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Council Tree Investors, Inc. v. Federal Communications Commission

United States Court of Appeals, Third Circuit

July 13, 2017

COUNCIL TREE INVESTORS, INC., Petitioner
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents

          Argued March 7, 2017

         On Petition for Review of Orders of the Federal Communications Commission (FCC 15-80 & DA 15-1183)

          Kevin Russell [Argued] Goldstein & Russell Attorney for Petitioner

          Jacob M. Lewis Clifford G. Pash, Jr. [Argued] Federal Communications Commission Attorneys for Respondent Federal Communications Commission

          Robert B. Nicholson Robert J. Wiggers United States Department of Justice, Appellate Section Attorneys for Respondent United States of America

          Carl W. Northrop Telecommunications Law Professionals Attorney for Amicus Petitioners

          Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

          OPINION

          HARDIMAN, Circuit Judge.

         This case involves the regulation of electromagnetic spectrum by the Federal Communications Commission. In 1993, Congress amended the Communications Act of 1934, 47 U.S.C. §§ 151-622, to allow the FCC to grant spectrum licenses through a system of competitive bidding. 47 U.S.C. § 309(j)(1), (3). The Act requires the FCC to pursue certain objectives required by statute, including promoting economic opportunity and

competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.

47 U.S.C. § 309(j)(3)(B). In FCC parlance, these groups are known as designated entities (DEs). 47 C.F.R. § 1.2110(a). At this time, the FCC's "principal means of fulfilling the statutory objectives for DEs" is to confer bidding credits upon small and rural businesses that participate in FCC auctions. Updating Competitive Bidding Rules, 80 Fed. Reg. 56764, 56766 (September 18, 2015). Bidding credits operate as a discount on the spectrum DEs purchase, allowing them sometimes to outbid companies that make higher bids. Council Tree Comm'ns, Inc. v. FCC, 619 F.3d 235, 239 (3d Cir. 2010) (Council Tree III).[1]

         The question presented here is whether the FCC acted legally when it limited the bidding credits available to DEs. We hold that it did.

         I

         In 2014, the FCC began a rulemaking proceeding in advance of a special 2016-17 Incentive Auction of "scarce low-band radio spectrum." FCC Br. 13. According to its Notice of Proposed Rulemaking, the FCC thought it appropriate to

revisit the Commission's small business eligibility rules and evaluate whether to rebalance our competing goals in order to provide small businesses additional opportunities to gain access to new sources of capital necessary for participation in the provision of spectrum-based services in today's ...

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