On Tuesday, the DC Circuit Court upheld the FCC’s decision to reject M2Z Networks’ request for a license and related petition for forbearance to offer free nationwide broadband services in the Advanced Wireless Service (AWS) – 3 band. According to the courts, while M2Z offered several “ingenious” and “creative” arguments in support of its appeal, “none of them has serious legal merit.” Dismissed by the FCC in 2006, the M2Z application later provided the foundation of former FCC Chairman Kevin Martin’s effort to promulgate rules that would require the winner of the nationwide AWS-3 license to reserve a portion of their authorized spectrum at 2155-2180 MHz for free wireless broadband services. (At the behest of congressional leaders and licensees of adjacent AWS-1 facilities in the 2110- 2155 MHz band, Martin postponed indefinitely the FCC’s December 18 vote on auction and licensing rules for the AWS-3 band, and that item remains to be acted on by the agency.) Claiming that its free nationwide broadband network would fit the definition of a new technology or service under the FCC’s rules, M2Z sought to have its request granted under a one-year statutory deadline and to have its application exempted from the competitive bidding process. However, in addition to uncovering flaws in the proposed transmission speed and build-out plan for the M2Z network, the FCC determined ultimately that neither M2Z’s proposed service nor technology were new and that there was no public interest justification in straying from the agency’s competitive bidding procedure. On appeal, M2Z told the court that the FCC violated Section 10 of the 1934 Communications Act by failing to consider “competitive market conditions” when assessing M2Z’s petition for forbearance. M2Z also asserted that the FCC failed to shift the burden of proof to opponents of its application who should have been required to demonstrate why M2Z’s proposal did not satisfy the public interest. Disagreeing with M2Z, the court decreed that M2Z “sought a 15-year monopoly on valuable bandwidth” and therefore “should not be surprised that the FCC was terse in its analysis of this proposal’s effect on competitive market conditions.” The court added that, because the FCC gave “sufficient reasons” for rejecting the application on technical grounds, “the parties’ . . . dispute over whether M2Z’s proposal was a new technology or service becomes less important.”