Warren Havens v. Mobex Network Services LLC
820 F.3d 80
3rd Cir.2016Background
- AMTS spectrum licenses: FCC moved from site-based (first-come) to geographic (auctioned A/B blocks) licensing; geographic licensees must avoid interfering with existing site-based stations and may not locate stations within 120 km of co-channel site-based stations. If a site-based license ends, the geographic licensee gains the spectrum.
- Plaintiffs (Warren Havens and related entities) hold 13 of 20 geographic AMTS licenses; MCLM, Mobex, and PSI held various site-based licenses that overlapped plaintiffs’ geographic areas.
- Central dispute: site-based licensees (notably MCLM) refused to disclose geographic coordinates/contour information for operating sites within plaintiffs’ geographic regions; plaintiffs claim this withheld information hindered their build-out and constituted violations of the FCA and the Sherman Act.
- Procedural history: plaintiffs filed a Second Amended Complaint asserting (Count I) injunctive relief under 47 U.S.C. § 401(b) to enforce FCC rule 47 C.F.R. § 80.385 and FCC “Cooperation Orders”; (Count II) damages under §§ 206–207 for unjust/unreasonable practices under § 201(b); (Count III) Sherman Act § 1 conspiracy claim. District Court dismissed Counts I and II under Rule 12(b)(6); after a nine‑day bench trial the court found for MCLM on Count III. Plaintiffs appealed.
- Trial evidence included alleged historic agreement among competitors to allocate A vs B block bids, alleged refusal to build/operate sites, refusal to disclose contours, and post-trial interrogatory responses showing abandoned sites; district court found no conspiracy by preponderance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 47 C.F.R. § 80.385(b)(1) or FCC "Cooperation Orders" are "orders" under 47 U.S.C. § 401(b) enabling private injunction to compel disclosure of contour data | Havens: FCC rule and Cooperation Orders impose a duty (or at least an enforceable expectation) that site-based incumbents provide sufficient information on request; § 401(b) authorizes private enforcement | MCLM: § 80.385 governs geographic licensee placement and imposes no duty on site-based licensees; Cooperation Orders are dicta/expectations, not binding orders | Court: Affirmed dismissal — neither the regulation nor FCC dicta constitute an "order" under § 401(b) because they do not impose concrete, binding obligations on site-based licensees |
| Whether plaintiffs may pursue damages under 47 U.S.C. § 207 for conduct allegedly "unjust or unreasonable" under § 201(b) absent an FCC determination | Havens: § 201(b) is broad and Global Crossing language permits private suits where FCC "could properly hold" conduct unreasonable; no prior FCC finding required | MCLM: Plaintiffs must point to an FCC determination that the specific conduct is unjust/unreasonable; otherwise § 207 action is premature | Court: Affirmed dismissal — private § 207 claims require (at minimum) an FCC determination that the particular practice is "unjust or unreasonable" (Global Crossing does not authorize free-standing private claims without FCC rule/adjudication) |
| Whether defendants conspired in violation of Sherman Act § 1 (market allocation, warehousing, refusing disclosure) | Havens: Direct and circumstantial evidence (historic conversation allocating A/B blocks, information sharing, coordinated bidding/warehousing, refusal to disclose contours) plus "plus factors" show concerted action | MCLM: No meeting of the minds; the evidence is speculative, shows opportunity but not agreement; witnesses credible denying a conspiracy | Court: Affirmed judgment for MCLM — district court’s factual finding that no conspiracy existed is not clearly erroneous; evidence insufficient to prove agreement |
| Whether post-trial FCC interrogatory responses showing abandoned sites undermined district court credibility findings | Havens: New material evidence showing MCLM hid site abandonments to perpetuate conspiracy; should have altered findings | MCLM: Responses not material or new in a way that changes the trial record; district court properly considered and rejected them | Court: Rejected plaintiff’s claim — interrogatory responses did not supply new material facts that would overcome the district court’s credibility and factual findings |
Key Cases Cited
- Mallenbaum v. Adelphia Communications Corp., 74 F.3d 465 (3d Cir. 1996) (discusses when FCC regulations may constitute "orders" under § 401(b))
- Columbia Broadcasting System v. United States, 316 U.S. 407 (U.S. 1942) (agency regulation may be an "order" if it requires concrete action)
- Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U.S. 47 (U.S. 2007) (private § 207 suit depends on whether the FCC lawfully implements § 201(b) and has properly found the conduct unreasonable)
- In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir. 1999) (agreement is hallmark of § 1 claim; use of plus factors in circumstantial analysis)
- Berg Chilling Sys., Inc. v. Hull Corp., 369 F.3d 745 (3d Cir. 2004) (standard for clearly erroneous review of factual findings)
- In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir. 2004) (sharing confidential information can be a plus factor suggesting conspiracy)