Contrary to relator Vernont National Telephone Co. claims the U.S. was damaged by Dish Network designated entities not paying what they should have in the 2015 AWS-3 auction, DEs Northstar Wireless and SNR WIreless satisfied their auction payment obligations, the defendants said Friday, arguing for partial summary judgment in its favor on the issue of actual damages. The DEs and Dish told the U.S. District Court for the District of Columbia (docket 1:15-cv-00728) the AWS-3 price discounts/bidding credits allegedly obtained via fraud were never awarded to the defendants and the defendants paid the U.S. the designated penalties for choosing not to pursue licenses

Oral argument is scheduled for 9:30 a.m. Nov. 20 before a U.S. Court of Appeals for the D.C. Circuit panel in the consolidated International Dark-Sky Association and Dish Network challenges to the FCC's partial approval of SpaceX's second-generation satellite constellation (see 2304170005), per a clerk's order Monday (dockets 22-1337, 23-1001).

BIU's argument that the U.S. Court of Appeals for the D.C. Circuit should hold off ruling on the FCC's motion to dismiss litigation against it until the agency first helps BIU understand how to properly pursue the relief it seeks from the agency (see 2309080074) isn't a valid basis for the court's jurisdiction, the commission told the court in a reply brief Thursday (docket 23-1163), renewing its push for dismissal of BIU's litigation. Lender BIU is challenging the FCC Enforcement Bureau’s dismissal of satellite company Spectrum Five’s complaint against Intelsat (see 2306280034). The FCC told the D.C. Circuit that it's immaterial BIU when it filed its petition for review believed it had no more administrative remedies available, because that doesn't change the fact it didn't seek full Commission review, which is a statutory precondition to the court reviewing the dismissal order.

The FCC’s authority over broadcast license transfers doesn’t apply to Gray Television’s 2020 purchase of another broadcaster’s CBS network affiliation because no licenses were transferred, said Gray's reply brief late Wednesday (docket 22-14274) at the 11th U.S. Circuit Court of Appeals. The FCC’s rule barring affiliation swaps, called Note 11, “is a freestanding and unbounded prohibition on certain programming purchases that has no basis in the FCC’s licensing authority,” said the brief. Congress didn’t grant the agency power over sales of network affiliation and the FCC “cannot fall back on” arguments that it has ancillary authority over other transactions “whenever it wants to do more than Congress allowed,” Gray said. By interpreting Note 11’s language against swaps to also apply to affiliation purchases and applying the rule to Gray’s deal with Denali media, the FCC “improperly redefined and expanded” Note 11 to bar any deal that creates a new top-four combination while the text of Note 11 states that the rule applies to transactions that result in a broadcaster owning two top-four stations. Since Gray already owned two top-four stations in the Anchorage market in 2020, it has argued that Note 11 doesn’t apply. With this interpretation of Note 11, the FCC “violated the principle that an agency must give fair notice of prohibited conduct before imposing penalties,” Gray said. The agency also “botched” the calculation of the $518,000 forfeiture by adding to the penalty for every day of the violation and adding the explanation that the violation was egregious “only after Gray responded to the NAL,” said the brief. “None of the FCC’s unauthorized transfer of control precedents supported the imposition of such a penalty,” Gray said. The FCC’s assertion it considered Gray’s efforts to mitigate the violation in calculating the forfeiture is an “empty boilerplate statement" and the agency provided only “incompetent evidence” that the Denali transaction led to substantial economic gain for Gray, the brief said.

BIU "was defrauded" when Spectrum Five head David Wilson withdrew the company's complaint against Intelsat without BIU's consent or knowledge, the lender told the U.S. Court of Appeals for the D.C Circuit Thursday in opposition to plaintiff FCC's motion to dismiss (docket 23-1163). Plaintiff BIU said the FCC's argument involves the idea there can't be judicial review of the agency's dismissal of the SF complaint because BIU had other administrative remedies to pursue, but BIU, when it filed its petition for review, believed ithad exhaused those remedies. BIU said it can't be both unable to appeal to the full commission because the deadline passed and unable to seek judicial review because it hasn't appealed to the full commission. BIU said it mailed the agency last week asking it to confirm that BIU hasn't exhausted its administrative remedies, and if that's true, the petition to review will be dismissed voluntarily. The agency didn't comment Friday.

U.S. District Judge Richard Bennett for Maryland in Baltimore granted the Aug. 18 motion of Bloosurf, a wireless internet services provider to low-income, rural communities on Maryland’s Eastern Shore, to voluntarily dismiss without prejudice its educational broadcast service license claims against three area colleges (see 2308210030), said the judge’s signed order Friday (docket 1:22-cv-03254). Bloosurf is seeking to block the schools from selling their FCC-approved EBS licenses to T-Mobile, a direct competitor. Bennett granted the colleges’ motion in July to dismiss Bloosurf’s complaint for lack of subject-matter jurisdiction, granting Bloosurf leave to amend the complaint by Aug. 21 (see 2307270014). Bloosurf responded by refiling the same claims against the colleges in Maryland state court. It sought to dismiss the federal action “so that it may pursue its claims in the appropriate tribunal,” it said.

The FCC told the 5th U.S. Circuit Court of Appeals that Consumers' Research's challenge of its Q1 2022 USF contribution factor "lacks merit" and defended the Universal Service Administrative Co.'s role as "exclusively administrative" in establishing quarterly factors. "Congress’s delegation of authority to the FCC amply satisfies the constitutional standard set forth in controlling Supreme Court precedent," said the commission. The USAC "has no policymaking authority" and is "overseen by the FCC at every step," the said in an en banc brief posted Thursday in case 22-60008 (see 2308070033). The FCC also said CR's private delegation challenge should be rejected because USAC "does not exercise regulatory power" or have any policymaking role in administering USF programs.

Gerald Parks, licensee of AM station WEKC Williamsburg, Kentucky, seeks a panel rehearing and rehearing en banc at the U.S. Appeals Court for the D.C. Circuit of the panel’s Aug. 10 denial of his petition for mandamus relief (see 2308110028), said his new petition Wednesday (docket 23-1078). Parks contends his license remains in effect while his 2012 renewal application is pending at the FCC. His new petition said the panel declined to enforce the plain language of a provision of the Communications Act that requires the FCC to “continue in effect” all broadcast licenses that remain the subject of renewal applications pending before the agency. The panel instead said that plain language didn’t clearly and indisputably overcome Parks’ failure to comply with a Media Bureau “extra-statutory policy,” never approved by the full commission, “requiring applicants to file a second license renewal application on top of one still pending,” said his petition. By allowing bureau policy to “effectively nullify” the plain language of the Communications Act, the D.C. Circuit’s Aug. 10 order “conflicts with decisions” of both the U.S. Supreme Court and the D.C. Circuit, it said. “Consideration by the full court is therefore necessary to secure and maintain uniformity” of the D.C. Circuit’s decisions, it said. It’s “axiomatic” that FCC staff “may not lawfully implement policies that contravene obligations imposed on the agency by statute,” said the petition. In Parks’ case, FCC staff “has adopted a policy which overrides plain statutory language clearly requiring the agency to continue the life of a broadcast license so long as an application for renewal of that license remains pending,” it said. The “directive” of Section 307(c)(3) of the Communications Act couldn’t be “more plain,” it said.

Bloosurf, a wireless internet services provider to low-income, rural communities on Maryland’s Eastern Shore, moved Friday to voluntarily dismiss without prejudice the lawsuit it filed against three area colleges to block the schools from selling their FCC-approved educational broadcast service licenses to T-Mobile, a direct competitor, said its motion (docket 1:22-cv-03254) in U.S. District Court for Maryland in Baltimore. U.S. District Judge Richard Bennett granted the colleges’ motion last month to dismiss Bloosurf’s complaint for lack of subject-matter jurisdiction, granting Bloosurf leave to amend the complaint by Aug. 21 (see 2307270014). Bloosurf responded by refiling the same claims against the colleges in Maryland state court, said its motion. It seeks to dismiss the federal action, “so that it may pursue its claims in the appropriate tribunal,” it said.

Indian Peak Properties is to submit by Sept. 20 a docketing statement, plus other documents in support of its petition for review challenging the FCC's over-the-air reception device rules on Administrative Procedure Act grounds, said a clerk’s order Monday (docket 23-1223) at the U.S. Court of Appeals for the D.C. Circuit. FCC staff rulings promulgated at least two new "substantive" OTARD rules “that are inconsistent with relevant FCC orders,” said Indian’s petition Friday. Under the APA, the newly promulgated OTARD rules “require notice-and-comment rulemakings to be effective,” it said. The FCC staff rulings violated the APA by setting new policy “without the benefit of requisite rulemakings,” it said. With its D.C. Circuit appeal, Indian seeks reversal “of these arbitrary and capricious agency actions that are contrary to law," and remand of the matter to the FCC for proper “treatment,” it said.