WASHINGTON-Jackson, Miss.-based Mobile Telecommunication Technologies Corp. will have to wait a while longer to learn if it is liable for a $33 million payment for the pioneer’s preference narrowband personal communications services license it won in 1993.
After considering oral arguments put forth Dec. 8 by both sides of the case-Mtel and the Federal Communications Commission-the U.S. Court of Appeals for the District of Columbia ruled March 8 to remand the decision to the FCC for further consideration. Chief Judge Harry Edwards submitted a separate opinion that concurred in part and dissented in part to the court’s decision.
According to the opinion written by Circuit Judge Stephen Williams, the court pointed out that the FCC, when it changed its rules regarding “free” pioneer’s preference licenses after Mtel had been chosen to receive one, “failed to address such questions as whether its new position was consistent with the reliance interests of Mtel or with the commission’s decision not to charge for certain other paging system licenses … Mtel has had no opportunity to put forth arguments and evidence on the question of reliance, having been lulled into a false sense of security by the commission’s repeated disavowal of intent to charge Mtel.”
In his partial concurrence/dissension, Judge Edwards was harsher in his opinion of the action than his colleagues. “On the record before us, it is clear that the commission lacked statutory authority to require Mtel to pay for the license at issue, so there was no legal basis for the action taken,” he wrote. “Accordingly, I believe that we must reverse the commission’s action and grant the relief sought by Mtel.”
Judge Edwards pointed out that Mtel indeed had been assured by the FCC during the two-year period that preceded the grant of its license that it would be without cost. It was only after the commission was given congressional authority to auction spectrum in August 1993 (three months after Mtel’s license had been granted) that the rules changed.
The judge also took the commission to task for being “weak-kneed” and for “turn[ing] tail on Mtel when a member of Congress cried `wolf’, ” referencing Rep. John Dingell’s (D-Mich.) May 1994 letter to the FCC’s general counsel alluding to his proposed bill that would require pioneer’s-preference winners to pay for their licenses; the bill never moved forward.
An official FCC explanation as to why it was charging Mtel for its license after the fact was unacceptable to the judge. “The FCC could not rely on Rep. Dingell’s proposed but unenacted legislation as authority for its sudden decision to charge Mtel. In the absence of statutory authorization for the fee it sought to impose, the FCC concocted an argument to support its action by bridging together its general authority to administer the Communications Act [of 1994],” he wrote. “Charitably speaking, the argument is something akin to the FCC saying that it `has the power to do whatever it pleases merely by virtue of its existence,’ a suggestion that this court normally would view as `incredible’. “
“In addition to being lawless, the FCC’s action in this case borders on outrageous. I dissent.”
Mtel officials could not be reached for comment.
