Bellsouth Corp. v. F.C.C., s. 93-1518
| Decision Date | 15 March 1994 |
| Docket Number | Nos. 93-1518,93-1519 and 93-1520,s. 93-1518 |
| Citation | 17 F.3d 1487 |
| Parties | BELLSOUTH CORPORATION, Bellsouth Enterprises, Inc., and Mobile Communications Corporation of America, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent. FREEMAN ENGINEERING ASSOCIATES, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent. FREEMAN ENGINEERING ASSOCIATES, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from an Order of the Federal Communications Commission.
Harold Mordkofsky and Robert M. Jackson, Washington, DC, for petitioner/appellant Freeman Engineering Associates, Inc.
John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, Washington, DC, for respondent/appellee.
Before SILBERMAN, BUCKLEY, and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Freeman Engineering Associates, Inc., a disappointed applicant for a pioneer's preference in a Federal Communications Commission licensing proceeding, both appealed from and petitioned for review of an FCC order granting Mobile Telecommunications Technologies Corporation (Mtel) a pioneer's preference for a variety of two-way services in a single 50 Khz channel. We consolidated those two cases with a petition filed by Bellsouth Corporation, and as explained below, we now dismiss both Freeman's appeal and its petition as incurably premature.
Freeman Engineering Associates, Inc. sought a pioneer's preference with the FCC for the provision of communications services to hearing impaired subscribers in the 930-931 MHz band in the New Orleans and Baton Rouge, Louisiana markets. The FCC denied that request in the same order in which it granted a pioneer's preference to Mtel. See Amendment of the Commission's Rules to Establish New Narrowband Personal Communications Services, First Report and Order, Gen. Docket No. 93-329, 8 FCC Rcd. 7162 (released July 23, 1993).
Freeman simultaneously asked the FCC to reconsider the decision denying it a pioneer's preference and asked this court to review the FCC's decision granting a pioneer's preference to Mtel. The FCC now moves for dismissal of Freeman's appeal and petition in this court on the ground that they are premature because Freeman's request for reconsideration is pending before the agency.
The FCC's motion to dismiss Freeman's cases is based upon our decision in United Transportation Union v. ICC, 871 F.2d 1114, 1116 (D.C.Cir.1989), in which we held that a party's filing a petition for reconsideration before an agency "render[s] the underlying agency action nonfinal (and hence unreviewable) with respect to th[at] party." In opposition Freeman argues that although its requests for FCC reconsideration and for judicial review arise from the same agency order, the petition for reconsideration does not deprive this court of jurisdiction because the grant of a preference to Mtel and the denial of a preference to Freeman are "separate adjudications." Freeman's petition for reconsideration, that is, "does not encompass the 'challenged action' ... which is the subject matter of the proceedings in this Court." More simply put, Freeman does not think that it should have to wait to get judicial review merely because the FCC chose to resolve in one order two independent requests for preferential treatment.
Freeman's attempt to place its cases outside the rule against simultaneous judicial review and agency reconsideration is initially attractive but ultimately unavailing. Even a modicum of concern for judicial economy militates strongly against concurrent review in this recurring situation. See Outland v. CAB, 284 F.2d 224, 227-28 (D.C.Cir.1960) (). Indeed this case is the very model of an invitation to waste judicial resources: if the FCC were upon reconsideration to grant Freeman the pioneer's preference it seeks, then Freeman would have no, or a substantially diminished, interest in appealing the FCC's grant of a preference to Mtel.
As the FCC explained in the order that Freeman seeks to challenge, a license applicant that is granted a pioneer's preference ...
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