Council Tree Communications and other petitioners against the FCC’s designated entity (DE) rules were dealt another blow by the Third Circuit Court, which turned down a petition for mandamus that would have forced the FCC to act on a petition for reconsideration of DE rule changes, adopted in April 2006, that extend the unjust enrichment period for licenses bought at a DE discount from five years to ten, and that prevent DEs from reselling or leasing more than 50% of their spectrum capacity. At stake are the results of the 2006 advanced wireless service auction and the outcome of the ongoing 700 MHz auction, which, thus far, has generated more than $19 billion in bids during a month of activity. (The FCC, however, lifted DE spectrum resale provisions as it pertains to the 700 MHz D-Block, which is intended for a nationwide network to be shared by commercial and public safety entities.) Last October, Council Tree, Bethel Native Corp. and the Minority Media and Telecommunications Council filed their petition for mandamus after the Third Circuit dismissed their legal challenge against the DE rules on jurisdictional grounds. In seeking mandamus, the petitioners argued that the FCC rejected all of their arguments against the DE rules in a separate order that was adopted by the FCC less than one month after the companies submitted their petition for reconsideration. Urging the court to dismiss the companies’ request, the FCC asserted: “there is simply no agency action to compel” as the agency had already effectively denied the petition. While denying mandamus, the court nevertheless decreed that the companies’ petition for reconsideration remained pending at the FCC. As such, the court directed the FCC to declare within 30 days whether it will act on the companies’ petition. Despite suffering an apparent defeat, Council Tree and the other petitioners termed the court’s order as “an important interim action” that “puts this fully briefed and argued case on an inexorable path toward a decision on the merits.”
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Third Circuit denies mandamus in DE rule case
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