Withdrawal by Right

I read with interest Harold Feld’s blog and a related filing by Public Knowledge and the Media Access Project (MAP) on AT&T’s withdrawal of its merger application from the FCC. While Harold and his colleagues sometimes have interesting arguments to make, this isn’t one of those times.

Here are the facts:
On Wednesday, November 23, 2011, after learning that the FCC staff had prepared a hearing designation order which was to be circulated for a vote, AT&T and Deutsche Telecom, in accordance with the Commission’s rules and precedent, filed the appropriate forms at the FCC via its Universal Licensing and other systems to withdraw all applications pending before it. At the same time, the parties filed a letter to the Secretary stating that all pending applications were withdrawn effective immediately and were to be dismissed without prejudice per the Commission’s rules.

The parties’ ability to withdraw the applications by right could not be clearer. Section 1.934(a) of the Commission’s rules states that if “the applicant requests dismissal of its application without prejudice, the Commission will dismiss that application without prejudice” unless one of two conditions exists, neither of which is present here. The statement that the Commission “will” dismiss the application without prejudice leaves the Commission with no discretion. The mandatory language of Section 1.934, bolstered by the Commission’s position and the D.C. Circuit’s decision in Environmentel, make clear that the Applicants have an absolute right to withdraw their applications in this matter without prejudice to their ability to refile in the future should they elect to do so. Thus, there shouldn’t be much controversy around the withdrawal of our applications last Wednesday. Yet Public Knowledge and MAP, relying on their usual tortured reading of Commission rules, contend that the FCC should somehow proceed with its review. Unnamed sources at the Commission have also been suggesting that the FCC has discretion to deny or otherwise side-step our withdrawal to keep its review alive, at least long enough to issue its draft Hearing Designation Order (HDO).