1 

NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

WARREN HAVENS, et al. 

 

Plaintiffs, 

 v. Civ. Action No. 11-993 (KSH) 

MOBEX NETWORK SERVICES, LLC, et al., 

 Defendants. OPINION 

 

Katharine S. Hayden, U.S.D.J. 

I. Introduction 

On December 22, 2011, the Court granted in part and denied in part a motion to dismiss 

brought by defendants Mobex Network Services, LLC, Mobex Communications, Inc., Maritime 

Communications/Land Mobile LLC, Paging Systems, Inc., and Touch Tel Corporation 

(collectively “defendants”). [D.E. 30, 31.] Plaintiffs Warren Havens, Skybridge Spectrum 

Foundation, Telesaurus, VPC, LLC, AMTS Consortium LLC, Intelligent Transportation & 

Monitoring, LLC, and Telesaurus GB, LLC (collectively “plaintiffs”) have now brought a 

motion for reconsideration. 

II. Factual Background and Procedural History 

The factual background and procedural history of this case were discussed in the Court’s 

opinion on defendants’ motion to dismiss [D.E. 30 (hereinafter “Mot. Dismiss. Op.”)] and need 

not be recounted in depth here. In pertinent part, the underlying facts as recited in the opinion 

are as follows: 

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This case revolves around FCC-issued AMTS licenses. 

“AMTS is a common-carrier Commercial Mobile Radio Service 

. . . licensed throughout the United States, which provides when in 

operation voice and communications to customers.” ([Second Am. 

Compl.] ¶ 16.) Originally created for the benefit of maritime 

customers along coastal and navigable water routes, it has 

expanded to include land service along the Northeast Corridor. 

(Id.) AMTS licenses fall into two categories: Site-Based and 

Geographic. A Site-Based license is a “license issued by the FCC 

on a first-come, first-served basis, at no cost (except for nominal 

application processing fees).” (Id. ¶ 17.) These licenses provide 

for operation only at a specific station whose location is provided 

in the license. (Id.) Until 2004, all AMTS licenses were SiteBased. (Id. ¶ 18.) 

The second type of license is a Geographic license, which 

is “issued by the FCC to a high bidder in a public auction, which 

authorizes to the licensee exclusive use of specified radio 

frequencies to construct and operate wireless telecommunications 

stations within a defined wide geographic area.” (Id. ¶ 17.) The 

FCC began auctioning AMTS Geographic licenses in 2004. (Id.

¶ 18.) 

To protect Site-Based license holders whose licenses 

incorporate areas located within the same area granted in a 

Geographic license, FCC regulations provide that Site-based 

stations are entitled to “continue their station operations without 

excessively close-spaced co-channel Geographic-Licensed Stations 

that may cause radio interference.” (Id.) To that end, “the 

Geographic Licensee [may] build and operate stations no closer 

than a certain range of lawful stations operated under a valid cochannel (same frequencies) Site-based AMTS license.” (Id. ¶ 21.) 

That distance is the shorter of 120 kilometers and the actual 

transmitting distance of the Site-Based station as determined 

through a specific, technical formula. (Id. (citing 47 C.F.R. 

§ 80.385).) If a Site-Based license is terminated, revoked, or found 

invalid, its covered radio frequencies will revert to the overlapping 

Geographic license for that area. (Id. ¶ 18.) 

 The plaintiffs in this case collectively hold AMTS 

Geographic Licenses covering a majority of the United States, 

including New Jersey. (Id. ¶ 19.) Defendants hold the AMTS 

Site-Based licenses in various places across the country including 

New Jersey. (Id. ¶ 20.) Plaintiffs assert that Site-Based licensees 

are expected to provide information to the overlapping Geographic 

licensees so that the Geographic licensees may calculate the SiteBased station’s transmitting distance. (Id. ¶ 22.) 

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 Plaintiffs and defendants are competitors, and plaintiffs 

complain that defendants have failed to provide them with the 

necessary information to allow them to know the protected contour 

of the defendants’ stations. (Id. ¶ 23.) Defendants have refused to 

provide this information notwithstanding three FCC “Cooperation 

Orders” and the FCC’s regulatory disclosure requirements. (Id.) 

(Mot. Dismiss Op. 3–4.) 

The second amended complaint set forth three counts against defendants: demand for an 

injunction under 47 U.S.C. § 401(b); violation of numerous provisions of the Federal 

Communications Act (“FCA”) and its implementing regulations under 47 U.S.C. §§ 206 and 

207; and violation of the Sherman Act, 15 U.S.C. §§ 1–2. (See generally Second Am. Compl.) 

On December 22, 2011, the Court granted in part and denied in part defendants’ motion 

to dismiss. Specifically, the Court held that plaintiffs failed to state a claim under the two FCA 

counts and one of the two theories of Sherman Act liability. (Mot. Dismiss Op. 10–16, 20–22.) 

The Court denied the motion to dismiss as to one theory of Sherman Act liability, and the Court 

also rejected numerous arguments to dismiss the case on res judicata and collateral estoppel 

grounds. (Id. at 7–10, 19–20.) 

On January 11, 2012, plaintiffs filed a motion for reconsideration, asserting that the Court 

erred in granting the motion to dismiss the two FCA claims.1

 [D.E. 34.] On January 23, 2012, 

 

1

 Although the Court filed its order and the accompanying opinion on December 22, 2011, 

they were not entered until December 28, 2011. Because time does not begin to run until the 

order is entered, plaintiffs’ January 11, 2012 motion for reconsideration satisfies the 14-day time 

limit under Local Civil Rule 7(i). See Walzer v. Muriel Siebert & Co., No. 04-5672, 2005 U.S. 

Dist. LEXIS 27165 (D.N.J. Sept. 15, 2005) (Debevoise, J.). 

The Court must note, however, that plaintiffs have failed to comply with Local Civil Rule 

7.2(c), which requires that “[a]ll margins shall be not less than one inch on sides, top, and 

bottom.” The margins on plaintiffs’ letter brief are slightly over one-half inch on the right and 

bottom and three-quarters of an inch on the top and left. The Court will excuse this deficiency 

on this occasion but will strike any future briefs that fail to comply with the Court’s rules. 

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defendants Paging Systems, Inc. and Touch Tel Corporation filed a letter brief in opposition. 

[D.E. 44.] 

III. Standard of Review 

Local Civil Rule 7.1(i) provides parties the right to file a motion for reconsideration 

within 14 days of the entry of an order or judgment on a motion. “[T]he purpose of a motion for 

reconsideration is to correct manifest errors of law or fact or to present newly discovered 

evidence.” Champion Labs., Inc. v. Metex Corp., 677 F. Supp. 2d 748, 750 (D.N.J. 2010) 

(Walls, J.) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 

476 U.S. 1171 (1986)). Generally, “parties seeking reconsideration must show ‘(1) an 

intervening change in the controlling law; (2) the availability of new evidence that was not 

available when the court granted the motion . . . or (3) the need to correct a clear error of law or 

fact to prevent manifest injustice.’” Id. (quoting Max’s Seafood Café v. Quinteros, 176 F.3d 669, 

667 (3d Cir. 1999)). “Reconsideration is justified only when ‘dispositive factual matters or 

controlling decisions of law . . . were presented to, but not considered by, the court in the course 

of making the decision at issue.” Id. (quoting Yurecko v. Port Auth. Trans-Hudson Corp., 279 F. 

Supp. 2d 606, 609 (D.N.J. 2003) (Linares, J.)). 

Local Civil Rule 7.1(i) requires the moving party to submit “[a] brief setting forth 

concisely the matter or controlling decisions which the party believes the Judge . . . has 

overlooked.” A motion for reconsideration is improper “when it is used ‘to ask the Court to 

rethink what it had already thought through ― rightly or wrongly.’” Freeman v. McGreevey, 

No. 03-3140, 2011 U.S. Dist. LEXIS 76456, at *4 (D.N.J. July 14, 2011) (Hayden, J.) (quoting 

Oritani S&L v. Fidelity & Deposit, 744 F. Supp. 1311, 1314 (D.N.J. 1990) (Ackerman, J.)). 

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Reconsideration of a judgment is an extraordinary request, and motions to reconsider are granted 

sparingly. Id. (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986) (Brotman, J.)). 

IV. Discussion 

Plaintiffs’ motion for reconsideration does not involve new evidence or an intervening 

change in law. Rather, it asserts that the Court’s original decision contains clear errors of fact 

and law requiring correction to prevent a manifest injustice. 

A. Availability of Relief Under 47 U.S.C. § 401(b) 

Plaintiffs first argue that the Court erred by failing to construe certain regulations, 

particularly 47 C.F.R. § 80.385(b)(1) and 47 C.F.R. § 80.70(a), as orders. Plaintiffs assert that 

the Court failed to appreciate that these regulations place restrictions on geographic licensees 

like plaintiffs, and that it is impossible for a geographic licensee to comply with these regulations 

absent the information that plaintiffs seek to have the Court order defendants to disclose. 

(Moving Br. 3–6.) The Court addressed this argument in its motion to dismiss opinion, stating: 

Similarly, 47 C.F.R. § 80.385(b)(1) also does not “require[] a 

particular action to be taken by a defendant,” Mallenbaum [v. 

Adelphia Commc’ns Corp., 74 F.3d 465, 468 (3d Cir. 1996)], 

because it dictates only where a Geographic licensee may locate its 

stations, not what technical details the Site-Based licensees must 

disclose. In the absence of an FCC order against defendants on 

this issue, the Court may not enter an injunction requiring 

defendants’ compliance, and plaintiffs have failed to state a claim. 

(Mot. Dismiss Op. 14.) 

The Court did not explicitly address arguments involving 47 C.F.R. § 80.70(a), which plaintiffs 

recited in the second amended complaint (See Second Am. Compl. ¶ 22) but did not mention in 

their opposition to the motion to dismiss. 

 47 C.F.R. § 80.385(b)(1) states: 

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The AMTS geographic area licensee must locate its stations at 

least 120 kilometers from the stations of co-channel site-based 

AMTS licensees. Shorter separations between such stations will be 

considered by the Commission on a case-by-case basis upon 

submission of a technical analysis indicating that at least 18 dB 

protection will be provided to a site-based licensee's predicted 38 

dBu signal level contour. The site-based licensee's predicted 38 

dBu signal level contour shall be calculated using the F(50, 50) 

field strength chart for Channels 7-13 in § 73.699 (Fig. 10) of this 

chapter, with a 9 dB correction for antenna height differential. The 

18 dB protection to the site-based licensee's predicted 38 dBu 

signal level contour shall be calculated using the F(50, 10) field 

strength chart for Channels 7-13 in § 73.699 (Fig. 10a) of this 

chapter, with a 9 dB correction factor for antenna height 

differential. 

Similarly, 47 C.F.R. § 80.70(a) states: 

Coast stations which transmit on the same radio channel above 150 

MHz must minimize interference by reducing radiated power, by 

decreasing antenna height or by installing directional antennas. 

Coast stations at locations separated by less than 241 kilometers 

(150 miles) which transmit on the same radio channel above 150 

MHz must also consider a time-sharing arrangement. The 

Commission may order station changes if agreement cannot be 

reached between the involved licensees. 

 As the Court noted when deciding the motion to dismiss, the Third Circuit has held that 

“an agency regulation should be considered an ‘order’ if it requires a defendant to take concrete 

actions.” (Mot. Dismiss Op. 12 (quoting Mallenbaum, 74 F.3d at 468)). The problem with 

plaintiffs’ claim under section 401(b) is that it asks the Court to take regulations directed at 

plaintiffs and construe them to impose implied disclosure requirements on defendants. Even if 

disclosure is necessary for plaintiffs to comply with the limitations set forth in these regulations, 

no disclosure requirement appears on the regulations’ face, thus leaving any such requirement to 

implication. Although agency regulations may act as orders in section 401(b) claims, the cited 

regulations require no “concrete actions” on defendants’ part. To issue an injunction requiring 

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disclosure, the Court would need to fill gaps in the regulations. Such a ruling would require 

independent judgments about FCC intent. Because the action would extend beyond 

“enforcement” of an FCC order, plaintiffs have not stated a claim under section 401(b). 

 Plaintiffs additionally argue that the Court’s decision was premature because section 

401(b) states that “[i]f, after hearing, [the district court] determines that the order was regularly 

made and duly served, and that the person is in disobedience of the same,” an injunction should 

be entered to prevent continued disobedience. (See Moving Br. 7.) But as discussed above, the 

orders at issue here do not establish grounds for the Court to enter an injunction requiring 

defendants’ cooperation in disclosure. Therefore, it would be a pointless exercise to hold a 

hearing to determine if the orders were “regularly made and duly served” when those orders 

could not be the basis for providing plaintiffs their sought-after relief. 

B. Private Right of Action under 47 U.S.C. §§ 206 and 207 

Plaintiffs next argue that the Court erred by dismissing the count brought pursuant to 47 

U.S.C. §§ 206 and 207. Plaintiff essentially argues that the Court placed too much emphasis on 

the end result of “warehousing” spectrum because “it is not the warehousing per se that gives rise 

to the § 206 and § 207 claims, but the Defendants’ violation of fundamental FCC rules and 

regulations that led to the warehousing and resultant injury to the Plaintiffs.” (Moving Br. 8.) 

The distinction between the underlying violations culminating in warehousing and 

warehousing itself was not lost on the Court. Rather, just as plaintiffs did in their brief opposing 

the motion to dismiss, the Court drew parallels to warehousing when evaluating the substance of 

the claim. By drawing those parallels, the Court determined that the absence of FCC precedent 

on this issue precluded a section 207 claim. (See Mot. Dismiss Op. 16.) 

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To support their claim that the Court erred on this issue, plaintiffs cite three different 

sections of FCC rules and regulations. (Moving Br. 8 (citing 47 C.F.R. §§ 1.946(c), 1.955(a)(2), 

(3), 80.49(a)(3)).) Their content is straightforward: site-based AMTS licensees, such as 

defendants, must make an authorized station or frequency operational within two years or their 

license automatically terminates; termination occurs without any specific FCC action. See 47 

C.F.R. §§ 1.946(c), 1.955(a)(2), (3), 80.49(a)(3). The plaintiffs allege that defendants failed to 

construct or maintain their required stations (Second Am. Compl. ¶ 27), so defendants’ 

frequencies should have automatically reverted to plaintiffs because plaintiffs are the holders of 

the geographic license for the pertinent area, see 80 C.F.R. § 380.385(c). 

Section 207 provides that “[a]ny person claiming to be damaged by any common carrier 

subject to the provisions of this Act may either make complaint to the Commission as hereinafter 

provided for, or may bring suit for the recovery damages for which such common carrier may be 

liable under the provisions of this Act, in any district court of the United States of competent 

jurisdiction.” If a common carrier does or causes or permits to be done “any act, matter, or thing 

in this Act prohibited or declared to be unlawful, or shall omit to do any Act, matter, or thing in 

this Act required to be done,” then that common carrier is liable to the injured party. 47 U.S.C. 

§ 206. 

At first blush, the scope of relief available under sections 206 and 207 appears allencompassing. However, the Court does not write on a blank slate, and particularly significant 

here is the Supreme Court’s decision in Global Crossing Telecommunications, Inc. v. 

Metrophones Telecommunications, Inc., 550 U.S. 45 (2007). There, the Court began its opinion 

with a detailed historical explanation of the FCA’s evolution alongside the Interstate Commerce 

Act. Global Crossing, 550 U.S. at 48–50. As relevant here, the Court observed that sections 

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201(b) and 207 both date back to the original FCA. At that time, regulation often operated 

through tariff approvals and related filings rather than through the robust and sophisticated 

regulatory regime that is more familiar today. See id. 

Global Crossing involved a payphone operator that brought a suit under section 207 

against a long-distance carrier for failing to make payments. At issue were regulations in which 

the FCC established rates for long-distance phone carriers to use when reimbursing payphone 

operators. See id. at 51–52 (citing 47 C.F.R. § 64.1300(d) (2005)). In implementing these 

regulations, the FCC had determined that a failure to pay the set rates constitutes an 

“unreasonable practice” within the meaning of section 201(b). Id. at 52 (citing In re the Pay 

Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 

1996, 18 FCC Rcd. 19975, 19990, ¶ 32 (2003)). 

The Court’s analysis began by explaining the statutory framework for a private right of 

action under section 207. Specifically, the Court noted that section 206 refers explicitly to 

whether the defendant’s conduct has been “declared to be unlawful,” and that section 201(b) 

“declared ‘unlawful’ any common-carrier ‘charge, practice, classification, or regulation that is 

unjust or unreasonable.’” Id. at 53. Referencing the history of the FCA and the Interstate 

Commerce Act, the Court held that “the purpose of § 207 is to allow persons injured by § 201(b) 

violations to bring federal-court damages actions,” and that “the FCC has long implemented 

§ 201(b) through the issuance of rules and regulations,” including rules and regulations that “take 

the form of FCC approval or prescription for the future of rates that exclusively are 

‘reasonable.’” Id. at 53. Because a violation of a regulation implementing section 201(b) is the 

equivalent of violating section 201(b) itself, private litigants may bring claims based on such 

regulatory violations. Id. at 54. The crucial question for determining the availability of a private 

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right of action is therefore “whether the particular FCC regulation before us lawfully implements 

§ 201(b)’s ‘unreasonable practice’ prohibition.” Id. at 55. 

In Global Crossing, the Supreme Court ruled that because the FCC implementation 

decision citing section 201(b) was reasonable, it was lawful. See id. at 55–57. Notably, as the 

Court explained, “[w]e do not suggest that the FCC is required to find carriers’ failures to divide 

revenues to be § 201(b) violations in every instance. . . . Nor do we suggest that every violation 

of FCC regulations is an unjust and unreasonable practice.” Id. at 56. But in that particular 

context, the FCC’s determination that a failure to follow its order was an unreasonable practice 

was a proper and enforceable. Id. As the Court explained, Congress gave the FCC authority “to 

apply § 201 through regulations and orders with the force of law.” Id. at 58. Even though the 

statutory provision under which the pertinent regulations were enacted was 47 U.S.C. § 276, and 

not section 201 itself, the FCC nevertheless “properly implements § 201(b) when it reasonably 

finds that the failure to follow a Commission, e.g., rate or rate-division made under a different

statutory provision is unjust or unreasonable under § 201(b).” Id. at 59–60. Additionally, the 

Court noted, “in resting our conclusion upon the analogy with rate setting and rate divisions, the 

traditional, historical subject matter of § 201(b), we avoid authorizing the FCC to turn §§ 201(b) 

and 207 into a back-door remedy for violation of FCC regulations.” Id. at 60. The Supreme 

Court’s analysis demonstrates that to state a claim for relief under 47 U.S.C. § 207, a plaintiff 

must tether defendant’s alleged conduct to either a statutory provision declaring conduct 

unlawful or, if the conduct violates a regulation, the FCC must have found that the regulation 

relates back to a statute declaring conduct unlawful. 

The Ninth Circuit has adopted a particularly stringent view of this interpretation, holding 

in North County Communications Corp. v. California Catalog & Technology, 594 F.3d 1149, 

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1160–61 (9th Cir. 2010), that a section 201(b) claim did not exist because the FCC had not made 

findings that the conduct in that case between those parties was an unreasonable practice, and 

that the plaintiff’s section 207 claim therefore failed for want of an independent right to 

compensation. See also Hoffman v. Rashid, 388 F. App’x 121, 123 (3d Cir. 2010) (“[I]t is within 

the purview of the Federal Communications Commission, not [plaintiff], ‘to determine whether a 

particular practice constitutes a violation for which there is a private right to compensation.’” 

(quoting N. Cnty. Commc’ns Corp., 594 F.3d at 1158)). In its decision on the motion to dismiss, 

this Court did not go as far as the Ninth Circuit, instead stating that the FCC must speak only to a 

“general practice” in order to establish a violation of section 201(b) before a private action under 

section 207 could follow. (Mot. Dismiss Op. 16.) Accord Demmick v. Cellco Partnership, No. 

06-2163, 2011 U.S. Dist. LEXIS 34381 (D.N.J. Mar. 29, 2011) (Linares, J.) (“The FCC orders in 

Global Crossing . . . did not determine the reasonableness of the defendant’s ‘particular 

practices,’ as apparently required under North County, but instead announced a more general 

rulemaking.”). 

In the present case, plaintiffs have not highlighted a statutory provision or a regulation 

finding that conduct in violation of 47 C.F.R. §§ 1.946(c), 1.955(a)(2), (3), or 80.49(a)(3) 

constitutes an “unlawful” act under section 206 in the manner that Global Crossing demanded. 

Such a determination need not come from FCC adjudication between these parties ― it could 

come from any FCC source, such as a statement that violation of these regulations would be 

unjust or unreasonable under section 201(b), or that a violation of these regulations runs afoul 

another statutory declaration of unlawfulness. The Court does not consider it dispositive that 

these regulations call for automatic termination even in the absence of FCC action, because it is 

still incumbent upon the FCC to declare that failure to abide by the terms of the regulations is the 

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type of conduct that could lead to a claim under section 207. Nor would it matter if plaintiffs’ 

allegations, taken as true, constitute a clear violation of the regulation, because the Court cannot 

hear a claim for a breach of a regulation for which no private right of action exists. 

Plaintiffs argue that “[c]learly these violations are far worse than those held to be 

unreasonable and unlawful practices in” Global Crossing, because here, “the entire service itself 

is being blocked or hijacked by these Defendants and their ongoing failure to abide by basic FCC 

Rules, which undermines licensing itself and not just lawful compensation of a service pursuant 

to a particular license.” (Moving Br. 11.) As the precedent makes apparent, however, the 

determination of whether the conduct is “worse” is simply not one for this Court to decide. If 

plaintiffs’ argument were taken to its natural conclusion, then it would mean that section 207 

provides a private right of action whenever a party is harmed by another party’s violation of an 

FCC regulation. The Supreme Court has rejected such an interpretation. See Global Crossing, 

550 U.S. at 56. 

V. Conclusion 

For the foregoing reasons, plaintiffs’ motion for reconsideration is denied. An order will 

follow. 

 /s/ Katharine S. Hayden 

 August 20, 2012 Katharine S. Hayden, U.S.D.J. 

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