United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2005 Decided February 18, 2005
Reissued March 3, 2005
No. 03-1376
NATIONAL SCIENCE AND TECHNOLOGY NETWORK, INC.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
MOBILE RELAY ASSOCIATES,
INTERVENOR
Appeal of an Order of the
Federal Communications Commission
Kenneth E. Hardman argued the cause for appellant. On the
briefs was Alan M. Lurya.
Pamela L. Smith, Counsel, Federal Communications
Commission, argued the cause for appellee. With her on the
brief were John A. Rogovin, General Counsel, and Daniel M.
Armstrong, Associate General Counsel.
David J. Kaufman was on the brief for intervenor.
Before: GINSBURG, Chief Judge, and HENDERSON and
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RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Appellant National Science and
Technology Network, Inc. (“NSTN”) applied for nine private
land mobile radio licenses, which the Federal Communications
Commission granted in the spring of 2000. Mobile Relay
Associates (“MRA”), an intervenor in the proceedings before
this court, challenged these licenses shortly after they issued.
On October 19, 2001, more than eighteen months after NSTN
initially received its licenses, the Commission’s Public Safety
and Critical Infrastructure Division ruled on MRA’s petition.
The Division found that six of the nine licenses had been based
upon “defective” applications and set them aside; the remaining
three licenses had lapsed automatically due to NSTN’s failure to
construct the authorized stations within twelve months of license
approval. In the Matter of Licenses of Nat’l Sci. & Tech.
Network, Inc., 16 F.C.C.R. 18,719 (2001). The Commission
found on review that all nine licenses had lapsed due to
nonconstruction, and consequently dismissed as moot NSTN’s
application for review. 18 F.C.C.R. 19,870 (2003). NSTN now
appeals from the Commission’s order.
The Commission’s regulations are clear. Once a license is
approved, systems must be “placed in operation within twelve
(12) months from the date of the grant or the authorization
cancels automatically and must be returned to the
Commission.” 47 C.F.R. § 90.155(a) (emphasis added). A
licensee may apply for an extension of this one-year deadline,
but such requests “must be filed prior to the expiration of the
construction period.” § 90.155(g). NSTN admits that it neither
completed construction within twelve months, nor requested an
extension during this period.
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NSTN offers two arguments to excuse its inaction. First,
NSTN asserts that it was unable to begin construction because
the required equipment was not commercially available, and that
the Commission therefore should have, sua sponte, exempted
NSTN and all similarly-situated applicants from the one-year
construction requirement. This amounts to an argument that the
Commission’s rules should be different. There are formal
avenues for the pursuit of such changes, e.g., 47 C.F.R. § 1.401
(governing petitions for Commission rulemaking), but these
procedures notwithstanding, NSTN must comply with the rules
as they are, and not the rules as it believes they should be.
NSTN’s other excuse is that it did not apply for an
extension because the Commission clearly would have denied
any such application. Failure to pursue administrative remedies
will be excused for futility only upon a showing that an adverse
decision was a certainty. Communication Workers of Am. v. Am.
Tel. & Tel. Co., 40 F.3d 426, 433 (D.C. Cir. 1994). Far from
meeting this demanding standard, NSTN offers up no reasonable
basis for its belief. The single case cited by NSTN, In the
Matter of Request for Extension of Time to Construct an
Industrial/Business Radio Service Trunked Station, 18 F.C.C.R.
22,055 (2003), is a nonbinding staff decision issued on October
23, 2003 -- more than two years after NSTN’s licenses expired.
In 2000 and 2001, as the clock was ticking on the construction
deadline, there was nothing even to suggest that petitioning for
an extension would be futile. NSTN simply ignored a clear
procedural requirement, and it has offered no valid excuse. As
the saying goes, “rules is rules.” The Commission’s order is
affirmed.
So ordered.