United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 1998 Decided June 19, 1998
No. 97-1416
Microwave Acquisition Corporation,
Appellant
v.
Federal Communications Commission,
Appellee
Qwest Communications Corporation,
Intervenor
Appeal of an Order of the
Federal Communications Commission
Donald J. Evans argued the cause for the appellant.
Jeffrey H. Dygert, Counsel, Federal Communications Com-
mission, argued the cause for the appellee. Christopher J.
Wright, General Counsel, and Daniel M. Armstrong, Associ-
ate General Counsel, Federal Communications Commission,
were on brief. John E. Ingle, Deputy Associate General
Counsel, and Joel Marcus, Counsel, Federal Communications
Commission, entered appearances.
Margaret L. Tobey was on brief for the intervenor.
Before: Silberman, Henderson and Rogers, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen Lecraft Henderson, Circuit Judge: Microwave Ac-
quisition Corp. (MAC) appeals a decision of the Federal
Communications Commission (Commission) denying review of
an order approving transfer of Qwest Communications, Inc.
(Qwest) from MCI Communications Corp. (MCI) to Southern
Pacific Telecommunications Company (SP). See In re Appli-
cation of MCI Communications Corp., 12 F.C.C.R. 7790
(1997). We hold that MAC lacks standing under Article III
of the United States Constitution to appeal the Commission's
decision because MAC has not alleged a concrete injury fairly
traceable to the decision and redressable in this proceeding.1
Qwest provides domestic interexchange telecommunication
service in various parts of the United States through its own
digital microwave network and through interconnection with
other carriers. MCI purchased Qwest in 1992 and a short
time later began negotiations to sell Qwest to MAC, which
MAC alleges resulted in an enforceable contract. In 1994
MCI agreed to sell Qwest to SP and applied to the Commis-
sion for approval of the transfer as required by 47 U.S.C.
s 310(d).2 In May 1994 MAC filed a motion with the Com-
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1 Because we dismiss for lack of standing we do not consider
MAC's arguments on the merits.
2 The statute provides in part:
(d) Assignment and transfer of construction permit or station
license
No construction permit or station license, or any rights
thereunder, shall be transferred, assigned, or disposed of in
any manner, voluntarily or involuntarily, directly or indirectly,
or by transfer of control of any corporation holding such permit
mission to deny the transfer and also filed separate lawsuits
in New York state court against MCI and SP, asserting a
contractual right to acquire Qwest and seeking specific per-
formance of the allegedly breached contract. On December
28, 1994 the Common Carrier Bureau (Bureau) approved the
transfer to SP, concluding, inter alia, that MAC lacked
statutory standing to oppose the transfer under 47 U.S.C.
s 309(d)(1) because its alleged injury, the failure to acquire
Qwest, was neither fairly traceable to nor redressable in the
transfer proceeding. See In re Application of MCI Commu-
nications Corp., 10 F.C.C.R. 1072 (1994).
MAC filed an application for review of the Bureau decision
with the Commission, which denied the application in a deci-
sion released June 2, 1997. The Commission first agreed
with the Bureau that MAC lacked standing because MAC's
injury, which "consists of the transfer of Qwest to Southern,
instead of MAC, in alleged breach of a contract that MAC
claims it had entered with MCI," 12 F.C.C.R. at 7794-95, was
neither traceable to Commission approval of the transfer nor
redressable by reversal thereof. The Commission also reject-
ed each of MAC's arguments on the merits. MAC appeals
the Commission's denial of review.
" 'In order to establish standing under Article III, a com-
plainant must allege (1) a personal injury-in-fact that is (2)
"fairly traceable" to the defendant's conduct and (3) redressa-
ble by the relief requested.' " SunCom Mobile & Data, Inc.
v. FCC, 87 F.3d 1386, 1387-88 (D.C. Cir. 1996) (quoting
Branton v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1992) (quoting
Allen v. Wright, 468 U.S. 737, 751 (1984)), cert. denied, 511
U.S. 1052 (1994)). MAC's allegations of injury have not been
clear or consistent but at oral argument MAC identified two
distinct ways in which it was injured by the Commission's
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or license, to any person except upon application to the Com-
mission and upon finding by the Commission that the public
interest, convenience, and necessity will be served thereby.
actions. Neither of the injuries satisfies the tripartite stand-
ing test.
MAC first asserts as injury the loss of its contractual right
to acquire Qwest. The alleged injury meets neither the
traceability nor the redressability requirement for standing.
"Causation, or 'traceability,' examines whether it is substan-
tially probable that the challenged acts of the defendant, not
of some absent third party, will cause the particularized
injury of the plaintiff." Florida Audubon Soc'y v. Bentsen,
94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (citations omit-
ted). MAC's loss of Qwest is, as the Commission concluded,
attributable not to any action of the Commission but to
MCI's alleged breach of its contract to sell Qwest to MAC.
The transfer proceeding could not have caused the alleged
breach which occurred before the transfer application was
ever filed and would have continued whatever the Commis-
sion's decision. Denial of the transfer might have delayed or
frustrated the sale of Qwest to SP but it would not have led
to MAC's acquisition of Qwest. "In sum, [MAC's] alleged
injury occurred before, existed at the time of, and continued
unchanged after the challenged Commission action" and
therefore cannot be fairly traced to the transfer approval.
California Ass'n of Physically Handicapped v. FCC, 778
F.2d 823, 827 (D.C. Cir. 1985).3
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3 In support of its claim of causation, MAC cites our decision in
Telephone & Data Sys., Inc. v. FCC, 19 F.3d 42 (D.C. Cir. 1994),
(TDS), in which the court held that the appellant, who claimed a
contractual interest in a cellular telephone licensee, had standing to
oppose the licensee's application to construct a cellular system.
The situation in TDS is distinguishable. In finding standing there,
the court relied on the "narrow proposition" that "injurious private
conduct is fairly traceable to the administrative action contested in
the suit if that action authorized the conduct or established its
legality." 19 F.3d at 47. Applying this proposition, the court held
TDS had standing because the Commission's action had "upheld the
legality of the very [contract] provisions whose exercise has inflicted
injury on TDS, provisions that a contrary holding would have
abrogated." Id. Not so here. The Commission's transfer approval
order did not purport to address in any way the provisions of the
alleged contract between MAC and MCI. Nor did the Commission
MAC's first injury fails as well the redressability require-
ment for Article III standing. "Typically, redressability and
traceability overlap as two sides of a causation coin." Dyna-
lantic Corp. v. Department of Defense, 115 F.3d 1012, 1017
(D.C. Cir. 1997). "Redressability examines whether the relief
sought, assuming that the court chooses to grant it, will likely
alleviate the particularized injury alleged by the plaintiff."
Florida Audubon Soc'y, 94 F.3d at 663-64 (footnote & cita-
tions omitted). The relief MAC now seeks--that "[t]he
FCC's orders should be reversed and the order approving the
transfer should be vacated," Brief of Appellant at 29-30--will
not result in MAC's acquisition of Qwest because, as we have
already concluded, the transfer order is not the cause of the
alleged contractual breach. See America West Airlines, Inc.
v. Burnley, 838 F.2d 1343, 1344 (D.C. Cir. 1988) (where injury
alleged--airline's inability to obtain airport slots--is not
traceable to Department of Transportation order approving
merger of airlines, reversal of order will not redress injury).
MAC's second injury fares no better than the first. MAC
asserts it was injured by the Commission's order because the
order has influenced and will continue to influence the state
court litigation in New York. Specifically MAC contends that
the sale of Qwest to SP, which the Commission order autho-
rized, has deprived MAC of the remedy of specific perfor-
mance in state court, whatever the outcome on the merits
there.4 Assuming, without concluding, that MAC is correct
and can satisfy the causation prong here, it has nonetheless
failed to demonstrate redressability. As we understand
MAC's position, the desired remedy is unavailable because
Qwest is no longer in the possession and control of MCI and
therefore no longer within the New York court's equitable
authority to order MCI to convey.5 Yet we know of no action
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authorize the alleged injury, namely MCI's refusal to sell Qwest to
MAC.
4 MAC also suggests that the Commission decision to approve the
transfer will in some way influence the state court's decision on the
merits of MAC's breach of contract claim---a proposition that
leaves us flummoxed.
5 A copy of a decision dismissing the state court suit against
MCI, submitted by the intervenor, states: "[I]t is clear that any
we can take to return Qwest to MCI, either on our own or in
a remand to the Commission--thereby restoring the specific
performance remedy (if it has in fact been lost). We there-
fore conclude that the second injury, even if caused by the
Commission's decision, is not redressable in this proceeding.6
Finally, MAC claims standing under circuit precedent, al-
leging it has suffered the same injury as the appellant in
Granik v. FCC, 234 F.2d 682 (D.C. Cir. 1956), whom the court
found to have standing to oppose transfer of a license in
which he claimed a breached option right. In Granik, howev-
er, the court addressed only whether the appellant had
statutory standing to oppose the transfer under sections
309(c) and 405 of the Federal Communications Act. The
court did not expressly consider or decide the question of
constitutional standing and did not--indeed could not--apply
the tripartite standing test which the Supreme Court only
later formulated. See Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U.S. 26, 40, 38, 41 (1976) (first
articulating three requirements that party allege "concrete
injury" "likely to be redressed by a favorable decision" that
"can be traced to the challenged action of the defendant").
Accordingly, we find the decision in Granik inapposite.
Because appellant MAC lacks standing under Article III of
the United States Constitution, its appeal is
Dismissed.
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claim for specific performance is moot. Qwest has been sold to SP
Telecom and MCI is not capable of performance." MAC v. MCI,
No. 113036/94, slip op. at 6 (N.Y. Sup. Ct. filed Mar. 11, 1997). We
have no license to consider whether the quoted language reflects an
accurate interpretation of New York law.
6 In its brief MAC alleged a third injury, that "by permitting the
transfer, the FCC has fundamentally impaired the value of the
asset in dispute, i.e., Qwest." MAC has not explained the nature of
this speculative injury nor cited any evidence to support it. In any
event, because neither we nor the Commission can restore Qwest to
its former status, this injury too is unredressable here.