Rogers Radio Communication Services, Inc. v. F. C. C.
| Decision Date | 19 December 1978 |
| Docket Number | Nos. 77-1352,77-1357,s. 77-1352 |
| Citation | 193 U.S.App.D.C. 71,593 F.2d 1225 |
| Parties | ROGERS RADIO COMMUNICATION SERVICES, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Telephone and Telegraph Co. & Illinois Bell Telephone Co., National Association of Radiotelephone Systems, Intervenors. TELOCATOR NETWORK OF AMERICA, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, AT&T Company and Illinois Bell Telephone Company, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Kenneth E. Hardman, Washington, D. C., with whom Abe Fortas, Jeremiah Courtney, and Arthur Blooston, Washington, D. C., were on the brief, for appellants.
C. Gray Pash, Jr., Counsel, F. C. C., Washington, D. C., with whom Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Washington, D. C., was on the brief, for appellee.
Charles Lister, Washington, D. C., with whom Alfred C. Partoll, William D. Goddard, and John W. Berresford, New York City, were on the brief, for intervenors American Tel. & Tel. and Illinois Bell Tel. Co.
Werner K. Hartenberger, Counsel, F. C. C., Washington, D. C., also entered an appearance for appellee.
Thomas R. Phillips, Chicago, Ill., also entered an appearance for intervenors, AT&T, et al.
Abe Fortas and Kenneth E. Hardman, Washington, D. C., also entered appearances for intervenor National Association of Radiotelephone Systems in No. 77-1352.
Before TAMM and MacKINNON, Circuit Judges, and HOWARD T. MARKEY, * Chief Judge, United States Court of Customs & Patent Appeals.
Opinion for the court filed by TAMM, Circuit Judge.
In Land Mobile Radio Service, Docket No. 18262, 3 the Commission determined that development of a nationwide cellular mobile radio communication system 4 should be encouraged to serve future public need for mobile radio-telephone service. 5 Wireline carriers, such as AT&T, and radio common carriers, such as appellants, 6 are eligible to develop cellular systems if they can demonstrate the existence of necessary resources and technology. The Commission decided to authorize only developmental cellular systems "until (it was) reasonably sure that all factors necessary for regular implementation are accomplished." 7 The Commission further decided that only one developmental system would be authorized in any market or service area. 8 As explained by the Commission:
the precise number (of operational cellular systems the Commission) will authorize will depend on the overall progress of the developmental program. Following that program, (the Commission) will adopt standards to which all systems, existing and new, will be required to conform. It must be especially emphasized that the granting of a developmental authorization cannot form the basis of any reliance concerning whether a regular authorization will be granted. Any grant for regular authorization will require the licensee to comply with such standards as (the Commission) may adopt. When rules permitting regular operation are adopted, applications for conforming operational In NARUC v. FCC, 173 U.S.App.D.C. 413, 525 F.2d 630, this court upheld the Commission's allocation of 40 MHz on the 900 MHz band to the development of a cellular system, over the objections of various groups, including appellant TNA (formerly National Association of Radiotelephone Systems). Although the court recognized that appellants in that case raised "substantial arguments . . . pertaining to possible anticompetitive effects of the 40 MHz allocation" in the form of AT&T monopolization of cellular systems, Id. 173 U.S.App.D.C. at 419, 525 F.2d at 636, the court concluded that there would be ample opportunity to challenge such effects as the time approached when they would be felt and any impact on competition was more assessable. Id. 173 U.S.App.D.C. at 421-22, 525 F.2d at 638-39. In refusing to overturn the Commission's action, the court specifically noted that "(t)hus far, the Commission has stated its clear intention to authorize only a developmental system in the Chicago area, which will utilize only 12.5 MHz of the 40 MHz allocation." Id., 173 U.S.App.D.C. at 421, 525 F.2d at 638.
cellular systems will be considered on a case-by-basis. 9
IBT applied for authority to construct and operate a developmental cellular system in the Chicago metropolitan area, and AT&T intervened in its behalf. 10 The Commission returned the application to IBT, without prejudice to amendment, after finding it was deficient. 11 IBT and AT&T thereafter filed a petition for reconsideration, which the Commission granted. 12 Subject to conditions, the Commission granted IBT's application on March 10, 1977. 13 Rogers, who operates in the Chicago metropolitan area, and TNA attack the Commission's decision to grant the application.
Appellants raise a number of objections to the Commission's grant of IBT's application. Initially, they allege that the Commission's decision must be reversed because the Commission failed to find in form or in substance that granting the application would serve the public interest, convenience and necessity. Under 47 U.S.C. § 309(a) (1970), "the Commission shall determine . . . whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission . . . shall find that the public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application."
To the extent that appellants challenge the Commission's failure to articulate its finding of public interest, convenience, and necessity, See generally Joseph v. FCC, 131 U.S.App.D.C. 207, 211-12, 404 F.2d 207, 211-12 (1968) (per curiam), their argument is foreclosed by their failure to bring this alleged error to the Commission's attention in a petition for rehearing. Under 47 U.S.C. § 405 (1970):
(t)he filing of a petition for rehearing shall not be a condition precedent to judicial review of any such order, decision, report, or action, except where the party seeking such review . . . relies on questions of fact or law upon which the Commission, or designated authority within the Commission, has been afforded no opportunity to pass.
One of the purposes of 47 U.S.C. § 405 is to afford the Commission the initial opportunity to correct errors in its decision or the proceeding leading to decision. See Action for Children's Television v. FCC, 183 U.S.App.D.C. 437, 447-48, 564 F.2d 458, 468-69 (1977); W. H. Hansen v. FCC, 134 U.S.App.D.C. 100, 102, 413 F.2d 374, 376 (1969). The Commission might have easily remedied the error alleged by appellants, had the error been brought to its attention following decision. Cf. AT&T v. FCC, 449 F.2d 439, 450-51 (2d Cir. 1971) (FCC's continued refusal to To the extent that appellants allege that the Commission "Could not possibly make the necessary public interest findings" to grant IBT's application, Joint Brief for Appellants at 32 (emphasis supplied) an argument that appellants Did advance before the Commission the deficiencies identified by appellants either have been remedied by the Commission 14 or are raised and addressed elsewhere in this appeal. 15
make ultimate statutory finding in face of objections demonstrates inability to make such finding). Absent a showing of particular cause and sufficient justification, we see no reason to review this alleged error when the Commission was given no opportunity for its correction. Action for Children's Television v. FCC, 183 U.S.App.D.C. at 448, 564 F.2d at 469.
Appellants allege that it is an "inversion of rational administrative inquiry" for the Commission to authorize the experiment with AT&T's cellular system before it decides whether the system is "inherently capable" of fulfilling the public interest, convenience and necessity. We disagree. The Commission has emphatically stated that there is no guarantee that any developmental system will be authorized to operate on a regular commercial basis. The purpose of developmental operation is to obtain information concerning the capabilities and problems of cellular technology. Equipped with such information, the Commission can set standards for cellular systems to insure that their operation will serve the public interest, convenience and necessity. See In re Application of Illinois Bell Telephone Co., 63 F.C.C.2d 655, 662-63 (1977); Joint Appendix (J.A.) at 21a; text Supra at 1228.
The Commission has the authority and the obligation to provide for experimental uses of frequencies, See 47 U.S.C. § 303(g) (1970), and to keep abreast of technical developments in the communications field to the end that the public interest will be served, See 47 U.S.C. § 218 (1970). See also NARUC v. FCC, 174 U.S.App.D.C. 374, 392, 533 F.2d 601, 619 (1976); NARUC v. FCC, 173 U.S.App.D.C. at 422, 525 F.2d at 639. Requiring the Commission to determine that an experimental system is "inherently capable" of serving the public interest would be inconsistent with the concept of experimentation itself. See...
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