Maritel, Inc v. Collins
| Decision Date | 20 March 2006 |
| Docket Number | Civil Action No.: 03-2418 (RMU). |
| Citation | 422 F.Supp.2d 188 |
| Parties | MARITEL, INC., Plaintiff, v. Thomas H. COLLINS et al, Defendants. |
| Court | U.S. District Court — District of Columbia |
Russell Howard Fox, Robert G. Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, DC, for Plaintiff.
Marina Utgoff Braswell, U.S. Attorneys Office, Washington, DC, for Defendants.
This case concerns a final rule promulgated by the United States Coast Guard which implements a system of marine communications between the Coast Guard and certain ships. The plaintiff, Maritel, Inc. ("Maritel"), brings suit against the Coast Guard and Thomas H. Collins in his official capacity as Admiral and Commandant of the Coast Guard (collectively, "the defendant" or "the Coast Guard") under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 702 et seq., asking the court to set aside the Coast Guard's rule. The plaintiff alleges that the Coast Guard's rule is arbitrary and capricious, an abuse of discretion and contrary to law. Specifically, the plaintiff alleges that the Coast Guard's rule violates section 301 of the Communications Act of 1934, 47 U.S.C. §§ 301 et seq., and the Fifth Amendment takings clause, and does not reasonably address the plaintiff's formally-submitted comments to the rule.
The plaintiff has filed a motion for summary judgment and the defendant has filed a motion to dismiss or for summary judgment. Because the Coast Guard's Final Rule promulgates equipment requirements, as authorized by the Federal Communications Commission ("FCC"), rather than frequency requirements, and because the Coast Guard gave due consideration to the plaintiff's comments, its decision is not arbitrary and capricious, an abuse of discretion, or otherwise contrary to law. Accordingly, the court denies the plaintiff's motion for summary judgment and grants the defendant's motion for summary judgment as to the plaintiffs APA claims. Because the plaintiffs Fifth Amendment takings claim is not ripe for review, the court dismisses that claim.
The plaintiff, a maritime communications firm, is a current FCC licensee for Variable Public Coast ("VPC") Channels 87A, 87B, 88A, and 88B. Compl. ¶¶ 2, 12. In 1997, one year before the plaintiff acquired licenses for these channels, the Coast Guard requested that the FCC designate Channels 87B and 88B for use in the Automatic Identification System1 ("AIS"), which assists in preventing collisions and allows the Coast Guard to monitor naval traffic. Id. ¶¶ 9, 14. The FCC denied the Coast Guard's request and instructed it to negotiate directly with VPC licensees to select frequencies for AIS. Id. ¶ 15; Maritime Communications, 1998 WL 390925, 13 F.C.C.R. 19,853, 19,876-77 ¶¶ 48-49 (1998) ("the 1998 FCC Decision") (codified at 47 C.F.R. § 80.371(c)(3)). The FCC, through regulation, required the Coast Guard to submit to each VPC licensee, within six months of the conclusion of competitive bidding procedures for the licenses, a proposed plan specifying two "narrowband" channel pairs for AIS use. 47 C.F.R. § 80.371(c)(3). If an agreement could not be reached within one year of the Coast Guard's proposal, the Coast Guard could petition the FCC to select the AIS channels itself. Id.
At a subsequent FCC public auction, the plaintiff paid over $6.8 million for all nine maritime VPC licenses to build a marine communications system. Compl. ¶ 12. And, in accordance with the 1998 FCC decision, the plaintiff and the Coast Guard negotiated a "Memorandum of Agreement" ("MOA"), which allowed the Coast Guard to use Channels 87A and 87B. Id. ¶ 16. The FCC's Wireless Telecommunications Bureau issued a Public Notice in June 2002 that acknowledged the MOA and authorized the temporary use of shipborne AIS equipment on "existing ship station licenses." Add'l Freq. for the U.S. Coast Guard's Ports and Waterways Safety Sys. ("June 2002 Public Notice"), 17 F.C.C.R. 10,960 (June 13, 2002).
Meanwhile, as a result of the Coast Guard's allegedly contrary interpretation of a separate MOA provision,2 the plaintiff notified the Coast Guard in May 2003 that it was invoking the MOA's termination clause. Pl.'s Statement of Facts ¶ 22. The plaintiff told the Coast Guard that it was willing to renegotiate to find other suitable AIS frequencies, but the Coast Guard proceeded to publish an Interim Rule implementing the AIS and soliciting comments from interested parties. Id. ¶ 23; Automatic Identification System; Vessel Carriage Requirement ("AIS Interim Rule"), 68 Fed.Reg. 39,353 (proposed July 1, 2003). The interim rule laid out the Coast Guard's requirement that certain types of vessels install AIS equipment ("carriage requirements") by a certain date. Id. at 39,367. The Interim Rule also incorporated several international standards, one of which envisioned that AIS equipment would operate by default on Channels 87B and 88B. Id. at 39,359 (); Technical Characteristics for a Universal Shipborne Automatic Identification System, Recommendation ITU-R M.1371-1, Annex 2, Table 2 (Def.'s Mot., Ex. 2) ("ITU Recommendation").
The plaintiff formally submitted four comments in response to the Interim Rule. First, the plaintiff claimed that the Coast Guard did not have authorization to require shipowners to install and operate AIS transmitters that broadcast on Channel 87B because the MOA no longer existed. Compl. ¶ 24. Second, the plaintiff charged that the Coast Guard had unilaterally taken Channel 88B without attempting to negotiate for it, in violation of the 1998 FCC decision. Id. Third, the plaintiff submitted an independent engineering study that purportedly demonstrated that the parties' competing uses of Channels 87B and 88B would cause harmful mutual interference. Id. ¶ 25. Finally, the plaintiff commented that AIS's interference with the plaintiff's licensed channels would render those channels useless and thus constituted a Fifth Amendment taking. Id. ¶ 26.
On October 22, 2003, the Coast Guard published its Final Rule. Automatic Identification System; Vessel Carriage Requirement, 68 Fed.Reg. 60,559, 60,563 (October 22, 2003) ("AIS Final Rule") (codified at 46 C.F.R. pts. 26, 161, 164-65). In its comments to the Final Rule, the Coast Guard asserted that it "requested and received frequency authorizations from the Federal Communications Commission (FCC) and the National Telecommunication and Information Agency (NTIA)." Id.; Compl. ¶ 27. The Coast Guard cited the Wireless Telecommunications Bureau's June 2002 Public Notice to support its conclusion that "FCC policies currently authorize" use of Channels 87B and 88B for AIS. Compl. ¶ 27; AIS Final Rule, 68 Fed.Reg. at 60,563.
When the plaintiff filed its complaint, several proceedings were pending before the FCC involving the Coast Guard's authority to use Channels. 87B and 88B for AIS and the related AIS rule-making. Compl. ¶ 30. The plaintiff submitted four of these matters before the Coast Guard published its Final Rule. Id. Two days after the Coast Guard published the Final Rule, the NTIA, at the behest of the Coast Guard, submitted a petition to the FCC to designate Channels 87B and 88B for AIS. Id. On November 21, 2003, the Coast Guard's Final Rule went into effect and the plaintiff filed its complaint. Pl.'s Mot. at 6.
Since commencement of this action, the FCC published a Memorandum Opinion and Order and Notice of Proposed Rule Making regarding AIS and Channels 87B and 88B, in which it decided that Maritel's right to use of Channel 88B is subject to coordination with the FCC, and declaring 88B a federal channel for AIS use. MARITIME AUTOMATIC IDENTIFICATION SYSTEMS, 19 F.C.C.R. 20,071, 20,084-88 (Aug. 26, 2004).3 The FCC also gave notice of a proposed rulemaking to consider the NTIA's formal request that 87B be assigned exclusively to the Coast Guard for AIS use. Id. at 20,088-89. The outcome of this proposed rulemaking is as yet undetermined.
On January 20, 2004, the defendant filed a motion to dismiss arguing that the court did not have subject-matter jurisdiction over the present action and that the case was not ripe because a decision regarding the Coast Guard's authority to use Channels 87B and 88B for AIS was pending with the FCC. On August 3, 2004, the court denied the defendant's motion to dismiss, holding that because the plaintiff seeks APA review of the Coast Guard's Final Rule, an action already taken by the defendant, the case was ripe. Mem. Op. (August 3, 2004) at 9-12. Additionally, because the plaintiff paid the FCC millions of dollars for licenses to use Channels 87B and 88B () and the Coast Guard's Final Rule requires several classes of ships to use equipment that broadcasts on those channels, the plaintiff's alleged harm constitutes an injury that is distinct and palpable, not conjectural or hypothetical. Id. at 13. Lastly, the court held that because "the matter is an issue of law within the conventional expertise of the court, and because the complaint states a proper claim under the APA," the court would not defer to the FCC's primary jurisdiction or dismiss the complaint for failure to state a claim. Id. at 14.
On March 4, 2005, the plaintiff moved for summary judgment, arguing that the Coast Guard's Final Rule was arbitrary and capricious because it lacked FCC authorization for its AIS carriage requirements, that it failed to give due consideration to the plaintiff's interference comments, and that it constituted a regulatory taking without just compensation. See generally Pl.'s Mot. Also on that day, the...
To continue reading
Request your trial
-
Banner Health v. Burwell
...information from the record simply because it did not "rely" on the excluded information in its final decision. Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C.2006). Rather, "a complete administrative record should include all materials that might have influenced the agency's decis......
-
General Elec. Co. v. Jackson
...from the record—the record should only include documents that the agency "directly or indirectly considered." See Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C.2006); see also James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996). And "an agency generally may ex......
-
Safari Club Int'l v. Jewell
...it considered, either directly or indirectly, in making its decision. See, e.g., Marcum, 751 F. Supp. 2d at 78; Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006) ("Although an agency may not unilaterally determine what constitutes the administrative record, the agency enjoys ......
-
Am. Wild Horse Pres. Campaign v. Vilsack
..."all documents and materials that the agency directly or indirectly considered" and "neither more nor less." Maritel, Inc. v. Collins,422 F.Supp.2d 188, 196 (D.D.C.2006) (citations and internal quotation marks omitted). "[A]n agency is entitled to a strong presumption of regularity, that it......
-
Chapter 4 Deliberating the Administrative Record and Deliberative Materials
...internal deliberations," the latter of which may be excluded from the administrative record) (quoting Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006)).[23] See Oceana, 920 F.3d at 865 (confirming that "predecisional and deliberative documents are not part of the administrat......