Better late than never, FCC tosses five-year-old petitions for reconsideration of 700 MHz rules.

700 MHz licensees who have been holding their breath and turning blue while waiting for the FCC to rule on petitions for reconsideration they filed more than five years ago may now gulp some air.   The FCC has taken a quick break from its usual tasks of unleashing broadband and unlocking spectrum to act on that lingering bit of unfinished business.  

In August, 2007, the FCC released its 700 MHz Second Report and Order (2nd R&O) establishing the critical service rules that govern licensing and operations in the 700 MHz band.   As could be expected, the 2nd R&O caused dismay to some industry players, leading ten companies to file petitions for reconsideration addressing, by our count, more than 20 different aspects of the 2nd R&O. The petitions, all filed in September, 2007, languished while the Commission conducted auctions, ultimately awarding 700 MHz licenses worth billions of dollars. In fact, so much time has gone by that the first build-out deadline for those licenses (i.e., June 13, 2013) is fast approaching. The FCC must have decided that it should probably rule on the petitions that had challenged many of the build-out parameters from the get-go.

For example, for many 700 MHz licenses, the build-out rules require that 35% of a market’s geography be covered at the first benchmark. This contrasts sharply with the usual population-based coverage requirements that apply in most other services. The distinction is critical for carriers who find themselves required to provide service to geographic areas where there are no people, often at greater expense than would be necessary to serve areas where people are actually clustered. Many 700 MHz licensees now feverishly building out their markets could have used relief from this requirement, as was requested by a number of the petitioners.

But it was not to be.

The FCC denied the petitions addressing the geographical build-out requirement, as, indeed, it denied or dismissed all of the petitions. In so doing, the Commission:

  • retained geographic build-out benchmarks and rejected exclusions for water areas, Tribal lands, and low population density areas;
  • refused to alter the population-based metric for large REAG licensees;
  • rejected changes to the keep-what-you-use provisions of the rules;
  • tossed out challenges to its potential penalties for licensees who fail to meet build-out terms;
  • trashed a request to abolish the interim report requirement (somewhat belatedly, since the interim reports had to be filed a couple of years ago); and
  • cursorily kissed off a handful of challenges to the auction process such as anonymous bidding and spectrum aggregation limits. 

It was in no mood to mess around.

Many of the auction-related petitions had already become moot, having been long overtaken by events.   In this regard, a ghost from the past appeared in the pleadings: Frontline Wireless, LLC. Frontline, you may recall, was the start-up in which former FCC Chairman Reed Hundt was a principal. At one point it appeared that the Commission was bending over backwards  to ensure that the former Chairman’s company would have a good shot in the auction.   Frontline fell by the wayside, however, when it failed to raise the minimum funds necessary to bid on the D block. 

All the arguments – raised both by Frontline and by other petitioners – about when and how to auction the D block became moot when the D block went unsold and Congress decided instead to award the block to public safety. This simplified the Commission’s decision-making process and proved, once again, that procrastination is not a bad policy for administrative agencies, or, indeed, in life. If you just wait long enough, all problems become moot. Or you die.