WASHINGTON-The finder’s preference case of James A. Cassell v. the Federal Communications Commission now is in the hands of a three-judge U.S. Court of Appeals for the District of Columbia Circuit panel after both sides presented oral arguments and answered related questions. A decision could take up to six months.
The decision could hinge on whether the judges hold with the letter or the spirit of the law.
Dennis Brown, counsel for the petitioner, told Judges Silberman, Williams and Garland that the FCC still hasn’t “distinguished” a definition between 60 feet (one second) and up to a mile when it comes to what is permissible variance from where a license’s coordinates are and where a tower actually is built. In Cassell’s case, the licenses for which he had applied were constructed nearly a mile away from their designated coordinates, even though the rule stipulated 60 feet, but the FCC allowed the licenses to stand, thus overturning a bureau decision.
And that was one of the real questions during the hearing-What happens when the full commission negates a ruling made by a bureau, and how often does it happen? According to Silberman, the commission’s rules regarding how a finder’s preference ruling can be determined “are unclear in many respects.” He then asked Nancy Kiefer, representing the FCC, if the commission’s one-second order was part of commission rules as a whole.
“No, it’s not part of the codified rule, but it is the rationale behind it,” she answered. “The commission overturned the [Wireless Telecommunications] bureau decision on the one-second rule and established the one-mile rule.” Kiefer also said that while the commission saw the one-second rule as unreasonable, the one-mile rule still wasn’t a guarantee that anyone seeking a finder’s preference would be successful-that it “doesn’t vest any rights.”
Brown admitted that “certainly, the FCC can change its mind but it has to explain why … The FCC rewards the successful violator and sends away the honest reporter empty-handed.”
In Judge Garland’s opinion, most of the operators whose sites are built out more than one second away from their designated coordinates “are not intentional,” and the FCC can allow a variance of up to a mile but also as few as 60 feet if the licensee is found to be in violation.
In closing, Brown said, “We have a rule. It was violated. Will it be enforced?”
