from the United States Court of Federal Claims in No.
1:16-cv-00001-CFL, Judge Charles F. Lettow.
Pattis, The Pattis Law Firm, LLC, Bethany, CT, argued for
Patricia M. McCarthy, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by Chad
A. Readler, Robert E. Kirschman, Jr.
Moore, Reyna, and Taranto, Circuit Judges.
Taranto, Circuit Judge.
1996, the Federal Communications Commission (FCC) awarded
spectrum licenses to Alpine PCS, Inc., for use in the
provision of wireless telecommunications services.
Alpine's failure to make required payments for those
licenses in 2002 triggered automatic cancellation of the
licenses under FCC regulations. In addition to taking other
steps in response, Alpine sought relief from the FCC and, on
review under the Communications Act, 47 U.S.C. §
402(b)(5), from the United States Court of Appeals for the
District of Columbia Circuit. Eventually, in 2016, Alpine
filed this action against the United States under the Tucker
Act, 28 U.S.C. § 1491(a)(1), in the United States Court
of Federal Claims. Alpine alleged that the FCC breached
contractual obligations in canceling the licenses and that
the cancellation was a taking for which Alpine was entitled
to just compensation under the Takings Clause of the Fifth
Amendment to the U.S. Constitution. The Court of Federal
Claims dismissed both of Alpine's claims for lack of
jurisdiction under the Tucker Act. We affirm, concluding that
the Communications Act provides a comprehensive statutory
scheme through which Alpine could raise its contract claims
and could challenge the alleged taking and receive a remedy
that could have provided just compensation in this case,
foreclosing jurisdiction under the Tucker Act.
1996, Alpine submitted bids in an FCC spectrum-license
auction and won two 10-year "personal communication
services" licenses. Alpine bid approximately $8.9
million for one license and approximately $17.3 million for
small business, Alpine was eligible to pay its bid amounts in
installments over the term of the licenses. See 47
C.F.R. § 1.2110(e) (1995); 59 Fed. Reg. 44, 272, 44,
298-99 (Aug. 26, 1994), amended by 60 Fed. Reg. 52,
865, 52, 865 (Oct. 11, 1995). In September 1996, Alpine
issued promissory notes to the FCC, providing for quarterly
payments from December 1996 through September 2006. Alpine
also executed security agreements designating the licenses as
collateral to secure the payment obligation.
notes contain two provisions highlighted by the parties. One
describes the process of default:
A default under this Note ("Event of Default")
shall occur upon . . . non-payment by [Alpine] of any
Principal or Interest on the due date as specified
hereinabove if [Alpine] remains delinquent for more than 90
(1) [Alpine] has not submitted a request, in writing, for a
grace period or extension of payments, if any such grace
period or extension of payments is provided for in the
then-applicable orders and regulations of the Commission; or
(2) [Alpine] has submitted a request, in writing, for a grace
period or extension of payments, if any such grace period or
extension of payments is provided for in the then-applicable
orders and regulations of the Commission, and following the
expiration of the grant of such grace period or extension or
upon denial of such a request for a grace period or
extension, [Alpine] has not resumed payments . . . in
accordance with the terms of this Note . . . .
J.A. 21-22; J.A. 29-30. A second provision states that the
"Note[s] shall be governed by and construed in
accordance with the Communications Act of 1934, as amended,
the then-applicable orders and regulations of the Commis-
sion, and federal law . . ., and nothing in th[ese] Note[s]
shall be deemed to release [Alpine] from compliance
therewith." J.A. 25; J.A. 33.
security agreements incorporate the notes' provisions
regarding the process of default and identify automatic
cancellation of the licenses as one of the FCC's remedies
upon default. The security agreements also state that they
"shall be governed by and construed in accordance with
[the] Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal
law." J.A. 42; J.A. 50.
regulations in effect in September 1996 provided that a
licensee "making installment payments . . . shall be in
default" if a payment "is more than ninety (90)
days delinquent, " but could "request that the
[FCC] permit a three to six month grace period, during which
no installment payments need be made." 47 C.F.R. §
1.2110(e)(4)(i)-(ii) (1995). The FCC could "consider
whether to grant a request for a grace period" or
"ap-prove a restructured payment schedule."
Id. § 1.2110(e)(4)(ii). If the request was
denied or the grace period expired without payment, the
licenses would automatically cancel and the licensee would be
subject to debt collection. Id. §
then amended the regulations, the amendments taking effect in
1998. See In re Amendment of Part 1 of the
Commission's Rules - Competitive Bidding Procedures,
13 FCC Rcd. 374 (F.C.C. 1997); Celtronix Telemetry, Inc.
v. FCC, 272 F.3d 585, 586 (D.C. Cir. 2001). The 1998
regulations, instead of requiring a request for a grace
period upon default, provided for a 90-day non-delinquency
period and a subsequent 90-day grace peri-od-effectively, two
3-month grace periods-as a matter of course. 47 C.F.R. §
1.2110(f)(4)(ii) (1998) ("If any licensee fails to make
the required payment at the close of the 90-day period set
forth in paragraph (i) of this section, the licensee will
automatically be provided with a subsequent 90-day grace
period, " and "[l]icensees shall not be required to
submit any form of request in order to take advantage of the
initial 90-day non-delinquency period and subsequent
automatic 90-day grace period."); see also 63
Fed. Reg. 2, 315, 2, 346 (Jan. 15, 1998), corrected
by 63 Fed. Reg. 12, 658, 12, 659 (Mar. 16, 1998). But if
the licensee did not pay the installment, plus late fees,
after the second grace period, the licensee would be declared
in default, have its licenses "automatically cancel[ed],
" and be subject to debt collection. 47 C.F.R. §
1.2110(f)(4)(iii)- (iv) (1998).
January 2002, Alpine failed to make its quarterly payment.
Under the regulations in effect at that time, Alpine received
two 3-month grace periods as a matter of course, and its new
payment deadline was July 31, 2002. See 47 C.F.R.
§ 1.2110(g)(4)(i)-(ii) (2000). Unless Alpine paid the full
amount, plus late fees, by that date, it would be declared in
default, have its licenses "automatically cancel[ed],
" and be subject to debt collection. Id. §
24, 2002, a week before the deadline, Alpine asked the FCC to
restructure the payment plan, invoking 31 C.F.R. §
902.2. The FCC acknowledged receipt of that request on July
30, 2002. On July 31, 2002 (the payment deadline), Alpine
asked the FCC to waive the automatic cancellation provision