August 17, 2019

Tenth Circuit: FCC’s Actions Not Abuse of Discretion

The Tenth Circuit Court of Appeals published its opinion in Council Tree Investors, Inc. v. Federal Communications Commission on Friday, January 3, 2013.

Petitioners Council Tree Investors, Inc., a communications investment firm, and Bethel Native Corporation, a small wireless carrier (collectively, “Council Tree”), sought review of two orders issued by the Federal Communications Commission (“FCC” or “the Commission”) — the D Block Waiver Order (the “Waiver Order”) issued in 2007 and a Waiver Reconsideration Order issued in 2012.  Council Tree specifically requested nullification of Auction 73, the FCC’s auction of the 700-MHz wireless spectrum conducted in early 2008 pursuant to the Waiver Order.

Council Tree filed a Petition for Reconsideration of the Waiver Order (the “Waiver Reconsideration Petition”) with the FCC in 2007, as well as a Supplement to the Waiver Reconsideration Petition (the “Supplement”) in 2011. In its Waiver Reconsideration Order, the FCC dismissed the Waiver Reconsideration Petition as moot and dismissed the Supplement as untimely.

The Tenth Circuit held the FCC’s actions were not arbitrary, capricious, or an abuse of discretion and dismissed Council Tree’s petition, as it pertained to the Waiver Order, and denied its petition, as it related to the Waiver Reconsideration Order.

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