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FCC Brief - Alpine PCS v. FCC (D.C. Cir.)

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Released: November 25, 2013
USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 1 of 38

NOT YET SCHEDULED FOR ORAL ARGUMENT



No. 13-5205

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


ALPINE PCS, INC.,
Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,
Appellees.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


BRIEF OF APPELLEE FEDERAL COMMUNICATIONS COMMISSION




STUART F. DELERY
LLOYD H. RANDOLPH
Assistant Attorney General
(D.C. Bar #376009)

Civil Division
Of Counsel
U.S. Department of Justice
JACOB M. LEWIS
P.O. Box 875
HILLARY B. BURCHUK
Ben Franklin Station
Federal Communications Commission
Washington, DC 20044

lloyd.randolph@usdoj.gov
Voice: (202) 307-0356
Fax: (202) 307-0494





USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 2 of 38

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies that
the following information is, to the best of his knowledge, true and correct:

A.

Parties and Amici

. Appellant Alpine PCS, Inc. (“Alpine”) was the
plaintiff in the district court. Appellee Federal Communications Commission
(“FCC”) was one of the defendants in the district court. Pioneer Credit Recovery,
Inc. (“Pioneer”) was also a defendant in the district court but Alpine has not
challenged the district court’s dismissal of Alpine’s claims against Pioneer. There
were no amici or intervenors in district court, and there are none in this Court.
B.

Rulings Under Review.

Appellant has appealed from the June 3,
2013 Order (Dkt# 17), JA 99 (unpublished), of United States District Judge Robert
L. Wilkins, which incorporated by reference that court’s reasons for its ruling as
stated on the record of the June 3, 2013 hearing on the FCC’s and Pioneer’s
respective motions to dismiss, as reflected in the hearing transcript (Dkt# 18), JA
57-98.
C.

Related Cases.

The following cases are related to this one:

Alpine PCS, Inc. v. FCC, 404 F. App’x 508 (D.C. Cir. 2010)
(affirming In re Alpine PCS, Inc., 25 FCC Rcd. 469 (FCC 2010)), and

In re Alpine PCS, Inc., 404 F. App’x 504 (D.C. Cir. 2010) (affirming
In re Alpine PCS, Inc., No. JFM-08-2055 (D.D.C. July 15, 2009), for the reasons
ii


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 3 of 38
stated in In re Alpine PCS, Inc., No. 08-00543, 2008 WL 5076983 (Bankr. D.D.C.
Oct. 10, 2008)).
/s/ Lloyd H. Randolph
Lloyd H. Randolph
Counsel for Appellee FCC
iii


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 4 of 38

TABLE OF CONTENTS


TABLE OF AUTHORITIES .................................................................................... vi

GLOSSARY .............................................................................................................. ix

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF ISSUE PRESENTED FOR REVIEW ........................................ 1

PERTINENT STATUTES AND REGULATIONS .................................................. 2

STATEMENT OF THE CASE ................................................................................. 2

STATEMENT OF FACTS ....................................................................................... 2

SUMMARY OF ARGUMENT ................................................................................ 7

ARGUMENT ............................................................................................................ 8

THE DISMISSAL ORDER SHOULD BE AFFIRMED BECAUSE THE
DISTRICT COURT LACKS SUBJECT MATTER JURISDICTION TO DECIDE
ALPINE’S CLAIMS ................................................................................................. 8

A.
This Court Reviews De Novo A District Court’s Determination That
Congress Has Not Waived Sovereign Immunity .................................. 8

B.
The Communications Act Does Not Waive Sovereign Immunity For
The District Court To Hear Challenges To FCC Licensing Decisions 8

1. Communications Act Section 402 Waives Sovereign Immunity For
Challenges To FCC Decisions But Only In Courts of Appeals ...... 9

2. Subsection 309(j) Does Not Waive Sovereign Immunity ............. 13

C.
The Forum Choice Clause Does Not Waive Sovereign Immunity ..... 15

D.
The District Court Also Lacks Subject Matter Jurisdiction Over
Alpine’s Express and Disguised Breach of Contract Claims Because
They Seek More Than $10,000 ........................................................... 19
iv


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 5 of 38

E.
The District Court Lacks Subject Matter Jurisdiction Over The
Complaint’s Other Claims ................................................................... 20

CONCLUSION .............................................................................................. 22

CERTIFICATE OF COMPLIANCE .............................................................. a

CERTIFICATE OF SERVICE ....................................................................... b

ADDENDUM SETTING FORTH PERTINENT STATUTES AND
REGULATIONS ............................................................................................ c


v


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 6 of 38

TABLE OF AUTHORITIES

Cases

Akinseye v. District of Columbia,
339 F.3d 970 (D.C. Cir. 2003) ................................................................................. 16
Albrecht v. Comm. on Employee Benefits of Fed. Reserve Employee Benefits Sys.,
357 F.3d 62 (D.C. Cir. 2004) ............................................................................... 8, 20
Alpine PCS, Inc. v. FCC,
404 F. App'x 508 (D.C. Cir. 2010) ...................................................................... 5, 15
Biltmore Forest Broad. FM, Inc. v. FCC,
321 F.3d 155 (D.C. Cir. 2003) ................................................................................. 11
*Biltmore Forest Broadcasting FM, Inc. v. United States,
555 F.3d 1375 (Fed. Cir. 2009) ......................................................................... 11-12
Blackmar v. Guerre,
342 U.S. 512 (1952) ................................................................................................. 14
Bliss v. England,
208 F. Supp. 2d 2 (D.D.C. 2002) ....................................................................... 19-20
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) ........................................................................................... 16-17
City of Arlington v. FCC,
133 S. Ct. 1863 (2013) ....................................................................................... 16-17
*City of Rochester v. Bond,
603 F.2d 927 (D.C. Cir. 1979) ........................................................................... 12-13
FCC v. ITT World Commc'ns, Inc.,
466 U.S. 463 (1984) ................................................................................................... 9
FCC v. NextWave Personal Commc'ns Inc.,
537 U.S. 293 (2003) ................................................................................................... 8
FDIC v. Bender,
127 F.3d 58 (D.C. Cir. 1997) ............................................................................. 11, 21
Folden v. United States,
379 F.3d 1344 (Fed. Cir. 2004) ............................................................................... 10
Franchise Tax Bd. Of California v. United States Postal Service,
467 U.S. 512 (1984) ................................................................................................. 14
*Gomez-Perez v. Potter,
553 U.S. 474 (2008) ............................................................................................. 8, 13
Greenhill v. Spellings,
482 F.3d 569 (D.C. Cir. 2007) ................................................................................. 19
_________________
* Authorities chiefly relied upon are marked with an asterisk.
vi


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 7 of 38

In re Alpine PCS, Inc.,
404 F. App'x 504 (D.C. Cir. 2010) ............................................................................ 6
In re Alpine PCS, Inc.,
No. 08-00543, 2008 WL 5076983 (Bankr. D.D.C. Oct. 10, 2008) ........................... 6
In re Alpine PCS, Inc., No. 08-00543, Order Dismissing Case (Bankr. D.D.C. Feb.
24, 2011) ................................................................................................................... 6
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694 (1982) ........................................................................................... 16, 18
Kidwell v. Dep't of the Army,
56 F.3d 279 (D.C. Cir. 1995) ................................................................................... 19
Kontrick v. Ryan,
540 U.S. 443 (2004) ................................................................................................. 16
M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972) ..................................................................................................... 18
McNeil v. United States,
508 U.S. 106 (1993) ................................................................................................. 20
*Murphy Exploration and Production Co. v. U.S. Dept. of the Interior,
252 F.3d 473 (D.C. Cir. 2001), modified on denial of petition for reh'g on other
grounds
, 270 F.3d 957 (D.C.Cir.2001) .............................................................. 16-17
Natural Res. Def. Council v. EPA,
513 F.3d 257 (D.C. Cir. 2008) ................................................................................. 21
Ramey v. Bowsher,
9 F.3d 133 (D.C. Cir. 1993) ..................................................................................... 16
*Settles v. U.S. Parole Comm'n,
429 F.3d 1098 (D.C. Cir. 2005) ............................................................................... 15
Sykes v. Jenny Wren Co.,
78 F.2d 729 (D.C. Cir. 1935) ................................................................................... 13
United States v. Any and All Radio Station Transmission Equipment,
207 F.3d 458 (8th Cir. 2000) ............................................................................... 9-10
United States v. Bormes,
133 S.Ct. 12 (2012) .................................................................................................... 8
United States v. Neustadt,
366 U.S. 696 (1961) ................................................................................................. 20
Verizon Telephone Companies v. FCC, ,
292 F.3d 903, 911-12 (D.C. Cir. 2002) .................................................................. 21
Weinberger v. Bentex Pharms., Inc.,
412 U.S. 645 (1973) ................................................................................................. 16
vii


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 8 of 38

Statutes

11 U.S.C. § 105 ............................................................................................................. 5
11 U.S.C. § 106 ........................................................................................................... 14
11 U.S.C. § 362 ............................................................................................................. 6
28 U.S.C. § 1291 ........................................................................................................... 1
28 U.S.C. § 1331 ........................................................................................................... 1
28 U.S.C. § 1332 ........................................................................................................... 1
28 U.S.C. § 1346 ............................................................................................... 1, 13, 19
28 U.S.C. § 1491 ................................................................................................... 13, 19
28 U.S.C. § 2342 ..................................................................................................... 9, 13
28 U.S.C. § 2401 ......................................................................................................... 21
28 U.S.C. § 2675 ......................................................................................................... 20
28 U.S.C. § 2680 ......................................................................................................... 20
31 U.S.C. § 3711 ................................................................................................... 14-15
39 U.S.C. § 401 ........................................................................................................... 14
47 U.S.C. § 151 ............................................................................................................. 2
47 U.S.C. § 309 ................................................................................................. 9, 13-14
47 U.S.C. § 402 ................................................................................................. 9-13, 17
47 U.S.C. § 614 ........................................................................................................... 14

Other Authorities


20 Am. Jur. 2d Covenants, Etc. § 1 (database updated 2013) .................................... 18
*47 C.F.R. § 1.2110 (2002) .................................................................................... 4, 17
Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders
Announced For Auction 78, 23 FCC Rcd. 12749 (2008) .......................................... 6
Auction Of AWS-1 And Broadband PCS Licenses Scheduled For July 29, 2008;
Comment Sought On Competitive Bidding Procedures For Auction 78,
23 FCC Rcd. 5484 (WTB 2008) ................................................................................ 5
In re Alpine PCS, Inc.,
22 FCC Rcd. 1492 (WTB Jan. 29, 2007) ........................................................ 4, 5, 15
In re Alpine PCS, Inc.,
23 FCC Rcd. 10485 (WTB 2008) .............................................................................. 5
*In re Alpine PCS, Inc.,
25 FCC Rcd. 469 (FCC 2010) ............................................................... 4, 5, 7, 10, 15
U.S. Const., Art. III, § 1 .............................................................................................. 16


viii


USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 9 of 38

GLOSSARY


“Alpine”: appellant Alpine PCS, Inc.
“Forum Choice Clause”: provision

concerning jurisdiction and venue on
“Auction”: FCC-conducted mechanism
page 5 of the Notes
for assigning right to use

electromagnetic spectrum formerly
“FTCA”: Federal Tort Claims Act
assigned to Alpine


“JA”: Joint Appendix
“Automatic Cancellation Order”: In re

Alpine PCS, Inc., 22 FCC Rcd. 1492
“License”: FCC’s conditional
(WTB Jan. 29, 2007)
authorization to use electromagnetic

spectrum to offer wireless mobile
“Bureau”: FCC’s Wireless
phone and data services
Telecommunications Bureau


“Note”: Alpine’s written promise to pay
“CFC”: United States Court of Federal
FCC for License
Claims


“Security Agreement”: Alpine’s written
“Complaint” or “Compl.”: Alpine’s
contract pledging its FCC licenses to
January 3, 2013 pleading
FCC as security for its License-related

debt to FCC
“Dismissal Order”: district court’s June

3, 2013 order dismissing the
“Subsection 309(j)”: 47 U.S.C. § 309(j)
Complaint


“Subsection 402(a)”: 47 U.S.C. § 402(a)
“Dkt#”: district court docket entry

number
“Subsection 402(b)”: 47 U.S.C. § 402(b)


“FCC”: appellee Federal
“Tr.”: transcript of June 3, 2013 hearing
Communications Commission
before district court


“FCC Order”: In re Alpine PCS, Inc., 25
“WTB”: FCC’s Wireless
FCC Rcd. 469 (FCC 2010)
Telecommunications Bureau


ix



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 10 of 38
IN THE UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT




ALPINE PCS, INC.,



Appellant,




v.

No. 13-5205

FEDERAL COMMUNICATIONS COMMISSION, et al.

Appellees.



BRIEF OF APPELLEE FEDERAL COMMUNICATIONS COMMISSION

JURISDICTIONAL STATEMENT

Plaintiff-appellant Alpine PCS, Inc. (“Alpine”) invoked the jurisdiction of
the district court under 28 U.S.C. §§ 1331, 1332 and 1346(b)(1). JA 2 (Dkt# 1,
Complaint (“Compl.”) ¶¶ 4-6). As explained below, the district court correctly
held that it lacked jurisdiction, dismissing Alpine’s complaint in an order entered
on June 3, 2013. JA 99 (Dkt# 17). Alpine filed a notice of appeal on July 1, 2013.
JA 100 (Dkt# 19). This Court has jurisdiction over this appeal under 28 U.S.C.
§ 1291.

STATEMENT OF ISSUE PRESENTED FOR REVIEW

Did the district court correctly conclude that it lacked subject matter
jurisdiction over Alpine’s claims seeking to challenge the FCC’s regulatory
decisions.
1



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 11 of 38

PERTINENT STATUTES AND REGULATIONS

This case concerns two sections of the Communications Act, 47 U.S.C.
§ 151 et seq., one of its implementing regulations, and various provisions of the
Judicial Code, which are set forth in the addendum to this brief.

STATEMENT OF THE CASE

In the Complaint, Alpine asserted six distinct claims against the FCC:
breach of contract, unjust enrichment, fraud in the inducement, declaratory
judgment that Alpine has not defaulted, declaratory judgment that Alpine does not
owe money to the FCC, and breach of fiduciary duty. The district court granted
the FCC’s motion to dismiss for lack of jurisdiction (JA 49 (Dkt# 8)) and
explained the basis for that decision “on the record in open court.” JA 99 (Dkt#
17); see JA 85-95 (Dkt# 18 at 29-39) (transcript, “Tr.”). Alpine appeals from that
decision. JA 100.

STATEMENT OF FACTS

In a 1996 auction, Alpine submitted the winning bids for two FCC licenses
to use the electromagnetic spectrum reserved for Personal Communications
Service - a means of offering wireless mobile phone and data services. JA 3
(Compl. ¶ 10). Alpine agreed to pay most of its winning bid for each license in
installments with interest. To memorialize this debt, for each License, Alpine
issued to the FCC a promissory note; to secure each such debt, via a security
2



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agreement (each, a “Security Agreement”), Alpine pledged each License. JA 3-4,
13-30, 31-48 (Compl. ¶¶ 11-12, 16 and Exs. A, B (Notes) and C, D (Security
Agreements)). The Notes (at 6), JA 19, 28, and Security Agreements (at ¶ 3), JA
34, 43, make clear that they are expressly subject to the FCC’s rules.
In the Notes (at 3), Alpine “acknowledge[d]” that the licenses were
“conditioned upon full and timely payment of financial obligations under the
installment payment plan, as set forth in the then-applicable orders and regulations
of the Commission . . . .” JA 16, 25. The Security Agreements (at ¶ 8(a)) also
reiterated that, in the event of default, “the License[s] shall be automatically
canceled pursuant to 47 C.F.R. § 1.2110.” JA 36, 45.
The Notes (at 5) contain the following clause (“Forum Choice Clause”):
Any legal action or proceeding relating to this note, the security
agreement, or other documents evidencing or securing the debt
transaction evidenced hereby may only be brought in the United
States District Court for the District of Columbia . . . . The parties
hereto hereby irrevocably waive any objection, including, without
limitation, any objection to the laying of venue or based on the
grounds of forum non conveniens, which any of them may now or
hereafter have to the bringing of any such action or proceeding in the
District of Columbia.
JA 18, 27 (capitalization altered). In the Forum Choice Clause (Notes at 5), Alpine
also agreed to “accept[] for itself and in respect of its property generally and
unconditionally, the jurisdiction of the aforesaid court.” JA 18, 27 (capitalization
altered). The Complaint does not allege that the FCC has sued or threatened suit
3



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 13 of 38
elsewhere.
In 2002, Alpine failed to make its required installment payments. See JA 5
(Compl. ¶¶ 23-24). Pursuant to then-applicable FCC regulations, Alpine
automatically received two three-month grace periods terminating on July 31,
2002. See 47 C.F.R. § 1.2110(g)(4)(i) and (ii) (2002). When Alpine failed to pay
its overdue installments by that date, the licenses canceled automatically pursuant
to 47 C.F.R. § 1.2110(g)(4)(iv) (2002). In re Alpine PCS, Inc., 22 FCC Rcd. 1492
(WTB Jan. 29, 2007) (the “Automatic Cancellation Order”) ¶¶ 3-5, 7-8.
On January 16, 2004, the FCC notified Alpine that Alpine was in default
under the Notes, JA 6 (Compl. ¶ 31); two weeks later, the FCC’s Wireless
Telecommunications Bureau (“Bureau” or “WTB”) denied Alpine’s request to
waive the operation of the FCC’s automatic cancellation regulation. Automatic
Cancellation Order ¶ 24; cf. JA 6-7 (Compl. ¶¶ 32-33). The Bureau determined
that granting a waiver to Alpine would be inconsistent with the underlying purpose
of the automatic cancellation rule and auction program because Alpine admitted
that it could not continue to meet its payment obligations and had no prospect of
doing so in the future. Automatic Cancellation Order ¶¶ 13-17.
In response to an Alpine administrative appeal, the full FCC affirmed the
Bureau’s decision to deny Alpine’s waiver request. In re Alpine PCS, Inc., 25
FCC Rcd. 469 (FCC 2010) (“FCC Order”); see JA 7 (Compl. ¶ 36). The FCC held
4



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that in the Automatic Cancellation Order, the Bureau correctly applied the FCC’s
precedents, noting that the FCC has “consistently refused to waive the automatic
cancellation rule” where the licensee defaulted on its auction debt payments and
failed to demonstrate its ability and willingness to pay its outstanding auction debt
in accordance with the rules. FCC Order ¶ 28. The FCC also ruled that the Bureau
correctly concluded that Alpine’s claim of financial distress and lost financing did
not justify a waiver of the automatic cancellation rule. Id. ¶¶ 25-33. Alpine
appealed the FCC Order and this Court affirmed. Alpine PCS, Inc. v. FCC, 404 F.
App’x 508 (D.C. Cir. 2010).
While Alpine’s administrative appeal was pending, the FCC announced a
new auction to assign spectrum, including spectrum previously assigned to Alpine.
Auction Of AWS-1 And Broadband PCS Licenses Scheduled For July 29, 2008;
Comment Sought On Competitive Bidding Procedures For Auction 78, 23 FCC
Rcd. 5484 (WTB 2008); see JA 7 (Compl. ¶ 34). Alpine filed a request to stay the
Auction, which the Bureau denied. In re Alpine PCS, Inc., 23 FCC Rcd. 10485
(WTB 2008). The Bureau noted that any license granted at the Auction would
remain subject to the final outcome of Alpine’s administrative appeal. Id. ¶ 18.
On August 12, 2008 - the day before the scheduled start date for the
Auction - Alpine commenced a Chapter 11 bankruptcy case. Alpine requested the
bankruptcy court to enjoin the Auction pursuant to 11 U.S.C. § 105 on the ground
5



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that the Auction constituted a “foreclosure” on property of the Alpine bankruptcy
estate in violation of the Bankruptcy Code’s automatic stay, 11 U.S.C. § 362. See
JA 7 (Compl. ¶ 35). After emergency briefing and a hearing, the bankruptcy court
announced its decision from the bench and later supplemented it with a written
opinion. The bankruptcy court found that the Auction did not violate the automatic
stay and denied the requested injunction, explaining that the Licenses were not
property of the bankruptcy estate because they had canceled in 2002 when Alpine
failed to pay installments due on the Notes. In re Alpine PCS, Inc., No. 08-00543,
2008 WL 5076983, *2 (Bankr. D.D.C. Oct. 10, 2008). Following the district
court’s affirmance, this Court too rejected Alpine’s arguments “for the reasons
stated in the opinion of the bankruptcy court.” In re Alpine PCS, Inc., 404 F.
App’x 504 (D.C. Cir. 2010).1
This further litigation commenced on January 3, 2013 when Alpine filed its
Complaint. The FCC moved to dismiss the Alpine’s claims against the FCC on the
two grounds. First, the district lacked subject matter jurisdiction over the claims
because Congress had not expressly waived sovereign immunity for the district
court to hear them. Second, the claims against the FCC failed to state any claim on

1 With Alpine’s consent, its bankruptcy case was dismissed. In re Alpine PCS,
Inc.
, No. 08-00543, Order Dismissing Case (Bankr. D.D.C. Feb. 24, 2011).
Meanwhile, on August 20, 2008, the Auction concluded. Winning bids were
submitted on 53 of the 55 offered licenses, including for spectrum formerly
covered by the Alpine licenses. Auction of AWS-1 and Broadband PCS Licenses
Closes; Winning Bidders Announced For Auction 78
, 23 FCC Rcd. 12749 (2008).
6



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which relief could be granted. On June 3, 2013, the district court granted the
motion based on the first of these grounds. JA 87-95 (Tr. 31-39). The district
court explained that “the vast majority of Alpine’s claims are really nothing more
than an appeal from the FCC’s license cancellation decision” and so were claims
within the exclusive jurisdiction of this Court, not the district court. JA 95 (Tr.
39). The district court dismissed the remaining claim for fraud in the inducement
on the grounds that Alpine failed to exhaust its administrative remedies and that
sovereign immunity has not been waived for misrepresentation claims. JA 90-91
(Tr. 34-35). Alpine appealed.

SUMMARY OF ARGUMENT

The district court lacks subject matter jurisdiction over Alpine’s claims
against the FCC, including Alpine’s breach of contract claim -- the only claim
whose dismissal Alpine challenges on this appeal. The United States’ sovereign
immunity cannot be waived by a choice of forum clause in a contract. Alpine’s
breach of contract claim (like its other non-tort claims against the FCC) merely
challenges the FCC Order. As such, this Court, not the district court, properly has
exclusive original jurisdiction to consider any challenge to the FCC Order (and in
2010 this Court rejected this challenge). If that were not so, the breach of contract
claim would be subject to the exclusive subject matter jurisdiction of the United
States Court of Federal Claims (“CFC”). Congress also has not waived sovereign
7



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 17 of 38
immunity for the district court to hear Alpine’s other claims. For these reasons, the
Dismissal Order should be affirmed.

ARGUMENT

THE DISMISSAL ORDER SHOULD BE AFFIRMED BECAUSE THE
DISTRICT COURT LACKS SUBJECT MATTER JURISDICTION TO
DECIDE ALPINE’S CLAIMS

A.

This Court Reviews De Novo

A District Court’s Determination
That Congress Has Not Waived Sovereign Immunity

“Sovereign immunity shields the United States from suit absent a consent to
be sued that is ‘unequivocally expressed.’” United States v. Bormes, 133 S.Ct. 12,
16 (2012) (quoted citation omitted). Any waiver of sovereign immunity “‘must be
unequivocally expressed in statutory text’ and ‘will be strictly construed, in terms
of its scope, in favor of the sovereign.’” Gomez–Perez v. Potter, 553 U.S. 474, 491
(2008) (emphasis added; quoted citation omitted). These principles apply to
Alpine’s suit against the FCC because it is an agency of the United States. See
FCC v. NextWave Personal Commc’ns Inc., 537 U.S. 293, 301 (2003).
This Court reviews de novo a district court’s decision about whether
sovereign immunity has been waived. Albrecht v. Comm. on Employee Benefits of
Fed. Reserve Employee Benefits Sys., 357 F.3d 62, 65 (D.C. Cir. 2004).

B.

The Communications Act Does Not Waive Sovereign Immunity
For The District Court To Hear Challenges To FCC Licensing
Decisions

Alpine’s contention that the district court had subject matter jurisdiction to
8



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 18 of 38
consider its claims rests primarily on its construction of 47 U.S.C. § 309(j)
(“Subsection 309(j)”). As further explained below, Subsection 309(j) does not
waive sovereign immunity. Instead, the Communications Act’s waiver of
sovereign immunity appears in 47 U.S.C. § 402, which gives courts of appeals, not
the district court, authority to consider challenges to FCC decisions.
1.

Communications Act Section 402 Waives Sovereign Immunity
For Challenges To FCC Decisions But Only In Courts of Appeals

The Communications Act routes challenges to FCC decisions down one of
two jurisdictional paths. “Appeals may be taken” from certain types of FCC
decisions “to the United States Court of Appeals for the District of Columbia,” 47
U.S.C. § 402(b) (“Subsection 402(b)”) (emphasis added); otherwise, “[a]ny
proceeding to enjoin, set aside, annul, or suspend any order of” the FCC “shall be
brought as provided by and in the manner prescribed in chapter 158 of Title 28,”
47 U.S.C. § 402(a) (“Subsection 402(a)”) (emphasis added), i.e., in a regional court
of appeals, pursuant to 28 U.S.C. § 2342(1).
Courts have recognized that “[e]xclusive jurisdiction for review of final FCC
orders . . . lies by statute in the Court of Appeals.” FCC v. ITT World Commc’ns,
Inc., 466 U.S. 463, 468 (1984) (citing 28 U.S.C. § 2342(1) and 47 U.S.C.
§ 402(a)). This “‘exclusive jurisdiction of the courts of appeals cannot be evaded
simply by labeling the proceeding as one other than a proceeding for judicial
review.’” United States v. Any and All Radio Station Transmission Equipment,
9



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 19 of 38
207 F.3d 458, 463 (8th Cir. 2000) (quoted citation omitted). Moreover, Subsection
402(b) covers not only matters “fall[ing] within the literal language” of these
sections, but also claims “within the scope of [FCC] licensing decisions . . .
ancillary to those set forth in subsection 402(b).” Folden v. United States, 379
F.3d 1344, 1359 (Fed. Cir. 2004) (holding that FCC decision not to continue to
allocate licensable spectrum by lottery was subject to review only in this Court as a
question ancillary to the denial of a station license under 47 U.S.C. § 402(b)(1)).
Here, Alpine’s contract claim and the rest of its non-tort claims fall within
the range of issues covered by Subsection 402(b). Among the types of challenges
expressly covered there are challenges “[b]y the holder of any . . . station license
which has been . . . revoked by” the FCC, 47 U.S.C. § 402(b)(5) (emphasis added),
and “[b]y any applicant for the renewal or modification of” an FCC license, 47
U.S.C. § 402(b)(2) (emphasis added). As previously explained, supra at 4-6, the
Licenses terminated automatically because Alpine, prior to petitioning for
bankruptcy, failed to make accrued installment payments by the end of the two
three-month grace periods. All of the Complaint’s non-tort claims are challenges
to the FCC’s decision to “revoke” the Licenses for non-payment, and thus all but
the tort claim mount a veiled attack on the FCC Order. Alpine seeks damages for
the FCC’s revocation of the Licenses for Alpine’s failure to meet an express
License condition – full and timely installment payments under the Notes. Under
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Subsection 402(b), this Court has exclusive jurisdiction for judicial review of such
FCC decisions because Alpine’s claims essentially seek to “modif[y]” the
Licenses’ terms so that they would not automatically cancel for failure to make
timely installment payments. 47 U.S.C. § 402(b)(2). The district court found (JA
91-92 (Tr. 35-36)) that Alpine’s failure to respond to these arguments conceded
them, citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (holding district
court did not abuse its discretion in refusing to consider untimely opposition to
summary judgment motion). For this reason, and because the jurisdiction of this
Court over challenges to FCC licensing decisions is exclusive, the district court
correctly held that it lacked subject matter jurisdiction over Alpine’s claims against
the FCC.
Biltmore Forest Broadcasting FM, Inc., 555 F.3d 1375 (Fed. Cir. 2009),
demonstrates the point. There, at an FCC auction for spectrum licenses, the high
bidder had not filed a required disclosure before the auction’s start but remedied
this omission after the auction’s conclusion. The bidder submitting the next
highest bid challenged the award of the licenses to the high bidder, contending that
the high bidder should have been disqualified for failing to make the required
certification. Id. at 1377-78. On appeal under Subsection 402(b), this Court
affirmed the FCC’s rejection of this argument. Biltmore Forest Broad. FM, Inc. v.
FCC, 321 F.3d 155, 160-61 (D.C. Cir. 2003). The unsuccessful bidder then sued
11



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the FCC in the CFC for allegedly breaching an implied contract by awarding a
license in violation of the auction’s published terms. The CFC dismissed for lack
of subject matter jurisdiction and the Federal Circuit affirmed. Even “assum[ing]
. . . that an FCC license auction results in a contract between the FCC and the high
bidder,” 555 F.3d at 1381, the Federal Circuit held that the CFC lacked subject
matter jurisdiction because “jurisdiction conferred by § 402(b) is exclusive,” id. at
1384. “There is no jurisdiction in the CFC to initially adjudicate or to re-
adjudicate the FCC’s compliance with its rules and regulations in licensing
proceedings. The District of Columbia Circuit’s jurisdiction over those issues is
exclusive.” Id.
This Court likewise has recognized its exclusive jurisdiction over challenges
to FCC licensing decisions. In City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir.
1979), a city had requested a district court to “set aside” the FAA’s determination
that construction of a radio tower did not pose a hazard to air traffic and the FCC’s
issuance of a construction permit for the tower. In affirming the district court’s
conclusion that it lacked subject matter jurisdiction over such a claim, this Court
explained, “Congress, acting within its constitutional powers, may freely choose
the court in which judicial review [of federal administrative agency action] may
occur.” Id. at 931. “If . . . there exists a special statutory review procedure, it is
ordinarily supposed that Congress intended that procedure to be the exclusive
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means of obtaining judicial review in those cases to which it applies.” Id.
Excepting only “those instances in which the statutory review would be
inadequate,” this Court thus held that “in [section] 402 of the Communications Act
. . . Congress . . . prescribed the exclusive mode of judicial review of such
controversies as this . . . .” Id. at 934 (citing Sykes v. Jenny Wren Co., 78 F.2d 729,
732 (D.C. Cir. 1935) (holding that Subsection 402(b) provided “the exclusive
remedy . . . for the review of plaintiff’s complaint” to enjoin the FCC from
granting a license modification to a competing radio station, and so “the lower
court was without jurisdiction” over plaintiff’s claim)).
2.

Subsection 309(j) Does Not Waive Sovereign Immunity

Alpine’s contention (Br. 15, 17-19) that Subsection 309(j) waives sovereign
immunity is mistaken. That provision merely directs the FCC to use wireless
licensing to “promot[e] economic opportunity and competition,” 47 U.S.C.
§ 309(j)(3)(B), and, in furtherance of these goals, to “consider alternative payment
schedules” for licensees, 47 U.S.C. § 309(j)(4)(A). This language does not
expressly waive the sovereign immunity of the United States “unequivocally . . . in
statutory text.” Gomez–Perez, 553 U.S. at 491. For example, a statute waiving
sovereign immunity may make the waiver clear by referring to a court’s
jurisdiction over particular types of claims against the United States, e.g., 28
U.S.C. §§ 1346(b)(1), 1491(a)(1), 2342, or by otherwise unambiguously
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identifying that the government is subject to suit for particular claims, e.g., 11
U.S.C. § 106(a). Subsection 309(j) does not contain either type of waiver. Indeed,
it does not even hint at the possibility of suit against the government, and therefore
cannot be said to waive sovereign immunity expressly and unequivocally.
Unsurprisingly, Alpine does not cite any authority holding that Subsection 309(j)
or any similar language qualifies as a waiver of sovereign immunity, and we are
unaware of any such authority.
Alpine’s reliance (Br. 20) on Franchise Tax Bd. Of California v. United
States Postal Service, 467 U.S. 512 (1984), is misplaced. In that case, the Supreme
Court held that Congress had waived the Postal Service’s sovereign immunity by
empowering it to sue and be sued in its own name, 39 U.S.C. § 401(1), and giving
it broader settlement authority than federal agencies generally have, 39 U.S.C.
§ 401(8). Franchise Tax Bd., 467 U.S. at 519. Neither type of provision appears
in Section 309(j). Alpine has not identified any other statute empowering the FCC
in either of these ways. Specifically, Congress has not authorized the FCC to sue
or be sued in its own name. Cf. 47 U.S.C. § 614(h)(1) (empowering
Telecommunications Development Fund, not FCC, “to sue and be sued”).
Congress uses such “explicit language” “[w]hen . . . [it] authorizes one of its
agencies to be sued eo nomine. . . .” Blackmar v. Guerre, 342 U.S. 512, 515
(1952). And the FCC is subject to the same settlement constraints as federal
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agencies generally. See 31 U.S.C. § 3711(a)(2) (generally reserving authority to
compromise claims exceeding $100,000 to the Attorney General).
In sum, the district court correctly dismissed the Complaint for lack of subject
matter jurisdiction because Alpine’s non-tort claims effectively seek review or
annulment of the FCC Order affirming the Automatic Cancellation Order, and only
this Court may hear such challenges. Alpine’s claims are particularly misplaced
because this Court, in Alpine PCS, Inc. v. FCC, 404 F. App’x 508, has already
heard -- and rejected -- Alpine’s challenge. See infra at 21, n.4.

C.

The Forum Choice Clause Does Not Waive Sovereign Immunity

Alpine’s argument that the Forum Choice Clause can overcome the
fundamental limitations on a district court’s jurisdiction lacks merit. “Sovereign
immunity may not be waived by federal agencies.” Settles v. U.S. Parole Comm’n,
429 F.3d 1098, 1105 (D.C. Cir. 2005). Without citing any authority even in
tension with Settles, Alpine argues that the FCC has some “Congressionally-
granted discretion” (Br. 10) to waive sovereign immunity by choosing the forum
for litigation in which it may be named as a defendant. This argument flatly
contradicts not only Settles, but the Supreme Court’s repeated emphasis that a
waiver of sovereign immunity can only be found in a clear statement in the text of
a statute. Supra at 8.
Alpine’s argument is also inconsistent with the basic principle that only
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Congress, not the parties to litigation, can define a federal court’s subject matter
jurisdiction. Weinberger v. Bentex Pharms., Inc., 412 U.S. 645, 652 (1973)
(“Parties, of course, cannot confer jurisdiction; only Congress can do so.”); accord
Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may determine a
lower federal court’s subject-matter jurisdiction.”) (citing U.S. Const., Art. III,
§ 1); Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003)
(“because subject-matter jurisdiction is ‘an Art. III as well as a statutory
requirement . . . no action of the parties can confer subject-matter jurisdiction upon
a federal court.’”) (quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702 (1982)).
Alpine’s contrary argument, resting primarily on City of Arlington v FCC,
133 S. Ct. 1863 (2013) (cited Br. 18-19), lacks merit. The Supreme Court there
held that under Chevron, U.S.A., Inc. v Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984), courts owed deference to the FCC’s interpretation of its own
authority to promulgate regulations. By contrast, a court does not owe deference to
an agency’s view concerning a district court’s jurisdiction. “It is well established
that ‘[i]nterpreting statutes granting jurisdiction to Article III courts is exclusively
the province of the courts.’” Murphy Exploration and Production Co. v. U.S.
Dept. of the Interior, 252 F.3d 473, 478 (D.C. Cir. 2001) (quoting Ramey v.
Bowsher, 9 F.3d 133, 136 n. 7 (D.C. Cir. 1993)), modified on denial of petition for
16



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reh’g on other grounds, 270 F.3d 957 (D.C. Cir. 2001). For that reason, “Chevron
does not apply to statutes that . . . confer jurisdiction on the federal courts.”
Murphy Exploration, 252 F.3d at 478-79 (explaining that “courts pay agencies no
deference on jurisdiction-conferring statutes” because “such statutes do not grant
powers to agencies” and “administrative agencies have no particular expertise in
determining the scope of an Article III court’s jurisdiction”). City of Arlington
does not call this settled principle into question because it had nothing to do with
sovereign immunity waivers.
City of Arlington also is inapposite because the FCC has not promulgated
any regulation purporting to give district courts jurisdiction over challenges by the
maker of notes favoring the FCC. The FCC lacks any reason to promulgate such a
regulation because Congress has expressly and clearly provided that any appeals
from FCC licensing decisions must be heard by this Court. 47 U.S.C. § 402(b).
The regulation to which Alpine (Br. 16) points, 47 C.F.R. § 1.2110(g)(3) (2002),
requires small businesses obtaining FCC license financing to “execute a
promissory note and security agreement,” but does not detail where any action
arising from breach of a note or security agreement should be brought or require
any waiver of objections to venue or the exercise of personal juridiction. Unlike
City of Arlington, this case does not concern the FCC’s regulatory jurisdiction or
Chevron deference to the FCC’s interpretation of the Communications Act.
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M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (cited Br. 16),
likewise does not support Alpine’s argument that the Forum Choice Clause waives
sovereign immunity. That case merely held that federal district courts “sitting in
admiralty” should enforce forum-selection clauses “unless enforcement is shown
by the resisting party to be ‘unreasonable’ under the circumstances.” Id. at 10.
The Forum Choice Clause is merely Alpine’s waiver of its potential
objections to jurisdiction over its person or to venue for a Note-related action in
the district court, a forum convenient to the FCC.2 These waivers are legally
permissible because a forum selection clause is merely one of a “variety of legal
arrangements” by which a litigant may give “express or implied consent to the
personal jurisdiction of the court.” Ins. Corp. of Ireland, 456 U.S. at 703
(emphasis added). Moreover, the FCC did not make representations in the Forum
Choice Clause because the Notes were neither signed by, nor contain a signature
line for, the FCC.3 Put simply, Alpine’s waivers of objections to the district
court’s jurisdiction over its person or to venue did not give Alpine any meaningful

2 JA 18, 27 (Notes at 5) (“Maker hereby accepts for itself and in respect of its
property generally and unconditionally, the jurisdiction of” “the United States
District Court for the District of Columbia” and “waives any objection, including,
without limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens . . . to the bringing of any such action or proceeding in the
District of Columbia.”) (emphasis added; capitalization in original removed).
3 See 20 Am. Jur. 2d Covenants, Etc. § 1 (database updated 2013) (“In general
usage, a covenant is a solemn or formal obligation binding on the covenantor, but
not necessarily binding on others”).
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assurance that the district court would have subject matter jurisdiction over any
Note-related suit against the FCC.

D.

The District Court Also Lacks Subject Matter Jurisdiction Over
Alpine’s Express and Disguised Breach of Contract Claims
Because They Seek More Than $10,000

Generally, the CFC “has exclusive jurisdiction” to hear a “‘claim against the
United States founded . . . upon an[ ] express or implied contract with the United
States’” when the claim seeks “over $10,000 in damages.” Greenhill v. Spellings,
482 F.3d 569, 576 (D.C. Cir. 2007) (quoting the Tucker Act, 28 U.S.C. § 1491).
“‘[J]urisdiction under the Tucker Act cannot be avoided by . . . disguising a money
claim’ as a claim requesting a form of equitable relief.” Kidwell v. Dep’t of the
Army, 56 F.3d 279, 284 (D.C. Cir. 1995). The district court has subject matter
jurisdiction over a claim arising from the government’s alleged breach of a
contract only when the amount of the claim does not exceed $10,000. 28 U.S.C.
§ 1346(a)(2). Here, Alpine’s claim that the FCC “breached its contractual
obligations, including those embodied in the Licenses, Notes, and the Security
Agreements” seeks damages exceeding twenty million dollars. JA 8-9 (Compl.
¶¶ 43, 45). Most of its other claims are disguised claims for breach of contract
over which, outside the context of an FCC licensing decision, the CFC would have
exclusive jurisdiction. See Bliss v. England, 208 F. Supp. 2d 2, 7 (D.D.C. 2002)
(dismissing military officer’s claim for declaratory and injunctive relief to correct
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USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 29 of 38
allegedly erroneous retirement rank for lack of subject matter jurisdiction
“[b]ecause his complaint specifically mentions monetary relief”). Thus, if
Alpine’s claims are not properly characterized as a challenge to an FCC licensing
decision, the Dismissal Order should be affirmed on the ground that subject matter
jurisdiction over most of them rests with the CFC, not the district court.

E.

The District Court Lacks Subject Matter Jurisdiction Over The
Complaint’s Other Claims

In this Court, Alpine does not challenge the district court’s conclusion that it
lacked subject matter jurisdiction over the Complaint’s non-contract claims, and
for good reason. Alpine has not exhausted its administrative remedies for any tort
claims, JA 90-91 (Tr. 34-35), a prerequisite under 28 U.S.C. § 2675(a) to the
waiver of sovereign immunity for such claims under Federal Tort Claims Act
(“FTCA”). See McNeil v. United States, 508 U.S. 106, 112-13 (1993). Moreover,
the district court correctly concluded (JA 90-91 (Tr. 34-35)) that it lacked subject
matter jurisdiction over Alpine’s claim for fraud in the inducement because the
FTCA does not waive sovereign immunity for claims based on an alleged
misrepresentation. 28 U.S.C. § 2680(h); see United States v. Neustadt, 366 U.S.
696, 702 (1961) (noting this section “comprehends claims arising out of negligent,
as well as willful, misrepresentation.”). Sovereign immunity also has not been
waived for Alpine’s breach of contract claim disguised as a breach of fiduciary
claim. See Albrecht, 357 F.3d at 68. Moreover, the district court correctly held
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(JA 90-91 (Tr. 34-35)) that Alpine waived any contrary argument by failing to
respond to these points, citing FDIC v. Bender, 127 F.3d at 67-68, and Alpine has
again waived any contrary argument by failing to include any mention of the issue
in its opening brief. See Verizon Telephone Companies v. FCC, 292 F.3d 903,
911-12 (D.C. Cir. 2002) (arguments not made in the opening brief are waived).
In short, the Dismissal Order should be affirmed because the district court
lacked subject matter jurisdiction over each Alpine claim against the FCC.4

4Alpine cannot prevail on the merits of its claims against the FCC for numerous
additional reasons. All of Alpine’s claims are barred by claim preclusion, as
Counts One and Five and both counts labeled “Four” have already been litigated
through two appeals to this Court, supra at 4-6, and Alpine’s remaining claims
against the FCC arise from the same nucleus of operative fact. See Natural Res.
Def. Council v. EPA
, 513 F.3d 257, 260-61 (D.C. Cir. 2008). Moreover, all of
Alpine’s claims against the FCC are time-barred under 28 U.S.C. § 2401 because
its tort claims first accrued at least two years prior to January 3, 2013 (when Alpine
filed the Complaint), and its other claims accrued at least six years before that date.
For example, Alpine’s contractual breach claims had expired by 2013 because they
accrued in 2004. See JA 5-6, 8-9 (Compl. ¶¶ 24-32, 43). And even if Alpine’s
claims were not barred, they should be dismissed as not facially viable. Alpine’s
breach of contract and declaratory judgment claims (Count One and both counts
labeled “Four”) are meritless because Alpine breached its contracts with the FCC
by failing to make timely installment payments due under the Notes. See supra at
2-6. Alpine lacks an unjust enrichment claim (Count Two) because the FCC’s
receipts were governed by express contracts. Alpine’s fraud claim (Count Three)
fails because it rests on a mistaken construction of the Notes, see supra at 18, and
even under Alpine’s construction, the supposed representations merely mis-stated
applicable law, not any fact. Count Five lacks facial validity because the FCC
does not have fiduciary duties to Alpine, as no statute or regulation imposes any
such duty on the FCC, and its lending relationship to Alpine did not create one.
The FCC extensively briefed and orally argued these points below. See JA 60, 66-
76 (Tr. 4, 10-20). The district court relied on them in denying Alpine’s request to
transfer the case to the CFC. JA 93-94 (Tr. 37-38).
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CONCLUSION

For the foregoing reasons, the Dismissal Order should be affirmed.

Dated: November 25, 2013


Respectfully submitted

STUART F. DELERY
Assistant Attorney General

Of Counsel
/s/ Lloyd H. Randolph
JACOB M. LEWIS
LLOYD H. RANDOLPH
HILLARY B. BURCHUK
(D.C. Bar #376009)
Federal Communications Commission
Civil Division

U.S. Department of Justice
P.O. Box 875
Ben Franklin Station
Washington, DC 20044
lloyd.randolph@usdoj.gov
Voice: (202) 307-0356
Fax: (202) 307-0494
Attorneys for the United States on behalf of the Federal Communications
Commission


22



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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF

APPELLATE PROCEDURE 32(a)

I hereby certify that this brief complies with the requirements of Fed. R.
App. P. 32(a)(5) and (6) because it has been prepared in 14-point Times New
Roman, a proportionally spaced font.
I further certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) because it contains 5382 words, excluding the parts of
the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft
Word.
/s/ Lloyd H. Randolph




Lloyd H. Randolph


a



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 33 of 38

CERTIFICATE OF SERVICE

I hereby certify that on November 25, 2013 I electronically filed the
foregoing Brief Of Appellee Federal Communications Commission with the Clerk
of the Court for the United States Court of Appeals for the District of Columbia
Circuit by using the appellate CM/ECF system. I further certify that I will cause
the original and eight paper copies of this brief to be filed with the Court within
two business days.
The participants in the case are registered CM/ECF users and service will be
accomplished by the appellate CM/ECF system.
/s/
Lloyd
H.
Randolph










Lloyd H. Randolph


b



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 34 of 38

ADDENDUM SETTING FORTH PERTINENT

STATUTES AND REGULATIONS


Table of Contents


47 U.S.C. § 402(b) .......................................................................................................... c
47 U.S.C. § 309(j) ........................................................................................................... c
47 C.F.R. § 1.2110(g) (2002) .......................................................................................... d
28 U.S.C. § 1346 ............................................................................................................. f
28 U.S.C. § 1491(a)(1) .................................................................................................... f
28 U.S.C. § 2675(a) ......................................................................................................... f
28 U.S.C. § 2680 ............................................................................................................. g

Excerpted Text of

Pertinent

Statutes And Regulations


47 U.S.C. § 402 provides in part:
(b) Right to appeal
Appeals may be taken from decisions and orders of the Commission
to the United States Court of Appeals for the District of Columbia in
any of the following cases:
. . . .
(2) By any applicant for the renewal or modification of any such
instrument of authorization whose application is denied by the
Commission.
. . . .
(5) By the holder of any construction permit or station license which
has been modified or revoked by the Commission.
47 U.S.C. § 309(j) provides in part:
(3) Design of systems of competitive bidding
For each class of licenses or permits that the Commission grants
through the use of a competitive bidding system, the Commission
shall, by regulation, establish a competitive bidding methodology. . . .
[I]n designing the methodologies for use under this subsection, the
Commission . . . shall seek to promote the purposes specified in
section 151 of this title and the following objectives:
. . .
(B) promoting economic opportunity and competition and ensuring
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USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 35 of 38
that new and innovative technologies are readily accessible to the
American people by avoiding excessive concentration of licenses and
by disseminating licenses among a wide variety of applicants,
including small businesses. . . .

(4) Contents of regulations
In prescribing regulations pursuant to paragraph (3), the Commission
shall--
(A) consider alternative payment schedules and methods of
calculation, including lump sums or guaranteed installment payments,
with or without royalty payments, or other schedules or methods that
promote the objectives described in paragraph (3)(B), and
combinations of such schedules and methods; . . . .
47 C.F.R. § 1.2110(g) (2002) provides in part:
(3) Upon grant of the license, the Commission will notify each
eligible licensee of the terms of its installment payment plan and that
it must execute a promissory note and security agreement as a
condition of the installment payment plan. Unless other terms are
specified in the rules of particular services, such plans will:
(i) Impose interest based on the rate of U.S. Treasury obligations
(with maturities closest to the duration of the license term) at the time
of licensing;
(ii) Allow installment payments for the full license term;
(iii) Begin with interest-only payments for the first two years; and
(iv) Amortize principal and interest over the remaining term of the
license.

(4) A license granted to an eligible entity that elects installment
payments shall be conditioned upon the full and timely performance
of the licensee's payment obligations under the installment plan.
(i) Any licensee that fails to submit its quarterly payment on an
installment payment obligation (the “Required Installment Payment”)
may submit such payment on or before the last day of the next quarter
(the “first additional quarter”) without being considered delinquent.
Any licensee making its Required Installment Payment during this
period (the “first additional quarter grace period”) will be assessed a
late payment fee equal to five percent (5%) of the amount of the past
due Required Installment Payment. The late payment fee applies to
d



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 36 of 38
the total Required Installment Payment regardless of whether the
licensee submitted a portion of its Required Installment Payment in a
timely manner.
(ii) If any licensee fails to make the Required Installment Payment on
or before the last day of the first additional quarter set forth in
paragraph (g)(4)(i) of this section, the licensee may submit its
Required Installment Payment on or before the last day of the next
quarter (the “second additional quarter”), except that no such
additional time will be provided for the July 31, 1998 suspension
interest and installment payments from C or F block licensees that are
not made within 90 days of the payment resumption date for those
licensees, as explained in Amendment of the Commission's Rules
Regarding Installment Payment Financing for Personal
Communications Services (PCS) Licensees, Order on Reconsideration
of the Second Report and Order, WT Docket No. 97-82, 13 FCC Rcd
8345 (1998). Any licensee making the Required Installment Payment
during the second additional quarter (the “second additional quarter
grace period”) will be assessed a late payment fee equal to ten percent
(10%) of the amount of the past due Required Installment Payment.
Licensees shall not be required to submit any form of request in order
to take advantage of the first and second additional quarter grace
periods.
(iii) All licensees that avail themselves of these grace periods must
pay the associated late payment fee(s) and the Required Installment
Payment prior to the conclusion of the applicable additional quarter
grace period(s). Payments made at the close of any grace period(s)
will first be applied to satisfy any lender advances as required under
each licensee's “Note and Security Agreement,” with the remainder of
such payments applied in the following order: late payment fees,
interest charges, installment payments for the most back-due quarterly
installment payment.
(iv) If an eligible entity obligated to make installment payments fails
to pay the total Required Installment Payment, interest and any late
payment fees associated with the Required Installment Payment
within two quarters (6 months) of the Required Installment Payment
due date, it shall be in default, its license shall automatically cancel,
and it will be subject to debt collection procedures. A licensee in the
PCS C or F blocks shall be in default, its license shall automatically
cancel, and it will be subject to debt collection procedures, if the
payment due on the payment resumption date, referenced in paragraph
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(g)(4)(ii) of this section, is more than ninety (90) days delinquent.

28 U.S.C. § 1346 provides in part:

(a) The district courts shall have original jurisdiction, concurrent with
the United States Court of Federal Claims, of:
. . .
(2) Any other civil action or claim against the United States, not
exceeding $10,000 in amount, founded either upon the Constitution,
or any Act of Congress, or any regulation of an executive department,
or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort . . . .

(b)(1) Subject to the provisions of chapter 171 of this title, the district
courts, together with the United States District Court for the District
of the Canal Zone and the District Court of the Virgin Islands, shall
have exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after January 1,
1945, for injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.

28 U.S.C. § 1491 provides in part:

(a)(1) The United States Court of Federal Claims shall have
jurisdiction to render judgment upon any claim against the United
States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.

28 U.S.C. § 2675 provides in part:

(a) An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
f



USCA Case #13-5205 Document #1467784 Filed: 11/25/2013 Page 38 of 38
office or employment, unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall have
been finally denied by the agency in writing and sent by certified or
registered mail.

28 U.S.C. § 2680 provides in part:
The provisions of this chapter and section 1346(b) of this title shall
not apply to—
. . . .
(h) Any claim arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights. . . .
g


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