AERONAUTICAL RADIO, INC. and Air Transport Association of
America, Appellants,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
TRW Inc., American Mobile Satellite Corporation, AMSC
Subsidiary Corporation and Omninet, Inc., Intervenors.
AERONAUTICAL RADIO, INC., and Air Transport Association of
America, Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
TRW Inc., American Mobile Satellite Corporation, AMSC
Subsidiary Corporation and Omninet, Inc., Intervenors.
OMNINET, INC., Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
TRW Inc., Aeronautical Radio, Inc., Air Transport
Association of America, American Mobile Satellite
Corporation and AMSC Subsidiary
Corporation, Intervenors.
Nos. 92-1046, 92-1047 and 92-1049.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 25, 1992.
Decided Jan. 26, 1993.
[
Appeal From an Order of the Federal Communications Commission (No. 91-427).
Robert J. Butler, with whom John L. Bartlett, Washington, DC, for Aeronautical Radio, Inc., and Donald J. Evans, Washington, DC, for Omninet, Inc., were on the joint brief, for Aeronautical Radio, Inc., appellant in 92-1046, petitioner in 92-1047 and intervenor in 92-1049, for Air Transport Ass'n of America, appellant in 92-1046, petitioner in 92-1047 and intervenor in 92-1049, and Omninet, Inc., petitioner in 92-1049 and intervenor in 92-1046 and 92-1047.
Donald J. Evans, Washington, DC, was on the brief, for Omninet, Inc.
Gregory M. Christopher, Counsel, Federal Communications Com'n, with whom Robert L. Pettit, Gen. Counsel and John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., and Catherine G. O'Sullivan and Robert J. Wiggers, Attorneys, Dept. of Justice, Washington, DC, were on the brief, for appellee/respondents in 92-1046, 92-1047 and 92-1049.
Hadrian R. Katz, with whom Lon C. Levin, Gary M. Epstein, James F. Rogers, Clifford M. Harrington and Bruce D. Jacobs, Washington, DC, were on the brief, for American Mobile Satellite Corp. and AMSC Subsidiary Corp., intervenors in 92-1046, 92-1047 and 92-1049.
Norman P. Leventhal and Raul R. Rodriguez, Washington, DC, were on the brief for TRW Inc., intervenor in 92-1046, 92-1047 and 92-1049.
James E. Landry, Washington, DC, entered an appearance for Air Transport Ass'n of America.
Before: EDWARDS, RUTH BADER GINSBURG and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
Concurring opinion filed by Circuit Judge RUTH BADER GINSBURG.
HARRY T. EDWARDS, Circuit Judge:
In 1985, the Federal Communications Commission ("Commission" or "FCC") proposed to allocate spectrum and establish licensing procedures for a new domestic mobile communications system known as mobile satellite service ("MSS"). The Commission subsequently reallocated a portion of spectrum in the upper L-Band for MSS purposes, declared that the MSS license would be granted to a "consortium" consisting of all willing, qualified applicants, and ruled that any otherwise qualified applicant would be required to make a $5 million cash contribution to the consortium. Various applicants then challenged the Commission's rules regarding the spectrum allocation, the mandatory consortium and the $5 million cash contribution. In 1991, this court vacated the consortium and cash contribution rules, and remanded the case with a direction to the Commission to determine whether it has statutory authority to impose a consortium in lieu of holding comparative hearings. See Aeronautical Radio, Inc. v. FCC,
On remand, the Commission addressed the issues raised by the court, as well as others advanced by the parties. First, the Commission purported to find that, in "appropriate circumstances," it possessed the statutory authority to adopt a licensing rule requiring service by a consortium of willing and eligible applicants; the Commission thus reimposed the consortium requirement and recognized American Mobile Satellite Corporation ("AMSC") as the licensee. Second, the Commission refused to reinstate the MSS license application of Omninet, Inc. ("Omninet"), which had withdrawn its application prior to the ARINC decision. Finally, the Commission rejected the allegation that restrictions on ex parte contacts had been violated when the FCC communicated with AMSC over international frequency coordination proceedings, at which the United States sought to ensure that the MSS systems of other nations would not interfere with the operation of this country's domestic MSS system.
[
AMSC has intervened in support of the Commission. Intervening in support of Omninet and ARINC is TRW Inc. ("TRW"), which is competing against AMSC to operate a MSS system in a frequency band that AMSC hopes to use for expansion.
We dismiss the petitions for review of the consortium rule, because ARINC, Omninet and intervenor TRW have no standing to challenge that rule. Further, although Omninet has standing to challenge the Commission's refusal to reinstate its application, we conclude that the Commission's action did not constitute an abuse of discretion. Finally, we hold that ARINC and Omninet are barred from challenging the alleged violations of the ex parte restrictions.
I. BACKGROUND
The pre-remand history of this case is set forth at length in our earlier decision, see ARINC,
In January 1987, the Commission decided to grant the MSS license to a consortium of all qualified applicants, rather than holding comparative hearings,3 which is the usual method, prescribed by statute, for selecting a licensee.4 The Commission required each applicant seeking consortium membership to contribute $5 million in cash to an escrow account to demonstrate its financial ability to support the MSS system.5 On June 12, 1987, Omninet withdrew its application without explanation and ceased further participation in the licensing proceedings.6 The Commission officially dismissed Omninet's application without prejudice on June 19, 1987.7 Subsequently, the Commission [
In the interim, in April 1987, ARINC filed an application with the Commission to provide AMSS(R) in a portion of the spectrum designated for co-primary use by both MSS and AMSS(R). The Commission dismissed ARINC's application on September 10, 1987, because it failed to conform with the Commission's spectrum allocation decisions.9
ARINC and the dismissed MSS applicants, excluding Omninet (which was no longer party to the FCC proceeding), petitioned this court for review of the Commission's dismissal of their respective applications. The court upheld ARINC's dismissal. See ARINC,
On remand, the Commission solicited comments from parties "directly affected" by the ARINC decision, including AMSC and the three reinstated MSS applicants.10 The Commission also accepted comments from other parties, including ARINC. ARINC requested that the Commission reopen the proceedings to new MSS license applicants and hold comparative hearings to select the licensee, rather than impose a consortium. ARINC further indicated that it might file a new AMSS(R) application that properly conformed to the Commission's allocation of spectrum.11 Despite these gestures, however, ARINC never filed another license application either for MSS or AMSS(R). During the second round of comments, ARINC also contested the Commission's decision to include AMSC in the international frequency coordination proceedings, to the exclusion of the reinstated license applicants and other interested parties. The Commission had refused to reveal the substance of its discussions with AMSC at these proceedings, and ARINC alleged that the discussions violated the Administrative Procedure Act ("APA") and Commission prohibitions on ex parte communications12 directed to the merits of a pending license application.
Omninet did not submit comments on remand, but did request that the Commission reinstate its application for the MSS license, claiming that reinstatement was required by the ARINC decision and by "the public interest."13 Omninet alleged that it had been "forced" to withdraw its application for the MSS license due to the Commission's unlawful imposition of the cash contribution requirement.
On August 2, 1991, and January 6, 1992, the Commission issued two decisions in which it responded to comments and to the ARINC decision.14 First, the Commission [
Second, the Commission refused to reinstate Omninet's application. The Commission pointed out that Omninet had "voluntarily" removed itself from the proceeding over four years beforehand, and had not participated in the first appeal to this court.16 The FCC thus found no adequate basis upon which to reinstate the Omninet application.
Finally, the Commission rejected ARINC's request to reopen the MSS licensing proceeding to new applicants. In denying ARINC's request, the Commission noted that the ARINC decision had not required that the proceeding be reopened to allow new MSS applicants and that reopening the proceeding would unduly delay decision on a licensee.17 The Commission also rejected ARINC's contention that AMSC's participation in the international frequency coordination meetings had violated the ex parte rules.18
Several parties sought review of the Commission's rulemaking and licensing decisions, including ARINC, Omninet, Global and Globesat. Global and Globesat subsequently negotiated settlements with AMSC and are no longer parties to this proceeding. ARINC and Omninet, which are still before the court, mount several challenges to the Commission's decisions. First, both parties contend that the Commission failed to identify any statutory authority for requiring the MSS license applicants to form a consortium. Intervenor TRW joins ARINC and Omninet in this contention. Second, Omninet charges that the Commission abused its discretion in refusing to reinstate Omninet's application for the MSS license. Finally, ARINC, joined by Omninet, again alleges that AMSC's participation in the international proceedings violated the prohibition on ex parte contacts.
II. ANALYSIS
A. The Challenge to the Consortium Requirement
ARINC's and Omninet's challenges to the consortium requirement must be dismissed, because neither party has standing to pursue this claim.19
1. ARINC
ARINC seeks to challenge the consortium rule as a "disappointed applicant" for a license to provide AMSS(R) in the frequency band that AMSC is designated to [
ARINC is further barred from seeking review of the consortium rule as a "potential applicant," interested in submitting a new AMSS(R) application that conforms to the Commission's spectrum allocation rules. As this court made clear only last year, a purported applicant for a license "must file a timely application with the FCC before [it] may challenge an adverse Commission order in this court." CPHB,
Nor can ARINC assert standing to challenge the consortium rule as a "competitor" of AMSC. See Radiofone, Inc. v. FCC,
At bottom, it is clear that ARINC has no standing to challenge the consortium rule, and it is precluded from relitigating the spectrum allocation.
2. Omninet
Omninet seeks review of both the Commission's consortium requirement and the Commission's refusal to reinstate its MSS license application. We conclude that Omninet, too, is barred from contesting the consortium rule; we further hold that the Commission did not abuse its discretion in [
Omninet bases its standing argument on our decision in ARINC, asserting that it stands in the same posture as did the dismissed license applicants in the earlier proceeding. Specifically, Omninet now alleges that it did not "voluntarily" dismiss its own application, as the Commission maintains.25 Rather, Omninet contends, it was forced to withdraw its application on June 12, 1987, due to the Commission's unlawful cash contribution requirement. Omninet argues that this "constructive dismissal" amounts to the same injury in fact suffered by the MSS applicants in ARINC, and that the injury, like that suffered by the ARINC applicants, is fairly traceable to the consortium requirement.
Omninet's assertion that it withdrew because of the cash contribution rule is belied by the facts. Indeed, not a shred of evidence in the record supports this allegation, and there is clear evidence to the contrary. On April 13, 1987, a scant two months prior to its purportedly forced withdrawal, Omninet and several other applicants filed with the Commission a document vigorously supporting the Commission's consortium and cash contribution rules.26 In that document, Omninet asserted that "a mandatory consortium structure for the new MSS service does not deprive applicants of any hearing rights," and further stated that "the Commission's [cash contribution] requirement has a rational basis in fact and is therefore not arbitrary and capricious."27 Omninet's allegation of compulsion is further undone by the fact that Omninet withdrew from the licensing proceeding after the Commission modified the cash contribution requirement and provided applicants the less onerous option of submitting letters of credit or performance bonds in lieu of a cash deposit.28
We are persuaded from this uncontradicted evidence that Omninet was not "forced" to withdraw its application because of the Commission's consortium and cash contribution rules. Rather, Omninet withdrew voluntarily, and the FCC was not obliged (nor did it have any good reason) to reinstate Omninet's application on remand. Because it was not a bona fide applicant before the Commission on remand, we find that Omninet fails to meet the injury-in-fact and causation requirements sufficient to establish Article III standing to contest the consortium rule.
Moreover, Omninet's claim that it was "forced" to withdraw comes too late in this proceeding. We have long disapproved of parties foregoing an immediate appeal of administrative action while others pursue review: "[A] person should not be entitled to sit back and wait until all interested persons who [appeal] have been heard, and then complain that he has not been properly treated." Spanish Int'l Broadcasting Co. v. FCC,
[
Omninet may, however, challenge as an abuse of discretion the Commission's refusal to reinstate its MSS application to the licensing proceeding. See 5 U.S.C. § 706(2)(A) (1988); City of Angels Broadcasting, Inc. v. FCC,
3. Intervenor TRW
Finally, we dismiss TRW, which has intervened on behalf of ARINC and Omninet in the interest of challenging the consortium requirement. The general rule is that "[i]ntervention presupposes the pendency of an action in a court of competent jurisdiction...." CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1917, at 457 (2d ed. 1986) (footnote omitted).30 This rule is routinely applied to dismiss an intervenor where the court lacks jurisdiction over the original action. See, e.g., Simmons,
Nor is there an "independent jurisdictional basis" for TRW's challenge to the consortium rule, which might otherwise allow TRW to continue the action. Simmons,
Moreover, "we know of no authority recognizing that the mere potential precedential effect of an agency action affords a bystander to that action a basis for complaint." Shipbuilders Council of America v. United States,
Because TRW cannot meet the Article III standing requirements, we dismiss it from this suit. Cf. Simmons,
4. Status of the Challenges to the Consortium Requirement
Because ARINC, Omninet and TRW are barred from challenging the consortium rule, we do not reach the merits of that challenge. We emphasize, however, that nothing in our decision today should be read to suggest that the court accepts the Commission's position that it possesses statutory authority to impose the formation of a mandatory consortium of license applicants in lieu of holding comparative hearings. In ARINC, we doubted the Commission's authority to bypass comparative hearings in these circumstances. See ARINC,
B. The Alleged Violation of the Ex Parte Restrictions
Finally, we dismiss the claim made by ARINC and Omninet that AMSC's participation in the international frequency coordination meetings violated the restrictions on ex parte contacts imposed by the APA and the Commission's rules. See 5 U.S.C. § 557(d); 47 C.F.R. §§ 1.1200-.1216.34 ARINC and Omninet argue that the prohibitions on ex parte contacts were violated as a result of AMSC's participation in numerous meetings with foreign countries, during which AMSC apparently discussed with Commission officials certain technical aspects of its proposed MSS system.35 ARINC and Omninet point out that during the period in which AMSC participated in the international proceedings, the MSS applicants ordered by the court to be reinstated to the licensing proceeding--Global, Globesat and MSSI--were still before [
The Commission responds to these charges by asserting that its communications with AMSC did not involve the merits of AMSC's application, and that, in any event, the communications were authorized by the Commission's rules38 and fell within the foreign affairs exception to the ex parte restrictions.39 We need not reach the merits of the claims relating to the ex parte rules because the only parties suffering any potential injury attributable to the alleged violations--Global, Globesat and MSSI--are not before the court. Neither ARINC nor Omninet had viable applications pending before the Commission at the time of the alleged ex parte contacts. Therefore, we can discern no basis whatever upon which either ARINC (whose application was properly dismissed by the Commission) or Omninet (whose application was voluntarily withdrawn) may now seek to disqualify AMSC because of any alleged ex parte contacts. This brings us back to ground we already have covered: the petitions of ARINC and Omninet must fail for lack of standing and a failure to exhaust administrative remedies. See note 19 supra. We will not "second-guess[ ] agency decisions at the behest of litigants who have never been in a position to benefit from the decision they seek from us." CPHB,
III. CONCLUSION
For the foregoing reasons, we conclude that no party is properly before this court to seek review of the consortium rule, and we therefore dismiss the petitions for review filed by ARINC and Omninet, and we further dismiss TRW. In addition, we affirm the Commission's refusal to reinstate Omninet's MSS license application. Lastly, we hold that ARINC and Omninet are precluded from challenging the lawfulness of any ex parte contacts that may have occurred during AMSC's participation in the international frequency coordination proceedings.
So Ordered.
RUTH BADER GINSBURG, Circuit Judge, concurring:
This clear case does not appear to me to present any issue of constitutional dimension. Based on the procedural lapses described in Judge Edwards' opinion, the complainants are disqualified from pursuing court review of the Commission's consortium rule. ARINC did not file a qualifying application within the cutoff date. Omninet removed itself from the fray in 1987 and the Commission was not obliged to let it reenter four years later. TRW may not call upon us to supply "judicial advice" that will aid it in another proceeding. The matter of Article III "standing" limits on judicial power, in my judgment, should form no part of our analysis. See generally Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH.L.REV. 163 (1992). While I disassociate myself from the statements concerning standing, in all [
Notes
ARINC was joined by the Air Transport Association of America, an unincorporated trade association representing the interests of air carriers, in all of its challenges, both before this court and in the proceedings before the Commission on remand. We refer only to ARINC in the opinion
See Rules To Allocate Spectrum for, To Establish Rules and Policies Pertaining to, the Use of Radio Frequencies in Land Mobile Satellite Service for Various Common Carrier Services, 50 Fed.Reg. 8149 (1985) ("Notice of Proposed Rulemaking ")
See Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for, and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, 2 F.C.C.Rcd 485, 486 (Jan. 26, 1987) ("Consortium Order ")
See 47 U.S.C. § 309(e) (1988); Ashbacker Radio Corp. v. FCC,
See Consortium Order, 2 F.C.C.Rcd at 488
See Letter from Allen Salmasi, President, Omninet Corporation, to William J. Tricarico, Secretary, Federal Communications Commission (June 12, 1987), reprinted in Joint Appendix ("J.A.") 226
See Letter from James R. Keegan, Chief, Domestic Facilities Division, Common Carrier Bureau, to W. Theodore Pierson, Jr., Counsel, Omninet Corporation (June 19, 1987), reprinted in J.A. 227 ("Dismissal Letter")
See Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, 4 F.C.C.Rcd 6041 (Aug. 4, 1989) ("Licensing Order ")
See Aeronautical Radio, Inc., 2 F.C.C.Rcd 5990, 5991 (Sept. 10, 1987)
Public Notice, Report No. DS-1072 (Apr. 4, 1991), reprinted in J.A. 229
See Comments of Aeronautical Radio, Inc. and the Air Transport Association of America at 19, Gen. Docket No. 84-1234 (Apr. 11, 1991), reprinted in J.A. 264 ("ARINC Comments")
See 5 U.S.C. § 557(d) (1988); 47 C.F.R. §§ 1.1200-.1216 (1991)
Request for Permission to Resubmit Applications at 2 (Apr. 15, 1991), reprinted in J.A. 316
See Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the [Use of Radio Frequencies in a Land] Mobile Satellite Service for the Provision of Various Common Carrier Services, 6 F.C.C.Rcd 4900 (Aug. 2, 1991) ("Tentative Decision "); Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, 7 F.C.C.Rcd 266 (Jan. 6, 1992) ("Final Decision ")
See Final Decision, 7 F.C.C.Rcd at 267-71
Id. at 274
See Tentative Decision, 6 F.C.C.Rcd at 4914
See Final Decision, 7 F.C.C.Rcd at 273
To establish standing, a litigant must show (1) an injury-in-fact that is both (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, --- U.S. ----, ----,
In dismissing ARINC's and Omninet's challenges, we have relied in part on our decision in Coalition for the Preservation of Hispanic Broadcasting v. FCC,
See Licensing Order, 4 F.C.C.Rcd at 6048
ARINC Comments at 19
ARINC alleges that it provides AMSS(R) for aircraft flights between the United States and a foreign destination, and between two foreign destinations. Since AMSC is authorized to provide domestic MSS up to 200 miles beyond the United States coastline, AMSC and ARINC have overlapping service areas. See Licensing Order, 4 F.C.C.Rcd at 6060
Reply Brief for Appellants/Petitioners Aeronautical Radio, Inc., and Air Transport Association of America at 5
See Notice of Proposed Rulemaking, 50 Fed.Reg. at 8156
Tenative Decision, 6 F.C.C.Rcd at 4914
See Joint Opposition to Global Land Mobile Satellite, Inc.'s Petition for Reconsideration, Gen. Docket No. 84-1234 (Apr. 13, 1987) ("Joint Opposition to Global"). This document was filed with the court by intervenor AMSC, and was not part of the record initially submitted. We take judicial notice of the document. See, e.g., Conecuh-Monroe Community Action Agency v. Bowen,
Joint Opposition to Global at 11, 18 (capitalization modified)
See Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for, and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Common Carrier Services, 2 F.C.C.Rcd 2417, 2417 (Apr. 6, 1987)
Brief of Omninet Corporation at 4 (emphasis omitted) (referring to Dismissal Letter, supra note 7)
Under the Hobbs Act, a party seeking review of a Commission order pursuant to 47 U.S.C. § 402(a) (1988) must file a petition for review within 60 days after entry of the order. See 28 U.S.C. § 2344 (1988); Simmons v. ICC,
Even if we dismissed the ARINC and Omninet petitions solely for failure to exhaust administrative remedies, see note 19 supra, TRW still would lack standing as an intervenor absent some independent jurisdictional basis
AMSC is currently licensed only to use the 1646.5-1660.5 MHz band and the 1545-1559 MHz band. See Licensing Order, 4 F.C.C.Rcd at 6048
Intervenor's Brief in Support of Petitioners at 5
Section 557(d) prohibits ex parte communications "relevant to the merits of the proceeding" between an "interested person" and an agency decisionmaker. 5 U.S.C. § 557(d)(1)(A), (B). The Commission's rules impose similar requirements. See 47 C.F.R. §§ 1.1202, 1.1208
See Tentative Decision, 6 F.C.C.Rcd at 4909 (noting that AMSC had participated in six international coordination meetings through July 1991, with further meetings scheduled); Robert J. Butler, 6 F.C.C.Rcd 5414, 5418 (Sept. 17, 1991) (discussing meetings with the Soviet Union in which AMSC participated). The Commission defends AMSC's participation as critical in making technical and economic tradeoffs with other countries. See Tentative Decision, 6 F.C.C.Rcd at 4908
Joint Brief for Petitioners at 33
Id. at 38
See 47 C.F.R. § 1.1204(b)(1) (exempting ex parte communications that are authorized by the Commission's rules); 47 C.F.R. § 25.111(b) (1991) (requiring applicants to provide the Commission with all information it requires for international coordination of frequency assignments)
See 5 U.S.C. § 554(a)(4) (1988); 47 C.F.R. § 1.1204(b)(4)