WASHINGTON-While the Federal Communications Commission’s implementation of the Telecommunications Act of 1996 has been upheld for the most part, the agency has wound up lately on the wrong end of tounge lashings by federal court judges.
The FCC and its representatives, have had arguments called nonsense, absurd or irrelevant-even when they end up winning the case.
Additionally, in some cases, it’s been difficult for the agency to admit when it loses.
“You folks never think you lose. You do lose some cases,” one judge told a lawyer representing the FCC in a recent federal appeals case against Qualcomm Inc.
The FCC went head-to-head with a federal appeals court April 22 on whether it should issue a pioneer’s preference license to Qualcomm. The same appeals court in early 1997 ordered the FCC to conduct further proceedings to determine whether Qualcomm was entitled to a pioneer’s preference license under FCC rules.
Instead of opening an official proceeding, the FCC and Qualcomm attempted to negotiate a settlement, but these negotiations suddenly were halted when Congress passed the Balanced Budget Act of 1997. The budget act canceled the FCC’s authority to issue personal communications service licenses through the pioneer’s preference method.
Qualcomm said it still was entitled to a license because the court ruled before Congress passed the budget act, and the FCC dragged its feet. The FCC disagreed, saying as long as it reconsidered the decision and better explained the reasons why it was reaching a certain conclusion, it still could deny Qualcomm the license.
Transcripts in the case show the appeals court nearly laughed when the FCC said this during oral argument. “Oh wow. Oh, you folks really are … we kid about you sometimes … That’s nonsense,” the transcripts states.
The appeals court has yet to rule on the case. A decision is expected next month.
A month later in a remedy hearing in the NextWave Personal Communications Inc. bankruptcy case, the Department of Justice, representing the FCC, didn’t fare much better.
The FCC filed a motion May 28 with the U.S. Bankruptcy Court for the Southern District of New York, urging the judge to lift an automatic stay in the NextWave case. Such a move, the FCC believes, automatically would terminate NextWave’s licenses.
But the FCC did not expect to win.
“Given the court’s recent ruling on remedy in the debtor’s adversary proceeding against the FCC, the FCC expects that the instant motion will be denied,” said the cover letter signed by Daniel S. Alter, assistant U.S. attorney.
While the judge ruled in favor of NextWave on the case, the FCC wouldn’t comment, noting the official ruling hadn’t come. Additionally, the FCC believes it will prevail on appeal.
FCC supporters say the courts hold the government to a higher standard, expecting them to be more knowledgeable than their opponents. This is the reason, they argue, the courts often beat government lawyers up only to rule in their favor later.
Others believe the knowledge and experience argument goes only so far. These people say the courts may give small businesses more leeway when going up against the government, but large telecom firms do not enjoy that favor.
