Teledesic LLC v. Federal Communications Commission, 00-1466
| Decision Date | 28 December 2001 |
| Docket Number | No. 00-1466,00-1466 |
| Citation | 275 F.3d 75 |
| Parties | (D.C. Cir. 2001) Teledesic LLC, Petitioner v. Federal Communications Commission and United States of America, Respondents Fixed Wireless Communications Coalition and WinStar Communications, Inc., Intervenors |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Petition for Review of an Order of the Federal Communications Commission
Mark A. Grannis argued the cause for petitioner. With him on the briefs were Scott Blake Harris and Timothy J. Simeone.
C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Daniel M. Armstrong, Associate General Counsel, John M. Nannes, Acting Assistant Attorney General, United States Department of Justice, Robert B. Nicholson, and Adam D. Hirsh, Attorneys. John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, Thomas E. Chandler, and James M. Carr, Counsel, and Christopher J. Sprigman, Attorney, United States Department of Justice, entered appearances.
Joseph M. Sandri, Jr., Barry J. Ohlson, Leonard R. Raish, and Liliana E. Ward were on the brief for intervenors.
Before: Edwards and Randolph, Circuit Judges, and Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Edwards.
Teledesic LLC ("Teledesic") petitions for review of the Federal Communications Commission's ("FCC" or "Commission") Report and Order governing the reallocation of a band of radio spectrum previously shared by satellite and traditional terrestrial spectrum users. See In re Redesignation of the 17.7-19.7 GHz Frequency Band, Report and Order, 15 F.C.C.R. 13,430 (2000) ("Report and Order"). The Report and Order set forth rules allocating one part of the band to satellite users and another part to terrestrial users. Teledesic, a company that plans to build a global telecommunications network using satellite technology, objects to the new rules requiring satellite operators to pay the relocation costs incurred by terrestrial operators during the initial reallocation period.
Just before oral argument in this case, the FCC revised the new rules so as to accede to the demands of Teledesic with respect to two issues. Teledesic's challenges on these two issues are therefore moot. With respect to the remaining issues, we find no merit in Teledesic's challenges. The new rules are founded on the FCC's goals of protecting existing terrestrial spectrum users while facilitating the growth of new, comprehensive satellite networks. The agency's goals and the regulatory means used to implement them are both permissible and reasonable.
Accordingly, we hereby dismiss the moot challenges and otherwise deny Teledesic's petition for review.
Among its many responsibilities, the FCC is charged with regulating and overseeing radio spectrum. See 47 U.S.C. 151 (Supp. V 1999) (), 303 (1994 & Supp. V 1999) (authorizing the Commission, inter alia, to assign station frequencies, issue regulations to avoid interference between stations, study new uses for radio, and encourage broader and more effective use of radio in the public interest). This responsibility has become more challenging in recent years due to the growth of new telecommunications technologies. This case concerns the FCC's efforts to reallocate one portion of the spectrum to accommodate an ascendant and promising technology: satellite telecommunications networks.
Prior to the Commission's Report and Order, the band of spectrum from 17.7 to 19.7 (known as the "18 GHz band") was allocated to two broad groups of telecommunications users. Terrestrial fixed services (also known as "FS") operate by connecting one fixed location with one or more other fixed locations. See 47 C.F.R. 2.1(c) (2000). They serve many functions, including remote monitoring of gas and petroleum pipelines, public safety communications, railroad communications, public utilities, and high speed Internet access. See Br. for Respondents at 3; Br. for Intervenors at 1-2. The FCC estimates that approximately 179,000 terrestrial FS links operate in the 18 GHz band, and this number will grow as services move up from more congested lower bands. Report and Order, 15 F.C.C.R. at 13,436 p 11.
FS users share the 18 GHz band on a co-primary basis with fixed satellite services (or FSS), which connect fixed locations by satellite. See 47 C.F.R. 2.1(c). These services utilize many earth stations that communicate with one or more space stations. Satellite technology has the potential to provide global Internet access, two-way digital communications, video conferencing, telemedicine, and residential voice and data communications services. In re Redesignation of the 17.7-19.7 GHz Frequency Band, Notice of Proposed Rulemaking, 13 F.C.C.R. 19,923, 19,929 p 9 (1998) ("NPRM"). The FCC expects these services to expand dramatically in the next decade. Id. Currently, the FCC reports that no nongovernmental satellite earth stations operate in the 18 GHz band, but Teledesic has been granted a license, and a number of other companies have also applied for licenses. Br. for Respondent at 3 n.1. Teledesic plans to deploy a large number of earth stations to support a global Internet telecommunications network. See Br. for Petitioner, Corporate Disclosure Statement at 1.
Establishing so many satellite stations would be difficult under the co-primary system, because the FS stations currently occupying the band can cause harmful interference to the new satellite systems if the two are located too close together on the spectrum. See In re Redesignation of the 17.7-19.7 GHz Frequency Band, Comments of Teledesic LLC, IB Docket No. 98-172 (Nov. 19, 1998), at 3-4 ("Teledesic Comments"), reprinted in Joint Appendix ("J.A.") 150-51. Under the co-primary system, all users must coordinate with one another to prevent such interference. See 47 C.F.R. 25.203 (), 101.103(d) (). By 1998, satellite companies had advised the Commission about the "ubiquitous" nature of the networks they planned to construct. NPRM, 13 F.C.C.R. at 19,933 p 18. They urged the Commission to adopt "blanket licensing" for satellite systems, in which a large number of stations would be authorized at once without the licensee having to specify each station's individual location. Id. The companies also advised the FCC that it would be difficult to construct ubiquitous satellite networks if the satellites had to share band space on a co-primary basis with terrestrial users. Id.
The Commission responded with a Notice of Proposed Rulemaking proposing changes designed to make more efficient use of the 18 GHz band in light of the impending widespread deployment of satellite earth stations. Id. at 19,925 p 1. The Commission found that satellite operators planned to deploy "potentially millions of small antenna earth stations," and expressed concern about "the feasibility of sharing between terrestrial fixed service and ubiquitously deployed FSS earth stations." Id. It agreed with the satellite companies that blanket licensing would probably be necessary to keep up with the large numbers of satellite earth stations in the works. Id. at 19,933 p 19. In light of these concerns, the Commission proposed segmenting the band into subsections dedicated to satellite and terrestrial stations respectively. Id.
Under the proposed plan, FS services would lose their coprimary status in portions of the band, but the Commission proposed to grandfather FS services already operating in those sections. Id. at 19,941-42 p 40. One reason for this proposal was that, while there were not yet any commercial satellite systems operating in the band, there were thousands of existing FS operators there, and the FCC wished to protect the investment in those services. Id. Another reason was the Commission's tentative conclusion that satellite operators would be able to design their networks to avoid reception of harmful interference from existing FS users. Id.
The FCC further concluded that some existing terrestrial facilities would probably have to be relocated from one frequency to another, and it solicited comments about the best way to accomplish this relocation. Id. at 19,942 p 41. The Commission noted that it had addressed the same question in earlier proceedings, and it asked commenters to discuss whether the principles adopted in the earlier proceedings should apply here. Id. at 19,942-43 p 41 & nn.65-66 ().
The Commission received comments from interested parties, including Teledesic and FS users. The latter group included the Fixed Wireless Communications Coalition and Winstar Communications, Inc., the intervenors before this court, which represent the interests of FS users. In general, Teledesic "strongly support[ed]" the proposal to segment the 18 GHz band, but expressed...
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