FCC Moves to Dismiss NTCH Petitions for Reconsideration of AWS-4, H Block Decisions
The FCC wants to dispose of NTCH petitions for reconsideration dealing with the agency allowing Dish Network to convert satellite spectrum for terrestrial wireless use, according to insiders and court documents. Related drafts were included in an array of items circulated at the agency last week (see here). NTCH had sought a writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit over what it said were petitions trapped "in administrative limbo."
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Also before commissioners is a draft order that would approve regulatory fee assessments for FY 2018. Another draft order would follow up on an April Further NPRM on rural call completion (see 1804180025). The FCC "should broadly define the category of intermediate providers subject to a registration requirement," said a USTelecom filing posted Monday in the rural calling docket 13-39 on a meeting with Wireline Bureau staffers about an August deadline to establish a registry under the Rural Call Quality and Reliability Act.
Also on the agency's top floor: a draft order that would extend by 90 days the window to file challenges to the eligibility map for the upcoming Mobility Fund II auction (see 1808030042). Carri Bennet, counsel to the Rural Wireless Association, referred us to her earlier statement welcoming the order. “Due to the overstated coverage that has been filed, the additional time will allow our members to launch additional challenges,” she said then.
Karousel's application for approval of its proposed non-geostationary orbit satellite constellation, also on circulation, is expected to get approval (see 1808100037).
The NTCH petitions stem from AWS-4 service rules and the waiver granted Dish leading up to Auction 96. It also applied for a review of the order on reconsideration addressing NTCH petitions of two AWS-4 orders giving Dish a waiver.
The agency was said to have put the items on circulation to dispose of them. A staffer said at least two of the three bring up procedural problems, and commissioner approval could be relatively easy. The agency, in an opposition filed Monday with the U.S. Court of Appeals for the D.C. Circuit, said orders disposing of the NTCH petitions for review had recently been sent for a vote. The NTCH petitions stem from AWS-4 service rules and the waiver granted to Dish leading up to Auction 96, and it also applied for a review of the order on reconsideration addressing NTCH petitions of two AWS-4 orders giving Dish a waiver (see here, here, here and here).
The docket 18-1121 opposition (in Pacer) responded to an NTCH petition (in Pacer) for writ of mandamus the company filed in May that regulatory inaction for five years on its applications for review and petitions for reconsideration "constitutes unreasonable delay." The company said delay as a route for evading judicial review "has obviously become a handy and familiar tool in the Commission's bag of tricks." It said a Freedom of Information Act request filed in 2017 showed that as of September, 30 Wireless Bureau cases were pending more than five years and 19 for more than seven. It said across the FCC, close to 200 reconsiderations and applications for review had been pending for more than five years. The court in June gave the FCC a deadline of Monday to reply to the mandamus ask.
NTCH hasn't shown it has Article III standing to challenge eventual FCC orders on its pending petitions, so it can't try to force action on the pending matters, the agency said in its opposition. Even if the company showed proper standing, it hasn't met the bar for mandamus relief, the commission said.
NTCH outside counsel Don Evans of Fletcher Heald told us even if the commissioners opt to deny the pending challenges on technicalities, "they raise fundamental issues" that will go to the appellate court level. He said the court might have difficulty with the FCC's agreement with Dish on the H Block that gave the company a waiver and time extension if it committed to a certain level of investment in its network buildout, "which is so unusual." Evans hopes Commissioner Mike O'Rielly, who also called for changes in must-vote procedures so as to get items passed more quickly (see 1801090055), will continue to pursue changes to push along agency responsiveness. "You would rather know something than be left in limbo," said the lawyer.