National Ass'n of Regulatory Utility Com'rs v. F. C. C.
| Decision Date | 05 January 1976 |
| Citation | 525 F.2d 630,173 U.S.App.D.C. 413 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Kenneth E. Hardman, Washington, D.C., with whom Paul Rodgers, Washington, D.C., was on the brief for petitioner in No. 74--1555.
Abe Fortas, Washington, D.C., for petitioner in No. 74--1585.
John E. Ingle, Counsel, F.C.C., with whom Ashton R. Hardy, Gen. Counsel, Daniel M. Armstrong, Acting Associate Gen. Counsel, F.C.C. and Carl D. Lawson, Atty., Dept. of Justice, were on the brief for respondents. Joseph Marino, Associate Gen. Counsel, F.C.C., at the time the record was filed, also entered an appearance for respondent F.C.C. Howard E. Shapiro, and Roger B. Andewelt, Attys., Dept. of Justice, entered an appearance for respondent, United States of America in Nos. 74--1555 and 74--1585.
John P. Bankson, Jr., Washington, D.C., for intervenor National Ass'n of Business and Educational Radio, Inc.
Louis Schwartz, Robert A. Woods and Lawrence M. Miller, Washington, D.C., were on the brief for petitioner in No. 74--1659.
James A. Koerner, Washington, D.C., was on a statement filed in lieu of a brief, for petitioner in No. 74--1696.
Charles A. Horsky, Charles Lister, Washington, D.C., Alfred C. Partoll and F. Mark Garlinghouse, New York City, were on the brief for intervenor American Telephone and Telegraph Co. in Nos. 74--1555---74--1585 and 74--1659. Michael Boudin, Washington D.C., also entered an appearance for intervenor American Telephone and Telegraph Co.
Wayne V. Black and Larry S. Solomon, Washington, D.C., were on the brief for intervenor Special Industrial Radio Service Ass'n, Inc., in Nos. 74--1555 and 74--1585.
Joseph E. Keller, Wayne V. Black and Larry S. Solomon, Washington, D.C., were on the brief for intervenor The Central Committee on Telecommunications of the American Petroleum Institute in No. 74--1555.
Charles M. Meehan and Peter M. Nemkov, Washington, D.C., were on the brief for intervenor, Utilities Telecommunications Council.
Edward B. Hipp and Robert F. Page, Raleigh, N.C., were on the brief for intervenor North Carolina Utilities Commission.
Richard D. Gravelle, J. Calvin Simpson and Randolph W. Deutsch, San Francisco, Cal., were on the brief for intervenors State of California and the Public Utilities Commission of the State of California.
Frederick M. Rowe, John L. Bartlett and John B. Wyss, Washington, D.C., were on the brief for intervenor Motorola, Inc., in No. 74--1585.
Joseph M. Kittner and Edward P. Taptich, Washington, D.C., entered appearances for intervenor General Electric Co.
Robert E. Conn and Thomas J. McCabe, Washington, D.C., entered appearances for intervenor Airsignal International, Inc., in No. 74--1585.
M. John Bowen, Jr., Columbia, S.C., entered an appearance for intervenor South Carolina Public Service Commission in No. 74--1555.
Before TAMM, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Petitioners seek review of a two-part 1975 F.C.C. Memorandum Opinion and Order 1 (hereinafter 1975 Order), filed in a rulemaking proceeding of which notice was first given in 1968. 2 The Order under review adopts the basic approach, with some modification, of a Second Report and Order, 3 (hereinafter 1974 Order) which issued after two rounds of comment had been received. This Court has jurisdiction to review the Orders under 47 U.S.C. § 402 (1970) and 28 U.S.C. § 2342 (1970).
The Orders under review deal with the allocation of frequency spectrum, in the 806--921 MHz band, to the land mobile radio service, and with the development of regulations pertaining to the future use of that spectrum. Land mobile radio services are radio communication services, based on land, where either the transmitting or receiving station is mobile. 4
Such services are of two general types. Public services are operated by common carrier licensees and made available to members of the public. The most common type of public services are radio telephone services which interconnect with existing telephone systems. Private services apparently include all other mobile radio operations, i.e., those not subject to common carrier regulation. They are predominantly dispatch services such as those operated by police departments, fire departments, and taxicab companies, for their own purposes. However, they are not limited to services which an operator provides only to itself, but also extend to services provided to a limited group of users by third party operators.
The 1974 Order, as modified by the 1975 Order, embodies three distinct actions. First, it allocates a total of 40 MHz on the 900 MHz band (825--845 MHz and 870--890 MHz) to the development of a nationwide, broad-band 'cellular' mobile radio communications system. (Initially, the Commission intends to authorize use of the minimum spectrum needed for developmental systems.) 5 Through the use of expensive and sophisticated new technologies, the cellular system will make possible more traffic intensity per unit of spectrum than do present mobile communication methods. When operative, which will not be before 1978, it is expected greatly to increase capacity for mobile communications in urban areas over what is now available. The cellular system is clearly a public, common carrier system, and will serve primarily to expand the capacity of radio telephone service.
The 1974 Order limited the group of eligible applicants for licenses to operate on these bands, to wireline (telephone) carriers. 6 The 1975 Order removed this limitation and extended eligibility to radio common carriers as well. 7 Any applicant for a license will nonetheless be required to demonstrate that it has the resources and technology for rapid development of a cellular system. 8 As well as providing radio telephone service, cellular systems are to be allowed to engage in didpatch operations. 9
Second, 30 MHz (806--821 MHz and 851--866 MHz) is allocated to private services, to be licensed to operators in the Public Safety, Industrial and Land Transportation areas, as authorized under 47 C.F.R. §§ 89, 91, 93. Thus, under existing regulations, this allocation makes available additional spectrum for eligible applicants who wish to obtain a license to operate a station, either for their own private purposes, or, with several other eligibles, on a non-profit, cost-sharing basis. 10 In addition, the Orders would create a new category of private mobile operators, eligible for licensing on the 30 MHz presently being allocated. This new category of operators, known as Specialized Mobile Radio Systems (SMRS), would operate on a commercial basis to provide service to third parties. Licensing is to be on a first-come, first-served basis, with SMRS applications treated no differently than those of other private applicants. 11 Because it seeks to utilize a profit motive to speed development and refinement of mobile radio technologies, the Commission concludes that SMRS should not be subject to the common carrier regulations of Title II of the Communications Act, 12 and that state certification of SMRS should be pre-empted. 13
Third and last, the 1975 Order designates the remaining 45 MHz of the total 115 MHz allocation for reserve and future growth. 14 This aspect of the Order is not challenged in this proceeding.
The power to make this allocation of spectrum for the development of sophisticated and band-efficient cellular systems arises, if at all, under 47 U.S.C. § 303(c) and (g) (1970). 15 Section 303 sets forth the Commission's power and duties in the regulation of radio, and states that the exercise of all powers should be guided by the requirements of 'public convenience, interest, or necessity.'
The authorizations of powers under subpart (c) to assign bands of frequencies to various classes of stations, and under subpart (g) to provide for experimental uses and encourage the more effective use of radio, appear on their face to justify the allocation at issue here. However, it has been challenged on a variety of grounds, as exceeding the discretion allowed the Commission under the public convenience, interest or necessity standard.
First, the argument is made that the allocation is excessive in light of both the technological requirements for the development of...
To continue reading
Request your trial
-
United States v. American Tel. and Tel. Co.
... ... Dupont, Nat. Ass'n of Regulatory Utility Com'rs, Washington, D.C., for Nat. Ass'n of ... a centralized body, a single point of contact for national security and emergency preparedness. They would be ... 1142, 31 L.Ed.2d 492 (1972); Maryland Milk Producers' Assn. v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d ... ...
-
N.Y. State Telecomms. Ass'n, Inc. v. James
... ... for free or reduced-priced lunch through the National School Lunch Program; or (b) is eligible for, or receiving ... ) is a recipient of an affordability benefit from a utility. Id. 399-zzzzz(2). These qualifications cover ... 1 (Senior Vice President for Regulatory Affairs); Delhi Tele. Decl. 1 (Vice President/General ... ...
-
Brae Corp. v. U.S., SEA-LAND
... ... Trucking Associations, Inc., et al., National Grain and Feed ... Association, American Newspaper ... , the Commission withdrew any reliance on its regulatory powers under section 11122. Boxcars II, 367 I.C.C. at 759 ... ...
-
Midwest Video Corp. v. F. C. C.
... ... Finn and Arthur H. Harding, National Cable Television Assn., Inc., Washington, D. C., on brief ... it no threat to broadcasting or to its regulatory domain. On receipt of broadcaster complaints in 1958, the ... carrier." In National Association of Regulatory Utility Commissioners v. FCC,173 U.S.App.D.C. 413, 424, 525 F.2d ... ...
-
Regulation of and Monopolization in Telecom and Media Markets
...the Frequency Band 806-960 Mhz, 51 F.C.C.2d 945 (1975) (proceeding terminated); see also Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC , 525 F.2d 630 (D.C. Cir. 1976). 275. Fifteenth Report, In re Implementation of § 6002(b) of the Omnibus Budget Reconciliation Act of 1993, 26 FCC Rcd. 966......
-
Table of Cases
...207 National Ass’n of Pharm. Mfrs. v. Ayerst Lab., 850 F.2d 904 (2d Cir. 1988), 141 National Ass’n of Regulatory Util. Comm’rs v. FCC , 525 F.2d 630 (D.C. Cir. 1976), 122 National Cable & Telecomms. Ass’n v. FCC, 567 F.3d 659 (D.C. Cir. 2009), 192 National Cable & Telecomms. Ass’n v. Brand ......
-
Chapter V. Monopolization In Telecom And Media Markets
...Service, Docket No. 18262 (1975) (Proceeding terminated) (J.A. at 537—540); see also Nat'l Ass'n of Regulatory Util. Comm’rs v. FCC , 525 F.2d 630 (D.C. Cir. 1976). 114. Fifteenth Report, Implementation of § 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report & Analysis o......
-
Table of Cases
...(1986), 340 Nat’l Ass’n of Pharm. Mfrs. v. Ayerst Lab., 850 F.2d 904 (2d Cir. 1988), 282 Nat'l Ass'n of Regulatory Util. Comm’rs v. FCC , 525 F.2d 630 (D.C. Cir. 1976), 263 Nat’l Ass’n of State Util. Consumer Advocates v. FCC, 457 F.3d 1238 (11th Cir. 2006), 358 574 Telecom Antitrust Handbo......