Aeronautical Radio, Inc. v. F.C.C.
| Citation | 928 F.2d 428 |
| Decision Date | 19 March 1991 |
| Docket Number | Nos. 88-1009,89-1526,88-1855,s. 88-1009 |
| Parties | AERONAUTICAL RADIO, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Skylink Corporation, Transit Communications, Inc., Hughes Communications Mobile Satellite Services, Inc., Mobile Satellite Corporation, American Mobile Satellite Corporation, Intervenors. GLOBESAT EXPRESS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent, Skylink Corporation, Hughes Communications Mobile Satellite Services, Inc., Global Land Mobile Satellite, Inc., Transit Communications, Inc., Mobile Satellite Corporation, McCaw Space Technologies, Inc., American Mobile Satellite Corporation, Intervenors. GLOBESAT EXPRESS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Aeronautical Radio, Inc., Air Transport Association of America, Geostar Messaging Corporation, MTel Space Technologies Corporation, American Mobile Satellite Corporation, Hughes Communications Mobile Satellite Services, Inc., Intervenors. GLOBAL LAND MOBILE SATELLITE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Aeronautical Radio, Inc., Air Transport Association of America, MTel Space Technologies Corporation, Hughes Communications Mobile Satellite Services, Inc., American Mobile Satellite Corporation, Intervenors. GLOBAL LAND MOBILE SATELLITE, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Aeronautical Radio, Inc., Air Transport Association of America, MTel Space Technologies Corporation, Hughes Communications Mobile Satellite Services, Inc., American Mobile Satellite Corporation, Intervenors. MOBILE SATELLITE SERVICE, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Aeronautical Radio, Inc., Air Transport Association of America, Geostar Messaging Corporation, Hughes Communications Mobile Satellite Services, Inc., American Mobile Satellite Corporation, Intervenors. AERONAUTICAL RADIO, INC., et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION and United States of Americ |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Page 428
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
Skylink Corporation, Transit Communications, Inc., Hughes
Communications Mobile Satellite Services, Inc.,
Mobile Satellite Corporation, American
Mobile Satellite Corporation,
Intervenors.
GLOBESAT EXPRESS, Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION, Respondent,
Skylink Corporation, Hughes Communications Mobile Satellite
Services, Inc., Global Land Mobile Satellite, Inc., Transit
Communications, Inc., Mobile Satellite Corporation, McCaw
Space Technologies, Inc., American Mobile Satellite
Corporation, Intervenors.
GLOBESAT EXPRESS, Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
Aeronautical Radio, Inc., Air Transport Association of
America, Geostar Messaging Corporation, MTel Space
Technologies Corporation, American Mobile Satellite
Corporation, Hughes Communications Mobile Satellite
Services, Inc., Intervenors.
GLOBAL LAND MOBILE SATELLITE, INC., Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
Aeronautical Radio, Inc., Air Transport Association of
America, MTel Space Technologies Corporation, Hughes
Communications Mobile Satellite Services, Inc., American
Mobile Satellite Corporation, Intervenors.
GLOBAL LAND MOBILE SATELLITE, INC., Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
Aeronautical Radio, Inc., Air Transport Association of
America, MTel Space Technologies Corporation, Hughes
Communications Mobile Satellite Services, Inc., American
Mobile Satellite Corporation, Intervenors.
MOBILE SATELLITE SERVICE, INC., Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
Aeronautical Radio, Inc., Air Transport Association of
America, Geostar Messaging Corporation, Hughes
Communications Mobile Satellite Services, Inc., American
Mobile Satellite Corporation, Intervenors.
AERONAUTICAL RADIO, INC., et al., Appellants,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Appellees,
Geostar Messaging Corporation, American Mobile Satellite
Corporation, MTel Space Technologies Corporation,
Hughes Communications Mobile Satellite
Services, Inc., Intervenors.
AERONAUTICAL RADIO, INC., Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Appellees,
American Mobile Satellite Corporation, Hughes Communications
Mobile Satellite Services, Inc., MTel Space
Technologies Corporation, Intervenors.
AERONAUTICAL RADIO, INC., et al. Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
American Mobile Satellite Corporation, Geostar Messaging
Corporation, MTel Space Technologies Corporation,
Hughes Communications Mobile Satellite
Services, Inc., Intervenors.
AERONAUTICAL RADIO, INC., et al., Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
American Mobile Satellite Corporation, Geostar Messaging
Corporation, Hughes Communications Mobile
Satellite Services, Inc., MTel Space
Technologies Corporation, Intervenors.
District of Columbia Circuit.
Decided March 19, 1991.
Rehearing En Banc Denied
in No. 88-1009 May 30, 1991.
Page 431
On Petitions for Review of and Appeals from Orders of the Federal Communications Commission.
John L. Bartlett, with whom William B. Baker and Carl R. Frank, Washington, D.C., for Aeronautical Radio, Inc., and James E. Landry, Washington, D.C., for Air Transport Ass'n of America, were on the joint brief, for Aeronautical Radio, Inc., petitioner/appellant in 88-1009, 89-1540, 89-1541, 89-1542 and 89-1543 and intervenor in 89-1526, 89-1527, 89-1528 and 89-1529, and for Air Transport Ass'n of America, petitioner/appellant in 89-1540, 89-1542 and 89-1543 and intervenor in 89-1526, 89-1527, 89-1528 and 89-1529.
Michael J. Hirrel, with whom J. Geoffrey Bentley was on the joint brief, Washington, D.C., for Global Land Mobile Satellite, Inc., petitioner/appellant in 89-1527 and 89-1528 and intervenor in 88-1855 and for Globesat Express, petitioner/appellant in 88-1855 and 89-1526.
Roberta L. Cook, Counsel, F.C.C., with whom John E. Ingle, Deputy Associate Gen. Counsel, C. Grey Pash, Jr., and Gregory M. Christopher, Counsel, F.C.C., and James F. Rill, Asst. Atty. Gen., Catherine G. O'Sullivan and Robert J. Wiggers, Attys., U.S. Dept. of Justice, were on the brief, Washington, D.C., for respondents in 88-1009, 88-1855, 89-1526, 89-1527, 89-1528, 89-1529, 89-1540, 89-1541, 89-1542 and 89-1543.
William E. Zimsky was on the brief, New Orleans, La., for Mobile Satellite Service Corp., Inc., appellant in 89-1529.
Lon C. Levin, with whom Louis Gurman, Glenn S. Richards, Richard R. Zaragoza, Bruce D. Jacobs, Leonard H. Becker, and Jeffrey Kirchmeier, Washington, D.C., for American Mobile Satellite Corp.
Richard A. Zaragoza, with whom Bruce D. Jacobs, Washington, D.C., for Mobile Satellite Corp.
Neal M. Goldberg, Washington, D.C., for Skylink Corp.
Steven P. Goldman, Washington, D.C., for McCaw Space Technologies, Inc.
Thomas Gutierrez, Washington, D.C., for MTel Space Technologies Corp.
James F. Rogers, Washington, D.C., for Hughes Communications Mobile Satellite Service, Inc.
Andrew D. Lipman, Washington, D.C., for Transit Communications, Inc., were on the joint brief for intervenors in all cases.
John W. Pettit, Washington, D.C., also entered an appearance for intervenor
Skylink Corp.
William D. Freeman, Washington, D.C., also entered an appearance for intervenor American Mobile Satellite Corp.
Gary M. Epstein, Washington, D.C., also entered an appearance for intervenor Hughes Communications Mobile Satellite Services, Inc.
David D. Oxenford, Washington, D.C., also entered an appearance for intervenor Mobile Satellite Corp.
Rhonda P. Kurtis, also entered an appearance for intervenor McCaw Space Technologies, Inc.
Daniel Van Horn, Washington, D.C., also entered an appearance for petitioner and intervenor Global Land Mobile Satellite, Inc.
Page 432
James G. Ennis, Washington, D.C., entered an appearance for intervenor Geostar Messaging Corp.
Before EDWARDS, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
I. INTRODUCTION
II. BACKGROUND
A. The Frequency Allocation Decisions
B. The Ownership and Financial Requirements Rules
III. DISCUSSION
A. ARINC's Challenges to the Rulemaking Proceeding
1. The Commission's Rejection of ARINC's Application Without a Hearing
a. The Ashbacker Doctrine
b. The Dismissal of ARINC's Application for Non-Compliance with the Commission's Spectrum Allocation Rules
c. Notice Concerning the Scope of the MSS Cut-Off Date
2. The Commission's Spectrum Allocation Rules
a. The Exclusion of APC from AMSS(R)
b. The Shared Allocation Scheme
B. The MSS Petitioners' Challenges to the Rulemaking Proceeding
1. The $5 Million Dollar Cash Contribution Rule
a. Notice of the Rule
b. The Validity of the Rule
2. The Legality of a Mandatory Consortium in Lieu of Comparative Hearings
a. The Standing of the MSS Petitioners
b. Notice of the Consortium Rule
c. The Legality of the Consortium Rule
IV. CONCLUSION
HARRY T. EDWARDS, Circuit Judge:
I. INTRODUCTION
This case involves several challenges, brought by various petitioners/appellants, to rulemaking and licensing decisions rendered by the Federal Communications Commission ("Commission"), in connection with a new mobile communications system known as mobile satellite service ("MSS").
In a Notice of Proposed Rulemaking ("NPR") issued in 1985, the Commission proposed to allocate spectrum to MSS which previously had been allocated to another service, known as Aeronautical Mobile Satellite Service ("AMSS(R)"); in suggesting this arrangement, the Commission pledged that any reallocation would take into account the communication needs intended to be met through AMSS(R). The Commission further expressed the view that, in establishing MSS, a multi-ownership system would best serve the public interest; accordingly, the Commission sought comments on a consortium approach to MSS licensing. The NPR also indicated that MSS applicants, in order to be considered for licensing, would be obligated to meet certain financial eligibility requirements.
Following notice and comment on the NPR, the Commission adopted a frequency allocation which permitted shared use of spectrum by MSS and AMSS(R) providers; the allocation also allowed MSS licensees to provide services formerly designated for the AMSS(R) system. The Commission further determined that, rather than select a single licensee, it would award the MSS license to a consortium consisting of all qualified and interested applicants. Membership in the consortium was made contingent upon a $5 million cash contribution; any money thus contributed was to be used to pay expenses associated with the start-up costs of the MSS system. Subsequently,,
Page 433
a consortium was organized and authorized to provide both MSS and AMSS(R) services.During the course of the foregoing proceedings before the Commission, Aeronautical Radio, Inc. ("ARINC"), one of the petitioners in this case, applied for a license to provide service pursuant to a separate AMSS(R) system. The Commission dismissed ARINC's proposal as contrary to application rules established in connection with the mobile satellite service system. ARINC now argues that, because its application was mutually exclusive with the consortium application which the Commission ultimately granted, the Commission erred in denying it a comparative hearing on the merits of its application. ARINC also claims that the rules pursuant to which the Commission dismissed its application, as well as those allowing the MSS licensee to provide all AMSS(R) services, were arbitrary and capricious.
Global Land Mobile Satellite, Inc....
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