In amicus briefs filed this week with the US Supreme Court, a host of public interest, consumer advocacy, and small business entities came to the defense of Council Tree Investors and two other entities in their quest to turn back a decree of the Third Circuit court that vacated certain aspects of the FCC’s designated entity (DE) rules but declined to overturn the results of the 2006 advanced wireless services (AWS) and 2008 700 MHz auctions to which the DE rules were applied. Firing the latest salvo in their four-yearlong legal battle against the DE rules, Council Tree, Bethel Native Corp. and the Minority Media and Telecommunications Council filed a writ of certiorari with the high court on December 22 that seeks reversal of the Third Circuit court ruling handed down last August. Although the Third Circuit agreed with the petitioners’ claim that certain modifications to the DE rules adopted by the FCC in advance of the AWS sale did not provide adequate time for notice and comment as required by the Administrative Procedure Act (APA), the court declined the petitioners’ request to invalidate the AWS and 700 MHz auctions. In so doing, the court explained that such a step would create massive uncertainty in the wireless market, punish auction participants that were guilty of no wrongdoing, and unwind industry investments valued in excess of $33 billion. Pointing to “ample Supreme Court precedent” that includes the high court’s 2003 decision in FCC v. NextWave that invalidated more than $17.6 billion in C-block PCS licenses auctioned by the FCC, Council Tree Managing Director George Laub told reporters that his company had no choice but to pursue a Supreme Court appeal, as the lower court’s “failure to vacate the auction results creates a meaningless victory for the petitioners and is a disservice to the public.” In a joint amicus brief, the Media Access Project, the National Urban League, and the Asian American Justice Center, among others, maintained that the actions of the Third Circuit violate Section 706 of the APA and conflict with precedents set by both the Supreme Court and by the D.C. Circuit Court of Appeals. Separately, John Muleta, a former official of the FCC, warned that “the Third Circuit’s failure to order the FCC to provide a remedy for its unlawful actions creates a dangerous and morally hazardous legal precedent whereby agencies are indemnified from the cost of their unlawful actions by doing things that are simply too big to undo.” Citing conflict on the issue among various appellate courts, Professor Daniel Rodriguez of the University of Texas said the Supreme Court should “determine whether remand without vacatur is legally permissible and, if concluding that the practice is permissible, clarify the circumstances under which reviewing courts should exercise their discretion.”