Late last week, a three-judge panel of the DC Circuit Court of Appeals rejected Council Tree Communications’ appeal of the FCC’s designated entity (DE) rules as they pertain to last year’s 700 MHz auction. That panel concluded that the FCC did not “reopen” issues at the heart of Council Tree’s appeal in a pair of 2007 orders that were subjects of the company’s court challenge. The DC Circuit decision constitutes the latest development in Council Tree’s ongoing fight against modifications of the DE rules that were enacted by the FCC in advance of the 2006 advanced wireless service (AWS) auction. Specifically, Council Tree and two other petitioners—Bethel Native Corp. and the Minority Media and Telecommunications Council—contend that the 2006 rule revisions, which imposed new leasing and resale restrictions on DEs and doubled the unjust enrichment period from five years to ten, hinder DE participation in the FCC’s auction process. While the parties’ latest appeal of the 2006 DE order remains pending before the Third Circuit, Council Tree also sought to have the DC Circuit overturn the DE rules as they pertain to last year’s 700 MHz auction. Just days before the case would have proceeded to the oral argument stage, however, the DC Circuit panel turned down Council Tree’s request on jurisdictional grounds upon finding that “the FCC’s intention to reopen the decision petitioner challenges is not clear.” In support of its ruling, the court observed that, in its April 2007 order adopting licensing rules for the 700 MHz band, the FCC “unambiguously stated that its ‘existing competitive bidding rules do not require modification for the purposes of an auction of commercial 700 MHz band licenses.’” Dismissing Council Tree’s claim that the FCC reopened the DE matter in an August 2007 order that addressed, among other things, a Small Business Administration request for stay of the FCC’s existing DE rules, the court added: “an agency does not reopen an issue by responding to a comment that addresses a settled aspect of some matter, even if the agency has solicited comments on unsettled aspects of the same matter.” Confirming, “we’re reviewing next steps in the DC Circuit,” Council Tree Managing Director George Laub stressed: “our priority and focus has been and remains our case in the Third Circuit Court of Appeals where . . . we have already addressed jurisdictional issues.”