[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Proposed Rules]
[Pages 75532-75535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23788]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 21-333; DA 23-999; FR ID 181482]


Mongoose Works, Ltd., 3.7-4.2 GHz Band Transition Clearinghouse 
Dispute Referrals and Appeals

AGENCY: Federal Communications Commission.

ACTION: Notification of hearing.

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SUMMARY: In this document, the Wireless Telecommunications Bureau 
(Bureau) of the Federal Communications Commission (Commission) grants 
Mongoose Works, Ltd.'s (Mongoose) Petition for De Novo Review 
(Petition), and commences a hearing in connection with the 3.7-4.2 GHz 
Band (C-band) Transition Relocation Payment Clearinghouse's (RPC or 
clearinghouse) decision which adjusted downward part of Mongoose's 
reimbursement claim based upon its August 12, 2020 lump sum election. 
The issues designated for hearing are whether the Bureau erred in 
determining that Mongoose had not met its burden of proof to 
demonstrate that the RPC erred in its classification of, and 
reimbursement for, the two antennas at issue; whether the Bureau erred 
in separately determining that the RPC properly classified the two 
antennas at issue based on Commission guidance; and whether the 
reimbursed amount of $33,994 for the two antennas at issue should be 
adjusted to restore the disallowed amount of $69,686.

DATES: Mongoose shall file a written appearance by November 9, 2023, 
stating its intention to appear on the date fixed for the hearing and 
present evidence on the issues specified in the Hearing Designation 
Order.

ADDRESSES: Federal Communications Commission, 45 L St. NE, Washington, 
DC 20554.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Susan Mort of the Wireless Telecommunications 
Bureau, at (202) 418-2429 or <a href="/cdn-cgi/l/email-protection#762503051718583b1904023610151558111900"><span class="__cf_email__" data-cfemail="1b486e687a75355674696f5b7d7878357c746d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Hearing Designation Order, in WT Docket No. 21-333, DA 23-999, adopted 
and released on October 20, 2023. The full text of this document is 
available for public inspection online at https://docs.fcc.gov/public/attachments/DA-23-999A1.pdf.
    1. By this Hearing Designation Order, pursuant to Sec. Sec.  0.131, 
0.331, and

[[Page 75533]]

27.1421(c) of the Commission's rules, the 3.7 GHz Report and Order, and 
the RPC Appeals Procedures Public Notice, the Wireless 
Telecommunications Bureau (Bureau) grants a Petition for De Novo Review 
(Petition), filed on September 14, 2023, by Mongoose Works, Ltd. 
(Mongoose), and designates this case to be tried as a written 
proceeding under the Commission's rules for hearing proceedings, with 
the Administrative Law Judge serving as the presiding officer. As 
discussed below, the issues designated for hearing relate to the 3.7-
4.2 GHz Band (C-band) Transition Relocation Payment Clearinghouse's 
(RPC or clearinghouse) decision which adjusted downward part of 
Mongoose's reimbursement claim based upon its August 12, 2020 lump sum 
election.
    2. In the 3.7 GHz Report and Order, the Commission adopted rules to 
make 280 megahertz of mid-band spectrum available for flexible use 
throughout the contiguous United States by transitioning existing 
services out of the lower portion of the band and into the upper 200 
megahertz of the C-band. The Commission required new 3.7 GHz Service 
licensees to reimburse the reasonable relocation costs of eligible 
Fixed Satellite Service (FSS) space station operators, incumbent FSS 
earth station operators, and incumbent Fixed Service licensees 
(collectively, incumbents) to transition out of the band. The 3.7 GHz 
Report and Order also specified that incumbent FSS earth station 
operators may accept either: (1) reimbursement for their actual, 
reasonable relocation costs; or (2) a lump sum reimbursement ``based on 
the average, estimated costs of relocating all of their incumbent earth 
stations'' to the upper 200 megahertz of the C-band.
    3. The 3.7 GHz Report and Order further provided for the creation 
of an independent clearinghouse to administer, subject to the 
Commission's rules and oversight, the cost-related aspects of the 
transition in a fair and transparent manner, ``to mitigate financial 
disputes among stakeholders, and to collect and distribute payments in 
a timely manner.'' To provide the clearinghouse, incumbents, and new 
3.7 GHz Service licensees with a range of reasonable transition costs, 
the 3.7 GHz Report and Order directed the Bureau to establish a cost 
catalog of the types of expenses that incumbents were likely to incur. 
Further, incumbent FSS earth station operators opting to receive a lump 
sum amount were required to make an irrevocable election and 
accompanying certification with the Commission by September 14, 2020 
with the proviso that the information contained in such election would 
be ``subject to verification as part of the [c]learinghouse's role to 
prevent waste, fraud, and abuse'' through its claims review process.
    4. All reimbursement claims--whether for actual costs or lump sum 
amounts--must be submitted to the clearinghouse for review pursuant to 
Sec.  27.1416 of the Commission's rules. The clearinghouse ``will 
determine in the first instance whether costs submitted for 
reimbursement are reasonable'' and whether they comply with the 
requirements adopted in the 3.7 GHz Report and Order. To the extent a 
claimant or one or more responsible 3.7 GHz Service licensees wish to 
dispute the clearinghouse's determination with respect to a submitted 
claim, they must file a notice of objection as required by Sec.  
27.1421(a) of the Commission's rules. The clearinghouse may in the 
first instance mediate any disputes or refer the disputant parties to 
alternative dispute resolution fora. Subsequent appeals to the Bureau 
may be submitted pursuant to the procedures set forth in the RPC 
Appeals Procedures Public Notice. Following a Bureau decision in either 
a single-party or multi-party dispute, any party to a specific matter 
wishing to appeal that decision may do so by filing with the 
Commission, within ten (10) days of the effective date of the Bureau 
decision, a petition for de novo review, whereupon the Commission will 
set the matter for an evidentiary hearing before an Administrative Law 
Judge.
    5. Mongoose's Lump Sum Election and RPC Claim. Mongoose is an earth 
station operator with multiple antennas registered with the Commission 
under callsign E191601, which appear on the incumbent earth station 
list for purposes of the C-band transition. Mongoose filed a lump sum 
election with the Commission on August 12, 2020 for eight incumbent 
earth station antennas, and on August 16, 2021, filed a claim with the 
RPC seeking $356,052 as its lump sum payment. Specifically, Mongoose 
requested a lump sum payment for six Small Multi-beam (2-4 beams) Earth 
Station Antennas (SMBEAs) at $42,062 each and two Large Multi-beam (5+ 
beams) Earth Station Antennas (LMBEAs) at $51,840 each. After review of 
Mongoose's claim and supplemental information provided by the claimant, 
the RPC Decisional Memorandum was issued on June 1, 2022, fully 
approving Mongoose's claim for six SMBEAs. The RPC classified the two 
remaining antennas as Receive-Only ES Multi-feed Antennas rather than 
LMBEAs and adjusted Mongoose's claim amount for those antennas from 
$103,680 down to $33,994. Mongoose filed a notice of objection with the 
RPC for the downward adjusted portion of its claim on June 25, 2022, 
seeking restoration of the full amount. On July 7, 2022, Mongoose 
received payment for the undisputed amount of $286,366.
    6. Mongoose's Appeal to the Bureau. Mongoose filed a single-party 
appeal of the RPC decision on July 31, 2022, asking the Bureau to order 
the RPC to restore the disallowed amount of $69,686. The RPC filed its 
response on August 22, 2022. Mongoose filed its reply on August 29, 
2022, and the RPC supplemented its response with an attestation on 
September 2, 2022. The instant matter arises from the Bureau's denial 
of Mongoose's appeal of the RPC's decision.
    7. Specifically, the Bureau noted that the RPC's underlying 
Decisional Memorandum determined that two of the earth stations 
included in Mongoose's lump sum election, for which it sought 
reimbursement as LMBEAs, were properly classified as Receive-Only ES 
Multi-feed Antennas pursuant to the Final Cost Catalog Public Notice as 
the two relevant antennas each had only one C-band feed, and as such, 
Mongoose was not eligible for the higher lump sum payment for LMBEAs. 
The Bureau decision denied Mongoose's appeal, finding that it had not 
met its burden of proof in demonstrating that the RPC erred in its 
classification of, and reimbursement for, the two antennas at issue. 
The Bureau separately and independently found that the RPC both 
correctly interpreted the relevant Commission rules, guidance, and 
policies and applied them to the antennas in question. The Bureau also 
found that Mongoose's procedural arguments were unavailing.
    8. The RPC Appeals Procedures Public Notice allows any party to a 
specific single-party or multi-party dispute to appeal a Bureau 
decision on disputed issues relating to an RPC reimbursement decision 
by petitioning for an evidentiary hearing before an Administrative Law 
Judge. The petition for a hearing must be filed within ten (10) days of 
the effective date of the Bureau order.
    9. Mongoose filed its appeal of the Bureau's decision within ten 
(10) days of the effective date thereof, and we thus find that the 
Petition satisfies the requirements of the RPC Appeals Procedures 
Public Notice. Therefore, the Petition is hereby granted, and the 
disputed issues are designated for hearing.
    10. Written Hearings Report and Order. The Commission recently

[[Page 75534]]

supplemented its formal hearing processes by adopting rules that, inter 
alia, expand the use of a hearing procedure that relies in appropriate 
cases on written submissions and documentary evidence. These hearing 
proceedings shall be resolved on a written record consisting of 
affirmative case, responsive case, and reply case submissions, along 
with all associated evidence in the record, including stipulations and 
agreements of the parties and official notice of material facts. Based 
on that record, the presiding officer will issue an Initial Decision 
pursuant to section 409(a) of the Communications Act and Sec. Sec.  
1.267 and 1.274(c) of the Commission's rules. The Bureau finds that 
this is an appropriate case for use of those procedures.
    11. Notice of Appearance. Parties to this matter who wish to avail 
themselves of the opportunity to participate in the hearing proceeding 
must file a written appearance consistent with Sec.  1.221(d) and (e) 
of the Commission's rules. The written appearance must be filed within 
twenty (20) days of the mailing of this Hearing Designation Order and 
must state, among other things, that they will present evidence on the 
matters specified in this order, and, if required, appear before a 
presiding officer at a time and place to be determined (which shall be 
no earlier than thirty (30) days after receipt of this order).
    12. Initial Case Order. After release of this Hearing Designation 
Order, the presiding officer shall promptly release an Initial Case 
Order. The Initial Case Order shall put all parties on notice that they 
are expected to be fully cognizant of part 1 of the Commission's rules 
concerning Practice and Procedure, 47 CFR part 1, subparts A and B. The 
Initial Case Order shall also set a date for the initial status 
conference and a date by which each party should file a pre-conference 
submission that would include: (a) whether discovery is expected in 
this case, and if so, a proposed discovery schedule; (b) any 
preliminary motions they are intending to file; and (c) a proposed case 
schedule. The parties' pre-conference submissions should also indicate 
whether they request that a Protective Order be entered in this case.
    13. Initial Status Conference and Initial Status Conference Order. 
The presiding officer shall set the case schedule, including any 
deadlines by which the parties should submit the motions they 
identified in their pre-conference submissions. The presiding officer 
shall also set the deadlines for the parties' affirmative case, 
responsive case, and reply case submissions in accordance with 
Sec. Sec.  1.371 through 1.375 of the Commission's rules. If the 
parties have requested the entrance of a Protective Order, the 
presiding officer shall also set a deadline by which a joint proposed 
Protective Order shall be submitted for consideration. In accordance 
with Sec.  1.248(b) of the Commission's rules, the presiding officer 
may adopt the case schedule during the status conference or in an order 
following the conference.
    14. Additional status conferences may be scheduled throughout the 
course of the proceeding at the request of the parties and/or at the 
discretion of the presiding officer. Any request by a party for a 
status conference must be made in writing to the presiding officer and 
shall be copied on all other parties.
    15. Transcripts. In accordance with Sec.  1.248 of the Commission's 
rules, an official transcript of all case conferences shall be made, 
unless the parties and the presiding officer agree to forego a 
transcript. Transcripts shall be made available to the public as part 
of the official record in the Commission's Electronic Comment Filing 
System (ECFS) in WT Docket No. 21-333.
    16. Requests for Admissions. In accordance with Sec.  1.246 of the 
Commission's rules, any party may serve upon any other party written 
requests for the admission of the genuineness of any relevant documents 
or of the truth of any relevant matters of fact. Such requests shall be 
served within twenty (20) days after the deadline for filing a notice 
of appearance unless the presiding officer sets a different time frame.
    17. Available Discovery Methods. Sections 1.311 through 1.325 of 
the Commission's rules set forth procedures that may be used for the 
discovery of relevant facts and/or for the production and preservation 
of evidence for use in the hearing proceeding. These sections of the 
Commission's rules provide, inter alia, for the taking of depositions, 
for interrogatories, and for the production of documents and things.
    18. Evidentiary Rules. In the Written Hearings Report and Order, 
the Commission amended Sec.  1.351 of the Commission's rules to adopt 
the evidentiary standard set forth in the formal APA hearing 
requirements. In relevant part, Sec.  1.351 of the Commission's rules 
now states, ``any oral or documentary evidence may be adduced, but the 
presiding officer shall exclude irrelevant, immaterial, or unduly 
repetitious evidence.'' The parties remain free to make evidentiary 
arguments based on the Federal Rules of Evidence.
    19. Petitions to Intervene. Any person or entity seeking status as 
a party in interest in this proceeding must file a petition to 
intervene in accordance with Sec.  1.223(a) of the Commission's rules. 
Any person or entity seeking to participate in this proceeding as a 
party may file a petition for leave to intervene in accordance with 
Sec.  1.223(b) of the Commission's rules.
    20. Motions to Enlarge, Change or Delete Issues. Motions to 
enlarge, change, or delete issues to be considered in this proceeding 
shall be allowed, consistent with Sec.  1.229 of the Commission's 
rules.
    21. Restricted Proceeding. This hearing proceeding is a 
``restricted'' proceeding pursuant to Sec.  1.1208 of the Commission's 
rules and thus ex parte presentations to or from Commission decision-
making personnel, including the presiding officer and her staff and 
staff of the Commission's Wireless Telecommunications Bureau, are 
prohibited, except as otherwise provided in the Commission's rules.
    22. Electronic Filing of Documents. All written submissions such as 
motions, letters, discovery requests and objections and written 
responses thereto, excluding confidential and/or other protected 
material, must be filed in WT Docket No. 21-333 using ECFS. ECFS shall 
also act as the repository for records of actions taken in this 
proceeding, excluding confidential and/or other protected material, by 
the presiding officer and the Commission. Documents responsive to any 
party's requests for production of documents should not be filed in 
ECFS. Such responsive documents shall be served directly on counsel for 
the party requesting the documents and produced either in hard copy or 
in electronic form (e.g., hard drive, thumb drive) with files named in 
such a way as it is clear how the documents are organized.
    23. Case Caption. The caption of any pleading filed in this 
proceeding, as well as all letters, documents, or other written 
submissions including discovery requests and objections and responses 
thereto, shall indicate whether it is to be acted upon by the 
Commission or the presiding officer. The presiding officer shall be 
identified by name.
    24. Service. All documents submitted in this proceeding must also 
be served on all other parties in accordance with Sec.  1.211 of the 
Commission's rules and shall be accompanied by a proof of service. 
Service on the Enforcement Bureau shall be made using the following 
email address: <a href="/cdn-cgi/l/email-protection#d491969cb1b5a6bdbab3a794b2b7b7fab3bba2"><span class="__cf_email__" data-cfemail="3d787f75585c4f54535a4e7d5b5e5e135a524b">[email protected]</span></a>.

[[Page 75535]]

    25. Confidential and/or Otherwise Protected Materials. To the 
extent any party to this proceeding wishes to submit materials or 
information that it would like withheld from the public record, it may 
do so in accordance with the procedures set forth in Sec.  1.314 of the 
Commission's rules. The parties may also enter into a Protective Order. 
As stated above, requests for a Protective Order should be made in the 
parties' pre-conference submission in accordance with the schedule set 
forth in the Initial Case Order.
    26. Initial Decision. The presiding officer shall issue an Initial 
Decision on the issues set forth herein, as well as any other issues 
designated for hearing in the course of the proceeding. This Initial 
Decision shall contain, at a minimum, findings of fact and conclusions 
of law, as well as the reasons or basis therefor, and the appropriate 
rule or order or policy and the sanction, relief or denial thereof, as 
appropriate.
    27. Accordingly, it is ordered that the Petition for De Novo 
Review, filed on September 14, 2023, by Mongoose, is granted.
    28. it is further ordered that, pursuant to the RPC Appeals 
Procedures Public Notice, this matter, as described above, is 
designated for hearing before an Administrative Law Judge, at a time 
and place to be specified in a subsequent order, on the following 
issues:
    a. To determine whether the Bureau erred in determining that 
Mongoose had not met its burden of proof to demonstrate that the RPC 
erred in its classification of, and reimbursement for, the two antennas 
at issue;
    b. To determine whether the Bureau erred in separately determining 
that the RPC properly classified the two antennas at issue based on 
Commission guidance; and
    c. To determine whether the reimbursed amount of $33,994 for the 
two antennas at issue should be adjusted to restore the disallowed 
amount of $69,686.
    29. it is further ordered that the burden of proceeding with the 
introduction of evidence and the burden of proof with respect to all 
issues specified herein SHALL BE UPON Mongoose.
    30. it is further ordered, that Mongoose Works, Ltd. (Mongoose) is 
made a party to the proceeding pursuant to Sec.  1.221(d) of the 
Commission's rules, 47 CFR 1.221(d). To avail itself of the opportunity 
to be heard, pursuant to Sec.  1.221(e) of the Commission's rules, 
Mongoose, in person or by its attorneys, shall file a written 
appearance, stating its intention to appear on the date fixed for the 
hearing and present evidence on the issues specified in this Hearing 
Designation Order. Such written appearance shall be filed within twenty 
(20) days of the mailing of this Order pursuant to Paragraph 32 below. 
If Mongoose fails to file an appearance within the time specified, it 
shall, unless good cause for such failure is shown, forfeit its hearing 
rights.
    31. it is further ordered that the Chief, Enforcement Bureau, SHALL 
BE MADE A PARTY to this proceeding without the need to file a written 
appearance.
    32. it is further ordered that a copy of this Hearing Designation 
Order shall be sent, via Certified Mail--Return Receipt Requested to: 
Mongoose Works, Ltd., c/o Mark Derbyshire, 4950 S El Camino Dr, Cherry 
Hills Village, CO 80111.
    33. it is further ordered that a copy of each document filed in 
this proceeding subsequent to the date of adoption of this Hearing 
Designation Order shall be served on the counsel of record appearing on 
behalf of the Chief, Enforcement Bureau. Parties may inquire as to the 
identity of such counsel by calling the Investigations & Hearings 
Division of the Enforcement Bureau at (202) 418-1420. Electronic 
service on counsel of record for the Enforcement Bureau shall be made 
using the following email address: <a href="/cdn-cgi/l/email-protection#befbfcf6dbdfccd7d0d9cdfed8dddd90d9d1c8"><span class="__cf_email__" data-cfemail="db9e9993bebaa9b2b5bca89bbdb8b8f5bcb4ad">[email protected]</span></a>.
    34. it is further ordered that this Hearing Designation Order or a 
summary thereof SHALL BE PUBLISHED at the earliest practicable date in 
the Federal Register.

Federal Communications Commission.
Amy Brett,
Acting Chief of Staff, Wireless Telecommunications Bureau.
[FR Doc. 2023-23788 Filed 11-2-23; 8:45 am]
BILLING CODE 6712-01-P


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