Indian Peak's Petition for Review ‘Incurably Premature,’ Must Be Dismissed, Says FCC

of Appeals for the D.C. Circuit has jurisdiction to review only final commission orders, said the FCC’s reply Monday (docket 23-1223) in support of its motion to dismiss. Nor can Indian Peak deny that the commission hasn’t yet “purported to rule on Indian Peak’s application for further administrative review of the two staff-level letter rulings at issue here,” said the reply. Indian Peak’s opposition instead “merely speculates” that the FCC “might have somehow ‘silently disposed of’" its application for review, it said. That speculation “is unfounded and incorrect,” it said. “To avoid any doubt,” the FCC’s counsel “hereby represent once again that the application for review currently remains pending” before the commission, it said. Indian Peak’s petition for review “is incurably premature and must be dismissed for lack of jurisdiction,” said the FCC. The reply noted that Indian Peak’s opposition also complains it didn’t receive a response to two “informal status inquiries” that its counsel emailed to senior FCC officials -- FCC Chairwoman Jessica Rosenworcel's chief of staff and deputy chief of staff -- who hadn’t been personally involved in this matter. But Indian Peak concedes that it didn’t copy “or otherwise attempt to reach the FCC staff who have previously communicated with its counsel about this matter,” said the reply. Nor did Indian Peak submit anything to the dedicated OTARD@fcc.gov mailbox for matters involving the over-the-air reception device rule at issue, it said. Indian Peak insists that it couldn’t do so because the application for review ultimately will be ruled on by a commissioners' vote, it said. But the need for a commission vote “in no way precludes FCC staff from receiving or responding to status inquiries,” it said.