Pssi Global Servs., L. L.C. v. Fed. Commc'ns Comm'n

• Decision Date: 18 December 2020
• Docket Number: C/w 20-1143, 20-1146, 20-1147, 20-1165, 20-1166, 20-1349,No. 20-1142,20-1142
• Citation: 983 F.3d 1
• Parties: PSSI GLOBAL SERVICES, L.L.C., a State of Nevada Limited Liability Company, Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee AT&T Services, Inc., et al., Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

983 F.3d 1

PSSI GLOBAL SERVICES, L.L.C., a State of Nevada Limited Liability Company, Appellant

v. FEDERAL COMMUNICATIONS COMMISSION, AppelleeAT&T Services, Inc., et al., Intervenors

No. 20-1142

C/w 20-1143, 20-1146, 20-1147, 20-1165, 20-1166, 20-1349

United States Court of Appeals, District of Columbia Circuit.

Argued October 28, 2020

Decided December 18, 2020

Stephen Diaz Gavin and Christopher J. Wright argued the causes for appellants. With them on the joint briefs were Scott Blake Harris, V. Shiva Goel, Washington, DC, and Daniel Tingley.

Ashley S. Boizelle, Acting General Counsel, Federal Communications Commission, argued the cause for appellee. With her on the brief were Michael F. Murray, Deputy Assistant Attorney General, U.S. Department of Justice, Daniel E. Haar and Robert J. Wiggers, Attorneys, Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, and Scott M. Noveck, Counsel. Richard K. Welch, Deputy Associate General Counsel, entered an appearance.

Peter Karanjia, Washington, DC, argued the cause for Wireless intervenors. With him on the brief were James P. Young, Christopher T. Shenk, Scott H. Angstreich, and Joseph L. Wenner, Washington, DC. William H. Johnson entered an appearance.

Paul A. Werner, Washington, DC, argued the cause for intervenor SES Americom, Inc. With him on the brief were Helgi C. Walker, Washington, DC, Russell B. Balikian, Max E. Schulman, and Brian D. Weimer, Washington, DC.

Joshua S. Turner, Scott D. Delacourt, and Sara M. Baxenberg, Washington, DC, were on the brief for amicus curiae the Alliance for Automotive Innovation.

Before: Wilkins, Katsas and Walker, Circuit Judges.

Katsas, Circuit Judge:

To make room for the emerging fifth generation of mobile cellular technology, the Federal Communications Commission significantly narrowed a frequency band dedicated to fixed satellite transmissions. We consider whether this change permissibly modified the existing station licenses of three satellite operators and one company that broadcasts live events through satellites.

I

To reduce interference among different kinds of telecommunication signals, the FCC may "[a]ssign bands of frequencies" within the electromagnetic spectrum to specific uses, and then license companies to operate within each band. 47 U.S.C. § 303(c). An FCC station license permits the "use" of specific frequency channels for a limited time, "but not the ownership thereof." Id. § 301. The FCC may modify station licenses as necessary to "promote the public interest, convenience, and necessity." Id. § 316(a)(1).

Until recently, the frequency band between 3.7 and 4.2 gigahertz (GHz)—referred to as the "C-band" or "C-band downlink"—was assigned to "fixed satellite service." 47 C.F.R. § 2.106 (2019). Bases on the ground called "earth stations" transmit signals to satellites at frequencies between 5.925 GHz and 6.425 GHz, a frequency band referred to as the "C-band uplink." Satellites, also called "space stations," receive these signals, apply a fixed frequency shift of –2.225 GHz, and transmit the signals back to different earth stations at frequencies within the C-band downlink.

In March 2018, Congress passed the MOBILE NOW Act, which sought to make spectrum available for the emerging fifth generation of mobile cellular technology (5G). Pub. L. No. 115-141, § 603(a)(1), 132 Stat. 1097, 1098 (2018). The Act identified the C-band as a promising candidate, and it instructed the FCC to provide notice and an opportunity for comment on "the feasibility of allowing commercial wireless services, licensed or unlicensed, to use or share use of the frequencies between 3700 megahertz and 4200 megahertz." Id. § 605(b).

Four months later, the FCC solicited public comment on proposals to convert all or part of the C-band to 5G terrestrial wireless use. Expanding Flexible Use of the 3.7 to 4.2 GHz Band , 83 Fed. Reg. 44,128 (proposed July 12, 2018) (NPRM ). At that time, eight companies operated satellites authorized to transmit signals within the United States over the C-band. Seven of them told the FCC that they could, through data compression and other technological upgrades, provide all their services within 200 megahertz (MHz) of the C-band. The eighth declined to participate in the rulemaking.

On March 3, 2020, the FCC released a final rule that reallocated the lower 280 MHz of the C-band (3.7–3.98 GHz) to 5G terrestrial wireless use, maintained the upper 200 MHz (4.0–4.2 GHz) for fixed satellite service, and designated the intervening 20 MHz (3.98–4.0 GHz) as an unusable "guard band" to minimize cross-interference. Expanding Flexible Use of the 3.7 to 4.2 GHz Band , 85 Fed. Reg. 22,804, 22,804 –05 (April 23, 2020) (Order ). The FCC found that the lower portion of the C-band is ideal for 5G use "due to its favorable propagation and capacity characteristics," id. at 22,811, and its adjacence to spectrum already dedicated to terrestrial wireless use, id. at 22,806. The Commission concluded that this spectrum reallocation would lead to "substantial economic gains," yet would leave satellite operators "able to maintain the same services in the upper 200 megahertz as they [were] providing across the full 500 megahertz." Id. at 22,807.

To implement the transition, the FCC will auction off licenses to provide 5G services within the lower portion of the C-band. Order at 22,807. The auction winners, in addition to paying the auction price, will be required to reimburse existing satellite operators for all reasonable costs of transitioning their services to the upper 200 MHz of the C-band. Id. at 22,826. The Commission estimated these transition costs will be about $3.3 billion to $5.2 billion. Id. at 22,830.

The FCC required satellite operators to relocate their transmissions by December 2025. Order at 22,823. But it also incentivized satellite operators to complete the transition more quickly, based on a finding that a faster transition would increase consumer welfare by about $15 billion per year. Id. at 22,827. If satellite operators fully transition by December 2023, the new 5G licensees must pay them an "accelerated relocation payment" of $9.7 billion, id. at 22,825, 22,831, to be divided among eligible operators under a set schedule, id. at 22,833 –34. The five satellite operators eligible to receive these payments have chosen to transition by the accelerated deadline and have begun to relocate their services.

II

Three self-described small satellite operators (SSOs) seek review of the Order. Each SSO operates one fixed, foreign-licensed satellite authorized to transmit into the United States by an FCC market access grant. See 47 C.F.R. § 25.137(c). The SSOs provide "little to no service" in the United States. Order at 22,820. Hispasat S.A. contracted all its capacity to foreign service through the end of 2019. ABS Global Ltd. provides no United States service, and its satellite can reach only the Nation's eastern edge. Empresa Argentina de Soluciones Satelitales S.A. (ARSAT) did not participate in the rulemaking and provides no United States service. The FCC concluded that these SSOs provided no services requiring relocation and thus were ineligible to receive compensation for relocation expenses. Id. at 22,829.

PSSI Global Services, LLC also challenges the Order. PSSI operates mobile earth stations that broadcast live events by satellite. By modifying the C-band downlink, the FCC has arguably modified PSSI's license to transmit over the C-band uplink: Given the fixed frequency shift, PSSI may no longer transmit signals to satellites at frequencies between 5.925 GHz and 6.225 GHz, because the satellites would retransmit the signals at frequencies between 3.7 GHz and 4.0 GHz.

The SSOs and PSSI each filed an appeal under 47 U.S.C. § 402(b) and a petition for review under 47 U.S.C. § 402(a). These provisions are "mutually exclusive channels for the review of FCC decisions." Vernal Enters., Inc. v. FCC , 355 F.3d 650, 655 (D.C. Cir. 2004). Section 402(b) permits appeals to this Court from ten categories of FCC orders, including appeals by "the holder of any ... station license which has been modified or revoked." 47 U.S.C. § 402(b)(5). Section 402(a) authorizes petitions for review of FCC orders "except those appealable under subsection (b) of this section." We need not decide which of these is the proper vehicle for our review if we have jurisdiction "by the one procedural route or the other." Cellco P'ship v. FCC , 700 F.3d 534, 541 (D.C. Cir. 2012). There is no dispute that either § 402(b)(5) or § 402(a) permits us to hear the SSOs’ claims.

The FCC contends that we lack jurisdiction over PSSI's claims. Although PSSI timely filed its petition for review within 60 days of the Order's "entry," see 28 U.S.C. § 2344, the Commission argues that PSSI must proceed through a § 402(b)(5) appeal, which the agency says is untimely. Under 47 U.S.C. § 402(c), such an appeal must be filed within 30 days of "public notice" of the decision at issue. The Order was released on March 3, 2020 and published in the Federal Register on April 23. PSSI filed its appeal on April 28. The appeal is thus timely if the § 402(c) deadline runs from the date of publication in the Federal Register, but not if it runs from the release date.

An FCC regulation addresses what constitutes "public notice" under § 402(c). It equates such notice to "publication in the Federal Register" for "documents in notice and comment and non-notice and comment rulemaking proceedings required by the Administrative Procedure Act." 47 C.F.R. § 1.4(b)(1). In contrast, it equates public notice to the "release date" for "non-rulemaking documents." Id. § 1.4(b)(2). The action at issue here—a final rule—plainly falls within the first category. The FCC invokes a note in § 1.4(b)(1), which keys public notice to the release date for "[l]icensing and other adjudicatory decisions with respect to specific parties that may be associated with or contained in rulemaking documents." Yet the...