bid in actual dollars to
determine its competing bid in each round of the auction).3 Thus, the value of a
bidding credit stems from the competitive business advantage it confers – it is only
The purpose of the Designated Entity bidding credit is to further the FCA-
1
“If . . . mutually exclusive applications are accepted for any initial license or
construction permit, then . . . the Commission shall grant the license or permit
to a qualified applicant through a system of competitive bidding that meets the
requirements of this subsection.”
2
This regulation states: “Designated entities are small businesses, businesses
owned by members of minority groups and/or women, and rural telephone
companies.”
3
Thus, a Designated Entity entitled to a 35% bidding credit which offers a bid of
$650 for a particular license at auction is deemed to have bid $1,000 at the
auction.
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which qualify for the highest (35%) Designated Entity bidding credit.
The auction process under 47 U.S.C. §309(j)(1) involves three steps: (1) the
Form 175s); (2) the participation of qualified bidders in the auction for the
spectrum licenses being sold; and (3) post-auction award of licenses to high
bidders upon the acceptance of the high bidder’s “long form application.”
Several safeguards are built into the auction system to protect its integrity.
First, each applicant which claims on its short-form application Designated Entity
status (to obtain a bidding credit) pursuant to §1.2110 must declare, under penalty
4
These statutes direct the FCC to design and execute auctions “promoting
economic opportunity and competition . . . by disseminating licenses among a
wide variety of applicants, including small businesses.” To this end, the FCC
is directed to “ensure that small businesses, rural telephone companies, and
businesses owned by members of minority groups and women . . .are given the
opportunity to participate in the provision of spectrum based services and, for
such purposes, consider the use of…bidding preferences.” As described more
fully below, the Rule Change “ensures” precisely the opposite. It deprives
small businesses of the benefits of bidding preferences, since (as discussed
infra) it permits larger companies to take advantage of the bidding preference
system, eliminating the advantage to small businesses the preference system
was designed to promote.
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a statement to that effect and a declaration, under penalty of perjury, that the
eligibility for designated entity provisions,” and provides that “An application will
not be resubmitted after applicable filing deadlines.” It further states that “Major
However, over the course of the past four years, the FCC, through the
de facto legislative rule change (i.e., the Rule Change), the terms of which directly
contradict the plain language of §1.2105(b). The Rule Change has been
connection with the FCC’s “Auction of Lower and Upper Paging Bands Licenses,”
in Paragraph 43 of a May 27, 2010 Public Notice associated with Auction 87 (“DA
Participate In Auction 79, 24 FCC Rcd 10782, 10790 (August 19, 2009); In re
Auction 86, 2009 FCC LEXIS 5271 at *25 (Oct. 8, 2009); In re Auction of Aws-1
& Broadband PCS Licenses, 23 FCC Rcd 11850, 11858 (August 4, 2008); Auction
of 700 MHz Band Licenses - Auction 73, 23 FCC Rcd 276, 281 (January 14,
2008); In re Five Bidders Qualified to Participate in Auction No. 72, 2007 FCC
Licenses; 23 Bidders Qualified to Participate in Auction No. 71, 22 FCC Rcd 8347
*17 (May 2, 2007); Auction Of 1.4 Ghz Band Licenses; Nine Bidders Qualified to
Participate in Auction No. 6922, FCC Rcd 605 *14 (January 23, 2007); Auction Of
The Rule Change violates the spirit and letter of §1.2105(b) (and related
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significantly, under the Rule Change, unscrupulous applicants can: (i) falsely
certify their eligibility for Designated Entity bidding credits; (ii) obtain bidding
credits based upon these false certifications; (iii) outbid competitors at auction
based on these bidding credits; and (iv) thereafter, once they have outbid entities
grade” their Designated Entity bidding credit status (e.g., from a 35% to a 25%
“adjustment” (i.e., increase) of the final payment amount for the license(s).
(permitting them to outbid competitors at auction) because they know that the FCC
will permit them to correct this misrepresentation with no penalty once they have
already been awarded a spectrum license. In short, bidders that are not small
businesses are allowed to bid with falsely obtained bidding credits – a preference
that Congress intended to confer only upon small businesses and other limited
Petitioners, who are bona fide small companies with deserved bidding
credits in Auction 87 (and who have participated in past auctions, and intend to
participate in future auctions) have been and continue to be harmed by this Rule
Change. Therefore, by virtue of the instant appeal, they seek an Order of this
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Court invalidating the Rule Change, thus compelling the FCC to comply with
§1.2105(b) as written.
On June 8, 2010, Petitioners filed this appeal challenging the Rule Change.
or, in the Alternative, Petition for Writ of Mandamus (the “Emergency Motion.”)
On June 11, 2010 the FCC filed an Opposition to the Emergency Motion, to
which Petitioners filed a Reply on June 14, 2010. On June 14, 2010, this Court
denied the Emergency Motion and issued an Order directing Petitioners to show
cause why this appeal should not be dismissed for lack of subject matter
(i) appealability under 47 U.S.C. §402(a); and (ii) exhaustion of remedies under 47
IV. ARGUMENT
to enjoin, set aside, annul or suspend any order of the Commission under this
Chapter.” However, not all actions by the Commission are appealable under
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§402(a). For example, jurisdiction under §402(a) is premised upon a “final” FCC
appealability of the Rule Change6 under §402(a): (i) the Rule Change is a de facto
legislative rule; (ii) the Rule Change is final; and (iii) the Rule Change is binding.
The appealability of the Rule Change can only be discerned in view of its
rule. The status of the Rule Change as a legislative rule is important because
legislative rules are more likely to be deemed “final” appealable orders. See
5
This statute states: “The court of appeals…has exclusive jurisdiction to enjoin,
set aside, suspend…or to determine the validity of…all final orders of the
Federal Communications Commission made reviewable by section 402(a) of
title 47”.
6
The FCC’s most recent promulgation of the Rule Change was in Auction 87
(discussed above). The most recent known application of the Rule Change also
occurred during the course of this auction, when the Wireless Bureau allowed
two applicant companies to down-grade their bidding credit eligibility status.
This action was referenced in the Emergency Motion as the “Two-Bidder
Determination.” Nonetheless, it should be noted that the Two-Bidder
Determination is not the decision giving rise to this appeal. Rather, it is merely
one recent application of the Rule Change which has been applied for years
since 2005. Thus, to be clear, this case is not an appeal from a licensing
determination under 47 U.S.C. §402(b), but is instead an appeal of a final
agency action under 47 U.S.C. §402(a).
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distinction is also critical . . . where the challenger seeks relief based on a specific
agency can issue a legislative rule only by using the notice and comment
procedure described in the APA, [whereas] an agency need not follow the notice
There are three circumstances under which a rule has the “force of law”
sufficient to render it a legislative rule: (i) when, in the absence of the rule, there
would not be an adequate legislative basis for enforcement action; (ii) when the
agency has explicitly invoked its general legislative authority; or (iii) when the
rule effectively amends a prior legislative rule. Id. The third category is
particularly pertinent to this case. Under the rubric established by this category,
7
In making this determination, the Court need not accept the agency’s
characterization of a rule at face value. Id; see also, Croplife America v. EPA,
329 F.3d 876, 883 (D.C. Cir. 2003) (“The agency’s characterization of its own
action is not controlling if it self-servingly disclaims any intention to create a
rule with the ‘force of law,’ but the record indicates otherwise.”)
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a rule may be considered legislative even where the agency does not hold out the
rule as such, if it is inconsistent with a prior rule having the force of law. Id. As
noted by the DC Circuit, such ultra vires rule changes are particularly insidious:
See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000).
rule. It is therefore a legislative rule, which is invalid because it has been issued
without notice and comment. See Barahona-Gomez v. Reno, 167 F.3d 1228, 1235
(9th Cir. 1999); Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 449
(9th Cir. 1994); Southern California Aerial Advertisers’ Assoc. v. Federal Aviation
As noted above, the prior legislative rule at issue is 47 CFR §1.2105, which
final Form 175s are strictly prohibited. Major amendments include any
Designated Entity status under FCC rules (made after the Form 175 deadline).8
8
Similarly, under 47 CFR §1.65(a): “Each applicant is responsible for the
continuing accuracy and completeness of information furnished in a pending
application or in Commission proceedings involving a pending application. . .
Whenever there has been a substantial change as to any other matter which may
be of decisional significance in a Commission proceeding involving the
pending application, the applicant shall as promptly as possible and in any
event within 30 days, unless good cause is shown, submit a statement
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provide bidders a limited opportunity to cure defects specified herein (except for
ownership amendment to an application for which the filing window has closed
would normally make that application untimely and therefore unacceptable for
a proposal that would have permitted applicants after the short-form deadline to
Id.
Nevertheless, the FCC and Bureau, over the past four years, have
systematically implemented the Rule Change, which directly contradicts (and thus
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permits license applicants to: (i) falsely certify their eligibility for Designated
Entity bidding credits; (ii) obtain bidding credits via these false certifications, and
use them to outbid competitors; and (iii) subsequently amend their short-form
applications to effectuate a post hoc cure of the false certification, subject to the
FCC’s adjustment of the purchase price. In short, the FCC has adopted a practice
formulating §1.2105(b)(2). The Rule Change turns the small business bidding
credit system envisioned by Congress into a program which fosters false credits
Change, the FCC has attempted to implement a de facto revised regulation without
Act.
and Land Mobile, LLC (“MCLM”). MCLM, via its sworn short-form application
submitted in this auction, sought and obtained a 35% bidding credit from the FCC
attribute the gross revenues of its principal’s spouse in claiming the bidding
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Thereafter, the FCC directed MCLM to amend its auction application and pay a
sum essentially equivalent to its falsely claimed 35% bidding credit, at which point
the FCC granted MCLM the licenses won with the undeserved bidding credits.
Nearly five years later, this case is still on administrative appeal before the FCC,
and the FCC has neither applied §1.2105(b)(2) to MCLM, nor addressed the
permitted to amend its bidding credit eligibility status on the grounds that this
2006).10
9
MCLM’s principals are currently being investigated for misrepresentations
made during this auction. (http://www.scribd.com/doc/28336861/FCC-
Enforcement-Bureau-Letter-of-Investigation-dated-2-26-2010-to-
Sandra-DePriest-of-MCLM)
10
MCLM’s principal (Sandra DePriest) and her spouse are well known at the
FCC. The FCC Chairman at the time of Auction 61 was an appointee under the
Bush administration who also appointed Mrs. DePriest’s spouse, Donald
DePriest, to the board of the Tennessee Valley Authority. (See:
http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Testimony&Hea
ring_ID=da47ed15-802a-23ad-4341-1ee2229081f8&Witness_ID=4f0478e9-
0482-416a-baec-b11aa87e2efa) Mrs. DePriest was also a former staff attorney
at the FCC. Both Mr. and Mrs. DePriest contributed and raised substantial
funds for the Republican Party, and Mrs. DePriest was a party delegate.
http://www.cbsnews.com/stories/2004/08/31/politics/main639607.shtml.
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The Rule Change was apparently devised by the FCC in an attempt to place
a post hoc imprimatur on the FCC’s actions in the Auction 61 matter. Thus, in the
Public Notices associated with subsequent auctions, the Bureau began to include
status:
Qualified to Participate In Auction 79, 24 FCC Rcd 10782, 10790 (August 19,
FCC Rcd 15274, 15283 (October 24, 2008); In re: 16 Bidders Qualified To
Participate In Auction 86, 2009 FCC LEXIS 5271 at *25 (Oct. 8, 2009); In re
11
This language underscores how the Rule Change is a violation of §1.2105. By
the time the “final payment amount” is due, any reimbursement of the bidding
credit becomes meaningless, particularly where the subject bidder has already
been deemed the high bidder at auction, and has had the opportunity to fully
utilize the bidding credits. In all cases, improperly used bidding credits affect
the auction process, either by permitting the entity falsely-claiming the credit to
outbid others, or by driving up the bids at auction.
16
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Auction of Aws-1 & Broadband PCS Licenses, 23 FCC Rcd 11850, 11858 (August
4, 2008); Auction of 700 MHz Band Licenses - Auction 73, 23 FCC Rcd 276, 281
(January 14, 2008); In re Five Bidders Qualified to Participate in Auction No. 72,
2007 FCC LEXIS 4124 at *17 (June 5, 2007); Auction Of Broadband PCS
Rcd 8347 *17 (May 2, 2007); Auction Of 1.4 Ghz Band Licenses; Nine Bidders
Qualified to Participate in Auction No. 6922, FCC Rcd 605 *14 (January 23,
Participate in Auction No. 66, 21 FCC Rcd 8585 n. 15 (July 28, 2006). 12 The FCC
apparently recognized that if it endeavored to change §1.2105 via the proper notice
and comment procedures, it would be tacitly admitting that the regulation was not
applied properly in Public Auction 61. Instead, the agency has tried to effectuate a
surreptitious de facto revision to the CFR which plainly violates the APA. For
The appealability of the Rule Change also stems from the fact that it is
binding. In this regard, courts have recognized that de facto legislative rules can
12
Each of the foregoing auctions has been completed, except for Auction 87.
Bidding in Auction 87 commenced on June 15, 2010. While bidding continues,
“provisionally winning bids” on licenses involving over 80% of eligible
bidding have already been made through 62 bidding rounds (as of July 2,
2010), and the auction is substantially completed.
17
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Under this standard, the Rule Change is clearly binding and therefore
appealable. Firstly, the FCC treats the Rule Change and its associated adjustment
policy as if it were controlling and binding. Among other things, the Rule Change
change affecting their eligibility for a bidding credit . . .In cases of diminished
the bidding credit prior to the computation of any down and final payments due
[after the end of the auction]”) (emphasis added).13 Such mandatory language
13
See Exhibit 1, at pg. 9 (emphasis added); In re Auction of FM Broadcast
Construction Permits; 77 Bidders Qualified to Participate In Auction 79, 24
FCC Rcd 10782, 10790 (August 19, 2009); In re Auction of LPTV and TV
Translator Digital Companion Channels, 23 FCC Rcd 15274, 15283 (October
24, 2008); In re: 16 Bidders Qualified To Participate In Auction 86, 2009 FCC
LEXIS 5271 at *25 (Oct. 8, 2009); In re Auction of Aws-1 & Broadband PCS
Licenses, 23 FCC Rcd 11850, 11858 (August 4, 2008); Auction of 700 MHz
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Institute v. Rogers, 818 F.2d 943, 946-47 (D.C. Cir. 1987) (Appellate court
concludes that the use of the word “will” by the FDA indicated that an “action
level” statement was a binding norm, noting that “this type of mandatory,
(i) the rule marks the consummation of the agency’s decision-making process (i.e.,
it is not tentative or interlocutory) and (ii) the action is one “by which rights and
obligations have been determined,” or “from which legal consequences will flow.”
Appalachian Power Co. at 1022. However, the definition of “finality” is not rigid.
Indeed, the need for flexibility with regard to finality is particularly important
where, as here, the agency action at issue is an ultra vires legislative rule change.
In such instances, the effective date of an agency’s action for purposes of finality
procedurally improper.
Furthermore, the mere fact that a policy is “subject to change” does not
prevent it from being binding and final. Appalachian Power Co. at 1022; See also,
General Electric Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002) (“If the
then it would be hard to imagine when any agency rule. . . would ever be final as a
Implement Workers Of America v. Brock, 783 F.2d 237, 248-49 (D.C. Cir. 1986)
administrative decisionmaking has reached a stage where judicial review will not
disrupt the orderly process of adjudication and whether rights or obligations have
been determined or legal consequences will flow from the agency action.”).
Applying this standard, the Rule Change is clearly final. Firstly, the Rule
language (i.e., “In cases of diminished bidding credit eligibility, the Commission
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will make appropriate adjustments in the bidding credit prior to the computation of
any down and final payments due”) (emphasis added). Moreover, the Rule
Change has defined and affected rights and obligations of auction participants for
one instance known to Petitioners (Auction No. 61), the Rule Change has
permitted a party to wrongfully obtain and retain licenses which were falsely
procured. Absent court intervention, the Rule Change will continue to be used in
the pending Auction 87 and in future auctions. In short, the most recent
isolated aberrant decision by the FCC. Rather, it is only the latest in a series of
permitted parties to falsely obtain bidding credits and then disclaim them later,
even after auction bidding has ended and the disclaimer is essentially moot.
Finally, the Rule Change both “determines rights and gives rise to legal
who either: (i) falsely-certified their bidding credit eligibility status at the outset,
or (ii) changed their gross revenue size (e.g., via merger) after a truthful
eligibility status with impunity. This is a right they would otherwise not have
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under 47 CFR §1.2105(b). The Rule Change also eliminates the legal
real potential that: (i) an entity might win an auction by falsely certifying its
bidding credit eligibility status, only to retain its ill-gotten gains under the
Bureau’s “adjustment” policy (as demonstrated in Auction 61); (ii) bidders using
undeserved bidding credits will artificially inflate the bids of competing bidders
(even if they are not ultimately high bidders). As a result, the Rule Change
The FCC will undoubtedly argue that this appeal does not stem from a final
agency action, and that this Court therefore lacks jurisdiction. For the reasons
discussed above, any such argument should be summarily rejected in light of, inter
alia, the well-established precedent holding that an ultra vires legislative rule
change is a final appealable agency action. Indeed, any argument by the FCC that
the instant appeal is not ripe would inevitably beg the question: If the Rule
15
A false statement in an FCC license application is not only a violation of 47
C.F.R. §1.2105(a)(2)(iv), but is also a criminal violation of 18 U.S.C. §1001 (as
the short-form application itself notes).
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Change is not final now (after it has already been promulgated and implemented in
required to ripen these appeals? And if, as the Petitioners suspect, the FCC’s
ultimate position will be that the Rule Change is not final under any
circumstances, what remedy does a private party have when a government agency
institutes a legislative rule change without notice and comment? Petitioners submit
that the answer, at least within the factual context of this case, is self-evident – the
intuitively result in a situation where the worst types of agency action (ultra vires
16
During the course of the administrative proceedings in Auction 61, the FCC has
had ample time to eliminate the Rule Change that originated at the start of that
proceeding, or at a minimum explain the rationale and authority underlying it,
but has failed to do either. In particular, certain Petitioners filed Petitions for
Reconsideration in which they have sought an FCC determination that the Rule
Change was unlawfully utilized in Auction 61 to grant licenses to MCLM
(there is no authority supporting an ad hoc rule-change in the course of a
licensing proceeding, yet this is precisely what the Bureau did). Under 47
C.F.R. §1.106(j), the FCC was required to rule on this Petition within 90 days.
Nevertheless, Petitioners’ most recent Petition has now been pending before the
FCC for several years without an FCC ruling (or a hearing under 47 U.S.C.
§309(d) to which Petitioners are entitled). Had the FCC adjudicated this
Petition in a timely fashion, the validity of the Rule Change (at least within the
context of Auction 61), if maintained by the FCC when deciding on the
Petition, would have become independently appealable under 47 U.S.C.
§402(b). But the FCC’s inaction has delayed the ripening of the license
determinations in Auction 61. In short, it would be disingenuous for the FCC
to contest the instant appeal on the grounds of ripeness/finality, given that they
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including that found in hemp seed and oil. The manufacturers maintained that the
emission standards was binding and final; EPA’s characterization of the policy as
proceduralizing courts at bay.”); General Electric Co. v. EPA, 290 F.3d 377, 385
(D.C. Cir. 2002) (Court vacates EPA’s “PCB Risk Assessment Review Guidance
appropriate notice and comment); Croplife America (Appellate court vacates EPA
pesticide safety); Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 95-96 (D.C. Cir.
1997) (“FDA's 1995 publication is not an interpretative rule. It does not purport to
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uses wording consistent only with the invocation of its general rulemaking
. but rather, is fundamentally new regulation. The reasons FDA has advanced for
its rule . . . are exactly the sorts of changes in fact and circumstance which notice
Rogers, 818 F.2d 943, 948-49 (D.C. Cir. 1987) (FDA “action level” statements
were legislative rules issued without the requisite notice and comment).
In this case, as in Hemp Indus. Assoc., the FCC and Bureau have
which violates the plain language of the relevant regulation (§1.2105(b)) that
rejection by the agency of the very same rule interpretation that it now propounds
(i.e., the interpretation that parties can amend their short-form applications to
down-grade their bidding credit eligibility status). Thus, in this case, as in Hemp
Indus. Assoc., the FCC has attempted “to change a legislative rule retroactively
other than its original meaning.” For each of the foregoing reasons, this Court has
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(emphasis added).
Conversely, it follows, ipso facto, that if a particular function has not been
at the outset.
CFR §0.331(d) clearly indicates that the Bureau does not have this authority:
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(emphasis added).
vested in the FCC as a whole.17 Since the Bureau does not have any rule-making
authority, it follows, a fortiori, that it does not have the authority to promulgate a
de facto rule (i.e., the Rule Change) which expressly conflicts with a properly
promulgated regulation (i.e., §1.2105(b)). As such, the Rule Change was not an
17
See 47 CFR §1.407 (“If the Commission determines that the petition discloses
sufficient reasons in support of the action requested to justify the institution of
a rulemaking proceeding, and notice and public procedure thereon are required
or deemed desirable by the Commission, an appropriate notice of proposed rule
making will be issued . . .”) (emphasis added); 47 CFR §1.411 (“Rulemaking
proceedings are commenced by the Commission, either on it own motion or on
the basis of a petition for rulemaking.”) (emphasis added); 47 CFR §1.412 (“A
summary of the full decision adopted by the Commission constitutes a ‘Notice
of Proposed Rulemaking’ for purposes of FEDERAL REGISTER
publication.”) (emphasis added); 47 CFR §1.425 (“The Commission will
consider all relevant comments and material of record before taking final action
in a rulemaking proceeding and will issue a decision incorporating its finding
and a brief statement of the reasons therefor.”) (emphasis added).
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subsection”. Accordingly, 47 U.S.C. §155(c)(7) does not bar the instant appeal.18
18
Alternatively, assuming arguendo that the Wireless Bureau is deemed to have
acted within its delegated authority in the course of implementing the Rule
Change, the exhaustion requirements of 155(c)(7) would nonetheless be
inapplicable, in light of 47 U.S.C. §405(a). This statute states that “After an . .
. action has been . . . taken in any proceeding by the Commission, or by any
designated authority within the Commission pursuant to a delegation under
section 155 (c)(1) . . .any party thereto . . .may petition for reconsideration. .
.The filing of a petition for reconsideration shall not be a condition precedent to
judicial review of any such . . .action, except where the party seeking such
review (1) was not a party to the proceedings resulting in such . . . action, or
(2) relies on questions of fact or law upon which the Commission, or
designated authority within the Commission, has been afforded no opportunity
to pass.“ (emphasis added). In this case, both elements are met. While the
Rule Change action did not formally arise out of a specific proceeding per se,
Petitioners were parties both to the Public Auction that engendered the Rule
Change (Auction 61) and the Public Auction in which the Rule Change was
most recently implemented (Auction 87). Moreover, the Wireless Bureau and
the Commission have had the opportunity to “pass upon” (i.e., eliminate) the
Rule Change prior to this appeal (including during the course of the
administrative proceedings in Auctions 61 and 87), but have failed and refused
to do so. Conversely, in its proper implementation of the actual rule (§1.2105),
the Commission did pass upon (it considered and rejected) the position
subsequently adopted by the Bureau via the Rule Change.
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Respectfully submitted,
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CERTIFICATE OF SERVICE
I hereby certify that on July 6, 2010 a copy of the foregoing document has
Lester L. Boihem
Two Way Communications, Inc.
1704 Justin Road
Metairie, LA 70001
Frank W Ruth
Two Way Communications, Inc.
2819 East Simcoe Street
Lafayette, LA 70501
1
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James D. Silke
Silke Communications, Inc.
680 Tyler Street
Eugene, Oregon 97402
/S/
Maura Bonal
249422_1.DOC 2