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Released: November 3, 2011

Federal Communications Commission

DA 11-1846

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

County of Genesee, New York
)
WT Docket No. 02-55
)
Mediation No. TAM-43102
and
)
)

Sprint Nextel Corp.
)

ORDER

Adopted:

November 3, 2011

Released:

November 3, 2011
By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:
1. By this Order, we dismiss the Motion for Leave to Intervene (Motion), filed October 11,
2011 by Oakland County, Michigan (Oakland).1 Oakland seeks intervenor status in the captioned
proceeding pursuant to Section 1.106(b)(1) of the Commission's rules.2 We also dismiss Oakland's
petition for reconsideration of the Public Safety and Homeland Security Bureau's (Bureau) Memorandum
Opinion and Order
in the Genesee County, New York, proceeding.3

I. BACKGROUND

2. On September 9, 2011, the Bureau released a Memorandum Opinion and Order in the
captioned proceeding in which it determined that the County of Genesee, New York (Genesee) received
"comparable facilities" when the 800 MHz Transition Administrator (TA) assigned Genesee replacement
frequencies separated by less than 1 MHz from the lower edge of the ESMR Band.4 Oakland argues that
it is similarly situated to Genesee to the extent it is an 800 MHz public safety licensee located in the
Canada border area and the TA has assigned Oakland replacement frequencies separated by less than 1
MHz from the lower edge of the ESMR band. Oakland submits, therefore, that it meets the
"aggrieved/adversely affected" test for standing.5 Oakland asserts that it is entitled to intervention
because "[t]he Commission has a long history of granting intervention requests when a third party is
adversely affected by a Commission decision."6


1 Sprint Nextel Corp. filed an opposition to the Oakland Motion on Oct. 21, 2011 (Opposition).
2 47 C.F.R. 1.106(b)(1). As noted infra the appropriate rule for Motions to Intervene is 47 C.F.R. 1.223.
3 County of Genesee, New York and Sprint Nextel, Memorandum Opinion and Order, 26 FCC Rcd 12772
(PSHSB 2011).
4 Both Oakland and Genesee are located in the Canada Border Region which lacks the 1 MHz guard band that
exists in non-border areas of the United States.
5 Motion at 3 citing Aspen FM, Inc., Memorandum Opinion and Order, 12 FCC Rcd 17852 (1997) (Aspen FM).
6 Id. citing RCN Telecom Services of California, Order on Reconsideration, 15 FCC Rcd 9438 (CSB 2000) (RCN);
Caloosa Television Corp., Letter, 19 FCC Rcd 19556 (MMB 2004); Midwest Bell Communications, Order on
Reconsideration,
15 FCC Rcd 11005 (WTB 2000); Pacific B'cstg of Missouri, LLC, Memorandum Opinion and
Order
, 19 FCC Rcd 10950 (2004).

Federal Communications Commission

DA 11-1846

II. DISCUSSION

3. We disagree. Section 1.223 of the Commission's rules provides for petitions to intervene
only in cases that have been designated for hearing. Of the four cases cited by Oakland for the
proposition that the Commission has a "long history" of granting intervention requests, only one the
staff level decision in RCN addresses a request to intervene in a non-hearing proceeding. That staff
level case was effectively overruled by JNE Investments where the Commission affirmed that
intervention requests are permitted only in hearing proceedings.7 Neither the Genesee nor Oakland
proceedings are in hearing status. Thus, Oakland's motion is subject to dismissal. However, we exercise
our discretion to treat Oakland's pleading, under Section 1.41 of the Commission's rules,8 as an informal
request to accept its Petition for Reconsideration of the Genesee Memorandum Opinion and Order. We
conclude that Oakland lacks standing to submit such a petition.
4. Aspen FM cited by Oakland as authority for its being aggrieved/adversely affected by the
Genesee Memorandum Opinion and Order is inapposite here. The facts are not remotely the same.
Standing in Aspen FM was conferred because, and only because, the petitioner for reconsideration was a
broadcaster that would compete with a proposed broadcast assignee for listeners in the Aspen, Colorado
market.9 Here, however, Oakland's only claim for standing is its apprehension that the precedent
established by the Genesee Memorandum Opinion and Order may affect disposition of Oakland's case
should it come before the Public Safety and Homeland Security Bureau for de novo review. The
controlling Commission case here is Texas Cable and Telecommunications Assoc. v. GTE Southwest,
Inc.
,10 in which the Commission held that a party's apprehension that its case would be adversely
affected by precedent was not sufficient to confer standing to submit a petition for reconsideration.11

III. DECISION

5. When evaluating standing, the Commission applies "the same test that courts employ in
determining whether a person has standing under Article III to appeal a court order: the person must


7 JNE Investments, Inc. Memorandum Opinion and Order, 23 FCC Rcd 623, 627 (2008) ("The Commission's
Rules do not provide for petitions to intervene in non-hearing cases. Accordingly, [movant's] motion is
dismissed.") (Footnote omitted.)
8 47 C.F.R. 1.41.
9 Aspen FM, 12 FCC Rcd at 17855, citing FCC v. Sanders Bros., 309 U.S. 470 (1940).
10 Texas Cable and Telecommunications Assoc. v. GTE Southwest, Inc., Order, 17 FCC Rcd 6261 (2002).
11 Id. at 6264, citing Shipbuilders Council of America v. United States, 868 F.2d 452, 456 (D.C. Cir. 1989) ("[W]e
know of no authority recognizing that the mere potential precedential effect of an agency action affords a bystander
to that action a basis for complaint."); Boston Tow Boat Co. v. United States, 321 U.S. 632, 633 (1944) (interest in
precedential effect not sufficient to confer standing). See also AirTouch Paging v. FCC, 234 F.3d 815, 819 (2d Cir.
2000), quoting Sea Land Service, Inc., 137 F.3d 640, 648 (D.C. Cir. 2008) ("mere precedential effect within an
agency is not, alone, enough to create Article III standing, no matter how foreseeable the future litigation"); Ottawa
County, Ohio and Sprint Nextel, Order, 26 FCC Rcd 2205 (PSHSB 2011). (Procedurally defective petition for
reconsideration dismissed. Parties advised "that the expense of preparing and filing procedurally barred pleadings is
not recoverable from Sprint as a prudent and necessary rebanding cost."); City of Boston, Mass. and Sprint Nextel
Corp., Order, 22 FCC Rcd 2361 (PSHSB 2007) (Boston Order).
2

Federal Communications Commission

DA 11-1846

show (a) a personal injury `in fact'; (b) that the injury is fairly traceable to the challenged action; and
(c) that it is likely, not merely speculative, that the requested relief will redress the injury."12
6. Oakland fails all three prongs of the conjunctive test for standing. It has not shown that it
would suffer an injury in fact if its Motion is not granted. If Oakland is unable to reach agreement with
Sprint and the matter is referred to the Bureau for de novo review, Oakland's case will be decided on its
own facts and merits. As Sprint points out, the Bureau disposed of a similar issue in the City of Boston
case where it dismissed third party petitions on standing grounds because "the Boston Order is limited to
the facts presented in the record of that proceeding and does not adversely affect Petitioners."13
Likewise, an adverse decision, should Oakland pursue de novo review, would not be fairly traceable to
the Genesee decision because Oakland's case would be decided on the Oakland record; not Genesee's.
Finally, it is unlikely, indeed speculative, that grant of Oakland's Motion would redress the injury that
Oakland perceives. Were we to grant Oakland's motion we would have to consider an Oakland petition
for reconsideration that does little more than reprise arguments made in a petition for reconsideration
submitted, by the same counsel, in the Genesee proceeding.14 Considering such a petition would be an
unnecessary drain on Commission resources.
7.
The law of the case in these de novo review proceedings is that the perceived precedential
effect of decisions on de novo review does not create standing for third parties to submit petitions for
reconsideration no matter how foreseeable it may be that similar issues will arise in the petitioner's own
case. We so held in the Boston case, and reaffirm that principle here. Should third parties, in the future,
seek to petition for reconsideration on the basis that a decision on de novo review may prejudice their
own case, such petitions will be deemed frivolous and will summarily be dismissed. The associated costs
in preparing such frivolous pleadings will not be Sprint's responsibility, and the Bureau will consider
whether such a filing was made in good faith.

IV. ORDERING CLAUSES

8. Accordingly, IT IS ORDERED, that the Motion to Intervene, filed October 11, 2011 by
Oakland County, Michigan, considered as such, IS DISMISSED.
9. IT IS FURTHER ORDERED that the Motion to Intervene, filed October 11, 2011 by
Oakland County, Michigan, treated as a request for informal Commission action pursuant to Section 1.41
of the Commission's rules, IS DENIED.
10. IT IS FURTHER ORDERED that the Petition for Reconsideration filed October 11, 2011 by
Oakland County, Michigan IS DISMISSED.


12 AT&T Corp. v. Business Telecom, Inc., Order on Reconsideration, 16 FCC Rcd 21750, 21751-52 (2001).
13 Sprint Opposition at 1-2, quoting Boston Order, 22 FCC Rcd at 2361.
14 Id. at 2.
3

Federal Communications Commission

DA 11-1846

11. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the
Commission's rules, 47 C.F.R. 0.191, 0.392.

FEDERAL COMMUNICATIONS COMMISSION

Michael J. Wilhelm
Deputy Chief - Policy and Licensing Division
Public Safety and Homeland Security Bureau
4

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