Mobile Relay Assocs. v. FCC

Opinion

 [*3]  [**357]   KAREN LECRAFT HENDERSON, Circuit Judge: Mobile communications operators Mobile Relay Associates (MRA) and Skitronics petition for review of two orders of the Federal Communications Commission (FCC or Commission) reconfiguring the electromagnetic spectrum's 800 MHz band. [***2]  The reconfiguration plan, which the Commission established to eliminate interference with public safety communications, segregates different communications system architectures in separate newly-established segments of the band. Under the plan, MRA and Skitronics, 800 MHz licensees which operate Specialized Mobile Radio (SMR) systems that broadcast signals from a base station antenna situated at a high elevation, will be segregated from licensees who operate Enhanced Specialized Mobile Radio (ESMR) systems, which use smaller and more numerous base stations and a cellular network architecture. Pursuant to the plans restrictions licensees required to move to parts of the band set aside for SMR use will be unable to use that spectrum to operate ESMR services. MRA and Skitronics argue the reconfiguration plan arbitrarily treats them differently from similarly situated licensees, constitutes unlawful retroactive agency action and unconstitutionally takes their protected interest in spectrum. They also claim that the FCC overvalued spectrum offered by Nextel Communications, Inc. (Nextel) pursuant to the spectrum migration. In addition MRA claims that the Commission was obligated to compensate [***3]  it for its customer loss resulting from the migration. Nextel and fellow ESMR licensee Southern LINC intervene, arguing the Commission's orders are lawful. For the reasons set forth below, we deny the petition for review.

Since the 1970s the FCC has licensed spectrum in the 800 MHz band to a variety of licensees providing mobile communications. At that time technology did not allow for contiguous spectrum use by a single user so a large part of the 800 MHz band was "interleaved," with different kinds of communications technologies operating  [*4]   [**358]  on adjacent frequencies in the band. Improving Public Safety Communications in the 800 MHz Band; Consolidating the 900 MHz Industrial/Land Transportation and Business Pool Channels, Notice of Proposed Rule Making (NPRM), 17 F.C.C.R. 4873, 4877 (2002). Because of the minimal restrictions the Commission placed on the band's use, licensees operating in it have developed a number of different network architectures to provide mobile communications for users. One technology is a high-site system, whose network architecture consists of a large antenna placed at a high elevation such as a tower, mountain, hilltop or tall building [***4]  transmitting a signal across a roughly circular geographical area with the antenna at the center. In a high-site system the system operator assigns a network user to one channel or frequency on which a base unit and all mobile radio units on that user's network operate. Signal propagation physics dictate that the farther a mobile unit is from the central antenna, the weaker the signal. Id. at 4879--80.

Around 1980 the FCC began licensing 800 MHz band spectrum use to public safety providers like police and fire departments and medical rescue teams, which use their spectrum space to develop and operate mobile communications systems by which first responders communicate with each other and with their dispatchers via hand-held or vehicular mobile radio units. ¹ Id. The Commission also licensed frequencies in the band to commercial licensees using high-site network architecture known as Specialized Mobile Radio (SMR) systems. The typical commercial service provided on an SMR system is service for taxicab companies, service fleets and other businesses requiring mobile communications which, like high-site public safety communications systems, use a dispatcher. The mobile [***5]  units are all tuned to the same station and can both listen and respond. An SMR licensee sells communications services to subscribers which use the licensee's equipment and network architecture for mobile communications operations.

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