Ranger Cellular v. F.C.C.

• Decision Date: 14 November 2003
• Docket Number: No. 02-1155.,02-1155.
• Citation: 348 F.3d 1044
• Parties: RANGER CELLULAR and Miller Communications, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Commnet of Florida, LLC, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

348 F.3d 1044

RANGER CELLULAR and Miller Communications, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Commnet of Florida, LLC, et al., Intervenors.

No. 02-1155.

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 2003.

Decided November 14, 2003.

COPYRIGHT MATERIAL OMITTED

Appeal of an Order of the Federal Communications Commission.

Donald J. Evans argued the cause and filed the briefs for appellants.

Stanley R. Scheiner, Counsel, Federal Communications Commission, argued the cause for appellee. With him on the brief were Jane E. Mago, General Counsel, and Daniel Armstrong, Associate General Counsel. Pamela L. Smith, Counsel, entered an appearance.

David J. Kaufman, Philip L. Verveer, David M. Don, Michael F. Morrone, Timothy Feldhause, Michael Deuel Sullivan, L. Andrew Tollin, Craig E. Gilmore, William R. Layton, and Carol L. Tacker were on the brief for intervenors Commnet of Florida, LLC, et al. Richard L. Brown entered an appearance.

Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Ranger Cellular and Miller Communications, Inc. (Ranger/Miller) appeal from an order of the Federal Communications Commission (FCC) rejecting Ranger/Miller's challenge to four licenses issued by the FCC to provide cellular phone service in rural markets. We conclude that the appellants lack standing to challenge the validity of the licenses, and we therefore dismiss that challenge for want of jurisdiction. Although Ranger/Miller have standing to challenge the FCC's denial of their alternative demand for a refund of their filing fees, we affirm that denial because it was based on a reasonable reading of the agency's own regulation.

I

We have recently set forth some of the history of this litigation in a related case, Ranger Cellular & Miller Communications, Inc. v. FCC, 333 F.3d 255 (D.C.Cir.2003) (Ranger/Miller I), and discuss only the necessary background here. Historically, the FCC first awarded cellular licenses using comparative hearings, and then, starting in 1984, also began awarding them by lottery. After 1986, the Commission employed lotteries exclusively. Appellants Ranger/Miller filed applications in 1988 and 1989 to participate in lotteries for cellular telephone licenses in eight Rural Service Area (RSA) markets, but lost each lottery in which they participated. The Commission awarded most of the licenses to initial lottery winners, but by the mid-1990s the initial winners were disqualified in each of the eight RSAs. The FCC planned to hold relotteries to determine replacement winners, and, in the meantime, granted interim operating authority to cellular telephone licensees in adjacent areas to provide service. See Ranger/Miller I, 333 F.3d at 256-57; In the Matter of Implementation of Competitive Bidding Rules to License Certain Rural Service Areas, Notice of Proposed Rule Making, 16 FCC Rcd 4296, 4301, ¶ 9 & n. 21, 2001 WL 114343 (2001) [hereinafter Competitive Bidding Rules, NPRM].

Before the FCC was able to award the permanent licenses, however, Congress enacted the Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251, 258-60 (1997). With limited exceptions, the Balanced Budget Act amended the Communications Act by terminating the FCC's authority to "issue any license or permit using a system of random selection" after July 1, 1997, 47 U.S.C. § 309(i)(5)(a), and requiring it to use instead "a system of competitive bidding," id. § 309(j).¹ In April 1999, concluding that it was "without authority to process the pending mutually exclusive RSA applications pursuant to the rules and requirements" of the lottery system, the FCC dismissed without prejudice all pending applications for the cellular telephone licenses at issue in this case, including Ranger/Miller's. In the Matter of Certain Cellular Rural Service Area Applications, 14 FCC Rcd 4619, 4620, ¶ 5, 1999 WL 181812 (1999) (dismissing pending applications for six of the RSA markets); In the Matter of Cellular Rural Service Area Applications in Markets Nos. 599A and 672A, ¶ 1 (WTB April 29, 1999) (J.A. at 5) (dismissing pending applications for two of the RSA markets).

On January 31, 2001, the FCC proposed holding an auction open to all interested bidders at which it would award licenses for those RSAs for which licenses had not yet been awarded or designated. Competitive Bidding Rules, NPRM, 16 FCC Rcd at 4297, ¶ 1. By that time, there were only four such RSAs. Id.² Ranger/Miller opposed that proposal, contending that both a provision of the Balanced Budget Act and principles of equity required the FCC to limit the pool of bidders to those that had filed applications prior to July 1, 1997. The Commission rejected those contentions and implemented its open auction proposal. In the Matter of Implementation of Competitive Bidding Rules to License Certain Rural Service Areas, Report and Order, 17 FCC Rcd 1960, 1961, ¶ 1, 1969, ¶ 16, 2002 WL 100245 (2002) [hereinafter Competitive Bidding Rules, Report and Order]. Although eligible to do so, Ranger/Miller did not participate in the auctions. On June 4, 2002, the FCC completed the auctions, and thereafter Ranger/Miller petitioned this court for review. On July 1, 2003, we rejected Ranger/Miller's arguments and denied their petition. Ranger/Miller I, 333 F.3d at 262.

In the present action, Ranger/Miller challenge the validity of the remaining four of the eight RSA licenses for which they originally applied. Three of those licensees won their respective lotteries in 1989 and 1990, but were disqualified in 1992 because their percentage of foreign ownership exceeded the then-applicable statutory limits. In re Applications of Cellwave Telephone Services L.P., FutureWave General Partners L.P., and Great Western Cellular Partners, 7 FCC Rcd 5955, 1992 WL 690580 (1992); 47 U.S.C. §§ 310(b)(1), (3). This circuit upheld those dismissals. Great W. Cellular Partners v. FCC, 72 F.3d 919, 1995 WL 761842 (D.C.Cir.1995); Cellwave Tel. Services L.P. v. FCC, 30 F.3d 1533 (D.C.Cir.1994). In December 2000, however, Congress passed the Launching Our Communities' Access to Local Television Act of 2000 (Local Television Act), which directed the FCC to reinstate the three dismissed applicants. See District of Columbia Appropriations Act of FY 2001, Pub. L. No. 106-553, § 1007, 114 Stat. 2762 (2000). Pursuant to the Local Television Act, the FCC awarded those licenses to the congressional designees in March 2001. In an application to the FCC, Ranger/Miller challenged those awards on the ground that, in directing the reinstatements, the Local Television Act violated the constitutional separation of powers by overruling the final judgment of this court.

Ranger/Miller also submitted a petition for reconsideration to the FCC's Wireless Telecommunications Bureau (Wireless Bureau), challenging a fourth license that the FCC issued to Zephyr Tele-Link in 2000. Following the disqualification of an initial lottery winner, Zephyr's application had been selected in an April 1992 relottery. Its license had not yet been issued, however, when the Balanced Budget Act was passed in 1997, and Zephyr's was among the pending applications that the FCC dismissed in 1999. In 2000, the FCC reinstated Zephyr's application and awarded it a license. In the Matter of Zephyr Tele-Link, 15 FCC Rcd 4247, 2000 WL 204569 (WTB 2000). Ranger/Miller argued that the award to Zephyr conflicted with the provision of the Balanced Budget Act that barred the issuance of licenses using lotteries after July 1, 1997. See 47 U.S.C. § 309(i)(5)(A). Finally, Ranger/Miller also sought reconsideration of the Wireless Bureau's rejection of their request, in the alternative, for a refund of their initial filing fees in the event that their other challenges were denied.

On May 9, 2002, the FCC rejected Ranger/Miller's challenges to the award of the four licenses. In the Matter of Certain Cellular Rural Service Area Applications, Opinion and Order, 17 FCC Rcd 8508, 2002 WL 925319 (2002) [hereinafter 2002 Opinion and Order]. The Commission found that the Local Television Act required it to reinstate the three congressional designees and that it lacked the power to declare an act of Congress unconstitutional. Id. at 8517-18, ¶ 15. The Commission also concluded that, although the Balanced Budget Act barred it from conducting new lotteries after July 1, 1997, the Act did not bar the FCC from processing Zephyr's application by using the results of a lottery that had taken place prior to that date. Id. at 8513, ¶ 8. The Commission did not address Ranger/Miller's alternative request for a refund of filing fees, leaving the Wireless Bureau's rejection in place.

Ranger/Miller now appeal both the denial of their challenges to the four licenses and the denial of their request for a refund.

II

The FCC advances a threshold objection to Ranger/Miller's challenge to the four licenses, asserting that the appellants lack standing to raise such a claim. As the Supreme Court has explained, the "irreducible constitutional minimum" requirements of standing are:

(1) that the plaintiff have suffered an "injury in fact" — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The question here is whether...