WASHINGTON-A federal appeals court said Tuesday that the Federal Communications Commission was correct when it opened an auction for rural cellular licenses rather than limiting it to those who had applied for a lottery years before.
Ranger Cellular and Miller Communications Inc. argued in March that when the FCC opened the auction to all comers it was misreading the Communications Act. The D.C. Circuit disagreed.
“The agency offers a reasonable interpretation of the statute. Not surprisingly, therefore, Ranger proffers no reason to reject the commission’s interpretation apart from the reasons for which it argued the meaning of the statute is plainly otherwise,” wrote Chief Judge Douglas Ginsburg for the U.S. Court of Appeals for the District of Columbia Circuit. “The commission has shown that [the Communications Act] . supports a reading that covers only broadcast stations.”
The FCC last summer auctioned the licenses in question to affiliates of Western Wireless Corp. and Cingular Wireless L.L.C. Both Western and Cingular had received interim operating authority from the FCC to operate in these areas before the auction.
“Opening the pool would be particularly useful in this case, because otherwise there would be only three eligible bidders,” wrote Ginsburg.
Another argument presented by Ranger that seemed to gain some traction during oral argument was whether the FCC could open the auction simply because it would make more money because it is prohibited from doing so. Ginsburg said the law did not apply here.
“We would be tilting at a non-existing windmill were we to consider whether the commission has complied with an inapplicable statute,” wrote Ginsburg. Surely, even if it has not complied, we would not, knowing that the statute is inapplicable, require the commission to close the auction to newcomers; to do so would thwart the clearly stated will of Congress because of a temporary oversight by the commission.”
Western’s affiliate bid more than $9.4 million for the Barnes, N.D., license. Cingular affiliate Southwestern Bell Wireless L.L.C. bid nearly $4.3 million for the Polk, Ark., license. CCPR Services Inc., another Cingular affiliate, bid nearly $2.2 million for the Ceiba, Puerto Rico, license.
