Last chance for opponents to seek overturn of rules

The FCC order ending the ultra-wideband rulemaking appeared in the Federal Register on October 12, and takes effect November 12. After 12 long years of lawyerly and technical bickering, the proceeding is finally over.

Or maybe not. The same parties who have already filed four petitions for reconsideration – that is why we’ve been at it for 12 years – have the right to file yet again. But if they do, they are unlikely to prevail. For one thing, the FCC’s last order showed off the agency’s defensive drafting skills to good effect, with its lawyers carefully closing off each legal argument through which opponents might seek reconsideration. For another, the FCC’s procedural rules disfavor recidivist reconsideration petitioners. In cases where an earlier petition for reconsideration failed, as happened here, “a second petition for reconsideration may be dismissed by the staff as repetitious.” This rarely stops a determined serial petitioner – read about an extreme case here – but it may be enough to deter the cell-phone and satellite interests that have kept the proceeding going for so long.

Disgruntled ultra-wideband opponents have another option: an appeal to the federal courts. That would take about two years and, if the court decides the FCC should take another look, an additional year or two past that.

But the opponents are probably safe in spending their lawyers’ fees on something else instead. Their concern all along has been the supposed threat of interference from hundreds of millions of ultra-wideband consumer devices polluting the spectrum. Those have failed to materialize, for the reasons we explained here.   Unless ultra-wideband device sales pick up dramatically, opponents won’t have much to worry about.