U.S. Court of Appeals, D.C., turned down petitions for review of ...
U.S. Court of Appeals, D.C., turned down petitions for review of FCC’s order on competitive bidding and other rules for 800 MHz special mobile radio (SMR) service filed by Small Business in Telecommunications (SBT). At issue were FCC rules…
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on planned auction of licenses for 175 economic areas (EA) for upper 200 channels of SMR band. Commission had determined that any EA licensee could require any incumbent SMR operator to relocate to lower 230 channels of SMR spectrum as long as new licensee provided displaced incumbent with comparable facilities and spectrum. FCC also had crafted auction rules to allow bidding credits for small businesses. Much of decision involved procedural machinations between FCC and SBT, which had filed 2 petitions for reconsideration in 1997 asking agency to review parts of orders dealing with both lower and upper channels of 800 MHz. SBT argued to D.C. Circuit that FCC: (1) Failed to obtain prior approval from Small Business Administration (SBA) of its small business definition. (2) Didn’t give parties enough time to participate in 800 MHz SMR auction. (3) Failed to address economic impact of relocation on small business incumbent licensees. In opinion written by Circuit Judge Karen Henderson, court ruled SBT’s contentions on SBA approval of small business definitions were “without merit.” (Between 2 petitions for review filed by SBT, SBA had approved definitions.) SBT contention that FCC had failed to follow Final Regulatory Flexibility Act (FRFA) analysis in its lower channel report and order also was rejected by 3-judge court. Judges Judith Rogers and David Tatel also heard case. “From our review of the record, it appears that SBT failed to raise the FRFA analysis issue during the rulemaking,” decision said. It also noted that, subsequent to original lower channel report and order, FCC had revisited issue of when incumbents should be repaid for involuntary relocation costs.