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U.S. Airwaves, Inc. v. FCC

FCC acted reasonably and within statutory authority by making secondarily retroactive changes to broadband PCS C-block auction rules in light of changes in wireless communications marketplace and dramatic and unexpected business reversals faced by C-block licensees.

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The full case caption appears at the end of this opinion.

Ginsburg, Circuit Judge: Before us are petitions for review of two rulemaking orders of the Federal Communications Commission. The orders changed the financial terms applicable to companies that purchased licenses to provide personal communications services (PCS) at an auction in which bidding was limited to small businesses and entrepreneurs. See Amendment of the Commission’s Rules Regarding Installment Payment Financing for [PCS] Licensees, Second Report and Order and Further Notice of Proposed Rule Making, 12 F.C.C.R. 16,436 (1997) (Restructuring Order); and Amendment of the Commission’s Rules Regarding Installment Payment Financing for [PCS] Licensees, Order on Reconsideration of the Second Report and Order, 13 F.C.C.R. 8345 (1998) (Reconsideration Order). Petitioners U.S. Airwaves, Inc. (hereinafter Airwaves) and Sprint Spectrum L.P. characterize the rules as a benefit given retroactively to incumbent licensees, to the detriment of losing bidders in the spectrum auction and of competitors in the PCS industry, and therefore as unauthorized, unreasonable, and arbitrary and capricious. Intervenor NextWave Inc., a successful bidder in the original auction, supports the new rules; it also maintains that neither petitioner has standing to challenge them.

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