MELCHER v. F.C.C.

Nos. 93-1110, 93-1111 to 93-1120, 93-1122 to 93-1128, 93-1130 to 93-1137, 93-1139, 93-1140, 93-1142 to 93-1150, 93-1152, 93-1154, 97-1368, 97-1371, 97-1380, 97-1386, 97-1393, 97-1415, 97-1431, 97-1483 and 97-1484.

134 F.3d 1143 (1998)

James L. MELCHER, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CellularVision USA, Inc., et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided February 6, 1998.


Attorney(s) appearing for the Case

Frederick M. Joyce, Washington, DC, argued the cause for petitioners James L. Melcher, et al., with whom John Haven Chapman and Christine McLaughlin, Washington, DC, were on the briefs. James H. Barker, III, Michael R. Gardner, Tom W. Davidson, Daniel E. Troy and Robert L. Pettit, Washington, DC, entered appearances.

Richard P. Bress, Washington, DC, argued the cause for petitioners United States Telephone Association, et al., with whom Maureen E. Mahoney and Gary M. Epstein, Washington, DC, Michael E. Glover and James G. Pachulski, Arlington, VA, Mary M. McDermott, Los Angeles, CA, Linda Kent, San Diego, CA, M. Robert Sutherland, Atlanta, GA, Gail L. Polivy, Washington, DC, and John F. Raposa, Irving, TX, were on the briefs. Frank W. Krogh and Andre J. Lachance, Washington, DC, entered appearances.

Paul J. Sinderbrand, Washington, DC, argued the cause for petitioner U S West, Inc., with whom L. Andrew Tollin, Robert G. Kirk, Craig E. Gilmore and Georgina M. Lopez-Ona, Washington, DC, and Robert B. McKenna, Denver, CO, were on the briefs.

L. Marie Guillory, Washington, DC, argued the cause for petitioner National Telephone Cooperative Association, with whom David Cosson, Washington, DC, was on the briefs.

Joel Marcus, Counsel, Federal Communications Commission, Washington, DC, argued the cause for respondents, with whom Joel I. Klein, Acting Assistant Attorney General, United States Department of Justice, Robert B. Nicholson and Andrea Limmer, Attorneys, William E. Kennard, General Counsel, Washington, DC, at the time the brief was filed, Federal Communications Commission, Christopher J. Wright, General Counsel, John E. Ingle, Deputy General Counsel, Carl D. Lawson and Roberta L. Cook, Counsel, Washington, DC, were on the brief. Catherine G. O'Sullivan, Attorney, United States Department of Justice, Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, and David Silberman, Counsel, Washington, DC, entered appearances.

Glenn B. Manishin, Washington, DC, argued the cause for intervenors WebCel Communications, Inc., et al., with whom Matthew B. Pachman and John D. Windhausen, Jr., Washington, DC, were on the joint briefs. Frank W. Krogh, Washington, DC, entered an appearance.

Caressa D. Bennet, Michael R. Bennet, Gregory W. Whiteaker and Stephen G. Kraskin, Washington, DC, were on the joint briefs for intervenors Rural Telecommunications Group, et al.

Before: EDWARDS, Chief Judge, WALD and ROGERS, Circuit Judges.


Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This case involves the Local Multipoint Distribution Service ("LMDS"), a new wireless mode of communication that supports video, voice, and data services. The crux of the dispute concerns the Federal Communication Commission's ("FCC") decision to bar incumbent local telephone companies (known as local exchange carriers, or "LECs"), including rural local telephone companies, from holding...

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