Aeronautical Radio, Inc. v. F.C.C., s. 92-1046
| Citation | 983 F.2d 275 |
| Decision Date | 26 January 1993 |
| Docket Number | Nos. 92-1046,92-1047 and 92-1049,s. 92-1046 |
| Parties | AERONAUTICAL RADIO, INC. and Air Transport Association of America, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, TRW Inc., American Mobile Satellite Corporation, AMSC Subsidiary Corporation and Omninet, Inc., Intervenors. AERONAUTICAL RADIO, INC., and Air Transport Association of America, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, TRW Inc., American Mobile Satellite Corporation, AMSC Subsidiary Corporation and Omninet, Inc., Intervenors. OMNINET, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, TRW Inc., Aeronautical Radio, Inc., Air Transport Association of America, American Mobile Satellite Corporation and AMSC Subsidiary Corporation, Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Petitions for Review of an Order of the Federal Communications Commission.
Appeal From an Order of the Federal Communications Commission (No. 91-427).
Robert J. Butler, with whom John L. Bartlett, Washington, DC, for Aeronautical Radio, Inc., and Donald J. Evans, Washington, DC, for Omninet, Inc., were on the joint brief, for Aeronautical Radio, Inc., appellant in 92-1046, petitioner in 92-1047 and intervenor in 92-1049, for Air Transport Ass'n of America, appellant in 92-1046, petitioner in 92-1047 and intervenor in 92-1049, and Omninet, Inc., petitioner in 92-1049 and intervenor in 92-1046 and 92-1047.
Donald J. Evans, Washington, DC, was on the brief, for Omninet, Inc.
Gregory M. Christopher, Counsel, Federal Communications Com'n, with whom Robert L. Pettit, Gen. Counsel and John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., and Catherine G. O'Sullivan and Robert J. Wiggers, Attorneys, Dept. of Justice, Washington, DC, were on the brief, for appellee/respondents in 92-1046, 92-1047 and 92-1049.
Hadrian R. Katz, with whom Lon C. Levin, Gary M. Epstein, James F. Rogers, Clifford M. Harrington and Bruce D. Jacobs, Washington, DC, were on the brief, for American Mobile Satellite Corp. and AMSC Subsidiary Corp., intervenors in 92-1046, 92-1047 and 92-1049.
Norman P. Leventhal and Raul R. Rodriguez, Washington, DC, were on the brief for TRW Inc., intervenor in 92-1046, 92-1047 and 92-1049.
James E. Landry, Washington, DC, entered an appearance for Air Transport Ass'n of America.
Before: EDWARDS, RUTH BADER GINSBURG and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
In 1985, the Federal Communications Commission ("Commission" or "FCC") proposed to allocate spectrum and establish licensing procedures for a new domestic mobile communications system known as mobile satellite service ("MSS"). The Commission subsequently reallocated a portion of spectrum in the upper L-Band for MSS purposes, declared that the MSS license would be granted to a "consortium" consisting of all willing, qualified applicants, and ruled that any otherwise qualified applicant would be required to make a $5 million cash contribution to the consortium. Various applicants then challenged the Commission's rules regarding the spectrum allocation, the mandatory consortium and the $5 million cash contribution. In 1991, this court vacated the consortium and cash contribution rules, and remanded the case with a direction to the Commission to determine whether it has statutory authority to impose a consortium in lieu of holding comparative hearings. See Aeronautical Radio, Inc. v. FCC, 928 F.2d 428 (D.C.Cir.1991) ("ARINC ").
On remand, the Commission addressed the issues raised by the court, as well as others advanced by the parties. First, the Commission purported to find that, in "appropriate circumstances," it possessed the statutory authority to adopt a licensing rule requiring service by a consortium of willing and eligible applicants; the Commission thus reimposed the consortium requirement and recognized American Mobile Satellite Corporation ("AMSC") as the licensee. Second, the Commission refused to reinstate the MSS license application of Omninet, Inc. ("Omninet"), which had withdrawn its application prior to the ARINC decision. Finally, the Commission rejected the allegation that restrictions on ex parte contacts had been violated when the FCC communicated with AMSC over international frequency coordination proceedings, at which the United States sought to ensure that the MSS systems of other nations would not interfere with the operation of this country's domestic MSS system.
Several parties now seek review of the Commission's decisions, including Omninet and Aeronautical Radio, Inc. ("ARINC"), 1 which provides aeronautical mobile satellite service ("AMSS(R)"). ARINC and Omninet contend that the Commission lacks authority to mandate a consortium, and that the consortium rule must therefore be vacated. Omninet further argues that the Commission abused its discretion in declining to reinstate its MSS application. Lastly, ARINC and Omninet allege that the Commission unlawfully engaged in ex parte communications with AMSC during the international proceedings, discussing the merits of the consortium's license application while other, mutually exclusive MSS applications were still pending. ARINC and Omninet thus request that this court set aside the Commission order licensing the consortium.
AMSC has intervened in support of the Commission. Intervening in support of Omninet and ARINC is TRW Inc. ("TRW"), which is competing against AMSC to operate a MSS system in a frequency band that AMSC hopes to use for expansion.
We dismiss the petitions for review of the consortium rule, because ARINC, Omninet and intervenor TRW have no standing to challenge that rule. Further, although Omninet has standing to challenge the Commission's refusal to reinstate its application, we conclude that the Commission's action did not constitute an abuse of discretion. Finally, we hold that ARINC and Omninet are barred from challenging the alleged violations of the ex parte restrictions.
The pre-remand history of this case is set forth at length in our earlier decision, see ARINC, 928 F.2d at 433-37, so we will only briefly recount past events here. In 1985, the Commission proposed to allocate spectrum and adopt licensing procedures for the establishment of a domestic MSS system. 2 MSS is a radio communications service that uses satellites to relay radio signals to and from mobile units, such as cars. Twelve parties, including Omninet, submitted applications for the MSS license by the cutoff date of April 30, 1985.
In January 1987, the Commission decided to grant the MSS license to a consortium of all qualified applicants, rather than holding comparative hearings, 3 which is the usual method, prescribed by statute, for selecting a licensee. 4 The Commission required each applicant seeking consortium membership to contribute $5 million in cash to an escrow account to demonstrate its financial ability to support the MSS system. 5 On June 12, 1987, Omninet withdrew its application without explanation and ceased further participation in the licensing proceedings. 6 The Commission officially dismissed Omninet's application without prejudice on June 19, 1987. 7 Subsequently, the Commission dismissed the applications of several other parties that had failed to make the required $5 million cash contribution. The remaining MSS applicants then formed AMSC, which the Commission authorized in August 1989 to operate a MSS system. 8
In the interim, in April 1987, ARINC filed an application with the Commission to provide AMSS(R) in a portion of the spectrum designated for co-primary use by both MSS and AMSS(R). The Commission dismissed ARINC's application on September 10, 1987, because it failed to conform with the Commission's spectrum allocation decisions. 9
ARINC and the dismissed MSS applicants, excluding Omninet (which was no longer party to the FCC proceeding), petitioned this court for review of the Commission's dismissal of their respective applications. The court upheld ARINC's dismissal. See ARINC, 928 F.2d at 445. However, the court reversed the dismissal of the MSS license applicants that had failed to make the required $5 million cash deposit; these applicants were Global Land Mobile Satellite, Inc. ("Global"), Globesat Express ("Globesat") and Mobile Satellite Service, Inc. ("MSSI"). See id. at 453. The court then set aside both the cash contribution rule and the mandatory consortium rule, and remanded the case for the Commission to decide, in the first instance, whether it had statutory authority to impose a mandatory consortium. See id.
On remand, the Commission solicited comments from parties "directly affected" by the ARINC decision, including AMSC and the three reinstated MSS applicants. 10 The Commission also accepted comments from other parties, including ARINC. ARINC requested that the Commission reopen the proceedings to new MSS license applicants and hold comparative hearings to select the licensee, rather than impose a consortium. ARINC further indicated that it might file a new AMSS(R) application that properly conformed to the Commission's allocation of spectrum. 11 Despite these gestures, however, ARINC never filed another license application either for MSS or AMSS(R). During the second round of comments, ARINC also contested the Commission's decision to include AMSC in the international frequency coordination proceedings, to the exclusion of the reinstated license applicants and other interested parties. The Commission had refused to reveal the substance of its discussions with AMSC at these proceedings, and ARINC alleged that the discussions violated the Administrative Procedure Act ("APA") and Commission prohibitions on ex parte communications ...
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