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Communications and Control, Inc. v. Federal Communications Commission

July 23, 2004

COMMUNICATIONS AND CONTROL, INC., APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION, APPELLEE



Appeal of Orders of the Federal Communications Commission

Before: Henderson, Randolph and Roberts, Circuit Judges.

The opinion of the court was delivered by: Circuit Judge Henderson

Argued April 2, 2004

These changes in latitudes, changes in attitudes; Nothing remains quite the same.

Through all of the islands and all of the highlands, If we couldn't laugh we would all go insane -- JIMMY BUFFETT, CHANGES IN LATITUDES, CHANGES IN ATTITUDES (ABC 1977)

Appellant Communications and Control, Inc. (CCI) would no doubt agree that geographic change can make all the difference. For CCI a one-degree change in longitude would have allowed its transmitter to operate from terra firma rather than not at all. Instead of permitting CCI to amend its license to reflect the transmitter's true location, however, the Federal Communications Commission (FCC or Commission) cancelled the license, concluding that no station could have been authorized to operate where CCI's application specified -- a dot on the Pacific Ocean. CCI now appeals, claiming that the Commission arbitrarily and capriciously refused to allow a correction. See 5 U.S.C. § 706(2)(A). We agree and, accordingly, reverse and remand.

I.

Following a lottery of spectrum in the 220-222 megahertz (MHz) band, the Commission in 1993 granted CCI a broadcast license to operate a non-nationwide Phase I 220 MHz trunked radio system under the call sign WPCX448.*fn1 CCI's application proposed to transmit from Mount Allison, Milpitas, California, at a latitude of 37 221e 298 5688 North and a longitude of 122 221e 528 1688 West. But the longitude coordinate CCI supplied in fact indicated a location one degree -- or approximately 88 kilometers -- west of Mount Allison in the Pacific Ocean. Unaware of CCI's error, the Commission granted the application. Still unaware of the error itself, CCI supplied the bad longitude coordinate again when notifying the Commission that it had constructed its station and was operating from Mount Allison.

Months later, CCI informed the Commission of an "inconsistency with the [a]ntenna [l]ongitude" in its application and requested that the Commission change the longitude coordinate listed on its license from 122 221e 528 1688 West to 121 221e 528 1688 West. Deferred Appendix (D.A.) 26. The Land Mobile Branch (Branch) of the Licensing Division (Division) of the Wireless Telecommunications Bureau (WTB) denied CCI's request, finding that CCI failed to make "a timely effort to correct its application." D.A. 27. The Branch further instructed CCI to submit its license for cancellation, explaining that "applications are processed based on the coordinate information provided by the applicant, and since there are no frequencies available at [CCI's] requested location, ... [CCI] should submit its license for cancellation." D.A. 27.

CCI responded to the Branch's letter with another of its own. Its second letter -- styled a "Second Request for Coordinate Correction" -- again sought to correct the coordinate and included an engineering study in an effort to show that its operation from Mount Allison adequately protected Com-Tech's neighboring station (call sign WPCX469) from harmful interference. The Branch again denied CCI's request, this time rejecting CCI's interference analysis as untimely and wrong. Relying on its own technical analysis, the Branch explained that CCI failed to meet the exception for shortspacing contained in section 90.723(f) of the Commission rules*fn2 because "station WPCX469 does not receive 10dB of protection" and "the 28 dBu contour of station WPCX448 overlaps the 38 dBu contour of station WPCX469 by more than 20 kilometers." D.A. 32.

CCI responded with another letter; this one met a slightly different fate from the previous two. Although the Branch rejected CCI's claim that the "incorrect coordinate[ ] on its license is a typographical error which has no bearing on its operations at Mount Allison," explaining that "[s]ince CCI did not timely request a change of its coordinates, its application was processed consistent with its stipulated coordinates," it nevertheless offered that "[i]f CCI desires to modify its license to correct those coordinates, it must wait for the filing window for 220 MHz applications to reopen." D.A. 35. The Branch further proposed that, in the meantime, "[d]ue to the circumstances, CCI may request STA [Special Temporary Authority] to obtain legal authority for its operation on Mount Allison." Id. CCI took the Branch's advice and the Branch granted it STA for six months.

Before the STA expired, CCI requested an extension. The Branch denied the request, however, noting that ComTech had complained that CCI's operations were interfering with its own and that CCI was "not in compliance with Rule 90.723(f) at the requested relocation." D.A. 50. CCI responded by submitting an application to modify its license to allow it to permanently transmit from Mount Allison and, shortly thereafter, by petitioning the Branch for reconsideration of the denial of its extension request.

Following the Branch's denial of the extension request, the Commission separately advised CCI of ComTech's interference complaint and ordered it "to cease operati[ng]."*fn3 D.A. 66. CCI responded by reminding the Commission that its petition for reconsideration remained pending before the Branch and stated that it would "await further review ... before determining whether the operating status [of] Station WPCX448 should be altered." D.A. 67.

The Division later denied CCI's petition for reconsideration along with its application for authority to permanently transmit from Mount Allison. The Division concluded, as the Branch had before, that CCI failed to comply with Commission rule 90.723(f) because it "proposes to operate 88.4 Kilometers from Comtech's station" and its proposed relocation failed to "provide 10 dB of protection to Comtech's protected site." D.A. 107. CCI next applied ...


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