Appeal of an Order of the Federal Communications Commission
Before: Sentelle, Henderson and Garland, Circuit
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
California Metro Mobile Communications, Inc. (CMMC) appeals the Federal Communications Commission's (Commission's) order denying review of the decision of its Public Safety and Private Wireless Division to modify CMMC's trunked radio station by removing one frequency. CMMC first contends that the Commission lacks authority under the Communications Act of 1934 (Communications Act or Act), 47 U.S.C. §§ 151 et seq., and the implementing regulations to modify CMMC's license. Second, CMMC maintains that, even if the Commission has authority to modify its license, the decision to do so violates the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). We reject CMMC's claims as explained below and, accordingly, affirm the Commission's order.
CMMC, a provider of mobile radio equipment and two-way radio service, applied to the Commission for a license to operate a trunked*fn1 radio station on Very High Frequency (VHF) channels in the Industrial/Business radio pool of the Private Land Mobile Radio (PLMR) services in Twin Creeks, California. The Personal Communications Industry Association (PCIA), an organization certified by the FCC to coordinate frequencies, submitted CMMC's application to the Commission's Licensing and Technical Analysis Branch (Branch) of the Public Safety and Private Wireless Division (Division) of the Wireless Telecommunications Bureau and recommended appropriate frequencies for operation of CMMC's proposed station. On September 8, 1999 the Branch granted CMMC a license to operate a trunked radio station under the call sign WPOY920 on five channels, including frequency 153.6125 MHz.
On September 19, 2000 Pacific Gas & Electric (PG&E) petitioned*fn2 the Commission to revoke CMMC's license because, it claimed, CMMC's operation on frequency 153.6125 MHz potentially interfered with the operations of its earlierlicensed stations (KJX775, WNFM314 and WPPX407) on frequency 153.6050 MHz. PG&E submitted an interference study done by the Industrial Telecommunications Association (ITA) which demonstrated that CMMC's interference signal contour overlapped PG&E's service area signal contours. As the stations' signals overlapped, PG&E contended that the Commission improperly granted CMMC's application because PG&E had a prior and exclusive right to operate on frequency 153.6050 MHz and CMMC had failed to comply with Commission rules by obtaining PG&E's consent to operate on frequency 153.6125 MHz. In this regard, PG&E asserted that, given the ''critical nature of [its] operation,'' ''in no way'' would it have consented to CMMC's operation on frequency 153.6125 MHz. Joint Appendix (JA) 1.
Responding to PG&E's petition, the Branch sent a letter to the PCIA on February 15, 2001 asking it to demonstrate that the frequency coordination it performed for CMMC's application complied with Commission rules and, if it in fact failed to do so, to submit a proposal to remedy the defect. On March 12, 2001 the PCIA responded, stating that the frequency coordination it did for CMMC's application had in fact failed to take into account licenses held by PG&E and proposing that the Commission ''correct'' CMMC's license ''by removing frequency 153.6125.'' JA 9.
On August 14, 2001 the Division denied PG&E's petition but, on its own motion, initiated a proceeding to modify CMMC's license by deleting frequency 153.6125 MHz. Pacific Gas & Elec. Co., Petition to Revoke Grant of License for California Metro Mobile Communications for Industrial/Business Private Land Mobile Radio Station, WPOY920, Twin Creeks, California & California Metro Mobile Communications, Licensee of Trunked Industrial/Business Pool Station WPOY920, Twin Creeks, California, Memorandum Opinion & Order, 16 FCC Rcd 15419 (released Aug. 17, 2001). The Division first addressed CMMC's contention that the Commission lacked authority to entertain PG&E's petition because it was in effect an untimely petition for reconsideration under section 405 of the Communications Act, 47 U.S.C. § 405.*fn3 The Commission rejected CMMC's contention, explaining that PG&E's request ''is most properly characterized as an informal request for Commission action under [s]section 1.41 of the Commission's [r]ules.''*fn4 16 FCC Rcd at 15421.
Turning to the merits of the request, the Division agreed with PG&E that CMMC's application was improperly coordinated because it failed to provide PG&E's operations with the required level of interference protection. Id. The Division explained, however, that revocation of CMMC's license was unnecessary under the circumstances because PCIA had ''proposed changes to the CMMC license designed to eliminate interference to PG&E's stations.'' Id. at 15422. The Division concluded instead that section 316 of the Communications Act,*fn5 47 U.S.C. § 316, which authorizes the Commission to modify a license in the public interest, convenience and necessity, provided the ''appropriate vehicle for resolving this matter.'' Id. And the Division found that section 316's requirements were met: ''[T]he proposed modification would serve the public interest by preserving the existing coverage areas of affected parties and preventing harmful interference, while not unduly disrupting CMMC's operations.'' Id. Thus, the Division proposed to modify CMMC's license by deleting frequency 153.6125 MHz following notice to CMMC and an opportunity for CMMC to protest it. Id.; see 47 U.S.C. § 316(a)(1) (modification order not final until licensee notified of proposed action and given at least thirty days to protest); 47 C.F.R. § 1.87(a) (same). CMMC availed itself of this opportunity.
On December 27, 2001 the Division denied CMMC's petition for reconsideration and modified CMMC's license by deleting frequency 153.6125 MHz. California Metro Mobile Communications, Inc., Modification of Industrial/Business Pool Trunked Station WPOY920 Frequency 153.1625 MHz, Memorandum Opinion & Order & Order of Modification, 17 FCC Rcd 112 (released Dec. 31, 2001). In its petition CMMC had again challenged the Commission's authority to modify its license. CMMC claimed that PG&E's request constituted an untimely petition for reconsideration under 47 C.F.R. § 1.106*fn6 and that, because PG&E failed to file its petition within section 405's 30–day window, the Commission could not consider PG&E's request as an informal petition under 47 C.F.R. § 1.41. CMMC also claimed that 47 C.F.R. § 1.113,*fn7 which allows an action taken under delegated authority to be modified or set aside within 30 days of its public notice, prevented the Division from modifying a license once the 30 days expired.
Finding CMMC's procedural arguments to be ''without merit,'' the Division rejected them. 17 FCC Rcd at 113–14. The Division first reasserted that, in proposing to modify CMMC's license, it did not purport to act under the authority of 47 C.F.R. § 1.113 but instead pursuant to section 316 of the Act and 47 C.F.R. § 1.87(a). Id. at 114. The Division further explained that, while CMMC correctly noted that section 405 of the Act requires petitions for reconsideration to be filed within 30 days following public notice of the action the Commission is asked to reconsider, the Division proposed to modify CMMC's license on its own motion. Id. Turning to the proposed modification itself, the Division explained that CMMC had waived its right to protest the modification by failing to object to it on the merits within the prescribed 30– day period. Id. Finding that the modification served the public interest, the Division deleted frequency 153.6125 MHz from CMMC's license. Id. CMMC then filed an application for review with the Commission.
On October 29, 2002 the Commission denied CMMC's application for review. License of California Metro Mobile Communications, Inc., Modification of Industrial/Business Pool Trunked Station WPOY920; Frequency 153.6125, Memorandum Opinion & Order, 17 FCC Rcd 22974 (released Nov. 13, 2002) [hereinafter California Metro Mobile Order ]. The Commission rejected CMMC's contention that section 316 did not authorize the license modification, concluding that section 316 authorizes it to modify a license if, in its judgment, the modification will serve the public interest, convenience and necessity with ''no limitation on the time frame within which the Commission may act to modify a license.'' Id. at 22975. The Commission went on to explain that ''[a]lthough [s]section 405 of the Act explicitly requires that petitions for reconsideration be filed within thirty days after public notice of the action is given, Commission action under section 316 of the Act is not subject to the limitations on revocation, modification or ...