Court of Appeals Denies Petitions for Review in Northpoint v. FCC

July 15, 2005. The U.S. Court of Appeals (DCCir) issued its opinion [PDF] in NorthPoint v. FCC, affirming the Federal Communications Commission's (FCC) rules allowing terrestrial multichannel video distribution and data service (MVDDS) to share the 12.2-12.7 GHz band with direct broadcast satellite (DBS) services, and affirming the FCC's decision to auction MVDDS use of the band.

At issue are the FCC's final orders allowing sharing of the 12 GHz band, and providing for the auctioning of this spectrum. Both Northpoint and DBS providers (EchoStar, Directv, SES Americom, and their Satellite Broadcasting and Communications Association) brought petitions for review and appeals.

DBS providers use geosynchronous satellites located over the equator. Their customers in the U.S. use receivers that point southward towards these satellites. The technology advanced by Northpoint involves terrestrial towers, using the same spectrum, whose directional antennas point southward. Their customers use receivers that point northward towards these towers.

The DBS providers challenged the FCC's order allowing MVDDS providers to share the 12 GHz band with DBS providers. They also argued that the technical parameters mandated by the FCC were insufficient to protect their service from harmful interference.

Northpoint has all along argued that the FCC should order the sharing of the 12 GHz band. However, Northpoint challenged the FCC's decision to auction the MVDDS licenses for that bandwidth. It argues that it should have been granted exclusive access without having to go through an auction process.

Northpoint did not prevail on the auction process issue at the FCC, and did not participate in the FCC's MVDDS auction, which took place in January 2004. The FCC FCC awarded licenses to other parties.

In the present opinion, the Court of Appeals rejected all of the challenges.

The Court of Appeals deferred to the FCC’s definition of harmful interference, as used in the Rural Local Broadcast Signal Act of 1999 (RLBSA), and further found that the FCC's solutions for ensuring that both new and existing DBS subscribers do not experience such harmful interference is reasonable. Hence, it rejected the DBS providers' Administrative Procedure Act (APA) challenge.

The Court of Appeals also found that the ORBIT Act does not unambiguously bar the FCC's decision to auction MVDDS licenses for the 12 GHz band, and the LOCAL TV Act does not unambiguously operate to bar the FCC from auctioning those licenses to MVDDS providers other than Northpoint, and that the FCC did not arbitrarily treat Northpoint differently than the NGSO-FSS applicants in violation of the APA. Hence, the Court of Appeals rejected Northpoint's challenge.

The DBS providers were represented by Richard Bress of the law firm of Latham & Watkins. He stated to TLJ that "We are pleased with the Court's decision on the auction issue, which we believe was correctly decided." With regard to terrestrial use of the spectrum, he added that "we are happy to work with the Commission to ensure that there will be no harmful interference to DBS".

Michael Kellogg of the law firm of Kellogg Huber represented Northpoint.

This case is NorthPoint Technology Ltd, et al. v. FCC, Echostar Satellite Corporation, et al., intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 02-1194, 02-1195, 02-1209, 03-1244, 03-1245, 03-1286, 03-1297, 03-1299, and 03-1300. Judge Sentelle wrote the opinion of the Court of Appeals, in which Judge Rogers and Tatel joined.

Also, on June 21, 2005, the Court of Appeals issued  its opinion [19 pages in PDF] in Northpoint v. FCC, setting aside part of the FCC's DBS Auction Order. That case was Northpoint Technology Ltd. and Compass Systems, Inc., U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-1052 and No. 04-1053. See also, story titled "DC Circuit Rules in Northpoint v. FCC" in TLJ Daily E-Mail Alert No. 1,161, June 24, 2005.