UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
BUSINESS AND EDUCATIONAL RADIO, INC., Intervenors
Appeal From an Order of the Federal Communications Commission; Petition for Review of an Order of the Federal Communications Commission. 1985.CDC.96
Edwards and Bork, Circuit Judges and Oberdorfer,* United States District Judge for the District of Columbia.
Opinion for the Court field by Circuit Judge BORK.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK
This case is another episode in the long-running controversy about the allocation of radio spectrum between common carriers and private land mobile radio services. Telocator Network of America, the national trade association of the radio common carrier industry, seeks review of two orders of the Federal Communications Commission . The first order established the private carrier paging system as a new license classification to operate within the private land mobile radio services. The second order granted a PCPS license to Millicom Information Services, Inc. ("Millicom"). Millicom and the National Association of Business and Educational Radio, Inc. have intervened to support the FCC. We accept jurisdiction pursuant to 47 U.S.C. § 402 (1982) and 28 U.S.C. § 2342 (1982).
The central legal issue is whether, within the meaning of the Communications Amendments Act of 1982, customers of Millicom's PCPS are "authorized users" of Millcom's land station. If, as the Commission held, Millicom is the sole "authorized user," Telocator's challenge fails. We hold that the Commission was correct and affirm it orders. I.
It will be helpful in understanding the legal issue to clarify the commercial and technological context in which Congress and the Commission acted.
FCC policy, since at least 1949, has been to provide spectrum for land mobile radio service to both private and common carriers. See General Mobile Radio Service, 13 F.C.C. 1190, recon. denied, 13 F.C.C. 1242 (1949). Land mobile radio service includes three forms: (1) mobile telephone service, *fn1 (2) dispatch calling, *fn2 and (3) one-way signaling. This case involves the third service, one-way signaling, which is commonly referred to as "pocket paging" or "beeper" service. Pocket paging systems can be licensed to single entities or to multiple users in approved sharing arrangements that can take either a common or private carrier form. The FCC has approved private sharing arrangements, although similar in many respects to common carrier licensing, to promote competition and allow private users to make more efficient use of the spectrum. Unlike in the common carrier service, private radio service frequencies are generally nonexclusive and have no guarantee of protection from interference. See 47 C.F.R. § 90.173(b) (1984)
Prior to the introduction of PCPS's the FCC had established three types of private sharing arrangements. The first, cooperative use arrangements, involves licensing the base station to a sole licensee. The licensee can share the land station with other eligible persons as long as all use of the station comes under the licensee's control. Private Land Mobile Radio Services, l89 F.C.C.2d 766, 767 n. 5 (1982), recon. denied, 93 F.C.C.2d 1127 (1983); Medical Society Services, Inc., 26 F.C.C.2d 617, 618-19 (1970).
The second form of shared use, multiple licensing arrangements, involves licensing the base station in two or more eligible users. See 47 C.F.R. § 90.185 (1984). Unlike cooperative use arrangements, the users in multiple licensing arrangements are each licensees of the base station and individually have access to and control the transmitter. Each licensee is assigned "tone" signals for direct activation, over a telephone line, of the land station transmitter. This allows each licensee control of the transmitter exclusive of other licensees. Private Land Mobile Radio Services, 89 F.C.C.2d at 767 n. 5.
Specialized Mobile Radio Systems are the third form of shared use. This system is similar to multiple licensing arrangements except that the equipment owner is the licensee of the base station transmitter, and he provides the paging service on a commercial basis allowing each user access to and control of a station. National Association of Regulatory Utility Commissioners v. FCC, 173 U.S. App. D.C. 413, 525 F.2d 630 (D.C. Cir.), cert. denied, 425 U.S. 992 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976) .
In July 1982, after a rulemaking proceeding, the FCC determined that the public interest would be served through the allocation of 40 channels in the 929-930 mega-Hertz ("MHz") band for one-way private paging services. Second Report and Order, General Docket 80-183, 91 F.C.C.2d 1214 (1982). The Commission set aside 30 of the channels for private noncommercial systems and 10 of the channels for the creation of PCP's to operate as additional private services. The Commission felt that "this apportionment of channels [would] provide eligibles with the option of obtaining private carrier paging service from PCP licensees, while reserving adequate spectrum for those users who wish to build and implement their own systems." Id. at 1223. Later that same year, the FCC granted Millicom several licenses to operate as a nationwide PCPS on a for-profit basis. Millicom as the sole licensee exercises exclusive control of its base station. Eligible users gain access to the transmitter through the licensee either by an oral telephone communication to a Millicom operator or through a keyboard display terminal entry over the telephone lines directly to Millicom's ...