The U.S. Appeals Court, D.C., ruled in favor of the FCC in the Na...
The U.S. Appeals Court, D.C., ruled in favor of the FCC in the National Science & Technology Network (NSTN) v. FCC case (03-1376). The FCC in 2000 granted NSTN 9 private land mobile radio licenses, but Mobile Relay Assoc.…
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(MRA) challenged those licenses shortly after they were issued. In 2001, more than 18 months after NSTN received the licenses, the Commission’s Public Safety & Critical Infrastructure Div. ruled on the MRA’s petition. It found 6 of the 9 licenses had been based on “defective” applications and set them aside. The remaining 3 licenses became void automatically due to NSTN’s failure to build the authorized stations within 12 months of license approval. The Commission found on review that all 9 licenses had lapsed due to lack of construction and dismissed NSTN’s application for review. NSTN appealed the Commission’s order to the D.C. Appeals Court. “The Commission’s regulations are clear,” said the court’s opinion: “Once a broadcast license is approved, systems must be ‘placed in operation within 12 months from the date of the grant or the authorization cancels automatically and must be returned to the Commission.’ A licensee may apply for an extension of this one-year deadline, but such requests ‘must be filed prior to the expiration of the construction period.’ NSTN admits that it neither completed construction within 12 months, nor requested an extension during this period.” The court said these arguments NSTN offered to excuse its inaction weren’t persuasive: (1) It couldn’t begin construction because the required equipment wasn’t commercially available, and so the FCC should have exempted NSTN and all similarly-situated applicants from the one-year construction requirement. “This amounts to an argument that the Commission’s rules should be different,” the court said, but “NSTN must comply with the rules as they are, and not the rules as it believes they should be.” (2) It didn’t apply for an extension because the FCC would have refused. But the court said: “Failure to pursue administrative remedies will be excused for futility only upon a showing that an adverse decision was a certainty… Far from meeting this demanding standard, NSTN offers up no reasonable basis for its belief.”