Yes, FCC, there is an ordering clause

There’s an interesting legal argument whose resolution by the 3rd U.S. Circuit Court of Appeals could impact small-business bidding rules, last year’s wireless auction and perhaps even the upcoming 700 MHz auction. Or it could be much ado about nothing.
The question is this: When is a petition for reconsideration of a Federal Communications Commission decision deemed denied or granted? FCC reconsideration rulings typically include an ordering clause that explicitly answers that question. What happens when the FCC shoots down a petitioner’s arguments, but its decision does not include an ordering clause specifically rejecting the petition for reconsideration?
The 3rd Circuit in September threw out on jurisdictional grounds an appeal of the FCC’s small business, or designated entity, bidding rules adopted in advance of the $13.7 billion AWS auction. The appeal was filed by Council Tree Communications Inc., Bethel Native Corp. and the Minority Media and Telecommunications Council. The court did not actually address the merits of the case, so the appeal-which could lead to to AWS auction results being voided-remains alive. One reason the 3rd Circuit found the parties’ appeal premature is because “their petition for reconsideration of the Second Order was still pending before the FCC and remains pending to this day.” As such, Council Tree petitioned the 3rd Circuit to force the FCC to explicitly rule on the petition for reconsideration so the court can rule on the merits of the DE legal challenge. When the 3rd Circuit solicited FCC views on the matter, the agency replied there’s no need to order it to rule on Council Tree’s petition for reconsideration because it already denied it. The FCC addressed Council Tree’s arguments in the DE reconsideration order, but the agency omitted an ordering clause to that effect and it is arguable whether the agency met the concise statement standard as required by Section 405 of the Communications Act.
The FCC previously asked the 3rd Circuit to wordsmith its dismissal of the Council Tree appeal by deleting the court’s reference to the still pending petition for reconsideration. Perhaps what the FCC is trying to get the 3rd Circuit to appreciate in this holiday season is that a reconsideration decision’s ordering clause shouldn’t have to be seen to be real, for it exists in our hearts and minds.