Proposed Rule2023-23788
Mongoose Works, Ltd., 3.7-4.2 GHz Band Transition Clearinghouse Dispute Referrals and Appeals
Primary source
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Published
November 3, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Wireless Telecommunications Bureau (Bureau) of the Federal Communications Commission (Commission) grants Mongoose Works, Ltd.'s (Mongoose) Petition for De Novo Review (Petition), and commences a hearing in connection with the 3.7-4.2 GHz Band (C-band) Transition Relocation Payment Clearinghouse's (RPC or clearinghouse) decision which adjusted downward part of Mongoose's reimbursement claim based upon its August 12, 2020 lump sum election. The issues designated for hearing are whether the Bureau erred in determining that Mongoose had not met its burden of proof to demonstrate that the RPC erred in its classification of, and reimbursement for, the two antennas at issue; whether the Bureau erred in separately determining that the RPC properly classified the two antennas at issue based on Commission guidance; and whether the reimbursed amount of $33,994 for the two antennas at issue should be adjusted to restore the disallowed amount of $69,686.
Full Text
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<title>Federal Register, Volume 88 Issue 212 (Friday, November 3, 2023)</title>
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[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Proposed Rules]
[Pages 75532-75535]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23788]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 27
[WT Docket No. 21-333; DA 23-999; FR ID 181482]
Mongoose Works, Ltd., 3.7-4.2 GHz Band Transition Clearinghouse
Dispute Referrals and Appeals
AGENCY: Federal Communications Commission.
ACTION: Notification of hearing.
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SUMMARY: In this document, the Wireless Telecommunications Bureau
(Bureau) of the Federal Communications Commission (Commission) grants
Mongoose Works, Ltd.'s (Mongoose) Petition for De Novo Review
(Petition), and commences a hearing in connection with the 3.7-4.2 GHz
Band (C-band) Transition Relocation Payment Clearinghouse's (RPC or
clearinghouse) decision which adjusted downward part of Mongoose's
reimbursement claim based upon its August 12, 2020 lump sum election.
The issues designated for hearing are whether the Bureau erred in
determining that Mongoose had not met its burden of proof to
demonstrate that the RPC erred in its classification of, and
reimbursement for, the two antennas at issue; whether the Bureau erred
in separately determining that the RPC properly classified the two
antennas at issue based on Commission guidance; and whether the
reimbursed amount of $33,994 for the two antennas at issue should be
adjusted to restore the disallowed amount of $69,686.
DATES: Mongoose shall file a written appearance by November 9, 2023,
stating its intention to appear on the date fixed for the hearing and
present evidence on the issues specified in the Hearing Designation
Order.
ADDRESSES: Federal Communications Commission, 45 L St. NE, Washington,
DC 20554.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Susan Mort of the Wireless Telecommunications
Bureau, at (202) 418-2429 or <a href="/cdn-cgi/l/email-protection#762503051718583b1904023610151558111900"><span class="__cf_email__" data-cfemail="1b486e687a75355674696f5b7d7878357c746d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Hearing Designation Order, in WT Docket No. 21-333, DA 23-999, adopted
and released on October 20, 2023. The full text of this document is
available for public inspection online at <a href="https://docs.fcc.gov/public/attachments/DA-23-999A1.pdf">https://docs.fcc.gov/public/attachments/DA-23-999A1.pdf</a>.
1. By this Hearing Designation Order, pursuant to Sec. Sec. 0.131,
0.331, and
[[Page 75533]]
27.1421(c) of the Commission's rules, the 3.7 GHz Report and Order, and
the RPC Appeals Procedures Public Notice, the Wireless
Telecommunications Bureau (Bureau) grants a Petition for De Novo Review
(Petition), filed on September 14, 2023, by Mongoose Works, Ltd.
(Mongoose), and designates this case to be tried as a written
proceeding under the Commission's rules for hearing proceedings, with
the Administrative Law Judge serving as the presiding officer. As
discussed below, the issues designated for hearing relate to the 3.7-
4.2 GHz Band (C-band) Transition Relocation Payment Clearinghouse's
(RPC or clearinghouse) decision which adjusted downward part of
Mongoose's reimbursement claim based upon its August 12, 2020 lump sum
election.
2. In the 3.7 GHz Report and Order, the Commission adopted rules to
make 280 megahertz of mid-band spectrum available for flexible use
throughout the contiguous United States by transitioning existing
services out of the lower portion of the band and into the upper 200
megahertz of the C-band. The Commission required new 3.7 GHz Service
licensees to reimburse the reasonable relocation costs of eligible
Fixed Satellite Service (FSS) space station operators, incumbent FSS
earth station operators, and incumbent Fixed Service licensees
(collectively, incumbents) to transition out of the band. The 3.7 GHz
Report and Order also specified that incumbent FSS earth station
operators may accept either: (1) reimbursement for their actual,
reasonable relocation costs; or (2) a lump sum reimbursement ``based on
the average, estimated costs of relocating all of their incumbent earth
stations'' to the upper 200 megahertz of the C-band.
3. The 3.7 GHz Report and Order further provided for the creation
of an independent clearinghouse to administer, subject to the
Commission's rules and oversight, the cost-related aspects of the
transition in a fair and transparent manner, ``to mitigate financial
disputes among stakeholders, and to collect and distribute payments in
a timely manner.'' To provide the clearinghouse, incumbents, and new
3.7 GHz Service licensees with a range of reasonable transition costs,
the 3.7 GHz Report and Order directed the Bureau to establish a cost
catalog of the types of expenses that incumbents were likely to incur.
Further, incumbent FSS earth station operators opting to receive a lump
sum amount were required to make an irrevocable election and
accompanying certification with the Commission by September 14, 2020
with the proviso that the information contained in such election would
be ``subject to verification as part of the [c]learinghouse's role to
prevent waste, fraud, and abuse'' through its claims review process.
4. All reimbursement claims--whether for actual costs or lump sum
amounts--must be submitted to the clearinghouse for review pursuant to
Sec. 27.1416 of the Commission's rules. The clearinghouse ``will
determine in the first instance whether costs submitted for
reimbursement are reasonable'' and whether they comply with the
requirements adopted in the 3.7 GHz Report and Order. To the extent a
claimant or one or more responsible 3.7 GHz Service licensees wish to
dispute the clearinghouse's determination with respect to a submitted
claim, they must file a notice of objection as required by Sec.
27.1421(a) of the Commission's rules. The clearinghouse may in the
first instance mediate any disputes or refer the disputant parties to
alternative dispute resolution fora. Subsequent appeals to the Bureau
may be submitted pursuant to the procedures set forth in the RPC
Appeals Procedures Public Notice. Following a Bureau decision in either
a single-party or multi-party dispute, any party to a specific matter
wishing to appeal that decision may do so by filing with the
Commission, within ten (10) days of the effective date of the Bureau
decision, a petition for de novo review, whereupon the Commission will
set the matter for an evidentiary hearing before an Administrative Law
Judge.
5. Mongoose's Lump Sum Election and RPC Claim. Mongoose is an earth
station operator with multiple antennas registered with the Commission
under callsign E191601, which appear on the incumbent earth station
list for purposes of the C-band transition. Mongoose filed a lump sum
election with the Commission on August 12, 2020 for eight incumbent
earth station antennas, and on August 16, 2021, filed a claim with the
RPC seeking $356,052 as its lump sum payment. Specifically, Mongoose
requested a lump sum payment for six Small Multi-beam (2-4 beams) Earth
Station Antennas (SMBEAs) at $42,062 each and two Large Multi-beam (5+
beams) Earth Station Antennas (LMBEAs) at $51,840 each. After review of
Mongoose's claim and supplemental information provided by the claimant,
the RPC Decisional Memorandum was issued on June 1, 2022, fully
approving Mongoose's claim for six SMBEAs. The RPC classified the two
remaining antennas as Receive-Only ES Multi-feed Antennas rather than
LMBEAs and adjusted Mongoose's claim amount for those antennas from
$103,680 down to $33,994. Mongoose filed a notice of objection with the
RPC for the downward adjusted portion of its claim on June 25, 2022,
seeking restoration of the full amount. On July 7, 2022, Mongoose
received payment for the undisputed amount of $286,366.
6. Mongoose's Appeal to the Bureau. Mongoose filed a single-party
appeal of the RPC decision on July 31, 2022, asking the Bureau to order
the RPC to restore the disallowed amount of $69,686. The RPC filed its
response on August 22, 2022. Mongoose filed its reply on August 29,
2022, and the RPC supplemented its response with an attestation on
September 2, 2022. The instant matter arises from the Bureau's denial
of Mongoose's appeal of the RPC's decision.
7. Specifically, the Bureau noted that the RPC's underlying
Decisional Memorandum determined that two of the earth stations
included in Mongoose's lump sum election, for which it sought
reimbursement as LMBEAs, were properly classified as Receive-Only ES
Multi-feed Antennas pursuant to the Final Cost Catalog Public Notice as
the two relevant antennas each had only one C-band feed, and as such,
Mongoose was not eligible for the higher lump sum payment for LMBEAs.
The Bureau decision denied Mongoose's appeal, finding that it had not
met its burden of proof in demonstrating that the RPC erred in its
classification of, and reimbursement for, the two antennas at issue.
The Bureau separately and independently found that the RPC both
correctly interpreted the relevant Commission rules, guidance, and
policies and applied them to the antennas in question. The Bureau also
found that Mongoose's procedural arguments were unavailing.
8. The RPC Appeals Procedures Public Notice allows any party to a
specific single-party or multi-party dispute to appeal a Bureau
decision on disputed issues relating to an RPC reimbursement decision
by petitioning for an evidentiary hearing before an Administrative Law
Judge. The petition for a hearing must be filed within ten (10) days of
the effective date of the Bureau order.
9. Mongoose filed its appeal of the Bureau's decision within ten
(10) days of the effective date thereof, and we thus find that the
Petition satisfies the requirements of the RPC Appeals Procedures
Public Notice. Therefore, the Petition is hereby granted, and the
disputed issues are designated for hearing.
10. Written Hearings Report and Order. The Commission recently
[[Page 75534]]
supplemented its formal hearing processes by adopting rules that, inter
alia, expand the use of a hearing procedure that relies in appropriate
cases on written submissions and documentary evidence. These hearing
proceedings shall be resolved on a written record consisting of
affirmative case, responsive case, and reply case submissions, along
with all associated evidence in the record, including stipulations and
agreements of the parties and official notice of material facts. Based
on that record, the presiding officer will issue an Initial Decision
pursuant to section 409(a) of the Communications Act and Sec. Sec.
1.267 and 1.274(c) of the Commission's rules. The Bureau finds that
this is an appropriate case for use of those procedures.
11. Notice of Appearance. Parties to this matter who wish to avail
themselves of the opportunity to participate in the hearing proceeding
must file a written appearance consistent with Sec. 1.221(d) and (e)
of the Commission's rules. The written appearance must be filed within
twenty (20) days of the mailing of this Hearing Designation Order and
must state, among other things, that they will present evidence on the
matters specified in this order, and, if required, appear before a
presiding officer at a time and place to be determined (which shall be
no earlier than thirty (30) days after receipt of this order).
12. Initial Case Order. After release of this Hearing Designation
Order, the presiding officer shall promptly release an Initial Case
Order. The Initial Case Order shall put all parties on notice that they
are expected to be fully cognizant of part 1 of the Commission's rules
concerning Practice and Procedure, 47 CFR part 1, subparts A and B. The
Initial Case Order shall also set a date for the initial status
conference and a date by which each party should file a pre-conference
submission that would include: (a) whether discovery is expected in
this case, and if so, a proposed discovery schedule; (b) any
preliminary motions they are intending to file; and (c) a proposed case
schedule. The parties' pre-conference submissions should also indicate
whether they request that a Protective Order be entered in this case.
13. Initial Status Conference and Initial Status Conference Order.
The presiding officer shall set the case schedule, including any
deadlines by which the parties should submit the motions they
identified in their pre-conference submissions. The presiding officer
shall also set the deadlines for the parties' affirmative case,
responsive case, and reply case submissions in accordance with
Sec. Sec. 1.371 through 1.375 of the Commission's rules. If the
parties have requested the entrance of a Protective Order, the
presiding officer shall also set a deadline by which a joint proposed
Protective Order shall be submitted for consideration. In accordance
with Sec. 1.248(b) of the Commission's rules, the presiding officer
may adopt the case schedule during the status conference or in an order
following the conference.
14. Additional status conferences may be scheduled throughout the
course of the proceeding at the request of the parties and/or at the
discretion of the presiding officer. Any request by a party for a
status conference must be made in writing to the presiding officer and
shall be copied on all other parties.
15. Transcripts. In accordance with Sec. 1.248 of the Commission's
rules, an official transcript of all case conferences shall be made,
unless the parties and the presiding officer agree to forego a
transcript. Transcripts shall be made available to the public as part
of the official record in the Commission's Electronic Comment Filing
System (ECFS) in WT Docket No. 21-333.
16. Requests for Admissions. In accordance with Sec. 1.246 of the
Commission's rules, any party may serve upon any other party written
requests for the admission of the genuineness of any relevant documents
or of the truth of any relevant matters of fact. Such requests shall be
served within twenty (20) days after the deadline for filing a notice
of appearance unless the presiding officer sets a different time frame.
17. Available Discovery Methods. Sections 1.311 through 1.325 of
the Commission's rules set forth procedures that may be used for the
discovery of relevant facts and/or for the production and preservation
of evidence for use in the hearing proceeding. These sections of the
Commission's rules provide, inter alia, for the taking of depositions,
for interrogatories, and for the production of documents and things.
18. Evidentiary Rules. In the Written Hearings Report and Order,
the Commission amended Sec. 1.351 of the Commission's rules to adopt
the evidentiary standard set forth in the formal APA hearing
requirements. In relevant part, Sec. 1.351 of the Commission's rules
now states, ``any oral or documentary evidence may be adduced, but the
presiding officer shall exclude irrelevant, immaterial, or unduly
repetitious evidence.'' The parties remain free to make evidentiary
arguments based on the Federal Rules of Evidence.
19. Petitions to Intervene. Any person or entity seeking status as
a party in interest in this proceeding must file a petition to
intervene in accordance with Sec. 1.223(a) of the Commission's rules.
Any person or entity seeking to participate in this proceeding as a
party may file a petition for leave to intervene in accordance with
Sec. 1.223(b) of the Commission's rules.
20. Motions to Enlarge, Change or Delete Issues. Motions to
enlarge, change, or delete issues to be considered in this proceeding
shall be allowed, consistent with Sec. 1.229 of the Commission's
rules.
21. Restricted Proceeding. This hearing proceeding is a
``restricted'' proceeding pursuant to Sec. 1.1208 of the Commission's
rules and thus ex parte presentations to or from Commission decision-
making personnel, including the presiding officer and her staff and
staff of the Commission's Wireless Telecommunications Bureau, are
prohibited, except as otherwise provided in the Commission's rules.
22. Electronic Filing of Documents. All written submissions such as
motions, letters, discovery requests and objections and written
responses thereto, excluding confidential and/or other protected
material, must be filed in WT Docket No. 21-333 using ECFS. ECFS shall
also act as the repository for records of actions taken in this
proceeding, excluding confidential and/or other protected material, by
the presiding officer and the Commission. Documents responsive to any
party's requests for production of documents should not be filed in
ECFS. Such responsive documents shall be served directly on counsel for
the party requesting the documents and produced either in hard copy or
in electronic form (e.g., hard drive, thumb drive) with files named in
such a way as it is clear how the documents are organized.
23. Case Caption. The caption of any pleading filed in this
proceeding, as well as all letters, documents, or other written
submissions including discovery requests and objections and responses
thereto, shall indicate whether it is to be acted upon by the
Commission or the presiding officer. The presiding officer shall be
identified by name.
24. Service. All documents submitted in this proceeding must also
be served on all other parties in accordance with Sec. 1.211 of the
Commission's rules and shall be accompanied by a proof of service.
Service on the Enforcement Bureau shall be made using the following
email address: <a href="/cdn-cgi/l/email-protection#d491969cb1b5a6bdbab3a794b2b7b7fab3bba2"><span class="__cf_email__" data-cfemail="3d787f75585c4f54535a4e7d5b5e5e135a524b">[email protected]</span></a>.
[[Page 75535]]
25. Confidential and/or Otherwise Protected Materials. To the
extent any party to this proceeding wishes to submit materials or
information that it would like withheld from the public record, it may
do so in accordance with the procedures set forth in Sec. 1.314 of the
Commission's rules. The parties may also enter into a Protective Order.
As stated above, requests for a Protective Order should be made in the
parties' pre-conference submission in accordance with the schedule set
forth in the Initial Case Order.
26. Initial Decision. The presiding officer shall issue an Initial
Decision on the issues set forth herein, as well as any other issues
designated for hearing in the course of the proceeding. This Initial
Decision shall contain, at a minimum, findings of fact and conclusions
of law, as well as the reasons or basis therefor, and the appropriate
rule or order or policy and the sanction, relief or denial thereof, as
appropriate.
27. Accordingly, it is ordered that the Petition for De Novo
Review, filed on September 14, 2023, by Mongoose, is granted.
28. it is further ordered that, pursuant to the RPC Appeals
Procedures Public Notice, this matter, as described above, is
designated for hearing before an Administrative Law Judge, at a time
and place to be specified in a subsequent order, on the following
issues:
a. To determine whether the Bureau erred in determining that
Mongoose had not met its burden of proof to demonstrate that the RPC
erred in its classification of, and reimbursement for, the two antennas
at issue;
b. To determine whether the Bureau erred in separately determining
that the RPC properly classified the two antennas at issue based on
Commission guidance; and
c. To determine whether the reimbursed amount of $33,994 for the
two antennas at issue should be adjusted to restore the disallowed
amount of $69,686.
29. it is further ordered that the burden of proceeding with the
introduction of evidence and the burden of proof with respect to all
issues specified herein SHALL BE UPON Mongoose.
30. it is further ordered, that Mongoose Works, Ltd. (Mongoose) is
made a party to the proceeding pursuant to Sec. 1.221(d) of the
Commission's rules, 47 CFR 1.221(d). To avail itself of the opportunity
to be heard, pursuant to Sec. 1.221(e) of the Commission's rules,
Mongoose, in person or by its attorneys, shall file a written
appearance, stating its intention to appear on the date fixed for the
hearing and present evidence on the issues specified in this Hearing
Designation Order. Such written appearance shall be filed within twenty
(20) days of the mailing of this Order pursuant to Paragraph 32 below.
If Mongoose fails to file an appearance within the time specified, it
shall, unless good cause for such failure is shown, forfeit its hearing
rights.
31. it is further ordered that the Chief, Enforcement Bureau, SHALL
BE MADE A PARTY to this proceeding without the need to file a written
appearance.
32. it is further ordered that a copy of this Hearing Designation
Order shall be sent, via Certified Mail--Return Receipt Requested to:
Mongoose Works, Ltd., c/o Mark Derbyshire, 4950 S El Camino Dr, Cherry
Hills Village, CO 80111.
33. it is further ordered that a copy of each document filed in
this proceeding subsequent to the date of adoption of this Hearing
Designation Order shall be served on the counsel of record appearing on
behalf of the Chief, Enforcement Bureau. Parties may inquire as to the
identity of such counsel by calling the Investigations & Hearings
Division of the Enforcement Bureau at (202) 418-1420. Electronic
service on counsel of record for the Enforcement Bureau shall be made
using the following email address: <a href="/cdn-cgi/l/email-protection#befbfcf6dbdfccd7d0d9cdfed8dddd90d9d1c8"><span class="__cf_email__" data-cfemail="db9e9993bebaa9b2b5bca89bbdb8b8f5bcb4ad">[email protected]</span></a>.
34. it is further ordered that this Hearing Designation Order or a
summary thereof SHALL BE PUBLISHED at the earliest practicable date in
the Federal Register.
Federal Communications Commission.
Amy Brett,
Acting Chief of Staff, Wireless Telecommunications Bureau.
[FR Doc. 2023-23788 Filed 11-2-23; 8:45 am]
BILLING CODE 6712-01-P
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