Litigation surrounding rules for the Jan. 24-scheduled 700 MHz auction has taken a sudden turn. Verizon Wireless filed to withdraw its appeal of the Federal Communications Commission’s 700 MHz open-access rule, only to have cellphone association CTIA immediately fill the void by challenging the same regulation in a suit filed at U.S. District Court of Appeals for the District of Columbia Circuit.
“In challenging the 700 MHz order, petitioner does not seek to delay or overturn the results of any auction,” CTIA told the court. “Petitioner does, however, seek to overturn certain aspects of the order that are at odds with prior commission rulings and with the realities of the competitive marketplace for wireless services.”
In its filing, Verizon Wireless said the withdrawal of the suit was prompted by the D.C. Circuit’s Oct. 3 denial of its emergency motion for expedited treatment of the No. 2 mobile phone carrier’s 700 MHz open-access appeal.
The FCC imposed open-access requirements on about a third of the 62 megahertz headed to auction, an action harshly criticized by many in the mobile phone industry (AT&T Inc., the exception) and applauded by consumer advocates, public interest groups, Google Inc., Frontline Wireless L.L.C. and others. Bidding for the 1,099 700 MHz licenses could generate up to $15 billion for the U.S. Treasury.
Compounding matters for the FCC is another suit filed today by Council Tree Communications in the 3rd U.S. Circuit Court of Appeals over guidelines for small-business, or designated entity, bidding discounts.
“With our mandamus petition, we are looking forward to court action to compel an FCC ruling on our long outstanding reconsideration petition, following which we’ll have a clean procedural pathway for the 3rd Circuit to review this case on the merits,” said Council Tree in a statement. “Our petition for review of the 700 MHz DE rules seeks to ensure that we don’t repeat the experience of Auction 66 where DE participation languished, totaling just 4% of auction proceeds, a small fraction of historical DE participation levels.”
Council Tree’s suit adds a new wrinkle to 700 MHz litigation, which until how had centered only on the FCC’s open-access rule.
The 3rd Circuit recently dismissed as premature Council Tree and other parties’ appeal of DE rules for last year’s advanced wireless services auction. Council Tree, Bethel Native and the Minority Media and Telecommunications Council today petitioned the 3rd Circuit to force the FCC to rule on the group’s 17-month-old petition for reconsideration of AWS DE rules. If the FCC rejects the petition for reconsideration, Council Tree and the others plan to re-file their appeal in the 3rd Circuit.
The FCC last year approved controversial rule revisions to extend DE license sale restrictions from five to 10 years and to deny incentives to DEs that resell or lease more than 50% of their spectrum capacity. Sources said the FCC plans to revise DE wholesale provisions for the 700 MHz auction. An FCC spokesman declined to comment. Frontline Wireless and a public interest coalition have aggressively lobbied the FCC to relax DE wholesale guidelines.
