Qualcomm Inc. seems to be waging an uphill battle with the Federal Communications Commission
over its quest for a pioneer’s preference mobile phone license it believes it deserves for cdmaOne technology.
The
U.S. Court of Appeals in the District of Columbia will hear arguments next month to determine whether the FCC
correctly dismissed Qualcomm’s application for a pioneer’s preference license after Congress took away the FCC’s
authority to grant these types of licenses in 1997. If the cdmaOne innovator succeeds in its appeal, it once again will be
at the FCC’s mercy.
A federal appeals court in early 1997 overturned the FCC’s rejection of Qualcomm’s pioneer’s
preference application for the Miami major trading area, saying the agency was inconsistent in awarding licenses for
innovative broadband personal communications services technologies. The court ordered the commission to conduct
further proceedings to determine whether Qualcomm was entitled to a pioneer’s preference license under FCC
rules.
The commission in 1991 began offering the pioneer’s preference program as a way to give
telecommunications innovators certain types of licenses without having to face competing applications. The FCC
granted three preference licenses: to Omnipoint Corp., American Personal Communications L.P. and Cox Enterprises
Inc.
Qualcomm said it attempted to negotiate with the FCC in the spring of 1997 for an alternative license so it
wouldn’t pit itself against Miami license holders PrimeCo Personal Communications L.P. and Sprint PCS-both
cdmaOne operators. Several basic trading area licenses were available at the time.
But by late summer, the
commission dismissed Qualcomm’s application and a slew of others after Congress, in the 1997 Budget Act, sunset the
pioneer’s preference program. The FCC said its authority to grant any applicant a pioneer’s preference license expired
Aug. 5, 1997. Qualcomm disagreed, claiming the law’s sunset provision did not apply retroactively to its preference
request since it was filed before the legislation was passed.
Qualcomm subsequently filed a Motion to Enforce
Mandate in court and a Petition for Reconsideration of the dismissal order with the FCC. Both actions were denied.
Oral arguments in appeals court are set for April 22.
“If we win, then we will be right back to where we were
a year-and-a-half ago,” said Kevin Kelly, senior vice president of external affairs in Qualcomm’s Washington,
D.C., office. “They will have to address the issue of whether we should get a preference. Our view is, they don’t
have a lot of alternatives.”
The appeals court likely will not decide on the case until July, said Kelly. If
Qualcomm wins the appeal, the FCC will have to determine whether it is required to act on the preference, if it should
grant a license and what license to grant-a process that could last several years. Qualcomm doesn’t want the FCC to
take away its customers’ licenses in Miami, and by the time Qualcomm would receive a license, the FCC will have
auctioned off the remaining C-block licenses.
“It will be a complex situation. They will have had the C-block
auction by then,” said Kelly. “We tried to make a deal with them when the first remand came back. Now all
those licenses will be gone.”
