Mobiletel, Inc. v. Federal Communications Commission, Columbia Cellular, Inc. And Bellsouth Mobility Inc., Intervenors

107 F.3d 888, 323 U.S. App. D.C. 255
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 29, 1997
Docket96-1327
StatusPublished
Cited by6 cases

This text of 107 F.3d 888 (Mobiletel, Inc. v. Federal Communications Commission, Columbia Cellular, Inc. And Bellsouth Mobility Inc., Intervenors) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mobiletel, Inc. v. Federal Communications Commission, Columbia Cellular, Inc. And Bellsouth Mobility Inc., Intervenors, 107 F.3d 888, 323 U.S. App. D.C. 255 (D.C. Cir. 1997).

Opinions

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

On August 14, 1996, the Federal Communications Commission (“the Commission”) released an order dismissing the application of MobileTel, Inc. (“MobileTel”) to provide cellular service in two Rural Service Areas (“RSAs”) in Louisiana using frequencies reserved for applicants that already provide “public landline message telephone service,” [-693]*-69347 C.F.R. § 22.902(b) (1988), in those areas. See In re Applications of MobileTel, Inc., FCC 96-345, 1996 WL 459977 (F.C.C.) (August 14, 1996). The Commission concluded that MobileTel was ineligible for the reserved frequencies in these RSAs because the company provided telephone service to customers in these areas only by means of radio links, and the regulation making the provision of “public landline message telephone service” a condition of eligibility excluded companies serving customers only by means of radio links. MobileTel appealed the Commission’s order to this court. We affirm.

I. Background

The Commission established rules to govern the implementation of cellular communications service in 1981. See Cellular Communications Systems, 86 F.C.C. 2d 469 (1981), modified, 89 F.C.C. 2d 58 (1982), further modified, 90 F.C.C. 2d 571 (1982), petition for review dismissed, United States v. FCC, No. 82-1526 (D.C.Cir.1984). To promote competition in cellular markets, the Commission divided the radio spectrum into two frequency blocks, ensuring that two cellular systems would compete in each market. See id. at 487-93. In making its initial allocation of cellular frequencies, the Commission made the “Block A” frequencies in each market available to “[c]ommon carriers not also engaged in the business of affording public landline message telephone service,” 47 C.F.R. § 22.902(b) (emphasis added), and reserved the “Block .B” frequencies for common carriers that were engaged directly or indirectly in the provision of “public landline message telephone service.” Id. The Commission eliminated this system of separate allocations for landline and non-landline applicants in 1994. See Revision of Part 22 of the Commission’s Rules, 9 FCC Red 6513 (1994).

The Commission reserved the Block B frequencies for companies already providing landline service because it wanted to take advantage of the technical expertise and knowledge of local markets that AT&T and other experienced providers of basic local telephone service had accumulated through years of providing local service. See Cellular Communications Systems, 86 FCC 2d at 488-89 (“Given AT&T’s distinctive technical capabilities, and its operation in most major markets, we are left with little doubt that only AT&T is in a position today to place cellular systems in operation around the country in the immediate future.”). The Commission also hoped in this way to minimize the number of applications competing for the Block B frequencies in each market. Although in previous license distributions it had allowed providers of landline service to qualify for landline set-aside frequencies in any market, see In re Application of Bondu-el Telephone Co., 68 FCC 2d 497 (1978), the Commission deliberately abandoned the Bon-duel approach in creating the Block B cellular landline set-aside, deciding instead to permit landline companies to apply for cellular frequencies only in the markets in which they were already providing landline service. See Cellular Communications Systems, 86 FCC 2d at 490 n.56. In this way the Commission hoped to guarantee that in all but a few markets, only one wireline carrier would be eligible for the Block B frequencies, which would eliminate the delay caused by the often drawn-out comparative hearings required for dealing with mutually-exclusive -applications under Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). The Commission also expected that rapid approval of the local landline company’s application for the Block B frequencies in a market would give competing applicants for the Block A frequencies in that market an incentive to reach a settlement agreement, to prevent the company operating in the Block B frequencies from getting a head start. See Cellular Communications Systems, 86 FCC 2d at 490-91. Except where they threaten its goal of preserving competition, the Commission generally favors measures that- streamline the license distribution process — for example by encouraging settlement agreements between competing applicants — in light of its statutory mandate “to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges_” 47 U.S.C. § 151.

[-692]*-692When the Commission replaced the comparative hearing system with a lottery system in 1983, it expressly .declined to discontinue the set-aside for Iandline companies operating in the relevant market, despite arguments that the abandonment of the comparative hearing system eliminated the need for set-asides designed to streamline the selection process. See Cellular Lottery Rule-making, 98 FCC 2d 175 (1984), modified, Cellular Lottery Reconsideration Order, 101 FCC 2d 577 (1985), affirmed in pertinent part, Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551 (D.C.Cir.1987). The Commission defended the retention of the Iandline set-aside on the ground that it continued to promote important goals, notwithstanding the switch to a lottery system. See id. at 192-98. First, the set-aside protected local Iandline telephone companies from being shut out of their local cellular markets. Were they to be shut out of the local cellular market, these companies would lose customers to the local providers of cellular service, especially in rural areas where the cost of providing Iandline service is high; eventually the local companies could be forced out of business by their cellular competitors. See id. at 194-95. Individuals served by these small local telephone companies would then be left without telephone service, an outcome which would conflict with the Commission’s objective of achieving universal telephone service. Second, the Commission believed that the separate allocation system lent the cellular markets a structure which would foment healthy competition, since the two types of communications carriers would draw upon their respective “traditions of service” to compete for customers. See id. at 196. Third, the set-aside continued to encourage settlement agreements by limiting the number of competing applications, and settlement agreements were still (despite the obviation of comparative hearings by the introduction of a lottery system) thought to serve the public interest by creating synergies between heterogeneous companies and minimizing the administrative burden, delay, and expense involved in dealing with petitions challenging cellular frequency allocations. See id. at 196-97.

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107 F.3d 888, 323 U.S. App. D.C. 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobiletel-inc-v-federal-communications-commission-columbia-cellular-cadc-1997.