The FCC finds FiberTower’s arguments unpersuasive because (according to the FCC) they’ve already been addressed.

FiberTower loses again . . . again. The FCC has yet again rejected FiberTower’s ongoing efforts to reclaim 698 licenses previously held by the company in the 24 GHz and 39 GHz auctioned fixed microwave bands.

We’ve documented FiberTower’s predicament in the past, so we won’t rehash it in full detail, but here’s a quick recap: the FCC canceled FiberTower’s licenses for failure to construct sufficient facilities pursuant to the FCC’s license renewal standards, and the spectrum corresponding to those license will likely not be put to good use in the foreseeable future. (Some of us have argued elsewhere that the problem is not with the licensee, or even the renewal standards, but with the basic concept of auctioning spectrum for communications between fixed points.)

Unfortunately, not much has changed after the FCC’s latest action: an Order on Reconsideration rejecting FiberTower’s petition for reconsideration of the FCC’s prior decision rejecting FiberTower’s application for review.

In it most recent reconsideration petition, FiberTower argued that the FCC had gotten its decision wrong and attempted to present (what it thought was) new information in support of that argument. FiberTower even submitted several supporting “supplements” after filing its petition. The FCC was not persuaded, denying the petition both on the merits and for various procedural shortcomings.

What procedural shortcomings, you ask?

Well, when the FCC has already denied an application for review, its rules prohibit filing a petition for reconsideration unless one of the following is true:

  1. the petition relies on facts or arguments which relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters to the FCC; or
  2. the petition relies on facts or arguments unknown to petitioner until after his last opportunity to present them to the FCC, facts and arguments of which the petitioner could not through the exercise of ordinary diligence have learned prior to such opportunity.

In other words, if you already argued a point, or you could have argued a point but didn’t, then you can’t come back and try to argue that point later.

If the FCC were 100% confident in its view that FiberTower’s petition fell procedurally short, the FCC could simply have said so and gone no farther. But the FCC tends to take a belt-and-suspenders approach in such situations, and it did so here. The Order on Reconsideration goes through a detailed analysis and dismissal, on the merits, of FiberTower’s arguments, perhaps in anticipation that the justification may be needed should FiberTower take its appeal into the courts. Whatever the case may be, the FCC took no pity on FiberTower, and once again denied the company’s attempt to reclaim the lost licenses.

Stay tuned for another potential rematch.