New opinion — Third Circuit upholds FCC caps on bidding assistance to telecom outsiders

Council Tree Investors v. FCC — civil / agency — affirmance — Hardiman

The Federal Communications Commission has a statutory duty to avoid “excessive concentration of [telecommunications] licenses” and to “disseminat[e] licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women,” collectively referred to as designated entities. Seemingly they’re not doing so hot, given what today’s opinion calls “our telecommunications quadropoly” of AT&T, Verizon, Sprint, and T-Mobile.

So it isn’t surprising that, when the FCC decided to scale back its efforts to help the outsiders get licenses, one of them sued. The main way the FCC helps designated entities is by giving them bidding credits to help them win license auctions. But in 2015 the FCC modified its bidding-credit regime, and one thing it did was impose a new cap on bidding credits. The challenger argued that the FCC ignored its statutory mandate and acted on an insufficient record.

Rejecting these challenges, the Third Circuit today upheld the FCC’s bidding-credit limit.

Joining Hardiman were Smith and Krause. Arguing counsel were Kevin Russell of Goldstein & Russell for the petitioner and Clifford Pash Jr. for the FCC.

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