Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Hill and Welch and               | ) |                              |
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| Myers Keller Communications Law  | * |                              |
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| Request for Attorney Fees in     | * |                              |
| Connection with 218-219 MHz      | ) |                              |
| Service Proceeding and Regional  | * |                              |
| Narrowband PCS Service           | * |                              |
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**ORDER**

**Adopted: October 25, 2000 Released: October 26, 2000**

By the Deputy Chief, Wireless Telecommunications Bureau:

# Introduction

1.  In this *Order*, we deny the two petitions filed by Myers Keller
    Communications Law Group ("Myers") and Hill & Welch ("Welch") to
    declare a common fund.[^1] The petitions each request a
    determination that these law firms are respectively entitled to
    attorney\'s fees in connection with their participation in
    litigation involving licensees in both the 218-219 MHz service and
    regional narrowband Personal Communications Services ("Narrowband
    PCS").[^2] As explained fully below, petitioners base their claims
    upon the "common fund doctrine," which when applicable, allows
    attorneys whose work product benefits a class of persons to claim a
    portion of the funds produced by the attorneys' efforts as
    compensation for services. Reply comments were filed opposing these
    two petitions on behalf of several entities.[^3] We conclude that
    the Commission lacks authority to apply the common fund doctrine to
    grant petitioners' requests. Accordingly, we deny the petitions.

# BACKGROUND

2.  The 218-219 MHz Service allows one-way and two-way communications
    for both common carrier and private operations on a fixed or mobile
    basis.[^4] Narrowband PCS includes a variety of services, such as
    advanced paging and messaging.[^5] For past auctions of both 218-219
    MHz service licenses and regional narrowband PCS licenses,[^6] the
    Commission's rules included provisions to encourage participation by
    minority- and women-owned entities and small businesses in
    accordance with our mandate under Section 309(j) of the
    Communications Act of 1934, as amended ("the Communications
    Act").[^7] At the conclusion of these auctions, the Commission
    announced winning bidders, which included recipients of bidding
    credits.[^8]

3.  Following the auction of 218-219 MHz licenses in 1994, the
    constitutionality of race- and gender-based bidding credits was
    called into question.[^9] In order to avoid undue delay of future
    auctions in other services, the Commission decided to eliminate the
    race and gender based provisions for those auctions and instead
    employ a similar provision for small businesses.[^10] In the
    *218-219 MHz Order*, in order to address questions raised concerning
    the constitutionality of race- and gender-based bidding
    credits,[^11] the Commission eliminated the minority- and
    women-owned business bidding credit previously afforded licensees in
    the first 218-219 MHz auction.[^12] At the same time, to fulfill the
    Commission's statutory mandate of encouraging participation by small
    businesses, rural telephone companies, and businesses owned by
    members of minority groups and women,[^13] and minimize disruption
    to entities that had previously received a bidding credit, the
    Commission granted a retroactive twenty-five percent bidding credit
    to the accounts of "every winning bidder in the 1994 auction of what
    is now the 218-219 MHz service that met the small business
    qualifications for that auction."[^14] In doing this, the Commission
    recognized that similar bidding credits had been provided to bidders
    in other services. The Commission did not address the issue of
    extending similar credits to participants in the regional narrowband
    PCS auction.

4.  In support of their instant motions, petitioners argue that their
    efforts on behalf of their clients, Graceba Total Communications,
    Inc. ("Graceba") and the Ad Hoc IVDS Coalition, caused the
    Commission to authorize the retroactive bidding credit and,
    therefore, the petitioners are entitled to compensation based upon
    the common fund doctrine.[^15] Petitioners also argue that their
    efforts will cause the Commission to establish similar provisions
    with respect to Auction No. 3 (for regional narrowband PCS
    licenses), and that they should also be similarly compensated,
    again, based upon the common fund doctrine.[^16] Based on this
    theory, petitioners seek an attorneys' fee award of twenty five
    percent from the refund generated by the retroactive bidding credit
    granted in the *218-219 MHz Order*, and a fee award of thirty
    percent from refunds they expect the Commission to grant in
    connection with the regional narrowband PCS auction.[^17]

5.  As previously noted, several commenters filed replies in opposition
    to the IVDS Petition and the Regional Narrowband PCS Petition. The
    commenters argue that the Commission lacks the authority to declare
    a common fund.[^18] Additionally, the commenters argue that
    Commission's precedent bars award of a common fund in this instant
    matter.[^19] Further, commenters argue that the petitioners' claims
    are exaggerated, and there is no equitable basis to award a common
    fund award.[^20]

#  DISCUSSION

**A. The Commission Lacks Authority to Establish a Common Fund**

6.  The common fund doctrine is an equitable doctrine that allows a
    court to establish a "common fund" to compensate an individual who
    recovers a monetary amount for the benefit of individuals other than
    himself or his client. [^21] The common fund doctrine "rests on the
    perception that persons who obtain the benefit of a lawsuit without
    contributing to its cost are unjustly enriched at the successful
    litigant\'s expense."[^22] The compensation is limited to reasonable
    attorneys' fees from the common fund.[^23] The common fund doctrine
    can only be applied where the court possesses jurisdiction over the
    fund involved in the litigation. Courts have explained that this
    limitation prevents inequity as attorney's fees are assessed against
    the entire fund, spreading the fees proportionately among those who
    are the actual beneficiaries of the litigation.[^24]

7.  In order to establish entitlement to a common fund, an applicant
    must demonstrate all the following elements: (1) the claim must
    involve litigation before a court with "judicial equity power" to
    impose liability on a fund; (2) the claim must identify a fund over
    which the court has jurisdiction; and (3) there also must be
    adequate representation of all parties in interest.[^25] Petitioners
    have failed to establish all three of these elements. First, the
    Commission lacks the "judicial equity power" to apply the common
    fund doctrine to determine whether the petitioners are entitled to
    attorney's fees.[^26] Second, the petitioners have failed to
    identify a fund over which a court has jurisdiction because the
    Commission is not a court with jurisdiction to entertain third party
    claims to funds at issue. Third, the facts do not demonstrate that
    the petitioners adequately represented all parties in interest.
    Additionally, contrary to petitioners' argument, the grant of the
    retroactive bidding credits were not themselves meant as a remedy
    for any alleged constitutional injury. [^27] Rather, the credit
    accorded small businesses solved a multi-faceted and complex set of
    regulatory issues.

8.  Petitioners have failed to present authority, and we are aware of no
    precedent for the proposition that a federal agency has equitable
    jurisdiction to establish a common fund.[^28] In *William E.
    Zimsky,* the Commission previously determined that it lacked the
    required equitable jurisdiction to establish a common fund.[^29] The
    Commission's lack of authority to recognize a claim for a common
    fund is controlling in the instant matter. As stated in *Zimsky,* "a
    common fund is a creature of a court's inherent equitable power over
    funds under its control, . . . \[it\] does not crystallize at the
    moment a single plaintiff prevails on his claim \[and it is\] not
    created by the parties or their lawyers . . .\[it\] is established
    by a court.[^30] The petitioners, however, assert that *Zimsky* is
    not applicable here.[^31] We disagree.

9.  In *Zimsky*, an attorney asked the Commission to determine that he
    was entitled to a share of refunds, which he claimed to have created
    as a result of a petition he filed on behalf of certain
    applicants.[^32] Similarly, petitioners here contend that they are
    entitled to a share of any refunds owed to eligible IVDS and
    regional narrowband PCS licensees. They argue that their numerous
    petitions, and legal efforts generally, resulted in the Commission
    granting the refunds in the 218-219 MHz service and will lead to the
    Commission granting refunds to regional narrowband PCS
    licensees.[^33] However, as previously noted, in *Zimsky* the
    Commission held that a common fund award can arise *only* in the
    context of litigation before an appropriate court exercising its
    equitable powers, and the same holds true here.[^34]

10. In *Zimsky*, the Commission relied upon *Turner v. FCC,* where an
    appellate court held that the Commission, as an administrative
    agency, lacked authority to order the reimbursement of legal
    expenses in the absence of a clear statutory authority granted by
    Congress.[^35] Petitioners attempt to distinguish *Zimsky* by
    arguing that Zimsky could seek relief in alternative forums, while
    they are precluded from doing so here.[^36] Petitioners base this
    argument on the recent *NextWave* decision, in which the Court of
    Appeals for the Second Circuit held that "\[t\]he FCC's exclusive
    jurisdiction extends not only to the granting of licenses, but to
    the conditions that may be placed on their use . . ."[^37] Although
    the appellate court in *NextWave* recognized that the Commission
    possesses the exclusive authority to regulate the allocation of
    spectrum licenses, which includes matters relating to bid amounts
    for the licenses, the Commission is still subject to other
    jurisdictional limitations.[^38] Further, nothing would prohibit
    petitioners from seeking compensation from the individual recipients
    of any refunds granted in a court of competent jurisdiction to the
    extent allowed by applicable law.[^39] Thus, they are not without a
    forum in which to pursue their claims.

11. The petitioners ignore the fact that their position finds no
    support, either explicitly or implicitly, in the plain language of
    the Communications Act, as amended ("the Act").[^40] There is no
    language in Section 309(j) of the Act, or any other legal authority,
    including the *NextWave* decision, which gives the Commission the
    equitable authority to determine that the petitioners are entitled
    to a common fund.[^41] The petitioners' analysis of the language in
    *NextWave* inaccurately represents the Second Circuit's decision as
    being so expansive that it extends the Commission's regulatory
    jurisdiction to encompass the inherent equitable powers of a court.
    Unlike the courts, administrative agencies, like the Commission, do
    not possess such powers.[^42] As *Zimsky* explains, the Commission
    lacks the equitable power to declare that petitioners are entitled
    to a common fund. This fact was not altered by the appellate court's
    decision in *NextWave* or any other post-*Zimsky* decision, which
    means that the first element required for creating a common fund is
    not present here. For this reason alone, it would be appropriate to
    deny petitioners' motion.

12. Furthermore, petitioners also fail to identify a fund over which a
    court has jurisdiction, the second element required to establish a
    common fund. Although the Commission does possess the authority to
    return funds to eligible entities, it does not follow that the
    Commission also possesses the authority to adjudicate claims of
    third parties to those funds.[^43] The Commission is not a court and
    does not possess the broad jurisdictional authority of a court.
    Absent a court order recognizing the validity of an attorney's
    claim, the government is not obligated to pay fees out of
    refunds.[^44] Further, if the Commission were to grant petitioners'
    request, it may violate due process, as the petitioners did not
    establish a fee arrangement with all entities eligible for
    refunds.[^45]

13. Finally, petitioners fail to demonstrate that all parties in
    interest were adequately represented, the third element required to
    establish a common fund. Although commenters submitted copies to
    show that petitioners solicited support for their legal services to
    eligible licensees, there is no evidence to indicate that the
    solicited licensees did in fact support or accept the petitioners'
    legal efforts as being on their behalf.[^46] As the commenters
    argue, it is not even apparent that petitioners' intention was to
    seek refunds for all licensees in both services, particularly
    regional narrowband PCS licensees.[^47] Accordingly, the facts do
    not support petitioners claim that this "common fund claim concerns
    efforts which long ago were aimed toward seeking relief for whole
    classes of licensees."[^48] The petitioners' arguments cannot
    overcome the fact that nothing before us shows that they were acting
    other than for their own clients. Contrary to the petitioners'
    contentions, the Commission clearly stated in *Zimsky* that, "in the
    absence of formal representation, a common fund award would be
    appropriate *only* when the relationship between the litigant and
    the beneficiaries raises strong equities for treating the litigant
    as acting for the benefit of others . . . ."[^49] Furthermore, case
    law is clear in stating that the common fund doctrine allows only a
    party who creates, preserves, or increases the value of a fund in
    which others have an ownership interest to be reimbursed from that
    fund for litigation expenses incurred, including counsel fees.[^50]
    Additionally, as we indicated in *Zimsky*, courts have found it
    relevant that class members support the reasonableness of a fee
    determination.[^51] A review of the comments filed clearly shows
    opposition to the fee award sought by the petitioners. [^52] Rather,
    commenters argue that the proposed fee would so substantially
    benefit the petitioners as to be neither reasonable nor equitable,
    and thus, would undermine a basic element of the common fund
    doctrine.[^53]

14. The petitioners' attempt to argue that the Commission acknowledged
    the value of their work in obtaining relief for the IVDS licensees
    in the *218-219 MHz Order* also lacks merit. Rather petitioners
    mischaracterize the straightforward language in the *218-219 MHz
    Order* to advance their own self-created standard for the authority
    required to establish a common fund. In the *218-219 MHz Order*, the
    Commission simply stated that petitioners in that proceeding raised
    certain issues to which the Commission would provide a responsive
    remedy.[^54] The strong policy arguments against extending the
    common fund doctrine to administrative rulemakings have not changed
    since our decision in *Zimsky*. In *Zimsky*, we rejected the
    contention that legal efforts created certain refunds and should be
    characterized as an adjudication distinct from our rulemaking.[^55]
    The fundamental principle remains that the common fund doctrine does
    not apply to our rulemakings.

15. Finally, petitioners argue that the discussion of both jurisdiction
    and the merits in *Zimsky* indicated that the Commission either did
    not believe or was uncertain as to whether it lacked jurisdiction to
    declare a common fund.[^56] In *Zimsky*, the Commission clearly
    indicated that it lacked jurisdiction. Thus, *Zimsky's* discussion
    of the merits was dicta and does not vest the Commission with
    jurisdiction to review petitioners' claim.[^57]

## B. EAJA Does Not Provide the Commission with A Statutory Exception. {#b.-eaja-does-not-provide-the-commission-with-a-statutory-exception. .unnumbered}

16. We also reject petitioners' arguments that the Equal Access to
    Justice Act ("EAJA"), as set forth in 28 U.S.C. § 2412, serves as a
    basis for the Commission to recognize a common fund. EAJA is a
    federal statute designed to provide private litigants a means of
    recovering their attorney fees in actions brought by and against
    federal agencies in certain limited circumstances.[^58] The EAJA
    statute serves as a statutory exception to the "American Rule,"
    which stands for the proposition that in the absence of an express
    statutory authorization, each party is responsible for payment of
    his own attorney\'s fees and other expenses incurred during
    litigation.[^59] EAJA deals with the liability of the United States
    as a party for attorney's fees while the common fund doctrine deals
    with the liability of a fund for attorneys' fees.[^60] These two
    concepts are distinct.

17. Although the EAJA covers both judicial and administrative
    proceedings,[^61] neither portion of the statute provides the
    Commission with jurisdiction for a fee award against a
    non-governmental party. Clearly, the portion of the statute that
    empowers federal courts to award attorneys' fees does not provide
    jurisdiction for the Commission to award attorney's fees from a
    common fund. With respect to the portion of the EAJA that provides
    for fee awards in administrative proceedings, such authority is
    limited to fee amounts against the government in \"adversary
    adjudications.\"[^62] As previously discussed, the Commission's
    decision to grant a retroactive twenty-five percent bidding credit
    was made in the context of rulemaking.[^63] Further, petitioners do
    not seek a fee award against the government. Therefore, petitioners'
    reliance on EAJA is misplaced.

18. In a further attempt to bolster their jurisdictional argument,
    petitioners cite to *Commonwealth of Puerto Rico v. Heckler*.[^64]
    In *Heckler*, the Court of Appeals for the DC Circuit recognized
    that unless expressly prohibited by statute, courts can make common
    fund awards against federal agencies under the EAJA.[^65]
    Petitioners claim that while *Zimsky* did not involve an applicable
    statutory exception for the Commission to award attorneys fees, the
    instant facts are similar to that in *Heckler*.
    Petitioners'erroneously argue that *Heckler* supports the
    proposition that EAJA empowers the Commission to create a common
    fund in their case. We do not agree. While a federal court in cases
    involving federal agencies may grant a common fund award, the
    language from *Heckler* does not provide the Commission with
    authority to grant a common fund award.

19. Furthermore, petitioners fail to demonstrate that they meet any of
    the other elements required for EAJA to be applicable in an
    administrative context.[^66] First, petitioners were not a party in
    litigation against the government. Thus, they do not qualify as a
    prevailing party.[^67] Second, EAJA only provides for the award of
    attorney fees and expenses actually incurred.[^68] Petitioners have
    failed to establish that they actually incurred fees and expenses
    equal to twenty five percent of potential or actual refunds.[^69]
    Thus, petitioners have failed to establish any legal or factual
    support for the proposition that EAJA provides the requisite
    statutory authority that would permit the application of the common
    fund doctrine in this instance.

    **IV. CONCLUSION**

20. We conclude that the Commission lacks the necessary legal authority
    to apply the common fund doctrine in this case. We find no
    jurisdictional basis upon which to grant the relief the petitioners
    are requesting.

# ORDER

21. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151, 154(i), 154(j), 303(r), that the Emergency Motion for Expedited
    Consideration and Petition for an Order to Declare a Common Fund and
    the Petition for an Order to Declare a Common Fund, both filed on
    March 8, 2000 by Myers Keller Communications Law Group and Hill &
    Welch, ARE DISMISSED.

    FEDERAL COMUNICATIONS COMMISSION

Gerald P. Vaughan

Deputy Chief, Wireless Telecommunications Bureau

**APPENDIX**

The following opposition comments were received:

1\. IVDS Enterprises Joint Venture, filed on March 22, 2000
("Enterprises Opposition").

2\. Instapage Network LTD, filed on March 22, 2000 ("Instapage
Opposition").

3\. Tel/Logic, Inc., filed on April 6, 2000 ("Tel/Logic Opposition").

4\. In-Sync Interactive Corporation, Loli, Inc., KMC Interactive TV,
Inc., Trans Pacific Interactive, Inc. and Whitehall Wireless
Corporation, filed on May 17, 2000 ("In-Sync Opposition") (ex parte
filing).

[^1]: Myers Keller Communications Law Group ("Myers") and Hill & Welch
    ("Welch") (collectively, "petitioners") filed both an "Emergency
    Motion for Expedited Consideration and Petition for an Order to
    Declare a Common Fund" ("IVDS Petition") and a "Petition for an
    Order to Declare a Common Fund" ("Regional Narrowband PCS Petition")
    on March 8, 2000.

[^2]: The 218-219 MHz Service was initially designated the \"Interactive
    Video and Data Service\" ("IVDS").

[^3]: The Commission received four reply comments opposing these two
    petitions on behalf of IVDS Enterprises Joint Venture, Instapage
    Network LTD, Tel/Logic, Inc., In-Sync Interactive Corporation, Loli,
    Inc., KMC Interactive TV, Inc., Trans Pacific Interactive, Inc. and
    Whitehall Wireless Corporation. These pleadings are listed in the
    Appendix to this ruling. Additionally, although one comment was late
    filed, we accepted it as an ex parte filing. *See* 47 C.F.R. §
    1.45(b).

[^4]: 47 C.F.R. § 95.803(a). *See* Amendment of Parts 0, 1, 2 and 95 of
    the Commission\'s Rules to Provide for Interactive Video Data
    Services, GEN Docket No. 91-2, *Notice of Proposed Rule Making*, 6
    FCC Rcd. 1368 (1991) ("*Allocation Notice*"); *see also,*
    Implementation of Section 309(j) of the Communications
    Act\--Competitive Bidding, PP Docket No. 93-253, *Second Memorandum
    Opinion and Order,* 9 FCC Rcd. 7245 (1994) (determining that 218-219
    MHz Service licenses should be awarded through competitive bidding
    and prescribing certain general rules and procedures to be used for
    all auctionable services); Implementation of Section 309(j) of the
    Communications Act - Competitive Bidding, PP Docket No. 93-253,
    *Fourth Report and Order*, 9 FCC Rcd. 2330 (1994) ("*Competitive
    Bidding Fourth Report and Order"*), *on recon.*, *Sixth Memorandum
    Opinion and Order and Further Notice of Proposed Rule Making*, 11
    FCC Rcd. 19341 (1996) ("*Competitive Bidding Sixth M.O.&O./Further
    Notice"*) (establishing specific auction procedures for the 218-219
    MHz Service).

[^5]: *See* Amendment of the Commission\'s Rules to Establish New
    Narrowband Personal Communications Services, *First Report and
    Order*, 8 FCC Rcd. 7162 (1993) ("*PCS First Report and Order"*), on
    recon., *Memorandum Opinion and Order*, 9 FCC Rcd. 1309 (1994)
    ("*PCS MO&O*").

[^6]: The auction for the 218-219 MHz Service was held on July 28 and
    29, 1994 (Auction No. 2). The auction of regional narrowband PCS
    licenses began on October 26, 1994, and closed on November 8, 1994
    (Auction No. 3).

[^7]: 47 U.S.C. § 309 (j)(4)(D); *see also,* 47 C.F.R. §§ 24.309, 95.816
    (1994). *Competitive Bidding Fourth Report and Order,* 9 FCC Rcd.
    2330, at 2336, ¶ 36 (eligible IVDS bidders could use installment
    financing and bidding credits); s*ee also,* Implementation of
    Section 309(j) of the Communications Act - Competitive Bidding, PP
    Docket No. 93-253, *Third Report and Order*, 9 FCC Rcd. 2941, at
    2970, 2978, ¶ 72, 86 (adopting service-specific rules for
    competitive bidding on narrowband PCS licenses); Implementation of
    Section 309(j) of the Communications Act - Competitive Bidding
    Narrowband PCS and Amendment of the Commission's Rules to Establish
    New Narrowband Personal Communications Services, PP Docket No.
    93-253, *Third Memorandum Opinion and Order and Further Notice of
    Proposed Rulemaking,* 10 FCC Rcd. 175, at 201, ¶ 58 (1994)
    (increasing the bidding credit for women- and minority-owned
    businesses in the upcoming regional narrowband auction from 25% to
    40%).

[^8]: *See* Announcing High Bidders for 594 Interactive Video and Data
    Service (IVDS) Licenses, *Public Notice*, Mimeo No. 44160 (rel. Aug.
    2, 1994), erratum, *Public Notice*, Mimeo No. 44265 (rel. Aug. 9,
    1994); *see also,* Announcing the High Bidders in the Auction of 30
    Regional Narrowband (PCS) Licenses, *Public Notice* (rel. November
    9, 1994); Announcement of Bid Amounts, *Public Notice* -- Mimeo No.
    44160 (rel. Aug. 2, 1994) ("*Bid Amount Public Notice*"); FCC
    Announces the Receipt of Down Payments from the High Bidders in the
    Auction of 30 Regional Narrowband PCS Licenses, *Public Notice*
    (rel. Nov. 29, 1994).

[^9]: Graceba Total Communications, Inc. (Graceba) filed two petitions
    challenging the 218-219 MHz Service auction methodology as
    artificially inflating prices and challenging the constitutionality
    of the bidding credits that were awarded in the auction. In December
    1995, the Commission denied Graceba\'s petitions, along with those
    filed by other bidders in the 1994 auction seeking similar relief.
    *See* In the Matter of Interactive Video and Data Service (IVDS)
    Licenses, *Order*, 11 FCC Rcd 1282 (1995). Upon appeal by Graceba,
    the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit)
    remanded the constitutional issue to the Commission in June of 1997
    for further consideration. *See* *Graceba Total Communications, Inc.
    v. FCC*, 115 F.3d 1038 (D.C. Cir. 1997). In the course of Graceba\'s
    appeal, other participants in the auction filed a petition to
    intervene in support of Graceba\'s constitutional arguments. The
    Wireless Telecommunications Bureau subsequently dismissed the
    petition, stating that petitioners should have objected to the
    payment conditions related to their licenses when they had first
    been issued in January and February 1995. *See* In Re Community
    Teleplay, Inc., et al. Petition For Relief of Application of Bidding
    Credits in the Interactive Video and Data Service, *Order*, 13 FCC
    Rcd. 12426 (1998). On remand, the Commission addressed the
    constitutional issue. Amendment of Part 95 of the Commission's Rules
    to provide Regulatory Flexibility in the 218-219 MHz Service, WT
    Docket No. 98-169, *Report and Order and Memorandum and Opinion and
    Order*, 15 FCC Rcd. 1497 (1999) ("*218-219 MHz Order*").

[^10]: *Competitive Bidding Sixth M.O.&O.*, 11 FCC Rcd. at 19369 ¶ 67
    (rules for the then planned second IVDS auction); *Competitive
    Bidding Sixth Report and Order*, 11 FCC Rcd. 136, 161, 167, ¶¶ 1,
    47, 59 (C Block rules); Implementation Of Section 309(j) of The
    Communications Act -- Competitive Bidding, Narrowband PCS, *Second
    Report and Order and Second Further Notice of Proposed Rule Making*,
    15 FCC Rcd. 10456, 10475, 10492, ¶¶ 37, 84 (2000).

[^11]: 2*18-219 MHz Order,* 15 FCC Rcd. at 1532-33, ¶ 60-64 (provides
    further procedural history).

[^12]: Thus, all minority and women owned businesses lost the bidding
    credit they had previously received in the original auction in the
    218-219 MHz Service conducted in 1994.

[^13]: 47 U.S.C. § 309 (j).

[^14]: *218-219 MHz Order*, 15 FCC Rcd. at 1533, ¶ 61.

[^15]: IVDS Petition at 7; Regional Narrowband PCS Petition at 12. *But
    see* comments listed in Appendix. (For example, Instapage argues
    that it is important to note that petitioners did not claim to
    represent any parties beyond their identified clients, and that they
    did not ask the D.C. Circuit court to grant any relief with respect
    to the regional narrowband auction, Instapage Opposition at 3.).

[^16]: IVDS Petition at 10; Regional Narrowband PCS Petition at 9.

[^17]: IVDS Petition at 10; Regional Narrowband PCS Petition at 9.

[^18]: Enterprises Opposition at 9-11; Instapage Opposition at 7-9;
    In-Sync Opposition at 5.

[^19]: Enterprises Opposition at 11-13; Instapage Opposition at 9-11;
    In-Sync Opposition at 6-12.

[^20]: Tel/Logic Opposition at 2-4; Enterprises Opposition at 17-18;
    Instapage Opposition at 15-18; In-Sync Opposition at 13-17.

[^21]: *See* *Mills v. Electric Auto-Lite Co*., 396 U.S. 375 (1970);
    *Sprague v. Ticonic National Bank*, 307 U.S. 161 (1939); *Trustees
    v. Greenough*, 105 U.S. 527 (1882).

[^22]: *Mills,* 396 U.S. at 392; *see also,* *Boeing,* 444 U.S. at 478.

[^23]: *See Boeing Company v. Van Gambert, et al.,* 444 U.S. 472, 478
    (1980).

[^24]: *Mills*, 396 U.S. at 394; s*ee also,* *Boeing,* 444 U.S. at 478.

[^25]: *Knight v. U.S.,* 982 F.2d 1573, 1581 (1993).

[^26]: William E. Zimsky, *Declaratory Ruling*, 9 FCC Rcd. 3239 (1994)
    ("*Zimsky*").

[^27]: IVDS Petition at 7.

[^28]: *Knight*, 982 F.2d at 1582 (cited in *Zimsky,* 9 FCC Rcd. at
    3241, ¶ 23).

[^29]: *Zimsky,* 9 FCC Rcd. at 3241, ¶ 20

[^30]: *Id.* (citing to *Sprague*, 307 U.S. at 166-67, *Alyeska Pipeline
    Serv. Co. v. Wilderness Soc*., 421 U.S. 240, 257-8, (1975);
    *Boeing*, 444 U.S. 472, 478)).

[^31]: IVDS Petition at 12. *But see* Enterprises Opposition at 13;
    In-Sync Opposition at 10.

[^32]: *Zimsky,* 9 FCC Rcd. 3239, at 3239-3240, ¶¶ 1, 8, 10.

[^33]: IVDS Petition at 7.

[^34]: *Turner v. FCC,* 514 F.2d 1354, 1355 (D.C.Cir. 1975) (cited in
    *Zimsky*, 9 FCC Rcd. at 3241, ¶ 20); *see also,* Enterprises
    Opposition at 11; In-Sync Opposition at 6.

[^35]: *Zimsky*, 9 FCC Rcd. at 3241, ¶ 20*.*

[^36]: IVDS Petition at 11 (citing *NextWave Personal Communications,
    Inc. v. FCC*, 200 F.3d 43 (2^nd^ Cir. 1999) (*"NextWave")*, *aff'd
    2000 WL 828282 (2nd Cir.,* May 25, 2000)); *see also* "Reply to
    Opposition to Petition for an order to declare a Common Fund"
    ("Reply to Enterprises Opposition"), filed by Myers and Welch, dated
    April 3, 2000, at 7. *But see,* In-Sync Opposition at 9-10.

[^37]: *NextWave,* 200 F.3d 43, 54.

[^38]: *Id.; see also Turner,* 514 F.2d 1354 (explicitly holding that
    the FCC lacks the authority to award attorney's fees without
    statutory authorization.).

[^39]: We make no comment on the merits of any such claim.

[^40]: 47 U.S.C. § 309.

[^41]: *Id.*

[^42]: *Turner,* 514 F.2d at 1355 (cited in *Zimsky,* 9 FCC Rcd. at
    3242, ¶ 29).

[^43]: *Knight,* 982 F.2d at 1580 (cited in *Zimsky,* 9 FCC Rcd. at
    3241, ¶ 24).

[^44]: *Knight,* 982 F.2d at 1580 (In *Knight,* the Court stated that
    only a court order, not an attorney\'s demand, could impose a duty
    to create a common fund. With respect to the back pay due to the
    attorney's clients in *Knight,* the Court clearly stated that
    "\[t\]he government could not unilaterally surrender their rights .
    . . .").

[^45]: *National Council of Community Health Centers v. Mathews*, 546
    F.2d 1003, 1008-1009 (D.C. Cir. 1976) (denying common fund recovery
    on that ground).

[^46]: Enterprise Opposition at 15-18.

[^47]: Instapage Opposition at 3.

[^48]: Regional Narrowband PCS Petition at 15.

[^49]: *Zimsky,* 9 FCC Rcd. at 3242, ¶ 38 (emphasis added); *see also*
    In-Sync Opposition at 14-15; Tel/Logic Opposition at 4.

[^50]: *Swedish Hosp. Corp. v. Shalala*, 1 F.3d 1261, 1265 (D.C.Cir.
    1993); *see also,* In-Sync Opposition at 13 (indicating that some
    licensees received demands for payment of legal fees without
    reasonable notice); Enterprise Opposition at 15-18 (arguing that it
    is unreasonable for petitioners to expect that non-clients "be
    required to help foot the legal bills.").

[^51]: *Swedish Hospital*, 1 F.3d at 1272 (cited in *Zimsky*, note 15).

[^52]: Enterprises Opposition at 13-17; Tel/Logic Opposition at 2-4;
    Instapage Opposition at 12-18.

[^53]: In-Sync Opposition at 14-15.

[^54]: *218-219 MHz Order,* 15 FCC Rcd. at 1533, ¶ 60.

[^55]: *Zimsky,* 9 FCC Rcd. at 3242, ¶ 31; *see also,* Enterprises
    Opposition at 11-12; In-Sync Opposition at 11-12.

[^56]: Petitioners' claim that "The FCC's discussion of equities \[in
    Zimsky\], at a minimum, demonstrates uncertainty regarding its legal
    determination that it could declare a common fund." IVDS Petition at
    12

[^57]: *Bokunewicz v. Purolator Products, Inc.,* 907 F.2d 1396, 1399
    (3rd Cir. 1990) (holding that \"everything after denial of
    jurisdiction\" is \"dicta, pure and simple.\").

[^58]: EAJA authorizes only a limited waiver of sovereign immunity.
    Waivers of sovereign immunity must be strictly construed in favor of
    the United States. *See, e.g.,* *United States v. Sherwood*, 312
    U.S. 584, 590 (1991); *Manko v. United States*, 830 F.2d 831, 838
    (8th Cir. 1987); *see also,* *FDIC v. Meyer*, 510 U.S. 471, 475
    (1994).

[^59]: *See* *In re Perry, et al.,* 882 F.2d 534 (5^th^ Cir. 1989).

[^60]: *Holbrook v. Pitt*, 748 F.2d 1168, 1174 (7^th^ Cir. 1984);
    Enterprises Opposition at 12.

[^61]: EAJA is applicable to courts through 28 U.S.C. § 2412 and to
    administrative agencies through 5 U.S.C. § 504.

[^62]: 5 U.S.C. § 504(a)(1); 554; 47 C.F.R. § 1.1526; *see* *In re
    Perry, et al.,* 882 F.2d 534, 540 (5^th^ Cir., 1989) (discussing
    Congress\'s intent to "disallow fee awards for administrative
    proceedings in which the government is an adjudicator rather than an
    adversary); *see also,* H.R.Rep. No. 1418, *supra*, 1980 U.S. Code
    Cong. & Admin. News at 4992 (\"Section 2412(d) authorizes an award
    of reasonable fees and expenses in judicial proceedings analogous to
    the awards authorized in adversary adjudications under \[5 U.S.C. §
    504\].\").

[^63]: IVDS Petition at 13; Reply to Enterprises Opposition at 8-9.

[^64]: *Commonwealth of Puerto Rico v. Heckler*, 745 F.2d 709, 711, 713
    (D.C. Cir. 1984). *But see,* Enterprises Opposition at 10-11;
    In-Sync Opposition at 5.

[^65]: *Heckler,* 745 F.2d at 711; s*ee also,* 28 U.S.C. §§ 2412(b),
    2412(d)(1)(A). Section 2412(d)(1)(A) provides in pertinent part:

    > Except as otherwise specifically provided by statute, a court
    > shall award to a prevailing party other than the United States
    > fees and other expenses, in addition to any costs awarded pursuant
    > to subsection (a), incurred by that party in any civil action
    > (other than cases sounding in tort), including proceedings for
    > judicial review of agency action, brought by or against the United
    > States in any court having jurisdiction of that action, unless the
    > court finds that the position of the United States was
    > substantially justified or that special circumstances make an
    > award unjust.

[^66]: 5 U.S.C. § 504(a)(1).

[^67]: 28 U.S.C. § 2412 (d)(1)(A)(provides that only "a prevailing
    party" in litigation against the United States or an agency of the
    United States is entitled to an award of reasonable attorneys fees);
    *see also* *Money v. OPM*, 816 F.2d 665 (Fed. Cir., 1987);
    *Yarbrough v. Cuomo*, 209 F.3d 700, 703 (8^th^ Cir., 2000); 47
    C.F.R. § 1.1501, *et seq*. (which implements the EAJA, provides for
    the award of attorney\'s fees and other expenses to an eligible
    party \"when it prevails over the Commission, unless the
    Commission\'s position in the proceeding was substantially justified
    or special circumstances make an award unjust.\"); Enterprises
    Opposition at 12; In-Sync Opposition at 10-11. Petitioners seek this
    award for themselves and make no attempt to characterize it as a
    claim asserted on behalf of their clients.

[^68]: 5 U.S.C. § 504(a)(1). EAJA plainly states in Section 504(a)(1),
    that:

    > "An agency that conducts an adversary adjudication shall award, to
    > a prevailing party other than the United States, fees and other
    > expenses incurred by that party in connection with that
    > proceeding, unless the adjudicative officer of the agency finds
    > that the position of the agency was substantially justified or
    > that special circumstances make an award unjust."

[^69]: 5 U.S.C. § 554; 5 U.S.C. § 504(b)(1)(C); *see also,* Thomas L.
    Root, Esq., Request for Compensation Under the Equal Access to
    Justice Act, GEN Docket No. 90-297, *Memorandum Opinion and Order*,
    6 FCC Rcd. 2491 (1991)(Compensation under EAJA, is limited to fees
    and costs incurred in \"adversary adjudications,\" which are defined
    as adjudications under Section 554 of the Administrative Procedures
    Act ("APA"), and which applies only to \"adjudication\[s\] required
    by statute to be determined on the record after opportunity for an
    agency hearing.\").