Every now and then, the fact that I am a lawyer leaks through here. OK, it leaks through a lot — including my insatiable tracking of the minutia of the D.C. Circuit and how it impacts things FCC.
Which brings me to last month’s opinion in Globalstar, Inc. v. Federal Communications Commission. In the grand scheme of things, this decision only impacts two companies, Globalstar and Iridium. What makes the decision important is that it addresses the scope of a Petition for Reconsideration and whether a Petition for Recon re-opens the entire docket. Along the way, it once again admonishes parties about relying on ex partes to build an administrative record, which may actually breathe some life back into the procedural rules at a time when every FCC proceeding is “permit but disclose.”
More importantly, this case illustrates that the details of this stuff matter — not just in telecom but in all aspects of regulatory reform. If we want a real progressive movement, we need to nurture our own special teams in every policy area that follow the day-to-day mundane and prosaic details that make the difference for effective advocacy on the big ticket items.
So for all you procedure buffs out there, continued below . . . .
I gotta love this case for how utterly, insanely boring it makes decisions that impact millions (if not billions) of dollars worth of commerce and some critical procedural issues that potentially impact everyone’s future appeal rights at the FCC. Not to toot my own horn too loudly, but this is why the progressive movement needs a trained cadre of boring, unglamorous highly trained special teams (not just here, but on dozens of issues) to make real change happen. Otherwise, we will keep winning elections and big fights and then gradually sinking back to the status quo when the crowds go home and the utterly boring work begins.
The Facts of the Case
We have two major mobile satellite services (MSS) companies, Globalstar and Iridium. The FCC has a bunch of spectrum set aside for this service. The relevant band is called the “Big LEO (”low Earth orbit)“ band. For various historic reasons, Globalstar has a lot more Big Leo spectrum available to it. Of the 33 MHz available in Big Leo, Globalstar had access to 27.85 MHz and Iridium had access to 5.15. Iridium, which at one point had been scheduled to end in a fiery meteor swarm of its satellites burning up in the atmosphere due to bankruptcy, petitioned the FCC for a chunk of Golobalstar’s spectrum so it could compete. In 2004, the FCC took 3.1 MHz from Globalstar and told it to share with Iridium, and sought comment on whether it could make another 2.5 MHz for shared use.
Globalstar filed a recon petition asking the Commission to reconsider the decision because it would cause interference. In November 2007 (did we mention things don’t exactly move at lightning speed at the FCC?), Communications Daily reported that the FCC was going to give half the spectrum in Big Leo to Iridium and eliminate sharing. Globalstar promptly filed an ex parte saying ”WTF? You never said this was on the table! Doing this violates the Administrative Procedures Act (APA) notice and comment requirement — as well as being a bad idea.“ Unfortunately for Globalstar, the full Commission voted the same day as they filed the ex parte to adopt the Order dividing the spectrum between Globalstar and Iridium.
Globalstar, not surprisingly, appeals. The D.C. Circuit holds:
1. Globalstar cannot raise its APA claim because it did not file a Petition for Reconsideration as required by 47 USC 405. They also slap around Globalstar for relying on an ex parte, consistent with the decision a year ago indicating that parties rely on ex partes at their peril.
2. Globalstar’s Reconsideration Petition of the 2004 Order, especially their use of rather dramatic language warning that interference from the incompatible technologies used by Globalstar and Iridium would cause interference, opened the door for the FCC to revisit the entire question on how to reapportion the spectrum.
3. The decision is otherwise rational and affirmed.
A few important takeaways for us FCC practitioners.
Be careful about filing Reconsideration Petitions, and avoid overly dramatic language. The decision makes filing a Petition for Recon somewhat riskier, because it appears to give the FCC fairly broad latitude about what it can reconsider. OTOH, Globalstar seems to have shot itself in the foot on this by using overly dramatic language about the impact of the proceeding and the state of the record. To quote the relevant passage:
Globalstar claimed in its reconsideration petition that “the record in this docket cannot support any change to the existing Big LEO spectrum plan.” Petition for Reconsideration of Globalstar LLC at 5, J.A. 831 (emphasis added). Globalstar further requested that “[i]f the Commission does not reverse its ill-advised decision, then at a minimum it must modify the plan to ensure that the goals of the order are accomplished.” Id. at 6, J.A. 832 (emphasis added). As this language in the reconsideration petition makes clear, Globalstar urged the Commission to modify the sharing regime as an alternative to outright reversal of the 2004 Order. And once Globalstar sought to overturn the 2004 Order, the Commission surely was free to modify its decision based on the evidence amassed throughout the entire rulemaking.
I confess, as a lawyer doing that ”zealous advocate“ thing I occasionally indulge myself in such rhetoric, but I try to keep it under control. I also get heartily sick of reading it. ”What,“ I ask myself. ”There is absolutely no way someone could ever disagree? We can’t just debate relative merits? The other side has to be completely without basis every single time? Please!“ Hopefully, lawyers will take note and be a bit more precise going forward.
We Need Time Limits on Recon Petitions. One of the reasons Section 405 is such a trap, and why courts have bounced back and fourth on how tightly they enforce the notice requirement, is that the FCC takes forever to resolve recon petitions. Sometimes that’s because the matters are low priority and fall between the cracks. Sometimes it’s because the Recon Petition is a political hot potato and no one wants to address it. Whatever the reason, parties face an ugly choice between filing a Recon Petition and potentially waiting years for relief, or trying to go to court and risking getting tossed on a failure to comply with the Section 405 requirement.
My feeling is that we should have a rule that after some reasonable time a Recon Petition should be ”deemed denied.“ I’d say 18 months, because some of this is very complicated. I’d also allow the Petitioner the option of waiting rather than requiring a Petitioner to file an appeal in 30 days. This balances the fact that Section 405 is designed to give the agency an opportunity to cure the problem with the Order with the need to give people some finality so they can move on with their lives. If the FCC can’t act in 18 months, the Petitioner ought to have the right to get redress through the courts if he or she wants an answer now.
It’s not just the parties that file for Recon who suffer. The deployment of 3.65 GHz equipment, for example, was held up for a year and a half because no one wanted to invest in developing equipment until the Commission removed any doubt about the rules. Getting this stuff done in a timely way matters. But we need to be realistic about what staff can accomplish and design a system robust enough to survive the inevitable political paralysis. The idea of ”deemed denied“ (as opposed to ”deemed granted“) should do this.
Conclusion: Why Care?
I’m sitting here at the America’s Future Now conference listening to Rep. Donna Edwards (D-MD) explain to a roomful of progressives that good policy doesn’t just happen and they need to be organized. And that doesn’t just mean on the ground, although Lord knows we need an organized grassroots movement that understands that the game does not end with electing people. It means, to borrow a sports metaphor, having a team with both real depth and special teams that keep track of things like this to keep advocacy effective and — where necessary — shape the debate on the details that matter.
As I said before, I utterly love this case for its mind-numbing legality and the narrow focus of the actual merits. From a movement building perspective, this is about as exciting as reminding folks to brush their teeth and eat veggies. Nor should movement folks care about this stuff.
But a real progressive movement needs people on the ground to monitor and address precisely this sort of thing. These things have impact, and can suggest where we need reform. All real policy change has a culture change component. That’s how the ”free market” meme rose to ascendancy and dominated the policy debate for the last 20 years. The lasting impact of the progressive movement depends entirely on the willingness of progressives to care about mundane crap like this as much as they care about the headlines on Iraq and health care reform.
Stay tuned . . . .