Dish DEs' Appeal to Supreme Court Faces Unclear Chances

The odds of the Supreme Court taking up the complaint by Dish Network designated entities (DE) SNR Wireless and Northstar Wireless about the handling of the AWS-3 auction bidding credits aren't clear, experts and interested parties told us. The DEs filed a petition Friday with the Supreme Court for writ of certiorari appealing the U.S. Court of Appeals for the D.C. Circuit's August ruling that upheld the FCC withholding AWS-3 auction bidding credits due to their too-close connections to Dish (see 1708290012). The FCC didn't comment Monday.

By their very nature, cert petition acceptances are hard to get and harder still when the FCC isn't working on the matter being litigated, which give the DEs a significant challenge before being taken up by the high court, a former FCC official said. The D.C. Circuit ruling required the FCC to give the DEs a chance to fix Dish's de facto control, and the agency last week gave the DEs a 90-day deadline for renegotiating their arrangements with Dish (see 1801240053).

Any cert petition "is a tall order" statistically, with the court taking 70 to 80 cases out of close to 10,000 petitions annually, appellate lawyer J.P. Schnapper-Casteras said. He said the DEs' case seems like a deep and real split among the appellate courts, and the case dovetails with a broader set of debates happening now about administrative law and the administrative state, which could raise the likelihood the justices see the appeal is a good vehicle for getting at such issues. Chris Wright of Harris Wiltshire as counsel for SNR Wireless also could raise the odds the justices take it up, since he's known to the Supreme Court and his involvement for the justices raises the likelihood it represents a quality case, Schnapper-Casteras said. But there could be arguments against the petition saying the circuit court is split, but now isn't the time for the Supreme Court to get involved since the FCC could resolve the issue, Schnapper-Casteras said.

Phoenix Center President Lawrence Spiwak said since several members of the court are interested in constraining administrative discretion, assuming sufficient justices think this case presents the correct vehicle to answer the question of administrative fair notice, there's a legitimate possibility the court will grant cert. "Of course, you never know. The burden for certiorari is high," he said. Spiwak also filed an amicus brief in the D.C. Circuit appeal.

Companies regulated by the FCC can't be required to make decisions based on what the agency might do, since that "might" standard lets agencies put forth vague and open-ended regulations that they can later interpret any manner they choose, the DEs said in the Supreme Court petition. They said five other circuit courts -- the 3rd, 4th, 5th, 7th and 9th -- all have more stringent administrative fair notice standards, requiring "clear, advance guidance as to which among reasonable interpretations an agency has selected." The DEs said the 1st Circuit, like the D.C. Circuit, has adopted a less-stringent standard where regulated companies had fair notice by the fact they should have known a particular regulation "was 'susceptible' to the agency's interpretation and ... therefore might be adopted." The DEs also said the remaining circuit courts have gone with "vague and ill-defined standards." The DEs said without a uniform standard "it is inconceivable" the appellate courts will iron out those differences, and thus Supreme Court intervention "is sorely needed."

The courts likely won't take action in a time frame that would affect the outcome of the FCC process, if they act at all, said satellite and spectrum consultant Tim Farrar. He said Dish's attempted cure may get its fine refunded, but probably won't get the discount -- i.e. the additional spectrum -- back, but said it's hard to call a likely outcome at the moment.