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Benkelman Tel. Co. v. FCC

FCC acted within statutory rule-making authority when it established geographic area licensing regime for common carrier paging and certain private carrier paging licensees and auction procedure for mutually exclusive applications; FCC reasonably required geographic licensees to provide notice of construction to neighboring incumbent licensees and did not violate Paperwork Reduction Act with adoption of algorithm used to determine applications.

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The full case caption appears at the end of this opinion.

Karen LeCraft Henderson, Circuit Judge: The petitioners challenge a Federal Communications Commission (FCC) rulemaking that established a geographic area licensing regime for common carrier paging and 929 MHz private carrier paging licenses[FOOTNOTE 1] and a competitive bidding procedure for mutually exclusive[FOOTNOTE 2] applications filed thereunder. See In re Revision of Part 22 and Part 90 of the Comm’n's Rules to Facilitate Future Dev. of Paging Sys., Second Report and Order and Further Notice of Proposed Rulemaking, 12 F.C.C.R. 2732 (1997) (Second R&O); In re Revision of Part 22 and Part 90 of the Comm’n's Rules to Facilitate Future Dev. of Paging Sys., Memorandum Opinion and Order on Reconsideration and Third Report and Order, 14 F.C.C.R. 10,030 (1999) (Third R&O). The petitioners and intervenors contend the FCC lacked statutory authority under 47 U.S.C. � 309(j) to auction the new geographic paging licenses, that the FCC arbitrarily failed to require that geographic licensees provide notice of construction to neighboring incumbent licensees and that the algorithm the FCC used to identify pending mutually exclusive applications violates the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. �� 3501 et seq. For the reasons set out below we reject each of these arguments and deny the petitions for review.

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