Cincinnati Bell Telephone Co. v. F.C.C.
| Decision Date | 09 November 1995 |
| Docket Number | 95-3238 and 95-3315,95-3023,94-4113,Nos. 94-3701,s. 94-3701 |
| Citation | 69 F.3d 752 |
| Parties | CINCINNATI BELL TELEPHONE COMPANY (94-3701; 95-3023); BellSouth Corporation; BellSouth Telecommunications, Inc.; BellSouth Enterprises, Inc. (94-4113; 95-3315); Radiofone, Inc. (95-3238), Petitioners, United States Telephone Association; U.S. West, Inc.; New York Telephone Company; New England Telephone and Telegraph Company; Radiofone, Inc., Intervenors, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents, Pacific Bell; Nevada Bell; MCI Telecommunications Corporation; AT&T Corporation; US West, Inc., Intervenors. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Douglas E. Hart (argued & briefed), Thomas E. Taylor, Frost & Jacobs, Cincinnati, OH, for Cincinnati Bell Telephone Company in Nos. 94-3701, 95-3023.
Mary McDermott, United States Telephone Association, Washington, DC, for United States Telephone Association.
Robert B. McKenna, Washington, DC, for U.S. West, Inc. in Nos. 94-3701, 95-3023 and 95-3315.
William B. Barfield (briefed), Atlanta, GA, for BellSouth Corporation, BellSouth Telecommunications, Inc., BellSouth Enterprises, Inc. in No. 94-3701.
Joseph DiBella, White Plains, NY, for New York Telephone Company, New England
Telephone and Telegraph Company, in Nos. 94-3701, 94-4113.
John E. Ingle (briefed), James M. Carr, Joel Marcus (argued & briefed), Office of the General Counsel, Federal Communications Commission, Washington, DC, for Federal Communications Commission in No. 94-3701.
Robert J. Wiggers, Cathrine G. O'Sullivan, U.S. Department of Justice, Antitrust Division, Washington, DC, for United States in Nos. 94-3701, 95-3023.
Frank W. Krogh, Donald J. Elardo, MCI Telecommunications Corp., Washington, DC, for MCI Telecommunications Corp. in Nos. 94-3701, 95-3023.
Michael K. Kellogg (briefed), Austin C. Schlick (argued), Kellogg, Huber, Hansen, Todd & Evans, Washington, DC, for Pacific Telesis Mobile Services, Pacific Bell Mobile Services in No. 94-3701.
William B. Barfield (briefed), Atlanta, GA, Craig E. Gilmore, Robert G. Kirk, Michael D. Sullivan, L. Andrew Tollin (argued & briefed), Wilkinson, Barker, Knauer & Quinn, Washington, DC, Jim O. Llewellyn, John F. Beasley, BellSouth Corporation, Atlanta, GA, for BellSouth Corporation, BellSouth Telecommunications, Inc., BellSouth Enterprises, Inc. in Nos. 94-4113, 95-3315.
Ashton R. Hardy (argued & briefed), J. Michael Lamers (briefed), Hardy & Carey, Metairie, LA, for Radiofone, Inc. in Nos. 94-4113, 95-3238.
John E. Ingle (briefed), James M. Carr, William E. Kennard (briefed), Office of the General Counsel, Federal Communications Commission, Washington, DC, for Federal Communications Commission in No. 94-4113.
Robert J. Wiggers, Cathrine G. O'Sullivan, U.S. Department of Justice, Antitrust Division, James M. Carr, William E. Kennard, Office of the General Counsel, Federal Communications Commission, Washington, DC, for U.S. in No. 94-4113.
Michael K. Kellogg (briefed), Kellogg, Huber, Hansen, Todd & Evans, Washington, DC, for Pacific Telesis Mobile Services, Pacific Bell Mobile Services in Nos. 94-4113, 95-3238 and 95-3315.
David Cosson, L. Marie Guillory, National Telephone Cooperative Association, Washington, DC, for National Telephone Cooperative Association.
Robert J. Wiggers, U.S. Department of Justice, Antitrust Division, John E. Ingle (briefed), James M. Carr, William E. Kennard (briefed), Joel Marcus (argued & briefed), Office of the General Counsel, Federal Communications Commission, Washington, DC, for Federal Communications Commission in No. 95-3023.
David W. Carpenter, Sidley & Austin, Chicago, IL, for AT&T Corp.
Michael K. Kellogg (briefed), Kellogg, Huber, Hansen, Todd & Evans, Washington, DC, for Pacific Telesis Mobile Services, Pacific Bell Mobile Services in No. 95-3023.
Joel Marcus (argued & briefed), Office of General Counsel, Federal Communications Commission, Washington, DC, for Federal Communications Commission in No. 95-3238.
Robert B. Nicholson, Robert J. Wiggers, Cathrine G. O'Sullivan, U.S. Department of Justice, Antitrust Division, Washington, DC, for U.S. in No. 95-3238.
William E. Kennard (briefed), Joel Marcus (argued & briefed), Office of General Counsel, Federal Communications Commission, Washington, DC, for Federal Communications Commission in No. 95-3315.
Robert J. Wiggers, Cathrine G. O'Sullivan, U.S. Department of Justice, Antitrust Division, William E. Kennard, Office of General Counsel, Federal Communications Commission, Washington, DC, for U.S. in No. 95-3315.
Before: MARTIN and BATCHELDER, Circuit Judges; EDMUNDS, District Judge. *
In these consolidated petitions to review decisions of the Federal Communications The FCC has designated a range of radio frequencies to be used in providing new broadband Personal Communications Services, a wireless communications service that is expected to compete with existing wireless telephone services. Three other mobile, wireless communications services exist. "Cellular" provides services commonly associated with mobile telephone operations, such as a car phone. "Specialized Mobile Radio" is a wireless service traditionally used to provide dispatch service, such as that used for a fleet of taxis. In another recent proceeding, the FCC relaxed its regulations on Specialized Mobile Radio to allow licensees to consolidate Specialized Mobile Radio spectrum 1 and compete with Cellular and Personal Communications Service in the provision of services to car phone and portable mobile telephone customers. Finally, "Mobile Satellite Service" is a fairly new wireless service that allows subscribers to use their mobile telephones and other communications devices via satellite. Mobile Satellite Service differs from Cellular in that, because its satellite relays are not blocked by terrain in the way that Cellular's land based relays are, Mobile Satellite Service users can communicate via mobile telephone from virtually anywhere in the world.
Commission, Cincinnati Bell, Radiofone, and BellSouth take issue with various aspects of the agency's rulemaking regarding ownership limitations in the wireless communications industry. Cincinnati Bell and Radiofone challenge certain cross-ownership and attribution rules which restrict the ability of current cellular communications providers to bid on new wireless communications licenses. BellSouth appeals the FCC's determination, made during the course of the same rulemaking, that the record did not contain sufficient information for the FCC to decide whether to rescind a 1981 rule that requires each of the Bell Operating Companies to hold its cellular licenses in a subsidiary that is managed separately from the parent Bell Company.
Licenses for the wireless communications industry within the United States are distributed by geographic region. Currently, two Cellular providers hold licenses in each geographic region and compete for wireless communications customers within that region. The new Personal Communications Service is expected to compete almost immediately with Cellular in providing wireless communications in each geographic region. Personal Communications Service licensees will hold their licenses for a period of ten years, and have an expectation of renewal on the licenses. To ensure competition in the wireless industry, the FCC issued rules which placed Personal Communications Service ownership restrictions on current Cellular providers, several of which are at issue here.
The Communications Act of 1934, as amended, 47 U.S.C. Sec. 151-613 (1988), confers authority upon the FCC to use a competitive bidding system, or auction, for awarding wireless communications licenses. Section 309(j)(3) of the Act, which provides for the design of the auction, states that the FCC shall "include safeguards to protect the public interest" and that the FCC should pursue several objectives when designing the auction, including:
(A) the development and rapid deployment of new technologies, products, and services for the benefit of the public, including those residing in rural areas, without administrative or judicial delays;
(B) promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women;....
47 U.S.C. 309(j)(3)(A)-(B) (Supp. V 1994).
In addition, Section 309(j)(4) of the Act provides In prescribing regulations pursuant to paragraph (3), the Commission shall--
. . . . .
(C) consistent with the public interest, convenience, and necessity, the purposes of this chapter, and the characteristics of the proposed service, prescribe area designations and bandwidth assignments that promote (i) an equitable distribution of licenses and services among geographic areas, (ii) economic opportunity for a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women, and (iii) investment in and rapid deployment of new technologies and services;....
Id. at Sec. 309(j)(4)(C).
The rulemaking process governing the issuance of Personal Communications Service licenses began in 1990, when the FCC sent out a Notice of Inquiry, 5 F.C.C.R 3995 (1990), expressing its concern over undue concentration of control over the wireless communications spectrum. The notice posed the question of "whether there is a need for any restrictions on eligibility for a [Personal Communications Service] license in a particular [geographic] market." Id. at 3999. On August 14, 1992, the FCC released a Notice of Proposed Rule Making and Tentative Decision (Amendment of the Commission's Rules to...
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