On July 12, 2018, the Federal Communications Commission (“FCC” or “Commission”) released a Memorandum Opinion and Order (“MO&O”) (FCC 18-98) affirming the Wireless Telecommunications Bureau (the “Bureau”) Order on Remand (the “Order”). The Bureau’s Order set forth a procedure allowing Northstar Wireless and SNR Wireless (together, the “Applicants”) an opportunity to cure their Auction 97 applications which were denied small business credits due to DISH Network’s de facto control over Applicants.

In 2015, the Applicants appealed the Commission’s ruling that Applicants were not eligible for small business bidding credits due to DISH Network’s de facto control over Applicants. The Court of Appeals for the District of Columbia held that the FCC’s decision was appropriate, however, it directed the Commission to provide the Applicants an opportunity to cure the infirmities associated with their auction applications by renegotiating the de facto control that DISH exercises and the FCC complied by outlining a process in the Order. However, Applicants filed an Application for Review (“AFR”) requesting a process that allows for “iterative” negotiation and open dialogue with the Commission. The FCC’s MO&O states the Court’s decision does not require it to grant “responsive, back-and-forth discussions” with the Applicants, nor does the Court’s mandate or Section 402(h) of the Communications Act limit the FCC’s discretion in how to handle this process. The FCC believes the Bureau’s Order is in accordance with the Court’s instruction to provide Applicants an opportunity to cure.

The MO&O addresses cases cited by the Applicants and finds that none of them set a precedent where the Commission has granted an iterative cure negotiation process. The FCC states that the Bureau’s Order follows Commission precedent and was a reasonable exercise of the FCC’s discretion, as the Commission has broad authority to outline a cure process. The FCC also states that the Bureau’s Order was in accordance with the FCC’s objective of transparency and streamlining the lengthy licensing process. Lastly, Applicants request that certain parties be removed as Parties of Record for lack of standing or failure to file timely. While the FCC declines to remove those parties, it does grant Applicants the ability to respond to the record, allowing Applicants 45 days from when comments are due from Parties of Record to submit their pleading.

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