ACA's Asking Court to Block C-Band Lump Sum Election Deadline Is Seen as Its Sole Option
Not including the cost of integrated receivers/decoders (IRD) from the C-band lump sum amount available to earth station operators is contrary to regulatory plain text and common sense, ACA Connects said in a writ of mandamus application Thursday asking the U.S. Court of Appeals for the D.C. Circuit to stay the Sept. 14 C-band lump sum election deadline. Lawyers involved in the C-band proceeding said ACA's ask faces an uphill challenge at the D.C. Circuit, but the cable group had seemingly no other option given the rapidly approaching deadline. The FCC didn't comment.
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ACA faces the challenge that courts generally defer to agencies on complex issues within their expertise, we were told. In the C-band clearing order case, the FCC had a robust record justifying its conclusions, lawyers said. Before suing the agency in the D.C. Circuit, ACA must exhaust administrative remedies at the FCC. But ACA is under a time constraint with the Sept. 14 deadline, and its application for review at the FCC (see 2008140033) won't be decided by then, leaving the mandamus route as the only path seemingly left to the cable group, especially since the commission isn't likely to support ACA's review application and reverse itself on IRDs, a lawyer said.
IRD costs are clearly something to be included in the lump sum under the C-band order definition, and counting them as satellite costs "defies common sense" since they're installed at earth stations and used by earth station operators, not satellite operators, ACA told the court. It's also problematic that the FCC hasn't disclosed the lump sum methodology or underlying assumptions, it said. But there's no other remedy than the writ of mandamus, ACA said, adding it can't petition for review the lump sum determination since it's not final agency action.
ACA said the stay would be pending an FCC decision on its application for review "and if necessary, this Court's review." The application wasn't posted Thursday with the D.C. Circuit by our deadline.
Vertix Consulting, which has been lobbying the eighth floor on the recommended C-band clearinghouse team (see 2008250032), met with an aide to Commissioner Jessica Rosenworcel, per a docket 18-122 ex parte posting Thursday.
The FCC rejected arguments by small satellite operators (SSOs) that it lacks Communications Act authority to modify their licenses in the C-band clearing and repacking, though both Democratic commissioners dissented in part. In an order Wednesday, the commission said it dismissed the protest by ABS Global, Empresa and Hispasat as not complying with agency procedural rules for protests, and because the protest didn't raise new arguments beyond the satellite operators' rejected request for a stay of the C-band order (see 2006110041). Outside counsel for the SSOs didn't comment. Rosenworcel in a statement said she backed the order but has "reservations about the process ... and believe[s] that we missed a golden opportunity to work with Congress to incentivize the repurposing of these airwaves." Commissioner Geoffrey Starks' office didn't comment.