*Pages 1--4 from Microsoft Word - 12254.doc* Federal Communications Commission DA 01- 2443 1 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of Great Western Cellular Partners, L. L. C., Monroe Telephone Services, L. L. C., and FutureWave Partners, L. L. C. ) ) ) ) ) ) ) File No. 10269CLP88 File No. 10625CLP89 File No. 10810CLP89 MEMORANDUM OPINION AND ORDER Adopted: October 18, 2001 Released: October 19, 2001 By the Deputy Chief, Commercial Wireless Division: I. INTRODUCTION 1. The Commercial Wireless Division (Division) of the Wireless Telecommunications Bureau (Bureau) has before it a Petition for Reconsideration (Petition) filed by Ranger Cellular (Ranger) and Miller Communications, Inc. (Miller) on April 13, 2001. Ranger and Miller (collectively, Petitioners) seek reconsideration of the Bureau’s grant of the above- captioned rural service area (RSA) cellular applications filed by Great Western Cellular Partners, L. L. C. (Great Western, RSA Market 492A - Goodhue, MN), Monroe Telephone Services, L. L. C. (Monroe, RSA Market 370A - Monroe, FL) and FutureWave Partners, L. L. C. (FutureWave, RSA Market 615A - Bradford, PA). 1 Great Western, Monroe, and FutureWave (collectively, the Applicants) filed an Opposition to the Petition on April 26, 2001. Petitioners filed a Reply on May 7, 2001. For the reasons stated below, we deny the Petition for Reconsideration. II. BACKGROUND 2. Ranger and Miller filed lottery applications in 1988 and 1989 for the Goodhue, Monroe, and Bradford authorizations; neither was selected in the lotteries for these three markets. Great Western, Monroe and FutureWave were selected by lottery as tentative selectees for their respective markets but were later disqualified by the Commission because their foreign ownership exceeded the then applicable statutory and regulatory limits. 2 The Commission did not hold a 1 Public Notice, “Wireless Telecommunications Bureau Grants Rural Cellular Licenses,” DA 01- 697, 16 FCC Rcd. 5601 (WTB, CWD rel. March 22, 2001) (RSA Public Notice). 2 In re Applications of Cellwave Telephone Services L. P., FutureWave General Partners L. P., and Great Western Cellular Partners, Memorandum Opinion and Order, 7 FCC Rcd 5955 (1992) (subsequent history omitted). 1 Federal Communications Commission DA 01- 2443 2 second lottery in any of the three markets. 3. On August 5, 1997, the Balanced Budget Act of 1997 was signed into to law. 3 In April 1999, the Bureau, acting pursuant to Section 3002( a)( 2)( B) of that law, dismissed all applications for the subject markets. 4 The applications were dismissed because Section 3002( a)( 2)( B) terminated the Commission’s authority to use lotteries to select among mutually exclusive applications for initial licenses or construction permits, except for licenses for noncommercial educational and public broadcast stations. Several of the applicants sought reconsideration of the Bureau’s dismissal of the RSA applicants, and the Bureau declined to reconsider its actions earlier this year. 5 4. On December 31, 2000, Congress enacted the Launching Our Communities' Access to Local Television Act of 2000. 6 Pursuant to Section 1007 of the Act, Congress directed the Commission to reinstate Great Western, Monroe and FutureWave as tentative selectees in their respective markets, and to permit them to amend their applications to update factual information and to comply with the Commission's rules. 7 The Applicants filed amended applications on February 9, 2001. On March 16, 2001, the Bureau found each Applicant “technically, financially, and otherwise qualified to be a Commission licensee,” and granted the applications. 8 III. DISCUSSION 5. Petitioners initially argue that the Local TV Act is constitutionally infirm. 9 As explained supra, the Commission granted each of the three licenses pursuant to a congressional mandate. As Petitioners themselves acknowledge, “the Commission cannot declare an act of Congress unconstitutional.” 10 We therefore decline to address Petitioners’ argument regarding the 3 Pub. L. No. 105- 33, § 3002( a), 111 Stat. 251, 258- 60 (1997) (amending 47 U. S. C. § 309( j)). 4 In the Matter of Certain Cellular Rural Service Area Applications, Order, 14 FCC Rcd 4619 (WTB 1999) (dismissing applications in RSAs 332A (Polk, AR), 370A (Monroe, FL), 492A (Goodhue, MN), 582A (Barnes, ND), 615A (Bradford, PA), and 727A (Ceiba, PR)). 5 In the Matter of Certain Cellular Rural Service Area Applications, Order, 16 FCC Rcd 4891 (WTB 2001). Ranger and Miller have sought further reconsideration of the Bureau’s dismissal of the applications, and High Tower Communications, Inc. has sought Commission review of the Bureau’s action. See Consolidated Petition for Reconsideration of Ranger Cellular and Miller Communications, Inc. (filed Mar. 30, 2001); Application for Review of High Tower Communications, Inc. (filed Apr. 2, 2001). 6 District of Columbia Appropriations Act of FY 2001, Pub. L. No. 106- 553, 114 Stat. 2762 (2000), Title X (Local TV Act or Act). 7 Id., § 1007( a)( 1). 8 RSA Public Notice. 9 See Petition at 5 (asserting that “Congress exceeded its constitutional bounds by effectively overruling a final judicial action”) 10 Reply at 5. 2 Federal Communications Commission DA 01- 2443 3 constitutionality of the Local TV Act. 11 6. Petitioners next argue that, even if the Local TV Act is constitutional, the Commission had no authority to grant the applications because Section 309( i)( 5) of the Communications Act prohibits the Commission from “issu[ ing] any license or permit using a system of random selection . . . after July 1, 1997.” 12 Petitioners’ reliance on Section 309( i)( 5) is misplaced. First, the Bureau did not grant any of the three licenses by random selection; it granted them as a result of a congressional mandate. Second, Section 309( i)( 5) is inapposite because there were no pending mutually exclusive applications when the Bureau granted the applications of Great Western, Monroe and FutureWave, and Section 309( i)( 5) does not apply absent mutually exclusive applications. Finally, it is well established that, where two statutes conflict, the more recent statute is controlling particularly where, as here, the latter statute is more specific. 13 Thus, to the extent that the earlier enacted general provisions of Sections 309( i) and 309( j) of the Communications Act may have required auction of the three licenses, the subsequently enacted specific provisions of the Local TV Act supersede them. 7. Petitioners argue that the Bureau’s reinstatement of the applications without concurrent reinstatement of their own applications demonstrates that the Bureau “pre- judged” the outcome of its review of the applications. 14 Petitioners’ argument has no merit because the Bureau had no legal basis to reinstate Petitioners’ applications. The plain language of the Local TV Act required the Bureau to reinstate the applications of Great Western, Monroe and FutureWave and to grant the applications if they met the Commission’s standards. 15 Petitioners attempt to bootstrap their displeasure with Congress’ mandate by claiming that they should also have been reinstated. However, in the event that any of the Congressionally designated applicants were found ineligible after amending its application, the Local TV Act directed the Commission to auction the license. 16 Under the statutory directive, the Bureau could not have reinstated Petitioners’ applications, and doing so would have served no purpose. Finally, Petitioners’ contention that the Bureau “prejudged” the reinstated applications is unfounded. The Bureau independently reviewed and approved the technical, financial and other qualifications of each 11 See Meredith Corp. v. FCC, 809 F. 2d 863, 873 (D. C. Cir. 1987) (“ Regulatory agencies are not free to declare an act of Congress unconstitutional.”). Id. at n. 11 (“ If the Commission had concluded that the [fairness] doctrine was congressionally mandated and properly applied to Meredith, it would, as we have indicated, not have been obliged to reach the constitutional question.”). 12 47 U. S. C. § 309( i)( 5). 13 See Schick v. United States, 195 U. S. 65, 68- 69 (1904) (it is a “well- understood rule that the latest expression of the will of the lawmaker prevails over an earlier one”); Norman J. Singer, Sutherland Statutory Construction, § 51.02, at 193- 94 (6 th ed. 2000) (“[ W] here two statutes deal with the same subject matter, the more recent enactment prevails as the latest expression of legislative will. If there is an irreconcilable conflict between the new provision and the prior statutes, the new provision will control as it is the later expression of the legislature.”) (citations omitted). 14 Petition at 10- 11. 15 Local TV Act, § 1007( a). 16 Id., at § 1007( B)( 5). 3 Federal Communications Commission DA 01- 2443 4 applicant, none of which are challenged by Petitioners. IV. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED that, pursuant to Section 1007 of the Launching Our Communities' Access to Local Television Act of 2000, 17 Sections 4( i), 309( i)( 5) and 405 of the Communications Act, as amended, 47 U. S. C. §§ 154( i), 309( i)( 5), and 405, and Section 1.106( b) of the Commission’s rules, 47 C. F. R. § 1.106( b), the Petition for Reconsideration filed by Ranger Cellular and Miller Communications, Inc. on April 13, 2001 is hereby denied. FEDERAL COMMUNICATIONS COMMISSION Katherine M. Harris Deputy Chief Commercial Wireless Division Wireless Telecommunications Bureau 17 See n. 6, supra. 4