**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Hill & Welch and                 | ) |                              |
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| Myers Keller Communications Law  | * |                              |
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| Request for Attorney Fees in     | * |                              |
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| Narrowband PCS Service           |   |                              |
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**ORDER ON RECONSIDERATION**

**Adopted:** May 4, 2001 **Released:** May 4, 2001

By the Deputy Chief, Wireless Telecommunications Bureau:

# introduction

1.  In this *Order on Reconsideration,* we deny the Petition for
    Reconsideration filed by Hill & Welch and Myers Keller
    Communications Law Group on November 21, 2000.[^1] The Petitioners
    seek reconsideration of the Wireless Telecommunication Bureau
    ("Bureau") *Common Fund Order*[^2] that denied Petitioners' March 8,
    2000 requests[^3] for declaration of a common fund. After reviewing
    Petitioners' submissions[^4] and the two oppositions filed
    herein,[^5] we conclude, for the reasons set forth below, that the
    Commission lacks the requisite authority to establish a common fund
    and, accordingly, deny the Reconsideration Petition.

# background

2.  Following the auction of 218-219 MHz Service (formerly Interactive
    Video Data Service ("IVDS")) licenses in 1994 ("Auction No. 2"), the
    constitutionality of race- and gender-based bidding credits was
    called into question.[^6] In order to avoid undue delay of future
    auctions in other services, the Commission eliminated the race- and
    gender-based provisions for those auctions and instead employed a
    similar provision for small businesses.[^7] Similarly, in the
    *218-219 MHz Order*,[^8] the Commission eliminated minority- and
    women-owned business bidding credits, previously afforded in Auction
    No. 2, in order to address questions raised concerning the
    constitutionality of those bidding credits. At the same time, to
    fulfill the Commission\'s statutory mandate of: (1) encouraging
    participation by small businesses, rural telephone companies, and
    businesses owned by members of minority groups and women, and (2)
    minimizing 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."[^9] 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 granting a similar retroactive credit to
    participants in the regional narrowband PCS auction ("Auction No.
    3") or the nationwide narrowband PCS auction ("Auction No. 1").

3.  On March 8, 2000, Petitioners filed two petitions that requested a
    determination that these law firms are respectively entitled to a
    common fund award in connection with their participation in
    litigation involving licenses in both the 218-219 MHz and the
    regional narrowband PCS services.[^10] The Petitioners sought
    twenty-five percent of the refunds generated by the retroactive
    bidding credit granted in the *218-219 MHz Order*[^11] and thirty
    percent of the refunds Petitioners anticipate will be granted in
    connection with the regional narrowband PCS auction. Petitioners
    based their claims upon the common fund theory, which when
    applicable, allows a party whose work product benefits a class of
    persons, to claim a portion of the funds produced by their efforts
    as compensation for services.[^12] In particular, Petitioners argued
    that representation of their clients, Graceba Total Communications,
    Inc. ("Graceba")[^13] and the Ad Hoc IVDS Coalition caused the
    Commission to authorize retroactive bidding credits in the 218-219
    MHz Service.[^14]

4.  On October 26, 2000, we issued the *Common Fund* *Order*,[^15] which
    denied the two petitions to declare a common fund. We found
    that: (1) the Commission lacked the requisite authority to establish
    a common fund; (2) the Petitioners failed to identify a fund over
    which a court has jurisdiction; and (3) the Petitioners failed to
    demonstrate that all parties in interest were adequately
    represented.[^16] We noted that the retroactive bidding credits
    granted in the 218-219 MHz Service were not meant to remedy any
    alleged constitutional injury; rather, the credit accorded to small
    businesses resolved a multi-faceted and complex set of regulatory
    issues.[^17] We also found that the Equal Access to Justice Act[^18]
    does not provide the Commission with jurisdiction to grant a common
    fund award.[^19]

5.  On November 21, 2000, Petitioners sought reconsideration[^20] of our
    denial of their requests[^21] for declaration of a common fund. In
    their Reconsideration Petition, Petitioners for the first time
    request thirty percent of the refunds they anticipate will be
    granted in connection with their efforts before the Commission to
    obtain remedial bidding credits and refunds for the nationwide
    narrowband PCS licensees.[^22] Two oppositions to the
    Reconsideration Petition were filed.[^23] The Petitioners filed a
    Reply to the oppositions. [^24]

# Discussion

6.  The *Common Fund Order* concluded that the Commission lacked the
    authority to establish a common fund.[^25] The common fund doctrine
    is an equitable doctrine that allows a court to establish a "common
    fund" to compensate a litigant or a lawyer who recovers a monetary
    amount for the benefit of individuals other than himself or his
    client.[^26] The common fund doctrine "rests on the perception that
    persons who obtain the benefit of a lawsuit without contributing to
    its costs are unjustly enriched at the successful litigant's
    expense."[^27] In order to establish entitlement to a common fund,
    the Petitioners must demonstrate 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 must be
    adequate representation of all parties in interest.[^28] We found
    that Petitioners failed to satisfy all three of these elements.[^29]

7.  In their Reconsideration Petition,[^30] Petitioners raise arguments
    similar to those that we rejected previously. The Petitioners' first
    argument is that the Commission has equitable authority to create a
    common fund.[^31] According to Petitioners, Section 154(i)[^32] of
    the Communications Act permits the Commission to establish a common
    fund. In the alternative, Petitioners contend that in the absence of
    express authority in the Communications Act to authorize such a
    refund, the Commission's practice of awarding refunds to licensees
    demonstrates that the Commission has the equitable powers that would
    allow it to establish a common fund. To further support their
    jurisdictional argument, the Petitioners contend that we
    misconstrued legal precedent when we denied the Petitioners'
    original requests for a common fund.[^33] The Petitioners' second
    argument is that they are entitled to a portion of the common fund
    by virtue of their work in litigating the repeal of race- and
    gender-based bidding credits in Auction No. 2 (and the refunds that
    the Petitioners anticipate the Commission will issue in Auction Nos.
    1 and 3).[^34] After reviewing the Petitioners' arguments raised in
    the Reconsideration Petition and the Reply, we affirm the *Common
    Fund Order* that concluded that the Commission lacks the equitable
    authority to establish a common fund.[^35]

8.  We disagree with the Petitioners' contention that Section
    154(i)[^36] of the Communications Act and the Commission's prior
    exercise of its authority allows it to establish a common fund.[^37]
    As previously noted, it is well settled that the Commission lacks
    the authority to establish a common fund and Petitioners have failed
    to present authority for the proposition that a federal agency has
    equitable jurisdiction to establish a common fund.[^38] In *Zimsky*,
    the Commission previously determined that it lacked the required
    equitable jurisdiction to establish a common fund[^39] and that case
    is controlling in this matter. As noted in *Zimsky*, "a common fund
    is a creature of a *court's* inherent equitable powers over funds
    under its control, . . . \[it\] does not crystallize at the moment a
    single plaintiff prevails over his claim \[and it is\] not created
    by the parties or their lawyers . . . \[it\] is established by a
    *court*."[^40] Indeed, the Commission, as an administrative agency,
    lacks authority to order the reimbursement of legal expenses in the
    absence of a clear statutory authority granted by Congress.[^41]

9.  Petitioners' reliance on the Commission's general authority under
    Section 154(i), which allows it to take action not inconsistent with
    the Communications Act, is misplaced because, as we have stated,
    absent express statutory authority, the Commission has no authority
    to order reimbursement of legal expenses.[^42] In addition,
    Petitioners' argument that the Commission's ability to grant waivers
    and refunds allows it to establish a common fund is erroneous. The
    Commission's ability to grant waivers[^43] and refunds[^44]
    implicates the Commission's public interest authority.[^45] In
    contrast, the payment of attorney fees to litigants does not involve
    the public interest but implicates the rights of private
    parties.[^46] Consequently, we are not persuaded by Petitioners'
    arguments and find that the Commission does not have equitable
    authority to establish a common fund.

10. We are also not persuaded by Petitioners' argument that the *Common
    Fund Order* misconstrued the judicial precedent relating to the
    common fund doctrine.[^47] As we previously noted, the Commission in
    *Zimsky* held that a common fund award can arise *only* in the
    context of litigation before an appropriate court exercising its
    equitable powers.[^48] Petitioners' reliance on *Bebchick v.
    WMATA*,[^49] for the proposition that administrative agencies are
    able to address common fund claims, and on *Swedish Hospital
    Corp. v. Shalala*,[^50] for the proposition that administrative
    rulemakings do not prohibit the award of a common fund fee, is
    misplaced. In those cases, substantial litigation attacking agency
    policy had occurred before the courts reached the issue of the
    common fund claim.[^51] Moreover, in *Bebchick* and *Swedish
    Hospital Corp.*,[^52] courts and not the agencies, possessed the
    judicial equitable authority to create a common fund.[^53]

11. To bolster their argument that the Commission has the authority to
    establish a common fund, Petitioners contend that the *Common Fund
    Order* misconstrued *Knight v. U.S*,[^54] *Turner v. FCC*[^55] and
    *National Council of Community Mental Health Centers v.
    Matthews*.[^56] We disagree. *Knight*, contrary to Petitioners'
    claim, did not recognize that common fund fees could stem from
    administrative proceedings. Rather, *Knight* explicitly states that
    "recovery under the common fund doctrine stems from the equitable
    power of a *court* to create the obligation for attorney fees
    against benefits some received as a result of the advocacy of
    another."[^57] We also disagree with Petitioners' contention that
    because *Turner* requires the Commission to follow the American
    Rule, the Commission is, by extension, required to follow the
    exceptions to the American Rule.[^58] *Turner* affirmed a Commission
    order that found that "the Commission has no such equitable
    authority \[to award attorney's fees in certain classes of cases not
    covered by statute. Therefore,\] the Commission must find its
    authority in its enabling statutes."[^59] Finally, we do not find
    that the *Common Fund Order* misread *Matthews* by stating a concern
    for due process rights of entities eligible for refunds.[^60]
    *Matthews* underscores the fact that adequate class representation
    is a fundamental element of due process.[^61]

12. In the same vein, adequate representation is a fundamental element
    of a common fund claim.[^62] The Court of Appeals for the District
    of Columbia, in denying Graceba's request for a common fund, cited
    *Matthews* when it recognized the importance of adequate
    representation in a common fund claim. The appellate court stated
    that "Graceba did not initially ask for a common fund to be
    established and *did not get approval of other bidders to represent
    them*. Accordingly, it waived that claim."[^63] In this case, we
    find that Petitioners have failed to demonstrate that all parties
    were adequately represented.[^64]

13. Petitioners' also argue that their efforts on behalf of their client
    Graceba resulted in the grant of retroactive credit in the 218-219
    MHz service and that such efforts will also cause similar credits to
    be issued in the nationwide narrowband PCS and regional narrowband
    PCS services.[^65] We note, however, that subsequent to the filing
    of the Reconsideration Petition, the Bureau denied Weblink Wireless
    Inc.'s request for a 25 percent retroactive bidding credit for
    licenses that it won in the nationwide narrowband PCS Service and a
    40 percent bidding credit for each of the five licenses that it won
    in the regional narrowband PCS Service auction.[^66] In support of
    their claim, Petitioners highlight the fact that the Commission did
    not order refunds until after *Graceba* was remanded to the
    Commission in 1997.[^67] While the chronology of events may imply a
    causal relationship between the Commission's actions and the
    Petitioners' litigation position,[^68] the retroactive bidding
    credits were not themselves meant as a remedy for any alleged
    constitutional injury.[^69] As noted previously in the *Common Fund
    Order*, retroactive bidding credits were accorded to small
    businesses to resolve a multi-faceted and complex set of regulatory
    issues.[^70] Petitioners mischaracterize the straightforward
    language in the *218-219 MHz Order* to advance their own
    self-created standard for the authority to establish a common fund.
    In the *218-219 MHz Order*, the Commission simply stated that
    Graceba and other petitioners raised certain issues in their
    petitions to which the Commission would provide a responsive
    remedy.[^71] We also note that the appellate court, which possesses
    judicial equitable authority, denied a common fund claim brought by
    Graceba, Petitioners' client.[^72] The fact that the party on whose
    behalf Petitioners' efforts were expended, could not establish
    entitlement to a common fund, further weakens the Petitioners'
    claim.[^73]

14. Petitioners have failed to establish the requisite elements to
    demonstrate entitlement to a common fund award. Ultimately,
    Petitioners' arguments fail for the simple reason that the
    Commission does not have equitable authority to establish a common
    fund absent express statutory authority.[^74] Therefore, we affirm
    the *Common Fund Order*[^75]and reiterate that we find no
    jurisdictional basis upon which to grant the relief that Petitioners
    are requesting.

# ordering clause

15. Accordingly, for the reasons set forth above and pursuant to
    Sections 1, 4(i), 303(r) of the Communications Act of 1934, 47
    U.S.C. § 151, 154(i), 303(r) and 47 C.F.R. § 1.106, the
    Reconsideration Petition filed by Hill & Welch and Myers Keller
    Communications Law Group on November 21, 2000 is **DENIED.**

> FEDERAL COMMUNICATIONS COMMISSION
>
> Kathleen O'Brien Ham
>
> Deputy Chief
>
> Wireless Telecommunications Bureau

[^1]: ^?^ Petition for Reconsideration, filed by Hill & Welch and Myers
    Keller Communications Law Group on November 21, 2000
    ("Reconsideration Petition").

[^2]: ^?^ Hill & Welch and Myers Keller Communications Law Group Request
    for Attorney Fees in Connection with 218-219 MHz Service Proceeding
    and Regional Narrowband PCS Service, *Order*, 15 FCC Rcd. 20432 (WTB
    2000) ("*Common Fund Order*").

[^3]: ^?^ 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"), filed by Hill & Welch and Myers Keller Communications
    Law Group on March 8, 2000.

[^4]: ^?^ Reconsideration Petition and the Reply to Oppositions to
    Petition for Reconsideration, filed by Hill & Welch and Myers Keller
    Communications Law Group on December 18, 2000 ("Reply").

[^5]: ^?^ On December 6, 2000, the Commission received two oppositions
    to the Petition for Reconsideration from: (1) IVDS Enterprises Joint
    Venture and Instapage Network, Ltd. ("IVDS/Instapage Opposition");
    and (2) In-Sync Interactive Corporation ("In-Sync Opposition").

[^6]: ^?^ *See Adarand Constructors, Inc. v. Pena*, 515 U.S. 200 (1995)
    (applying strict scrutiny to federal programs that treat individuals
    unequally on the basis of race); *United States v. Virginia*, 518
    U.S. 515, 531 (1996) ("*VMI*") (requiring the government to
    demonstrate an "exceedingly persuasive justification" to
    successfully defend gender-based programs). In the wake of *Adarand*
    and *VMI*, the Commission determined that "the present record is
    insufficient to support our race-based IVDS auction rules under the
    strict scrutiny standard or our gender-based rules under the
    'exceedingly persuasive justification' standard." In the Matter of
    Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, *Tenth Report and Order*, 11 FCC Rcd. 19974,
    19976, ¶ 3 (1996). The Commission did not find that the auction
    program was unconstitutional, but found that the record was
    insufficient to meet the new evidentiary standard.

[^7]: ^?^ *See* In the Matter of Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, *Sixth Memorandum Opinion
    and Order and Further Notice of Proposed* Rulemaking, 11 FCC Rcd.
    19341, 19369, ¶ 67 (rules for the then-planned second IVDS auction);
    In the Matter of Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, *Sixth Report and Order*,
    11 FCC Rcd. 136, ¶ 1, 161, ¶ 47, and 167, ¶ 59 (C block rules); In
    the Matter of 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, ¶ 37, and 10492, ¶ 84 (2000)*.*

[^8]: ^?^ In the Matter of Amendment of Part 95 of the Commission\'s
    Rules to provide Regulatory Flexibility in the 218-219 MHz Service,
    *Report and Order and Memorandum and Opinion and Order*, 15 FCC Rcd.
    1497 (1999) ("*218-219 MHz Order*").

[^9]: ^?^ *Id.* at 1533, ¶ 61.

[^10]: ^?^ IVDS Petition and Regional Narrowband PCS Petition.

[^11]: ^?^ *218-219 MHz Order,* 15 FCC Rcd. at 1534, ¶ 62.

[^12]: ^?^ *See Mills v. Electric Auto-Lite Co.,* 396 U.S. 375 (1970);
    *Sprague v. Ticonic Natl. Bank*, 307 U.S. 161 (1939); *Trustee v.
    Greenough*, 105 U.S. 527 (1882).

[^13]: ^?^ Graceba filed two petitions challenging Auction No. 2
    methodology as artificially inflating prices and challenging the
    constitutionality of the bidding credits awarded in Auction No. 2.
    In December 1995, the Commission denied Graceba's petitions along
    with those filed by other bidders seeking similar relief. *See* In
    the Matter of Interactive Video and Data Services (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 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 by eliminating
    minority- and women-owned biding credits and extending a twenty-five
    percent bidding credit winning bidders in the IVDS auction who met
    the small business qualifications for that auction. *218-219 MHz
    Order,* 15 FCC Rcd. 1497, 1532-33, ¶¶ 60-61. On December 5, 2000,
    the United States Court of Appeals for the District of Columbia
    Circuit denied Graceba's Petition for Review of the *218-219 MHz
    Order*, and Graceba's request for attorney's fees based on the
    common fund theory. *Graceba Total Communications, Inc. v. FCC*,
    2000 WL 1838282 (D.C.) (unpublished opinion) ("*Graceba*").

[^14]: ^?^ Petitioners sought a common fund award from the refunds they
    anticipate that the Commission will issue with respect to Auction
    No. 3. Regional Narrowband PCS Petition. We note that the Bureau has
    pending before it a request by Instapage Network, Ltd.
    (\"Instapage\") for a 40 percent retroactive bidding credit relating
    to the license it won in the Auction No. 3. *See* Informal Request
    for Remedial Bidding Credit, filed by Instapage Network, Ltd. on
    November 12, 1999. We note however, that Petitioners are not listed
    as counsel on Instapage's request.

[^15]: ^?^ *Common Fund Order*, 15 FCC Rcd. 20432.

[^16]: ^?^ *Id.* at 20432, ¶ 1 and 20435-39, ¶¶ 6-15.

[^17]: ^?^ *Id.* at 20436, ¶ 7; *218-219 MHz Order*, 15 FCC Rcd. at
    1532-33, ¶ 60-61; In the Matter of Amendment of Part 95 of the
    Commission's Rules to Provide Regulatory Flexibility in the 218-219
    MHz Service, *Second Order on Reconsideration of the Report and
    Order and Memorandum Opinion and Order*, 15 FCC Rcd. 25020, 25041, ¶
    44 (2000) ("*Second Reconsideration Order*").

[^18]: ^?^ The Equal Access to Justice Act ("EAJA") is a recitation of
    express authority conferred upon the Commission to award attorney's
    fees. 28 U.S.C. § 2412. We note that the Petitioners have abandoned
    their argument that EAJA provided authority to grant a common fund
    award.

[^19]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 20439-41, ¶¶ 16-19.

[^20]: ^?^ Reconsideration Petition.

[^21]: ^?^ IVDS Petition and Regional Narrowband PCS Petition.

[^22]: ^?^ The Bureau recently released an order denying the request of
    Weblink Wireless Inc., for a 25 percent retroactive bidding credit
    for licenses that it won in the nationwide narrowband PCS Service
    and a 40 percent bidding credit for each of the five licenses that
    it won in the regional narrowband PCS Service. In the Matter of
    Weblink Wireless, Inc. Request for Remedial Bidding Credit and
    Refund, *Order*, DA 01-1143 (rel. May 3, 2001) ("*Weblink Order*").

[^23]: ^?^ IVDS/Instapage Opposition and In-Sync Opposition.

[^24]: ^?^ Reply.

[^25]: ^?^ *Id.*

[^26]: ^?^ *See Mills,* 396 U.S. 375; *Sprague*, 307 U.S. 161;
    *Greenough*, 105 U.S. 527.

[^27]: ^?^ *Boeing Co. v. Van Gambert, et al.*, 444 U.S. 472, 478
    (1980); *see also, Mills,* 396 U.S. at 392.

[^28]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 2435-36, ¶ 7; *Knight v.
    U.S.*, 982 F.2d 1573, 1581 (1993).

[^29]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 20435-37, ¶¶ 6-10.

[^30]: ^?^ Pursuant to Section 1.106 of the Commission's rules, the
    petition for reconsideration shall state with particularity the
    respects in which petitioner believes the action taken by the
    Commission or the designated authority should be changed. The
    petition shall state specifically the form of relief sought and,
    subject to this requirement, may contain alternative requests. 47
    C.F.R. § 1.106(d)(1). The petition for reconsideration shall also,
    where appropriate, cite the findings of fact and/or conclusions of
    law which petitioners believes to be erroneous, and shall state with
    particularity the respects in which he believes such findings and
    conclusions should be changed. The petition may request that
    additional findings of fact and conclusions of law be made. 47
    C.F.R. § 1.106(d)(2).

[^31]: ^?^ Reconsideration Petition at ¶ 7; Reply at ¶ 3.

[^32]: ^?^ 47 U.S.C § 154(i) ("the Commission may perform any and all
    acts, make such rules and regulations, and issue such orders, not
    inconsistent with this Act, as may be necessary in the execution of
    its functions.")

[^33]: ^?^ Reconsideration Petition at ¶¶ 1-2, 4-6, 10-11; Reply at ¶ 3.

[^34]: ^?^ Reconsideration Petition at ¶¶ 3, 8-9, 12-14; Reply at ¶¶
    4-7.

[^35]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 20435-37, ¶¶ 6-10.

[^36]: ^?^ 47 U.S.C § 154(i).

[^37]: ^?^ Reconsideration Petition at ¶ 7 (citing In the Matter of
    William E. Zimsky Request for Attorney's Fees in Connection with the
    Interactive Video and Data Service Proceeding, *Declaratory Ruling*,
    9 FCC Rcd. 3239 (1994) ("*Zimsky*")).

[^38]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 20435-37, ¶¶ 6-10.

[^39]: ^?^ *Zimsky*, 9 FCC Rcd. 3239.

[^40]: ^?^ *Id.*, at 3241, ¶ 23; *Knight*, 982 F.3d at 1581 (citing
    *Sprague*, 307 U.S. at 166-67; *Alyeska Pipeline Serv. Co. v.
    Wilderness Soc'y.*, 421 U.S. at 257-8; *Boeing*, 444 U.S. at 478)
    (emphasis added).

[^41]: ^?^ *Zimsky*, 9 FCC Rcd. 3239; *Common Fund Order*, 15 FCC Rcd.
    at 20437, ¶ 10.

[^42]: ^?^ *Id*.

[^43]: ^?^ 47 C.F.R. § 1.3 (Section 1.3 of the Commission\'s Rules
    provides the Commission with the authority to grant waivers "if good
    cause therefor is shown."); 47 C.F.R. § 1.925 ("The Commission may
    grant a waiver request if: (i) the underlying purpose of the rule(s)
    would not be served or would be frustrated by application to the
    instant case, and that a grant of the requested waiver would be in
    the public interest or, (ii) in view of the unique circumstances of
    the instant case, application of the rule(s) would be inequitable,
    unduly burdensome or contrary to the public interest, or the
    applicant has no reasonable alternative.") The waiver process allows
    the Commission to "maintain the fundamentals of principled
    regulation without sacrifice of administrative flexibility and
    feasibility." *WAIT Radio v. FCC*, 418 F.2d 1153, 1159 (D.C. Cir.
    1969). In deciding whether or not to grant specific waiver requests,
    we must "take into account considerations of hardship, equity, or
    more effective implementation of overall policy" in our broader
    quest for regulation in the "public interest." *Id.*

[^44]: ^?^ The Commission noted that refunds were granted in *Zimsky*
    because the call sign filing requirement was an "unnecessary burden
    on IVDS applicants." In the Matter of Amendment of Parts 0, 1, 2 and
    95 of the Commission's Rules to Provide for Interactive Video Data
    Services and Reinstatement of Dismissed Interactive Video Data
    Services License Applications, *Second Memorandum Opinion and
    Order*, 8 FCC Rcd. 2787, 2788, ¶ 10 (1993). In addition,
    administrative agencies have broad discretion in fashioning remedies
    especially when an agency is responding to judicial remand. *E.g.*,
    *Niagara Mohawk Power Corp. v. FPC*, 379 F.2d 153, 159 (D.C. Cir.
    1967) ("we observe that the breadth of agency discretion is, if
    anything, at zenith when . . . fashioning . . . remedies.")

[^45]: ^?^ *See supra,* n. 43-44.

[^46]: ^?^ *See e.g., Burka v. United States Dep\'t of Health and Human
    Servs.*, 142 F.3d 1286, 1291 (D.C. Cir. 1998) (*pro se* litigants
    are eligible to claim fees so long as their outside counsel "enjoyed
    a genuine attorney-client relationship . . . were situated to offer
    'independent' legal advice and assistance, and were presumably paid
    for their services"); *Kooritzky v. Herman,* 178 F.3d. 1315, 1324
    (D.C. Cir. 1999) (a *pro se* attorney-litigant may not recover
    attorney fees under the EAJA for the work of his co-counsel where
    the attorney and his colleagues lack a genuine attorney-client
    relationship).

[^47]: ^?^ The Petitioners contend that the cases cited in the *Common
    Fund Order*: (1) arose in the context of litigation, and (2) merely
    state the "unremarkable proposition" that courts have the equitable
    authority to establish common funds. Reconsideration Petition at ¶
    1.

[^48]: ^?^ *Turner v. FCC*, 514 F.2d 1354, 1355 (D.C. Cir. 1975) (cited
    in *Zimsky*, 9 FCC Rcd. at 3241, ¶ 20).

[^49]: ^?^ *Bebchick v. WMATA*, 805 F.2d 396 (D.C. Cir. 1986).

[^50]: ^?^ *Swedish Hosp. Corp. v. Shalala*, 1 F.3d 1261 (D.C. Cir.
    1993).

[^51]: ^?^ In *Bebchick*, the Court directed the Commission to determine
    an appropriate award of attorney's fees for plaintiff's counsel.
    *Bebchick*, 805 F.3d at 401. In *Swedish Hospital Corp.*, the court
    determined what portion of the settlement agreement entered into by
    the agency and plaintiffs and approved by the District Court should
    go to plaintiff's lawyers. *Swedish Hosp. Corp.*, 1 F.3d at 1263.

[^52]: ^?^ *Bebchick*, 805 F.2d 396; *Swedish Hosp. Corp.,* 1 F.3d 1261.

[^53]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 20436-37, ¶¶ 8-10.
    Petitioners' reliance on *Koppel v. Wein*, 743 F.3d 129 (1994), for
    the proposition that an award of fees is appropriate even where no
    judgment or consent decree is entered and the complaint was
    dismissed as moot, is also misplaced because courts and not agencies
    possess the judicial equitable authority to create a common fund.

[^54]: ^?^ *Knight*, 982 F.2d 1573.

[^55]: ^?^ *Turner*, 514 F.2d 1354.

[^56]: ^?^ *Natl. Council of Cmty. Mental Health Ctrs. v. Matthews*, 546
    F.2d 1003 (D.C. Cir. 1976).

[^57]: ^?^ *Knight*, 982 F.2d at 1580 (emphasis added). We disagree with
    Petitioners' contention that the *Knight* court acknowledged that
    common funds could result from administrative actions when it stated
    that a common fund award was inappropriate because "there was
    neither a civil action, nor an administrative adjudication, nor an
    adversary adjudication." *Knight*, 982 F.2d at 1576. This discussion
    referred to EAJA and not the common fund.

[^58]: ^?^ *Turner*, 514 F.2d at 1355 ("the reasoning of the Supreme
    Court in *Alyeska Pipeline Co. v. Wilderness Society* is fully
    applicable to litigation before the Federal Communications
    Commission.")

[^59]: ^?^ *Turner*, 514 F.2d at 1355 (citing In Re Application of Radio
    Station WSNT, Inc., Sandersville, GA for Renewal of License of
    Station WSNT, Sandersville, GA Request of Richard Turner et. al. for
    Reimbursement of Expenses, *Memorandum Opinion and Order*, 45
    F.C.C.2d 377, 381-82 (1974)).

[^60]: ^?^ *Petition* at ¶ 10-11.

[^61]: ^?^ *Matthews* noted this concern for adequate class
    representation in the context of class action suits filed pursuant
    to Rule 23 of the Federal Rules of Civil Procedure. *Matthews*, 546
    F.2d at 1008.

[^62]: ^?^ *Knight v. U.S.*, 982 F.2d 1573, 1581 (1993).

[^63]: ^?^ *Graceba*, 2000 WL 1838282 (D.C.) (unpublished opinion)
    (citing *Matthews*, 546 F.2d at 1008) (emphasis added).

[^64]: ^?^ *Common Fund Order*, 15 FCC Rcd. 20348, ¶ 13. Petitioners
    argue that there is no clear opposition to the common fund award.
    Reconsideration Petition at ¶ 8. However as noted by the two
    oppositions filed in the instant matter, there were oppositions to
    the Petitioners claim for common fund awards. Reply at ¶ 5;
    IVDS/Instapage Opposition at 2-3; In-Sync Opposition at 10-11.

[^65]: ^?^ Specifically, Petitioners highlight the language in the
    *218-219 MHz Order* where the Commission noted that "we believe that
    in this case the conversion of race and gender-based bidding credits
    to small business resolves the issue presented by Graceba." 15 FCC
    Rcd. at 1534, ¶ 62

[^66]: ^?^ *Weblink Order*, DA 01-1143.

[^67]: ^?^ *Graceba Total Communications, Inc. v. FCC*, 115 F.3d 1038
    (D.C. 1997).

[^68]: ^?^ *United Handicapped Fed'n v. Andre*, 622 F.2d 342, 347 (8^th^
    Cir. 1980).

[^69]: ^?^ *Common Fund Order,* 15 FCC Rcd. at 20436, ¶ 7 and 20439 ¶
    14.

[^70]: ^?^ *Common Fund Order*, 15 FCC Rcd. at 20436, ¶ 7; *Second
    Reconsideration Order*, 15 FCC Rcd. at 25041, ¶ 44; *Weblink Order*,
    DA 01-1143, ¶ 9.

[^71]: ^?^ *218-219 MHz Order*, 15 FCC Rcd. at 1533, ¶ 60; *Second
    Reconsideration Order*, 15 FCC Rcd. at 25041, ¶ 44.

[^72]: ^?^ *Graceba*, 2000 WL 1838282 (D.C.) (unpublished opinion).

[^73]: ^?^ In light of the appellate court's holding with respect to
    Graceba's request for a common fund award, Petitioners' request as
    it relates to the 218-219 MHz service may be barred by claim
    preclusion. Claim preclusion, or res judicata, requires that a final
    judgment on the merits is conclusive as to the rights of the parties
    and their privies, and as to them, constitutes an absolute bar to a
    subsequent action involving the same claim, demand, or cause of
    action. *Rivet v. Regions Bank of Louisiana*, 522 U.S. 470, 476
    (1998). A judgment is entitled to preclusive effect if (1) the
    parties in the subsequent action are identical or in privity; (2)
    the events underlying the claims are substantially related; and (3)
    the nonmoving party had a full and fair opportunity to litigate the
    claims. *Nevada v. United States*, 463 U.S. 110, 129-30 (1982).

[^74]: ^?^ *Zimsky*, 9 FCC Rcd. at 3241, ¶ 20 (citing *Sprague*, 307
    U.S. at 166-67; *Alyeska Pipeline*, 421 U.S. at 257-8; *Boeing*, 444
    U.S. at 478); *Common Fund Order*, 15 FCC Rcd. at 20437, ¶ 10.

[^75]: ^?^ *Common Fund Order*, 15 FCC Rcd. 20432.