WASHINGTON—A federal judge has dismissed a lawsuit that could have potentially stalled the auction of 700 MHz spectrum, currently scheduled for 2008.
A lawsuit by Public Citizen, filed in the U.S. District Court for the District of Columbia, argued that the recently passed Deficit Reduction Act was unconstitutional because the House and Senate passed slightly different versions of the bill. President George W. Bush signed the legislation into law in February.
Specifically, Public Citizen’s challenge focused on a clerical error in the Medicare portion of the bill, where the Senate’s version used a date of 13 months and the House version used a date of 36 months. Since both houses must pass identical bills, Public Citizen argued that the DRA legislation was unconstitutional.
Included in the DRA bill was the DTV Act, which mandates that TV broadcasters return the extra spectrum they were given as part of the DTV transition by Feb. 18, 2009. This spectrum is scheduled to be auctioned by the Federal Communications Commission in January 2008.
While Judge John Bates seemed to want to rule in Public Citizen’s favor, he was constrained by an 1892 U.S. Supreme Court ruling stating that if both the president pro tempore of the Senate and the speaker of the House of Representatives sign a bill, it is not subject to judicial review.
Public Citizen says it will appeal the decision.
Wireless industry trade association CTIA weighed in on the issue, arguing that Public Citizen could not bring the suit because it was not harmed by the provision in question. However, Bates dismissed this argument.
“CTIA contends that Public Citizen lacks standing to pursue this action on the ground that plaintiff’s injury is not redressable by the court because the DRA provision that allegedly failed to pass the House is severable from the remainder of DRA. This argument ignores the requirement that, in evaluating standing, a court presumes that Public Citizen will prevail,” wrote Bates. “Applying this presumption, the court finds that Public Citizen satisfies the redressability element of the standing inquiry.”
The Congressional Budget Office estimates the 700 MHz auction could generate $10 billion. Private estimates have reached as high as $30 billion.
Since the government expects to garner revenues from selling the spectrum, the DTV bill was included as part of the 2006 budget-reconciliation process.
