Network Project v. Federal Communications Commission

511 F.2d 786, 167 U.S. App. D.C. 220
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 18, 1975
DocketNo. 73-2050
StatusPublished
Cited by1 cases

This text of 511 F.2d 786 (Network Project v. Federal Communications Commission) 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
Network Project v. Federal Communications Commission, 511 F.2d 786, 167 U.S. App. D.C. 220 (D.C. Cir. 1975).

Opinion

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

Petitioner, The Network Project, is an unincorporated association devoted to promoting what it considers to be sound principles relating to the regulation or non-regulation of communications systems. It claims standing, unchal[223]*223lenged here, as a past and potential user of communications services. Its petition seeks review under 47 U.S.C. § 402(b) of three orders of the Federal Communications Commission granting applications for authority to construct and operate domestic satellite facilities. RCA Global Communications, Inc./RCA Alaska Communications, Inc., 42 FCC 2d 774 (1973); American Satellite Corp., 43 FCC 2d 348 (1973); Hughes Aircraft Co./National Satellite Services, Inc., 43 FCC 2d 1141 (1973).1

Petitioner asserts that the Commission failed to consider adequately whether these grants of authority would (1) serve “the public interest, convenience, or necessity,” 47 U.S.C. § 307(a), (2) protect adequately First Amendment interests, and (3) permit violations of the antitrust laws or policies of the United States.

We affirm the Commission’s orders in the case of RCA and American Satellite. For reasons hereinafter appearing, we defer action on the order granting authority to Hughes/NSS.

I

The orders under review are one step in a process of development of a domestic satellite system that extends a number of years into the past and that will, by the FCC’s own admission, require supervision and further authorization decisions in the future. In 1966, the Commission issued a Notice of Inquiry, 31 Fed.Reg. 3507 (1966), inviting comments on whether it could authorize “non-governmental entities to construct and operate communications satellite facilities for the purpose of meeting their private or specialized domestic communications requirements,” and, if so, whether as a matter of policy it should grant such authorizations.2 The Commission received responses on both the legal and the policy issues, and also received suggestions as to appropriate satellite systems.

Recognizing that the inquiry had to be broader than first anticipated, the Commission issued a Supplemental Notice of Inquiry, 31 Fed.Reg. 13763 (1966), requesting a description of any plans for providing common carrier services by means of domestic satellite; comments on whether, as a matter of law, there are any restrictions on the Commission’s power to authorize common carrier satellite services; and, assuming legal authority, comments on whether as a matter of policy the Commission should grant such authorizations, and, if so, whether to one or to more than one carrier. In response to this Supplemental Notice, the Commission received proposals from the American Broadcasting Company, American Telephone & Telegraph Company, Comsat, and the Ford Foundation; and comments from the General Electric Company.

On March 20, 1970, the Commission issued a First Report and Order. 22 FCC 2d 86 (1970). In light of all of the suggestions and comments,3 the Commission concluded that (1) it could legally authorize non-governmental entities to construct and operate communications [224]*224satellites for domestic use, (2) satellites were destined to play an important role in the domestic communications field, and (3) as a matter of policy because considerable leadtime is necessary for implementation of a program, the authorization process should proceed “as promptly as possible, consistent with the public interest. . . . ” 22 FCC 2d at 90.

The Commission considered proposals for a number of different systems, id. at 90 — 93, but refused to delineate in advance what type of system or systems should be authorized because it was “unable to determine on the basis of the information. . . before [it], whether domestic communication satellite opportunities would be more fully and effectively developed through • one or more multipurpose systems, specialized systems, a combination of both, or through an essentially ‘open entry’ policy.” Id. at 93. The Commission rejected the pilot or demonstration program approach because it would be “preferable to permit potential applicants to take the initiative in submitting concrete system proposals for the Commission’s consideration,” id., and concluded by inviting applications from all parties interested in any type of satellite system. The Commission specifically noted that a grant of authority was dependent on a statutory finding that such grant would be in the “public interest,” and warned the parties that the opportunity to file and the making of the expenditures involved in filing “do not in any way indicate that the application will be granted in whole or in part.” Id. at 94.

In addition to technical qualifications, the applicants were directed to indicate the volume and kinds of services to be provided, and the areas to be served,4 id. at 98; and the public interest considerations supportive of a grant. Id. at 100. Specific “public interest” questions were posed by the Commission, including whether a system would be capable of providing service to Hawaii and Alaska; and whether and on what terms facilities would be available (1) to non-commercial, educational networks (including the possibility of funding educational programming from satellite profits), and (2) to meet the data and computer needs of educational institutions. The Commission received eight separate applications for satellite systems, and five entities submitted applications for earth stations.5

On March 17, 1972, the Commission issued a Proposed Second Report and Order prepared by the staff, 34 FCC 2d 1 (1972), and requested interested parties to submit comments and to participate in oral argument, with particular emphasis on whether

(a) The Commission should adopt a policy of limited open entry as proposed by the staff or, in the alternative, a policy of unrestricted entry.
(b) The Commission should require Comsat to elect between owning and operating a space segment dedicated to the use of A. T. & T., or owning and operating satellite facilities for the purpose of furnishing services to persons other than A. T. & T.
(c) A. T. & T. should be limited in its use of satellite facilities to the furnishing of its noncompetitive services, i. e., message toll telephone and wide area telephone services.
(d) The Commission as a matter of policy should require licensees of satellite facilities to provide free service to [225]*225educational entities and, if so, on what basis of eligibility; or whether, as proposed by the staff, the provision of free or reduced rate services to such entities should be left to future rate-making proceedings in accordance with the applicable provisions of the Communications Act or to the initiative of the licensees choosing voluntarily to provide such free or reduced rate service.

34 FCC 2d at 7-8.

Petitioner’s involvement in these proceedings first began with an appearance at the oral argument.

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511 F.2d 786, 167 U.S. App. D.C. 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/network-project-v-federal-communications-commission-cadc-1975.