# Record and brief — Memphis Mobile Telephone, Inc. v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1379%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 990 ## Text vowed Office - Supreme Court, US.) 81- 16 60 FILED NO. MAR O 1082 IN THE pense gape SUPREME COURT OF THE UNITED SPx?E satisfy the need provisions of Section 21.516 of the Rules 5/, should therefore be rejected without « hearing. ), Tennessee. It appears that all of Mahaffey's stations eervice primarily to Meaphis metropolitan area subscribers. with another Seinces cum cevbtcatale So Goummes tee filing within days after the public notice listing the first prior-filed application, with which subsequent applications are in conflict, as uaving been accepted for ‘tiling. 5/ Section 21.516 requires an applicant for additional facilities to show that there is an unsatisfied need for the additional service, and that the applicant's present facilities are inadequate to perve that need. applican AAA Anserfone, Inc. - Jackson; and Airsignal International, Inc.) 6/ respondents to this proceeding (issue 1). We assume in the present hearing. In the event that they do not participate, it inferences about the bona : E : i 5 | i | 3 J to the Memphis metropolitan service low-band paging frequency (33.58 In December, 1975, the applicants 3 ef fi ft; i requested that various proposals for conflicting frequencies be deleted from their applications (see para. 6 below). Meatwhile, on May 4, 1975, MMT had received ite Tennessee state certification, and on May 19, 1975, Mahaffey filed two applications for the frequencies in the service area (43.58 and 43.22 Miz). On July i, 1975, mT filed a competing application for 43.58 Miz. Airsignal also filed an application for this frequency, but dismissed it in December, 1975. “5S. On Mey 19, 1975, Mi tendered an application for four of the 450 Miz Mahaffey had applied for in May, 1973. At the same time, MMT Petitioned for Leave to Intervene, to Deny Mahaffey's 450 Miz applications, and requested a waiver of the cut-off rules. MIT's tion was returned as untimely filed after preliminary staff review footnote 4%). On August 28, 1975 MMT resubmitted its 450 Miz application with a "Petition for Reconsideration". The applica- tion was Sgain returned, and on November 3, 1975, MMT submitted an ®, for Review" apparently under the misconception that the second return of its application was the diemissal by delegated authority of its reconsideration request 7/. Because we grant part of the @7 The epplications are: AAA - F.C.C. File No. 20032-C2-P-(4)-74; Airsignal - F.C.C. File No. 20076-C2-P-(4)-74; Otis Hale - F.C.C. File No. 8942-C2-P-(2)-73. we Section 21.28(d) of the Rules provides for the return without pre- judice of received after the dates prescribed in Section 21.30(b) of the Rules. ‘This application will be eligible for refiling only after a final decisio . rendered by the Commission with respect to the present applicai.ons or after the diomissal or removal of the present applications from this hearing. relief requested in MYfT's May 19, 1975 "Petition to Intervene", it is included in our discussion of MMI's other informal pleadings directed at Mahaffey's filings. Other than this, however, there is no reason to grant MMT's requests and they will therefore be denied. THE AGREEMENT G. On December 8, 1975, AAA, Airsignal, and Mahafley amended the nature of the service proposed by the amending @pplicants, and ace not consistent with the public interest 9/ The applicants participating in the present agreement submitted a recitation ofthe circuustances leading to the agreement; nonetheless, §7 WF -c.c. 24 556 (1973). 9/ Ia at 558. consideration of avoiding a hearing voiced by the 450 Miz applicante must be considered in the context of MMT's allegations regarding their alleged cooperation in blocking MMT's possibility of entry into this may ,Accordingly, we are adding an appropriate issue to explore the background of the agreement. AAA 8. On November 5, 1975, MMT filed a "Petition to Deny" AAA's application stating that although AAA's application represents that it intends to locate and serve the residents of DeSoto County from Southaven, Mississippi, AAA in fact intends to extend its marketing ee ee oe one SS eae and ite Mississippi Public Service certification. Further, MMT contends, AAA does not show a need for four new 450 MHz frequencies and its proposed one-way paging frequency on the basis of the small ihe contanplated hearing” conduct. Accordingly, we will deny MMTI's “Petition to Deny” in all other respects. 9. On March 18, 1976, MMT filed an amended “Petition to Deny” Airesignal's application. MMT contends that Airsignal misrepresented ite intended service area when it filed for frequencies at West Memphis, Arkansas, since it fully intended to serve Western Tennessee and Memphis; Cp See anes \y Sane ee to restrain trade in this service area; and that Airsignal did not have an Arkansas Public SePvice Commission tapsc) certificate when it filed ite applica- tion in June, 1973, and that a subsequent application before the APSC has been dismissed for failure to prosecute. Airsignal relies upon state certificat tes t ceo Gianiaash of Dae caghhantien ty M058 uno Gho Seauit of its decision not to prosecute the application rather than an attempt to defraud this Commission. MMT's petition is insufficient to raise character issues against Airsignal; however, as with AAA, we desire a further investigation into Airsignal's participation in the alleged anti-competitive conduct Therefore, we will deny MMT's “Petition to Deny" except to the extent indicated above. 10. MMT filed protests against both Mahaffey's paging and 450 Miz applications. MNT states that Mahaffey, in collusion with conjunction with the Commission's requirement that an applicant obtain MMT alleges that Mahaffey : . i | 7 Genial of Mahaffey's applications or, in the alternative, that it be allowed intervention pursuant to Section 1.223(d) of the as a competing applicant with Mahaffey's 450 Miz applications by granting ite request for a waiver of the cut-off provisions of the rules. MMT complains further that Mahaffey's applications also violate Section 1.726 of the Rules 1)/ and deliberately committed acts of Giscrimination and preference. Moreover, MMT urges that Mohaffey disregarded Section 21.516 of the Rules when it filed for the two additional one-way frequencies for Collierville and Munford with so few subscribers using those channels. 22. Aside from the limited intervention we are E rules. MMT's request essentially rely upon alleged violations of Section 21.516 of the Rules, and Mahaffey's participation in the . alleged anticompetitive activity. As indicated, these matters will be explored in the hearing ordered herein and MMT will be able to ij” Section 1.223(4) applies to intervention by parties in interest after applications have been designated for hearing. Rather than require MMT to request formal intervention after this Order is released, we will waive the requirement and allow MMT to intervene and present evidence relating to Mahaffey's 450 Miz applications. 11/ Section 1.726 requires that formal complaints alleging such matters as discrimination or unreasonable preference must specify the carrier and a description of the particular acts relied upon which constitute a violation of the Communications Act. - ~_ gusthetgute thereon. Finally, we will deny MAT" request for a wai tim of anti-competitive conduct. Moreover, if we granted MMT's request it in turn would be cut off 12. We agree with MMT that Mahaffey's channel-loading two-way facilitie 40 F.C.C. 24 329 (Rev. Ba. 1974). a 13. Additionally, we are not persuaded that sufficient need exists for the additional low-band one-way facility proposed at Collierville, Tennessee by Mahaffey. And we note that Mahaffey, has been granted the additional use of one-way facilities in the game general service area. 12/ Therefore, we will require that Mahaffey under issue (3) support the need for this additional one-way | facility and demonstrate the incapability of the existing one-way and two-way facilities to provide the proposed service. 14. We question Mahaffey's good faith in originally filing for nearly all the 450 Mis frequencies available, and especially the filing of the two additional applications for the only r : immediately after MMT obtained its : - pequired state authorization. Consequently, we will include an issue to determine the facts and circumstances surrounding Mahaffey's filing of-additional applications for nearly all of the available 450 Miz frequencies and the lowband one-way frequencies in the Memphis metropolitan market. | : : 127” Mahaffey was granted potential shared - of frequency 158.72 Miz with Aireignal in Docket 19801 (FCC 754-2695, released October 3, 1975, recon. denied FCC 75R-434, released Nov. 25), and its cpenionssen for 43.22 Miz at Munford was granted July 8, 1975 - ie ad ‘ = , 15. In view of the foregoing, the Commission finds that Mahaffey Message Relay, Inc., and Memphis Mobile Telephone, Inc., are legally, technically, financially, and otherwise qualified to receive a grant of their above-captioned applications except for the issues 16. Accordingly, IT IS ORDERED, That promeah to Sections 309(4) and (e) of the Communications Act of 1934, as amended, the applications of Mahaffey Message Relay, Inc., and - Memphis Mobile Telephone, Inc., are designated for hearing in a consolidated guoceesing upon the following issues: "(1) To determine whether Mahaffey Message Relay, Inc., AAA Anserphone-Jackson, Airsignal International, Inc., and Otis Hale 4/b/a Mobilephone have jointly engaged in conduct intended tp prevent the filing of competing applications for radio common carrier frequencies in the greater Memphis, Tennessee metropolitan area. (3) To determine the nature and extent of the services now rendered by Mahaffey Message Relay, Inc., and the capacity of ite existing facilities in light of Section 21.516(b) of the Commission's Rules and Regulations. (4) To determine the nature and extent of the services proposed by Mahaffey Message Relay, Inc., and Memphis Mobile Telephone, Inc. (5) To determine the total area and population to be served’ “by Mahaffey Message Relay, Inc., and Memphis Mobile Telephone, Inc., within the 43 dbu contour of each - proposed staticn based upon the standards set forth 4 Section 21.504 of the Commission's Rules and Regulations, and to determine the need for the proposed service in + CS veh. (6) To Goteruiae, in light of the evidence adduced pursuant ‘ to issuee (1)(2) and (3) above, whether the public interest, convenience and necessity will be served by a grant of any or all of the applications of a Message Relay, Inc., in whole or in part. ° — (7) To determine, in consideration of all the evidence adéuced under the proceeding issues, whether the interest, convenience or necessity will be served by a grant of either the application of Mahaffey Relay, Inc., or the application of Memphie Mobile Telephone, Inc.,for authority to operate on 43.58 Miz. ‘ 7: I? IS FURTHER ORDERED, That the burden of proof on Somes Q), OS on S Tp Giesed ce Ge sexgactive pevttce exnat therein, and on issues (4) and (5) the burden of proof is placed jointly on the competing applicants named under those issues. 18. IT 16 FURTHER ORDERED, That the hearing ordered herein shall be held at a place and time to be specified in a subsequent order of the Chief Administrative Law Judge. 19. IT IS FURTHER ORDERED, That the Chief, Common Carrier Bureau is made a party to the proceeding. 20. IT 18 FURTHER ORDERED, That AAA-Answerphone Inc.-Jackson; Aireignal International, Inc.; and Otis Hale d/b/a Mobilephone ARE MADE respondents to this heariag for the purpose of participating with respect to iasue (1) above. 21. I? IS FURTHER ORDERED, That the parties herein may avail themselves of an opportunity te be heard by filing with the Commission pursuant to Section 1.221(e) of the Rules wie twenty (20) days of the release date of this Memorandum Opinion and Order, a written notice stating an intention to appear on the date set for hearing and present evidence on the issues specified. FEDERAL GOMMUNICATIONS COMMISSION Vincent J. Mullins: Secretary “> - * lda _ APPENDIX B IN THE UNITED STATES COURT OF APPEALS FOR THE i DISTRICT OF COLUMBIA COURT MEMPHIS MOBILE TELEPHONE, INC. ) and ; RADIO TELEPHONE INDUSTRIES, INC. ; (Petitioners) } v. ; Case No. 81-1973 FEDERAL COMMUNICATIONS COMMISSION } and UNITED STATES OF AMERICA } (Respondents) MEMORANDUM OF MAHAFFEY SUPPORT OF MOTION TO DISHISS 1/ Mahaffey Message Relay, Inc. (Mahaffey), by its attorneys, hereby files a Memorandum in support of the "Motion to Dismiss" (Motion) of the Federal Communications Commission (FCC) directed against the “Petition for Review" (Petition) of Memphis Mobile Telephone Company, Inc. (MMT) and Radio Telephone Industries, Inc. (RTI) in the above cause. The following is respectfully shown: 1/ Mahaffey timely filed a "Petition for Leave to Intervene” inthe proceeding on September 17, 1981. * lla Unitehn States Court FOR THE DISTRICT OF COLUMBIA : | No. 81-1973 | APPENDIX C Memphis Mobile Telephone, Inc., et al Petit Vv. Federal Communications Commission and United States of America, Respondents BEFORE: Wald, Mikva and Edwards*, Circuit vuu ORDER Upon consideration of respondent's motion to dismiss, _intervenor's memorandum in support thereof, petitioner's response, and. respondent's and intervenor's replies, it is ORDERED by the Court that the motion is granted and the petition for review is dismissed. The order that petitioners seek to have us review was plainly an order granting applications for construction permits and was thus subject to appeal only under 47 U.S.C. § 402(b) (1), (6) (1976). Petitioners did not appeal within the thirty (30) day period set by id. § 402(c). Their appeal is therefore untimely. , Per Curiam \ \ \ *Circuit Judge Edwards did not participate in this order. —- * — a hg Se: oT ye ws ene ~—UNIT.D STATES OF Ah.ERICA APPENDIX D FEDERAL COMMUNICATIONS COMMISSION Stenographic Transcript Of HEARINGS IN THE MATTER OF: MAHAFFEY MESSAGE RELAY, INC. Memphis, Tennessee Docket No. | MEMPHIS MOBILE TELEPHONE , oa Memphis, Tennessee Docket ‘No. | RADIO TELEPHONE INDUSTRIES, INC. Docket No. | PLACE: WASHINGTON, D.C. DATE: January 19, 1977 VOLUME: 1 PAGES: 1 thru 59 FEDERAL DATA RETRIEVAL SYSTEMS, INCORPORATED 4931 Bethesda Avenue Bethesda, Maryland 20014 Beers BB &BB&BHS RB RSF E KBE Swe we kB ew we OH l3 a you can get out of the way today, that is fine. MR. MAYER: Yes, sir, but I just wanted to make you aware that this is proceeding at the same time as the interro- gatories. JUDGE NAUMOWTCZ: Anything else we should discuss before we go about sett:ng up dates? MR. BECKER: sour Honor, do you contemplate any procedure whereby issue 1 could be disposed of expeditiously? JUDGE NAUMOWICZ: Let me see. Issue l. MR. BECKER: That is the only issue which involves the Resvondent-parties, the parties labeled as Respondents in the hearing order. , Those Resoondent-parties do not have applications in this proceeding and are only in the proceeding for issue 1 and one of your earlier decisions indicated there might be a possi- bility of a procedure whereby issue 1 could be handled expedi- tiously. JUDGE NAUMOWICZ: I ama little bit reluctant at this time to use the word “expeditiously” in the sense that we would contemplate an early decision on issue 1 rather than the other issues. The Commission has had occasion to address itself to that quite recently in the RKO-New York proceeding. It indicated it did not want to do that. However, I do not think that anyone would object if F. D. R. Sysrems, inc. Seee e® en w@ we w 6 S&S & Se Feeesuesugaus l4a we set up a hearing schedule for issue 1, which would simply cover issue 1, but recognizing that the initial decision on In other words, we may get issue 1 out of the way, let us say, in 90 days, but you would not expect a decision on that as if it were the only issue in the case. It would be On proceeding with the evidence. JUDGE NAUMOWICz: Does anybody have any problem with cutting issue 1 out for the Purpose of taking evidence on it? MR. JORGENSEN: Well, I had a Suggestion for a Proce- dure, Your Honor, that accords with your ruling or at least the subject discussed here. I foresaw the entire hearing, once consolidated, as Sort of a three Part hearing. fr would agree with mr. Becker that issue 1 Should be heard first. The second Part of the hearing, I would it to be the docket that deals with Radio Telephone Industries, Inc. and allow the comparative Proceeding to be the third Phase of the I do not know how that Strikes other parties, but it seemed like @ very logical and Sensible division, to me. MR. MAYER: The Bureau would have no objection to =A. = ,weeeeenmeseweeseesee@eaeeaeaeesee e 15a that procedure, Your Honor. MR. BLOOSTON: Your Honor, as I envision what Mr. Jorgensen has suggested, it would be in accordance with your earlier statement that the parties not interested in other issves may absent themselves. As I see the proceeding, after you take evidence on issue 1 and complete that phase, then the Respondents from then on would not have to participate in any other phase of the proceedings if they did not want to. JUDGE NAUMOWICZ: That would seem so to me, Mr. Blooston, but again chat would be up to each one of the parties as to what phases they want to be in and what phases they want to be out of. They have a right to be in everything. All right. Shall we go off the record and discuss scheduling? (Nodding of heads.) JUDGE NAUMOWICZ: We are off the record now. (Discussion was held off the record.) JUDGE NAUMOWICZ: Back on the record. Mr. Miller, perhaps you would like to note your appearance at this time. MR. T. MILLER: Yes. I am Terrence Miller. I am an officer of Memphis Mobile Telephone and Radio Telephone Indus- tries in Memphis, Tennessee. JUDGE NAUMOWICZ: All right. Let the record show tha‘ FP. 5. R. Sysrems, inc. Office Court, U.S. } FILED MAY @° 1992 No. 81-1660 STEV4s, ss CLERK Iu the Supreme Cont of the United States OcTOBER TERM, 1981 MEMPHIS MOBILE TELEPHONE, INC., ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TC THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT MEMORANDUM FOR THE FEDERAL RESPONDENTS IN OPPOSITION REx E. LEE Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 TABLE OF AUTHORITIES Cases: Page American Telephone & Telegraph Co. v. FCC, gf reer eoee Campos V. FCC, 650 F.2d 890 2.02... ceeneeeenee Mahaffey Message Relay, Inc., 79 F.C.C.2d 399...... 2, 3, Mahaffey Message Relay, Inc., 79 F.C.C.2d 414...... 2, ed SC wn am A as i i kL masvipinsonedle 4,5 Ce 4 4S, CQ een 47 U.S.C. 402(b) (6) -..................... sieeientlinaemmniionntiin 5, 47 U.S.C. 402(c) ............... siaicnlecentiaigenitbiccignensiiitiaieitan Miscellaneous: oS & eS a eonwh In the Supreme Court of the United States OCTOBER TERM, 1981 No. 81-1660 MEMPHIS MOBILE TELEPHONE, INC., ET AL., PETITIONERS Vv. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT MEMORANDUM FOR THE FEDERAL RESPONDENTS IN OPPOSITION 1. In 1973, four radio common carriers filed ap- plications with the Federal Communications Commis- sion (“FCC”) seeking permits for construction of two-way mobile communication base stations in the Memphis, Tennessee, area.' These applications were 1The four carriers were Mahaffey Message Relay, Inc., AAA Anserphone, Inc.-Jackson, Airsignal International, Inc., and Otis L. Hale d/b/a Mobilfone Communications. A two- way mobile communication base station is a transmitter at a fixed location designed to provide two-way communications with mobile transmitting units, such as car telephones and two-way radios. (1) mutually exclusive because of frequency conflicts among them. In 1975, one of these radio common carriers, respondent Mahaffey Message Relay, Inc. (“Mahaffey”), and the petitioner Memphis Mobile Telephone, Inc. (“MMT”) also filed mutually exclu- sive applications for one-way signalling stations in the Memphis area.* Mahaffey Message Relay, Inc., 79 F.C.C.2d 399, 400-402 (1980).* Also in 1975, the four two-way applicants eliminated the frequency conflicts among their applications by agreement. MMT there- after filed pleadings with the FCC claiming that the four applicants had acted anticompetitively in reach- ing that agreement.* In 1976, the Commission des- ignated Mahaffey’s two-way applications and the con- flicting one-way applications of Mahaffey and peti- tioner MMT for hearing. The issues designated were whether the four applicants for two-way permits had engaged in the anticompetitive activities that MMT had alleged, and the merits of the various one- and two-way applications. 41 Fed. Reg. 32644, 32646 (1976).° In a separate order, the Commission des- 2A one-way signalling station is used to transmit com- munications by radio to portable “pagers” or “beepers.” 8’ The decision of the Federal Communications Commission Review Board is reported at 79 F.C.C.2d 399. * Petitioners considered themselves potential competitors of the four two-way applicants, although they had no com- peting applications pending at the time of agreement. See Mahaffey Message Relay, Inc., 79 F.C.C.2d 414, 433-435 (1979). (The Initial Decision of the Administrative Law Judge is reported at 79 F.C.C.2d 414.) 5 Although the two-way permit applications of the other three applicants were not directly before the Commission in the proceeding initiated (see 79 F.C.C.2d at 400), the appli- cants were joined as respondents by the Commission so as to afford them an opportunity to be heard in response to the ignated for hearing certain complaints filed by peti- tioner Radio Telephone Industries, Inc. and others that respondent Mahaffey had refused to provide service to certain customers. 41 Fed. Reg. 44737 (1976). An Administrative Law Judge ordered these cases consolidated. He divided the consolidated proceeding into three phases “as a matter of procedural conven- ience,” so that parties could attend only those portions of the hearings in which they had an interest. 79 F.C.C. 2d at 417. Phase I dealt with MMT’s allega- tions of anticompetitive conduct; Phase II with the complaints about Mahaffey’s refusal to provide serv- ice; and Phase III with the merits of the various con- struction permit applications.* After hearings, the ALJ issued an initial decision. The ALJ determined that the 3-phase structure that he had used for the hearings was not suited for issu- ance of a decision, and instead organized his findings of fact and conclusions of law to correspond to the two designation orders. 79 F.C.C.2d at 418. With respect to the issues framed by the first designation order, the ALJ found no evidence of anticompetitive conduct; he also ruled that Mahaffey’s one-way and two-way permit applications should be granted. 79 F.C.C. at 419-469, 497-500, 502. On consideration of the issues framed by the second designation order, the ALJ determined that Mahaffey had imposed unrea- sonable equipment maintenance requirements and di- rected that Mahaffey undertake certain remedial ac- tions. 79 F.C.C.2d at 469-496, 500-503. allegations of anticompetitive practices. 41 Fed. Reg. 32645 (1976). ® MMT’s application for a one-way signalling station was withdrawn and ultimately dismissed. 79 F.C.C.2d at 402 n.3. 4 The Commission’s Review Board affirmed, granting the construction permits. 79 F.C.C. 2d at 410-411. In so doing, it agreed with the ALJ that Mahaffey had not, either by itself or in concert with the other applicants for permits, engaged in disqualifying anti- competitive conduct. Jd. at 406. The Commission declined to review the Review Board’s decision (Pet. App. 4a-6a). Thirty-nine days later, invoking 47 U.S.C. 402(a), petitioners filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, pressing their claims of anticompetitive con- duct. The Commission moved to dismiss on the ground that the order in question was reviewable only under 47 U.S.C. 402(b), which requires that appeals be filed within 30 days. The court dismissed the petition (Pet. App. la-2a). The court stated (ibid.): “The order that petitioners seek to have us review was plainly an order granting applications for con- struction permits and was thus subject to appeal only under 47 U.S.C. § 402(b) (1), (6) (1976). Petition- ers did not appeal within the thirty (380) day period set by [47 U.S.C.] § 402(c). Their appeal is there- fore untimely.” 2. The decision of the court of appeals is clearly correct. It does not raise any issue requiring resolu- tion by this Court and does not conflict with a deci- sion of any other court of appeals. The petition for a writ of certiorari should accordingly be denied. This case is governed by the plain language of the statute. Section 402(a), under which petitioners brought their petition for review, is a residual clause that confers jurisdiction upon the courts of appeals to review “any order of the Commission * * * except those appealable under subsection (b) of this section 5 * * *.” Section 402(b) confers jurisdiction upon the United States Court of Appeals for the District of Columbia Circuit to hear eight categories of appeals, including those taken “[b]y any applicant for a con- struction permit * * * whose application is denied by the Commission” (47 U.S.C. 402(b)(1)) or “[b]y any other person who is aggrieved or whose interests are adversely affected by any order of the Commis- sion granting or denying any ap/tication described in paragraph [] (1) * * *” (47 U.S.C. 402(b) (6)). Appeals falling within any of the eight categories covered by Section 402(b) must be commenced by fil- ing of a notice of the appeal within 30 days of an- nouncement of the Commission action sought to be reviewed. 47 U.S.C. 402(c). Review under Section 402(a), when available, may be sought within 60 days of the agency order. See also 28 U.S.C. 2344. The Commission’s order grants respondent Mahaf- fey construction permits, and petitioners claim to be aggrieved by it. Petitioners’ petition for review was accordingly untimely. Petitioners argue (Pet. 26-27), however, that because the Commission’s deci- sion not only granted construction permits but also addressed other issues, the various issues underlying the order are severable and those issues not relating to the technical merits of the construction permit ap- plications are reviewable under Section 402(a). Spe- cifically, petitioners claim that because the hearings were divided into “phases,” the appeal should also be frarmented along those lines.’ TIn fact, the “phases” to which petitioners refer were created only for convenience during the hearing stage. The agency did not separate the competition issue from the tech- nical merits of the applications in either the designation orders or the ALJ’s and Review Board orders. Petitioners cite no authority for this position, and their contentions are irreconcilable with the plain language of the statute. The sole order from which they appeal is clearly an “order of the Commission granting or denying an[ ] application [for a con- struction permit].” 47 U.S.C. 402(b)(6). The fact that the Commission’s decision also addresses other issues does not make it any less “an order granting [construction permits].”* Moreover, the issues that petitioners seek to sever—the existence of anticom- petitive conduct—were directly relevant to the ulti- mate grant of the construction permits. Thus, peti- tioners seek impermissibly to challenge a finding in a Commission order without challenging the order itself by the prescribed route. See, e.g., American Telephone & Telegraph Co. v. FCC, 602 F.2d 401, 407-409 (D.C. Cir. 1979). The plain language of the statute precludes the fragmented system of re- view that petitioners advocate.’ 8 Section 402(b) (6) speaks in terms of persons aggrieved by a particular category of order; it does not limit the review to particular findings or conclusions underlying the order. * Contrary to petitioners’ assertion (Pet. 26), Campos v. FCC, 650 F.2d 890 (7th Cir. 1981), is not contrary to the decision of the court of appeals. Campos involved denial of applications for operator licenses, a type of order “ ‘not precisely described by any of the categories of appeals pro- vided for in Section 402(b),’” and for that reason was reviewable under Section 402(a). 650 F.2d at 892-893. Petitioners also argue (Pet. 28-32) that their lateness should be overlooked because they filed in the right court and the primary purpose of Section 402 is to ensure a con- venient forum. But Congress established a jurisdictional time limitation, as well as requiring filing in a particular court, and the court of appeals properly gave effect to both of these requirements. 7 Petitioners’ additional argument (Pet. 38-44) that their petition for review was not covered by Section 402(b) because they were not parties to Mahaffey’s applications and thus were not “aggrieved” by issu- ance of the construction permits is frivolous. Sec- tion 402(b) refers to any person “who is aggrieved * * * by any order of the Commission granting or denying” construction permits. 47 U.S.C. 402(b) (6) (emphasis added). The filing of petitioners’ peti- tion for review demonstrates that petitioners regard themselves as aggrieved by the Commission’s order. Were petitioners not aggrieved by the order of the Commission, no petition for review would lie under either Section 402(a) or Section 402(b). See also 28 U.S.C. 2344. ° In these circumstances, the court of appeals prop- erly dismissed the petition for review for failure to meet the 30-day limit imposed by statute. It is therefore respectfully submitted that the peti- tion for a writ of certiorari should be denied. REx E. LEE Solicitor General May 1982 ® 3G. &. Government painting orrice; 1962 373353 664 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1379%3A0. Public record. Not legal advice.