Opinion Part Three
II
We begin with three threshold issues. Does our jurisdic-
tion in this case arise from 47 U.S.C. s 402(a) or 402(b)?
Was NextWave's challenge to its license cancellation timely?
And are NextWave's Bankruptcy Code arguments barred by
res judicata? We consider each question in turn.
Jurisdiction
NextWave has filed both a petition for review under section
402(a) and a notice of appeal under section 402(b) of the
Communications Act. Section 402(a) provides that "[a]ny
proceeding to enjoin, set aside, annul, or suspend any order of
the Commission under this chapter (except those appealable
under subsection (b) of this section) shall be brought" in a
court of appeals. See 47 U.S.C. s 402(a) (cross-referencing
28 U.S.C. s 2342(1)). Section 402(b), in contrast, provides:
Appeals may be taken from decisions and orders of the
Commission to the United States Court of Appeals for
the District of Columbia ... y the holder of any
construction permit or station license which has been
modified or revoked by the Commission.
Id. s 402(b). Acknowledging that we have previously found
these two provisions mutually exclusive, see Friedman v.
FCC, 263 F.2d 493, 494 (D.C. Cir. 1959), NextWave asks us to
"dismiss the filing that relies on the incorrect jurisdictional
provision." Appellants' Opening Br. at 1.
In Mobile Communications Corp. of America v. FCC, we
decided that the term "station license" in section 402(b)
encompasses PCS licenses. See 77 F.3d 1399, 1403 (D.C. Cir.
1996); see also 47 U.S.C. s 153(42) (defining "station license"
as "that instrument of authorization required ... for the use
or operation of apparatus for transmission of energy, or
communications, or signals by radio"); id. s 153(33) (defining
"communication by radio" as "the transmission by radio of
writing, signs, signals, pictures, and sounds of all kinds").
Given this, we think section 402(b)'s plain language, permit-
ting appeal by "the holder of any ... station license which
has been ... revoked by the Commission," covers this case.
Cf. Cook, Inc. v. United States, 394 F.2d 84, 86 n.4 (7th Cir.
1968) (" 'The language of [subsection 402(b)], when considered
in relation to that of subsection (a) ... would make clear that
judicial review of all cases involving the exercise of the
Commission's radio-licensing power is limited to [the United
States Court of Appeals for the District of Columbia Cir-
cuit].' ") (quoting S. Rep. No. 82-44, at 11 (1951)); In re FCC,
217 F.3d at 140-41. Even if the Commission did not formally
"revoke" NextWave's licenses, that is certainly the effect of
the license cancellation: the licenses once assigned to
NextWave are now being re-auctioned to other bidders. Cf.
In re FCC, 217 F.3d at 140 n.10. We therefore dismiss the
section 402(a) petition and proceed with the section 402(b)
appeal.
Timeliness
Section 402(c) of the Communications Act requires appeals
under section 402(b) to be filed "within thirty days from the
date upon which public notice is given of the decision or order
complained of." 47 U.S.C. s 402(c). The "decision"
NextWave seeks to challenge is the Commission's cancellation
of its licenses, but the formal Commission action it actually
appeals is the public notice of re-auction, which itself cancels
no licenses, but rather announces in passing that the compa-
ny's licenses canceled automatically at an earlier date. Order
on Reconsideration, FCC 00-355 p 10.
The Commission acknowledges that "in some instances, it
may be proper for a party to challenge the Commission's
public notices that establish or deny rights." Id. Joined by
Intervenors, however, it argues that NextWave's challenge to
the license cancellation policy is untimely. Intervenors claim
that NextWave should have challenged the policy when its
licenses were issued, since the licenses themselves stated
explicitly that they were conditioned on timely payment, and
as we have held, "[a]cceptance of a license constitutes acces-
sion to all [license] conditions." P&R Temmer v. FCC, 743
F.2d 918, 928 (D.C. Cir. 1984). Alternatively, both Interve-
nors and the Commission suggest that NextWave should have
challenged the automatic cancellation rule during the Re-
structuring Order proceedings because during those proceed-
ings, the Commission considered objections to its original
installment payment plan (including some objections based on
the Bankruptcy Code), revised the plan, and ultimately reaf-
firmed the timely payment requirement. Intervenors' Br. at
3; see also, e.g., Order on Recons. of the Second Report and
Order, 13 FCC Rcd 8345 p 24. Having failed to challenge the
automatic cancellation rule at one of these earlier dates, they
argue, NextWave cannot do so now because orders denying
reconsideration do not re-open matters that should have been
challenged previously. See ICC v. Bhd. of Locomotive
Eng'rs, 482 U.S. 270, 279-80, 285-86 (1987).
As NextWave points out, however, we have held that "a
party against whom a rule is applied may, at the time of
application, pursue substantive objections to the rule ... even
where the petitioner had notice and opportunity to bring a
direct challenge within statutory time limits" but failed to do
so. Indep. Cmty. Bankers of Am. v. Bd. of Governors of the
Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir. 1999). Thus
even if NextWave could have challenged the automatic cancel-
lation policy at an earlier date--either when its licenses
issued or during the Restructuring Order proceedings--the
company remained free to do so "within thirty days from the
date upon which public notice [was] given" that the policy had
been applied to it. 47 U.S.C. s 402(c).
According to NextWave, the thirty-day period was trig-
gered by the public notice of re-auction because, prior to the
re-auction notice, "the FCC had done nothing whatsoever to
announce the cancellation of NextWave's licenses." Appel-
lants' Reply Br. at 6. Because it filed a precautionary appeal
with this court 30 days after the notice of re-auction,
NextWave claims, its appeal was timely. Disagreeing, Inter-
venors argue that NextWave already had notice in October
1998 that its licenses would cancel automatically if and when
it failed to make an installment payment. Thus, they argue,
no further Commission statement was required to trigger the
period for seeking judicial review.
Intervenors' argument assumes that notice of a future
event's automatic effect (here, the explicit warning that the
licenses would cancel for failure to make a timely payment) is
by itself sufficient notice to mean that the occurrence of the
future event (failing to make a timely payment) will trigger
the period for seeking judicial review under section 402(c).
To resolve the timeliness issue in this case, however, we need
not decide whether that assumption is correct, for we think it
was unclear prior to the notice of re-auction that the automat-
ic cancellation policy would apply to licensees who had filed
for bankruptcy. To begin with, the Bankruptcy Code gave
NextWave reason to doubt that the automatic cancellation
would actually occur when the company missed its first
payment in October 1998: the automatic stay triggered by a
Chapter 11 filing generally blocks most efforts by creditors to
exercise control over or repossess property of a debtor. See
11 U.S.C. s 362(a); cf. NextWave VI, 244 B.R. at 266-68
(finding that the automatic stay applied to NextWave's license
fee obligations). Neither the Commission nor Intervenors
point to any instance prior to the re-auction notice in which
the Commission actually announced that NextWave's licenses
had canceled despite the stay. Moreover, the Commission's
own conduct suggests that it was at best unsure whether the
automatic stay blocked cancellation of the company's licenses.
After the bankruptcy court's fraudulent conveyance holding,
and several months after NextWave missed the October
payment deadline, the Commission moved the bankruptcy
court to lift the stay "so that the ... automatic cancellation
provisions may take effect." Mot. to Lift Automatic Stay at
2, NextWave V, 235 B.R. 314 (No. 98 B 21529). And in the
bankruptcy court, Commission counsel suggested that the
automatic stay blocked cancellation of NextWave's licenses,
stating for example that although "[t]he regulations provide
that upon failure to make the payments the license is auto-
matically canceled[,] ... [t]hat hasn't [happened] in this case
due to the automatic stay." See Hearing Tr. at 30, In re
NextWave Pers. Communications, Inc., No. 98 B 21529
(Bankr. S.D.N.Y. Nov. 12, 1998); NextWave VI, 244 B.R. at
277 (noting that transcript erroneously attributes this quota-
tion to the Court).
These circumstances suggest that the Commission believed
NextWave's licenses had not canceled prior to the notice of
re-auction. At the very least, they created doubt about the
matter, and as we have held, "when an agency leaves room
for genuine and reasonable doubt as to the applicability of its
orders or regulations, the statutory period for filing a petition
for review is tolled until that doubt is eliminated." Recre-
ation Vehicle Indus. Ass'n v. EPA, 653 F.2d 562, 569 (D.C.
Cir. 1981). Because the "genuine and reasonable doubt"
about the status of NextWave's licenses continued until the
Commission issued the notice of re-auction, we conclude that
NextWave's petition is timely.
[ continued in part four ] |
