Subject: [NEXTEL-1] Hill & Welch and Myers Keller Communications Law Group Trys To Get Cash From The FCC -Hahahah!

From: Marcel <[email-masked]>
Date: Wed, 02 Apr 2003 16:53:53 -0500

Hill & Welch and Myers Keller Communications Law Group Trys To Get Cash From The FCC
-Hahahah!
What a weak argument.......
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Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

Hill & Welch and Myers Keller Communications Law Group
Request for Attorney Fees in Connection with the
218-219 MHz Service, Regional Narrowband PCS
Service, and Nationwide Narrowband PCS Service )

MEMORANDUM OPINION AND ORDER

Adopted:  March 27, 2003 Released:  April 1, 2003

By the Commission:

I. INTRODUCTION

1. In this Order, we deny an Application for Review filed by Hill & Welch and Myers Keller
Communications Law Group.   The Petitioners challenge a decision  by the Wireless
Telecommunications Bureau (“Bureau”) affirming the Bureau’s denial of their request for a
declaration of a common fund.  Specifically, Petitioners request that a determination be
made that their law firms are entitled to a common fund award in connection with the
218-219 MHz service, the regional narrowband Personal Communications Service (“PCS”)
service, and the nationwide narrowband PCS service.   A reply comment opposing this
Application for Review was filed on behalf of two entities.

II. BACKGROUND

2.  On September 10, 1999, the Commission granted a retroactive twenty-five percent
bidding credit in the 218-219 MHz Service to a limited set of entities.   The Commission
has not granted retroactive bidding credits in any other service.  The Bureau, however,
has recently dismissed two requests for retroactive bidding credits for licenses won in
the nationwide narrowband PCS Service (“Auction No. 1”) and the regional narrowband PCS
service (“Auction No. 3”).

3. On March 8, 2000, Petitioners filed two petitions that requested a determination that
they are entitled to a common fund award in connection with their participation in the
218-219 MHz proceeding.  Specifically, Petitioners argued that their representation of two
clients, Graceba Total Communications, Inc. (“Graceba”) and the Ad Hoc IVDS Coalition,
caused the Commission to authorize retroactive bidding credits in the 218-219 MHz
Service.   Additionally, Petitioners requested a determination that they are entitled to a
common fund award in connection with their speculation that similar retroactive bidding
credits will be adopted in the regional narrowband PCS service.   The Petitioners sought
twenty-five percent of the refunds generated by the retroactive bidding credit granted in
the 218-219 MHz Order and thirty percent of the refunds Petitioners anticipate will be
granted in connection with the regional narrowband PCS auction.   Petitioners based their
claims upon the common fund doctrine which is an equitable doctrine that allows a court to
establish a “common fund” to compensate a litigant or a lawyer who recovers a monetary
amount for the benefit of individuals other than himself or his client.   Petitioners
further argued that the Commission possessed sufficient equitable authority to grant a
common fund award.   Thus, Petitioners concluded they were entitled to a common fund
award.

4. On October 26, 2000, the Bureau issued an order which denied the two petitions to
declare a common fund.  In its order, the Bureau explained that to establish entitlement
to a common fund, a party must demonstrate the following elements: (1) the claim must
involve litigation before a court with “judicial equity power” to impose liability on a
fund; (2) the claim must identify a fund over which the court has jurisdiction; and (3)
there must be adequate representation of all parties in interest.   In denying the
petition, the Bureau determined that the Commission neither possessed the general
equitable authority necessary to establish a common fund, nor the requisite statutory
authority to grant a common fund, and thus, the first element of the common fund doctrine
was not met.   With respect to the second and third elements of the common fund doctrine,
the Bureau noted that the Petitioners had failed to identify a fund over which a court has
jurisdiction and that the Petitioners failed to demonstrate that all parties in interest
were adequately represented.

5. On November 21, 2000, Petitioners sought reconsideration of the Bureau’s denial of
their requests for declaration of a common fund.   In seeking reconsideration, the
Petitioners abandoned their prior arguments regarding the Commission’s authority to
establish a common fund and instead relied upon the Commission’s general authority under
Section 4(i) of the Communications Act, which allows it to take action necessary in the
execution of its functions not inconsistent with the Communications Act, and the
Commission’s general authority to grant waivers and refunds.   Additionally, Petitioners
requested for the first time a common fund recovery from the refunds they anticipate would
be granted in the nationwide narrowband PCS service.   The Commission received two
oppositions to the Petition for Reconsideration.

6. On May 4, 2001, the Bureau issued the Order on Reconsideration, which denied the
Petition.   In that order, the Bureau noted that the Petitioners’ reliance upon Section
154(i) was misplaced because absent express statutory authority, the Commission has no
authority to order reimbursement of legal expenses.   In addition, the Bureau found
Petitioners’ reliance upon the Commission’s authority to grant waivers and refunds
misplaced and not indicative of the existence of equitable authority to grant a common
fund award.   The Bureau reasoned that the Commission’s ability to grant waivers  and
refunds  implicates the Commission’s public interest authority.   In contrast, the Bureau
noted that the payment of attorney fees out of refunds generated by the Commission does
not involve the public interest but implicates the rights of private parties, i.e., the
rights of the recipients of the refund versus the rights of Petitioners who seek a portion
of each refund generated.   Accordingly, the Bureau affirmed the Common Fund Order  based
upon a lack of jurisdiction to grant a common fund award.  The Bureau also reiterated that
Petitioners had failed to establish the second and third elements of a common fund
claim.   In its Application for Review, Petitioners argue that the Bureau’s decision
relies upon precedent that is inapplicable or should be overturned.

III. DISCUSSION

7. In their Application for Review, Petitioners proffer the same arguments that they
advanced in prior pleadings before the Bureau with one exception that we will address
below.   The Bureau thoroughly addressed each of these arguments in its previous orders
and correctly applied our precedent.  We find nothing in the arguments that Petitioners
have made in their Application for Review that would lead us to change the Bureau’s
decision or modify our existing precedent.   Contrary to Petitioners’ assertions,
Commission precedent and case law amply demonstrate that a common fund award can arise
only in the context of litigation before an appropriate court exercising its equitable
powers.   As previously noted in both the Common Fund Order and Reconsideration Order, it
is well settled that the Commission, as an administrative agency, lacks the equitable
jurisdiction to establish a common fund award.

8. With respect to their new argument, Petitioners take issue with the Bureau’s use of
Graceba Total Communications, Inc. v. FCC, in which the Court of Appeals for the D.C.
Circuit denied Graceba’s claim for a common fund award in the 218-219 MHz Service.   In
the Reconsideration Order, the Bureau stated that Petitioners’ claim was further weakened
by the fact that Graceba, the party on whose behalf Petitioners’ efforts were expended,
could not establish entitlement to a common fund.   The Bureau went on to note, in a
footnote, that in light of the appellate court’s holding in Graceba, Petitioners’ request
as it relates to the 218-219 MHz service “may be barred” by claim preclusion.   In their
Application for Review, Petitioners challenge the Bureau’s statement, arguing that Graceba
is inapplicable because Petitioners were not given a “a full and fair opportunity to
litigate the [common fund] claims” in the 218-219 MHz service.   They further state that
because the Reconsideration Order only stated that their claim “may be barred” by claim
preclusion, the Bureau order did not affirmatively rule on the issue.  Accordingly,
Petitioners request that their Application for Review be construed as a Petition for
Reconsideration of the Bureau order on this point.   Because the Bureau’s statement
 regarding claim preclusion amounts to dicta, we find it unnecessary to address it here.

9. Accordingly, we find that the Bureau correctly concluded that in the absence of clear
statutory authority granted by Congress, the Commission, as an administrative agency,
lacks the authority to order reimbursement of legal expenses under the common fund
doctrine.   We, therefore, deny Petitioners’ Application for Review and affirm the
Bureau’s order for the reasons stated therein.

IV. ORDERING CLAUSES

10. Accordingly, IT IS ORDERED that, pursuant to Section 5(c)(5) of the Communications Act
of 1934, as amended, 47 U.S.C. § 155(c)(5), and Section 1.115(g) of the Commission’s
rules, 47 U.S.C. § 1.115(g), the Application for Review filed by Hill & Welch and Myers
Keller Communications Law Group in the above-captioned proceeding is DENIED.

      FEDERAL COMMUNICATIONS COMMISSION

      Marlene H. Dortch
      Secretary

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