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United States Court of Appeals for the District of Columbia Circuit
November 3, 1997, Argued ; September 11, 1998, Decided
No. 97-1005, Consolidated with No. 97-1006
[*480] GARLAND, Circuit Judge: Petitioners in these consolidated cases contend that the Federal Communications Commission ("FCC") improperly denied their requests for "finder's preferences" regarding certain private mobile land radio stations. We find no infirmity in the FCC's decisions and deny the petitions for review. 1
The FCC regulates the licensing of portions of the broadcast spectrum used to provide one- and two-way communications services known as private land mobile radio services. See 47 U.S.C. § 332 (1994 & Supp. 1998). These services include trunked specialized mobile radio ("trunked SMR") systems, which operate over several frequencies by means of centralized stations that send and receive communications between mobile radio units. See 47 C.F.R. § 90.7. An applicant for a license to operate a trunked SMR system must specify both the street address and the geographic coordinates (longitude and latitude), to the nearest second, from which it will operate the station. See, e.g., Joint Appendix ("J.A.") at 11; see also FCC 574, Application for General Mobile Radio Service at 2 (Mar. 1998).
In 1991, after providing notice and an opportunity for comment, the FCC adopted a finder's preference program applicable to, inter alia, trunked SMRs on certain frequency bands. See In re Amendment of Parts 1 and 90 of the Commission's Rules Concerning the Construction, Licensing, and Operation of Private Land Mobile Radio Stations, 6 FCC Rcd 7297, 7302-09 (1991) [**3] ("Report and Order"). 2 The program was a response to the increased demand for, and resulting scarcity of, these frequencies. Because of that scarcity, it was "becoming difficult for new applicants to become licensed or for existing licensees to expand their systems." Id. at 7303. The purpose of the finder's preference program was to create "new incentives for persons to provide [the FCC] information about unconstructed, nonoperational, or discontinued private land mobile radio systems…." Id. at 7309. The program, the FCC said, "would enhance spectrum efficiency by identifying more unused channels and reassigning them to persons who will use them effectively." Id.
[**4] Under the finder's preference program, if an applicant presents the FCC with evidence that leads to the cancellation of a license due to the licensee's noncompliance with certain regulations, the applicant is entitled to seek a dispositive preference for the recovered frequencies. See 47 C.F.R. § 90.173(k); see also Keller Communications, Inc. v. FCC, 327 U.S. App. D.C. 280, 130 F.3d 1073, 1075 (D.C. Cir. 1997). A finder, however, must be independently eligible for a license for the frequencies in question, see 47 C.F.R. § 90.173(k), and the FCC retains the "right to assure that the awarding of the preference is in the public interest…." [*481] Report and Order, 6 FCC Rcd at 7303 n.64.
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154 F.3d 478 *; 1998 U.S. App. LEXIS 22092 **; 332 U.S. App. D.C. 156; 13 Comm. Reg. (P & F) 555
JAMES A. CASSELL AND KELLEY COMMUNICATIONS, INC., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS POTOMAC CORPORATION, D/B/A CRESCENT COMMUNICATIONS, INTERVENOR
Prior History: [**1] On Petitions for Review of an Order of the Federal Communications Commission.
Disposition: Petitions for review denied.
station, license, finder's, benchmark, licensee, petitioners', coordinates, parameters, authorization, one-second, deviation, constructed, regulations, requests, cancellation, mobile radio, spectrum, kilometers, trunked, private land, frequencies, preferences, retroactive, geographic, Communications, case-by-case, one-fifth, recovered, channels, feet
Administrative Law, Judicial Review, Standards of Review, General Overview, Agency Rulemaking, Rule Application & Interpretation, Reviewability, Factual Determinations, Informal Rulemaking, Preclusion, Agency Adjudication