WASHINGTON-The U.S. Court of Appeals has rejected a petition to review mandatory relocation of public-safety entities from personal communications services frequencies to perceived lesser-quality channels.
In an opinion written by U.S. Circuit Judge Patricia Wald, the three-judge panel decided that the Federal Communications Commission “had adequately explained its determination that public-safety services occupying the reserved bands of the spectrum should be subject to mandatory relocation provisions.” The commission, which in 1992 had exempted public-safety entities from relocation, changed its mind in 1994 to require such moves, albeit with stringent safeguards in place. As a result, the Association of Public-Safety Communications Officials-International Inc. filed the petition for review.
APCO now has the option of petitioning the appeals court for a re-hearing by the original three-judge panel or for a re-hearing by the entire 11-judge panel. If denied a rehearing by this body, APCO could petition the Supreme Court. APCO legal counsel could not be reached for comment.
APCO argued that the FCC had not based its relocation decision “on any new studies or technological data that had become available since the time of the initial rulemaking,” and that “the commission’s about-face on this issue was arbitrary and unreasonable.”
“The court made a sound decision,” said Jay Kitchen, president of the Personal Communications Industry Association, which acted as an intervener in the case along with UTAM Inc. and BellSouth Corp. “The key point is that the FCC had taken proper action in ensuring that incumbent public-safety operations were not put at a disadvantage, and now we can continue to move forward in providing personal communications services to the American consumer.”
The court agreed with the FCC’s assertion that, despite the costs and inconvenience of moving, relocated microwave incumbents often “are better off after relocation.” It also was the perception of the court that APCO wanted to stay on its current frequencies-up to the end of the voluntary negotiation period-to apply enough leverage to elicit additional moving monies from PCS licensees, who would be in a hurry to build out a network on clean channels.
“While the petitioners undoubtably have a significant financial interest in protecting the ability to exact such payments, their loss of rent-seeking potential is hardly a cognizable injury for consideration either by the FCC or by this court since their place on the spectrum was originally derived from a grant from the government,” Judge Wald wrote.
In deflating APCO’s contention that the commission had failed “to consider other, less drastic alternatives to the exemption’s repeal,” Judge Wald concluded, “The FCC in this case did clearly address the alternatives that had been raised during the comment periods. The fact that the commission might not have addressed and rejected every conceivable approach to the challenge of making room for emerging technologies does not render its decision invalid.”
