Council Tree Investors, Inc. v. Federal Communications Commission
739 F.3d 544
10th Cir.2014Background
- Council Tree Investors and Bethel Native Corp challenge FCC Waiver Order (Nov. 2007) waiving the Fifty-Percent Rule for the D Block in Auction 73.
- Waiver Order stated the waiver applied only to D Block arrangements and not to other licenses.
- 2006 Rules added Ten-Year Rule and Fifty-Percent Rule; those rules were vacated by the Third Circuit in Council Tree III (2010).
- Auction 73 occurred in early 2008 under the 2006 Rules and the Waiver Order.
- Council Tree filed Waiver Reconsideration Petition (Dec. 2007) and a May 2011 Supplement; FCC dismissed the Petition as moot after Council Tree III and dismissed the Supplement as untimely (Feb. 2012 Waiver Reconsideration Order).
- Petition for review filed March 29, 2012; Third Circuit matter preserved jurisdictional questions regarding the Waiver Order and related rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review application of 2006 Rules to Auction 73 | Council Tree seeks review of Auction 73 under 2006 Rules. | FCC's Waiver Order did not reopen general application of 2006 Rules to all blocks. | Lacks jurisdiction; Petition for review of Waiver Order dismissed for this issue. |
| Validity of FCC's mootness dismissal of Waiver Reconsideration Petition | Waiver Reconsideration petition should not be moot despite Third Circuit vacatur. | Once vacatur occurred, relief sought was unavailable; dismissal proper. | Not arbitrary or capricious; mootness proper. |
| Validity of FCC's untimeliness ruling on the Supplement | Supplement filed with adequate grounds; timely consideration warranted. | Supplement untimely under 47 C.F.R. § 1.106(f) and discretionary waiver denied. | Supplement untimely; FCC did not err. |
Key Cases Cited
- ICC v. Locomotive Engineers, 482 U.S. 270 (1987) (reconsideration timing and finality influence reviewability)
- HRI, Inc. v. EPA (HRI I), 198 F.3d 1224 (10th Cir. 2000) (separateness/novelty/finality test for reconsideration decisions)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (U.S. Supreme Court 2009) (APA review standards for agency action; deference to agency)