Appeals Court Rejects Globalstar Appeal of L-Band Order
The Court of Appeals for the District of Columbia Circuit rejected Globalstar’s attempts to overturn a 2007 FCC order requiring the company to share with rival Iridium a block of Big LEO spectrum that was previously reserved for its exclusive use. The decision, written by Judge Harry Edwards, was not a surprise based on questions asked during oral argument in February (CD Feb 18 p10).
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The court cited two flaws in Globalstar’s case against the FCC. “First, we hold that Globalstar waived its inadequate notice claim by failing to raise it with the Commission,” the court said. “Globalstar’s late-filed ex parte letter did not give the Commission an ‘opportunity to pass’ on this issue as required by” the Communications Act. Therefore, Globalstar’s inadequate notice claim is not properly before us.”
The court also rejected arguments by Globalstar that the FCC’s reassignment of the spectrum was “arbitrary and capricious.” “The Commission properly revisited the rulemaking pursuant to Globalstar’s petition for reconsideration of the 2004 Order,” the court said. “We find that the Commission’s final order is based on the extensive record compiled during this lengthy rulemaking and that the record supports the Commission’s decision.” The order was a “product of reasoned decisionmaking that survives the narrow scope of review under the arbitrary and capricious standard,” the court said.
During oral argument, Chief Judge David Sentelle said Globalstar caused its own problems when it asked the FCC to reconsider its 2004 sharing order. “When you bring in reconsideration, aren’t you throwing the dice?” Sentelle asked an attorney for the company.
The 2007 order has a long history. In 2003, the commission issued a notice of proposed rulemaking seeking proposals to reassign a portion of the 33 MHz of spectrum used by mobile satellite services. Iridium asked for additional spectrum, arguing that it was experiencing a “spectrum shortage.” It recounted how recent strains on its network due to the use of its services by the U.S. military in the Middle East led the FCC to grant it temporary access to a portion of Globalstar’s spectrum.
Then in 2004, the commission ordered Globalstar and Iridium, which use different technologies to provide satellite-based voice and data communications, to share a 3.1 MHz block of spectrum in the L band between 1618.25 MHz and 1621.35 MHz block of spectrum that was previously reserved for Globalstar’s use. Globalstar sought reconsideration, arguing that sharing the spectrum would generate harmful interference between the two. It used TDMA technology while Iridium’s system uses CDMA. On reconsideration, the FCC agreed and instead reassigned the spectrum block in question to Iridium.
“Naturally, Globalstar is disappointed that the Court did not see the case our way,” said William Adler, vice president legal and regulatory affairs, in a statement. “We knew when we appealed that it would be difficult because the courts accord the agency’s opinions a great deal of deference. The company had conformed its operation to the revised L-band plan in North America, its largest market, shortly after the FCC issued its decision in November 2007, so the Court’s denial of our petition has no practical impact on operations.”