Benkelman Tele Co, et al v. FCC, et al, No. 97-1245 (D.C. Cir. 2000)

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This opinion or order relates to an opinion or order originally issued on July 28, 2000.

United States Court of Appeals for the district of columbia circuit

No. 97-1245 September Term, 2000

Benkelman Telephone Company, et al., Filed On: September 26, 2000 [546131] Petitioners v.

Federal Communications Commission and United States of America,

Respondents Consolidated with 97-1294, 99-1247, 99-1251, 99-1331, 99-1337 Before: Williams, Sentelle and Henderson, Circuit Judges.

O R D E R

It is ORDERED by the court that the opinion filed by the court on July 28, 2000 be amended to delete the text at page 8, line 25 through page 9, line8 ("Despite some general similarities . . . within the meaning of section 309(j)(1).") and substitute the following language:

The petitioners note that the two licensing schemes provide the same paging service on the same frequencies, basically provide fill-in sites and maintain the same licensee buildout requirements. Nevertheless, they themselves acknowledge, as they must, that the geographic license scheme has wrought "fundamental alterations to the paging industry's market structure and licensing schemes." Petitioners' Br. 30. Under the geographic scheme non-incumbents can compete for the available spectrum, however much remains, on equal footing with incumbents and successful applicants have far greater freedom in selecting transmitter locations; yet at the same time new licensees assume much more responsibility for researching site locations to protect incumbents from interference. Given the new scheme's "fundamental" alterations, we hold the FCC reasonably treated modification applications by incumbents as "initial" applications within the meaning of section 309(j)(1).

Per Curiam For the Court:

Mark Langer