United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 30, 1997 Decided January 16, 1998
No. 91-1248
Saco River Cellular, Inc.,
Appellant
v.
Federal Communications Commission,
Appellee
Northeast Cellular Telephone Company, L.P. and
Portland Cellular Partnership,
Intervenors
Consolidated with
Nos. 93-1423, 96-1439
________
Appeals from Orders of the
Federal Communications Commission
Alan Y. Naftalin argued the cause for appellant Northeast
Cellular Telephone Company, L.P., with whom Peter M.
Connolly, Carter G. Phillips and Stephen F. Smith were on
the briefs.
Theresa Fenelon argued the cause for appellant Saco River
Cellular, Inc., with whom Harold J. Carroll was on the briefs.
Laurence H. Schecker, Counsel, Federal Communications
Commission, argued the cause for appellee, with whom Wil-
liam E. Kennard, General Counsel, Daniel M. Armstrong,
Associate General Counsel, and Roberta L. Cook, Counsel,
were on the brief. John E. Ingle, Deputy Associate General
Counsel, and Renee Licht, Counsel, entered appearances.
Anne M. Lobell, Counsel, U.S. Department of Justice,
argued the cause for amicus curiae United States of America,
with whom Frank W. Hunger, Assistant Attorney General,
U.S. Department of Justice, Mary Lou Leary, U.S. Attorney,
Marleigh D. Dover, Special Counsel, U.S. Department of
Justice, and Richard A. Olderman, Attorney, were on the
brief.
Alan Y. Naftalin, Peter M. Connolly, Mark D. Schneider
and Michael A. Nemeroff were on the brief for intervenor
Northeast Cellular Telephone Company, L.P. Herbert D.
Miller, Jr. entered an appearance.
Theresa Fenelon and Harold J. Carroll were on the brief
for intervenor Saco River Cellular, Inc.
L. Andrew Tollin and Michael Duele Sullivan were on the
brief for intervenor Portland Cellular Partnership. Charles
D. Ossola and Michael B. Barr entered appearances.
Before: Edwards, Chief Judge, and Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Appellants Saco River Cellular,
Inc. and Northeast Cellular Telephone Co., L.P., applicants
for a license to provide cellular telephone service in the
Portland, Maine area, challenge a series of decisions by the
Federal Communications Commission culminating in the
award of the license to Portland Cellular Partnership (Port-
Cell). In the most recent decision under review, the Commis-
sion concluded that the 1995 amendments to the Paperwork
Reduction Act, 44 U.S.C. s 3501 et seq., required it to rein-
state PortCell's application, which it had previously dismissed,
and consequently to award the license to PortCell. We agree
that the 1995 amendments to the PRA obligated the Commis-
sion to reconsider its dismissal of PortCell's application. Ac-
cordingly, we affirm the agency order awarding the license to
PortCell and dismiss as moot Saco River's challenge to the
Commission's handling of its application.
I. BACKGROUND
In 1986 the Commission held a lottery for a license to offer
cellular phone service in the Portland area. Seacoast Cellu-
lar, Inc. placed first among five applicants, followed by Saco
River, Community Services Telephone Co., Northeast, and
NYNEX Mobile Communications Co. Shortly thereafter Sea-
coast amended its application to substitute PortCell, a general
partnership the original partners of which were Seacoast,
NYNEX Mobile, and Community, as the winning applicant.
(The current partners are Seacoast, NYNEX Mobile, and
Lewiston-Auburn Cellular.)
Saco River and Northeast, the remaining two applicants,
objected that PortCell was ineligible for a license because it
had failed to "obtain a firm financial commitment for the
financing necessary to construct and operate for one year its
proposed cellular system and amend its application to so
demonstrate," as required by 47 C.F.R. s 22.917(b)(1) (1986).
The regulation then in force provided that:
The firm financial commitment ... shall be from a
recognized bank or other financial institution and shall
evidence the lender's determination that it has assessed
the creditworthiness of the loan applicant and that it is
committed to providing the necessary financing, includ-
ing any actions required of the applicant to continue the
commitment in force. Applicants obtaining financing
from other than a recognized lending institution must
submit proof that the financing entity has such funds
available and uncommitted to another cellular applica-
tion.
47 C.F.R. s 22.917(b)(1)(i) (1986). As evidence of the finan-
cial commitment it had obtained, PortCell submitted a letter
of credit from NYNEX Credit Corp.
In 1989 the Commission agreed with Saco River and North-
east that PortCell's application was defective to the extent
that the letter of credit did not include the terms of the
proposed loan and failed to indicate that NYNEX Credit had
assessed PortCell's creditworthiness. Nonetheless, the Com-
mission waived the firm-financial-commitment requirement
and granted the license to PortCell on the basis of the
Commission's "lengthly [sic] experience in dealing with
NYNEX Corporation and its various subsidiaries and affili-
ates." Portland Cellular Partnership, 4 FCC Rcd 2050, 2051
(1989).
In 1990 this court vacated that decision as arbitrary and
capricious because the waiver of the firm-financial-
commitment requirement "was not based on any rational
waiver policy." Northeast Cellular Telephone Co., L.P. v.
FCC, 897 F.2d 1164, 1167. Upon remand the Commission,
finding that it could not justify the waiver, dismissed Port-
Cell's application as defective. Portland Cellular Partner-
ship, 6 FCC Rcd 2283 (1991).
The Commission also dismissed Saco River's application as
defective because Saco River's proposed service contour ex-
tended beyond the Portland service area. The Commission
determined that, because the proposed extension involved
more than de minimis encroachments into adjacent service
areas, Saco River would not be permitted to amend its filing
to bring it into compliance with the applicable rules. Id. at
2284.
With PortCell and Saco River no longer in the running, the
Commission designated Northeast as the tentative selectee.
Id. Community filed a timely motion to reconsider. Nearly
a year later PortCell filed its own petition to reconsider,
arguing for the first time that the Commission had erred in
dismissing its application because the firm-financial-
commitment reporting requirement had not been approved by
the Office of Management and Budget. The Paperwork
Reduction Act, 44 U.S.C. s 3501 et seq., provides that "[a]n
agency shall not conduct or sponsor the collection of informa-
tion unless in advance of the adoption or revision of the
collection of information ... the Director [of the OMB] has
approved the proposed collection of information." 44 U.S.C.
s 3507(a). The Commission responded that it had no authori-
ty to consider PortCell's petition because the petition was
filed too late. Portland Cellular Partnership, 8 FCC Rcd
4146, 4146 n.4 (1993).
In 1993 the Commission denied Community's petition for
reconsideration, id. at 4149-50, and granted Northeast's ap-
plication over the objections of Saco River and PortCell, id. at
4150-52. PortCell filed a timely petition for reconsideration
of the grant of Northeast's application. In addition, PortCell
and Community filed petitions for further reconsideration of
the dismissal of PortCell's application, with PortCell again
raising its PRA objection.
In 1994 the Commission denied PortCell's and Communi-
ty's petitions for further reconsideration of the order dismiss-
ing PortCell's application. In a somewhat different analysis
than it had offered when it first denied PortCell's petition for
reconsideration, the Commission explained that, because
Community's original rehearing petition had been timely, the
agency was free upon reconsideration thereof to entertain any
relevant argument, including the PRA argument in PortCell's
untimely petition. The Commission then declined to exercise
its discretion to consider PortCell's "grossly untimely" PRA
objection because
Port Cell's failure to avail itself of this argument when its
compliance with [the Commission's] financial qualifica-
tions rule was first called into question imposed a partic-
ularly heavy burden on the resources of the court, the
Commission and the other parties ... litigating the issue
of Port Cell's compliance.
Portland Cellular Partnership, 9 FCC Rcd 3291, 3292 (1994).
Meanwhile, the Commission deferred reconsideration of its
grant of Northeast's application, id. at 3291 n.2, and North-
east constructed a cellular system that has been operating in
the Portland market since November 1994.
In 1995 the Congress added subsection (b) to the "public
protection" provision of the PRA. The amended version
provides:
(a) Notwithstanding any other provision of law, no
person shall be subject to any penalty for failing to
comply with a collection of information that is subject to
this chapter if--
(1) the collection of information does not display a
valid control number assigned by the Director [of the
OMB] in accordance with this chapter;....
(b) The protection provided by this section may be
raised in the form of a complete defense, bar, or other-
wise at any time during the agency administrative pro-
cess or judicial action applicable thereto.
44 U.S.C. s 3512. PortCell then filed yet another petition for
reconsideration, this time asserting that s 3512(b) requires
the Commission to consider its PRA argument.
In 1996 the Commission agreed that because the adminis-
trative proceedings were still ongoing, the amended statute
required it to consider PortCell's PRA defense. The Com-
mission then determined that it had violated the PRA by
dismissing PortCell's application on the basis of an unap-
proved request for information about financial commitments.
Portland Cellular Partnership, 11 FCC Rcd 19997, 20001-06
(1996). Accordingly, the Commission allowed PortCell to
amend its application to satisfy the firm-financial-commitment
requirement, and PortCell submitted a 1995 letter of credit
from Fleet Bank of Maine. Although this financial showing
did not illuminate what commitment, if any, PortCell had
obtained as of the time of its selection in 1986, the Commis-
sion accepted PortCell's amendment in satisfaction of the
firm-financial-commitment requirement. The Commission
thereupon rescinded its grant of the license to Northeast and
awarded the license to PortCell. Id. at 20013. Upon the
motion of Northeast, this court stayed the Commission's 1996
order pending judicial review.
Both Northeast and Saco River appealed. Because Saco
River placed second behind PortCell in the lottery for the
Portland license, however, we need consider Saco River's
challenge to the dismissal of its application only if we deter-
mine that the Commission erred in awarding the license to
PortCell.
II. ANALYSIS
Northeast presents six arguments why the Commission
erred when it revoked Northeast's license to serve the Port-
land market: (1) the Communications Act prevents the Com-
mission from considering PortCell's belated argument invok-
ing the PRA; the Commission's application of s 3512(b) of
the PRA to this case (2) is an impermissible retroactive
application of the new statute, and (3) reverses this court's
1990 decision in Northeast v. FCC, in violation of the separa-
tion-of-powers doctrine; (4) the lack of an OMB control
number does not excuse PortCell's failure to comply with the
statutory requirement to submit information to the Commis-
sion; (5) the OMB approved the firm-financial-commitment
rule before it was "enforced" against PortCell; and (6) the
firm-financial-commitment requirement is a substantive re-
quirement for a license, not merely a collection of information.
For the reasons detailed below, we reject all these arguments
and affirm the Commission's 1996 order.
A. Did s 3512 Require the Commission to Consider Port-
Cell's PRA Defense?
In the order under review the Commission acknowledged
that "strong policy reasons" counseled against considering
PortCell's PRA defense. 11 FCC Rcd at 20001. The Com-
mission believed that it was required to do so, however,
because it understood the 1995 amendments to the PRA as
allowing any adversely affected person "to raise PRA viola-
tions without limitation, so long as the administrative or
judicial process in connection with a particular license or with
a particular application continues." Id. at 20003. We agree
with that reading of the Act as amended.
1. The Communications Act
According to Northeast, the Commission violated ss 402(h)
and 405(a) of the Communications Act when it considered
PortCell's PRA defense. Section 402(h) requires the Com-
mission, after a case has been remanded by this court, to give
effect to our judgment "upon the basis of the proceedings
already had and the record upon which [the] appeal was
heard and determined." 47 U.S.C. s 402(h). Section 405(a)
establishes a 30-day deadline for filing petitions for reconsid-
eration. 47 U.S.C. s 405(a). The Commission responded to
Northeast's argument as follows:
We are not waiving the financial qualification require-
ments for licensees in contravention of the court's man-
date. Instead, we are considering whether the financial
qualification requirement regulation is valid and enforce-
able under the PRA. Section 402(h) does not restrict us
from doing so. In any event, Section 3512 of the PRA
... overrides any restriction 402(h) might place on our
consideration of PRA issues in a proceeding on remand
from a court.
11 FCC Rcd at 20005.
We need not address today what restrictions ss 402(h) and
405(a) of the Communications Act impose when s 3512 of the
PRA is not invoked. Because s 3512 of the PRA applies by
its terms "notwithstanding any other provision of law," we
agree with the Commission that s 3512 "simply trumps Sec-
tion 405(a) and, to the extent it might be relevant, Section
402(h)." Id. at 20003; see Liberty Maritime Corp. v. United
States, 928 F.2d 413, 416 (D.C. Cir. 1991) (similar "notwith-
standing" clause "supercede[s] all other laws").
2. Retroactivity
Northeast argues that applying the PRA amendments to
this case contravenes the principle that retroactivity is not
favored in the law. As we recently noted, however, in
determining whether a statute has retroactive effect it is
necessary "to examine the temporal relationship between the
statute and the activity the statute is meant to govern."
Legal Assistance for Vietnamese Asylum Seekers v. Depart-
ment of State, 104 F.3d 1349, 1352 (D.C. Cir. 1997). Section
3512(b) requires that, from October 1, 1995 onward, agencies
and courts entertain arguments that would otherwise have
been barred either by a statute of limitations or by the
proponent's failure to have made the argument at an earlier
stage in the administrative or judicial process. In this case,
the Commission had dismissed PortCell's PRA defense as
untimely without ruling upon the merits of it; the PRA
amendments merely required the Commission, when the issue
was raised anew, to make that ruling. Because s 3512(b)
governs only the conduct of litigation after the effective date
of the statute and does nothing to reopen matters litigated
before that date, it does not offend any norm against retroac-
tive lawmaking.
Nor is a statute retroactive "merely because it is applied in
a case arising from conduct antedating the statute's enact-
ment or upsets expectations based in prior law." Landgraf v.
USI Film Prods., 511 U.S. 244, 269 (1994). By permitting
parties to raise the PRA issue "at any time" in ongoing
proceedings, the statute does not "impair rights a party
possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions
already completed." Id. at 280. Rather, it simply prevents
an agency or court from refusing to consider a PRA argu-
ment on the ground that it is untimely.
We conclude that the Commission correctly interpreted the
amended statute as requiring it to consider PortCell's PRA
defense when that defense was raised in the ongoing proceed-
ings upon remand.
3. Separation of powers
Northeast argues that even if s 3512(b) can be applied to
ongoing proceedings in other circumstances, its application in
this case would effectively reverse our decision in Northeast
v. FCC, in violation of the separation-of-powers doctrine as
the Supreme Court interpreted it in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211 (1995). Plaut was a sequel to
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350 (1991), in which the Court had announced a new
statute-of-limitations rule for certain securities fraud suits.
The Congress had responded to the Lampf, Pleva decision by
passing a law purporting to revive suits that had been dis-
missed in the wake of Lampf, Pleva, but the Court held in
Plaut that, as an attempt by the Congress to reopen a final
judgment, the new law was unconstitutional. 514 U.S. at 225.
According to Northeast, application of s 3512(b) in this case
would likewise nullify this court's determination in Northeast,
which became final when PortCell failed to seek review in the
Supreme Court, that the Commission "must disqualify" Port-
Cell's application if the agency could adduce no rational
waiver policy to support it. 897 F.2d at 1167.
Plaut is no bar to the application of s 3512 to the present
case, however, because no party in Northeast raised, and we
did not purport to resolve, the PRA issue. Nor did we
render a final judgment terminating the case; rather we
remanded it to the Commission for further proceedings. For
the Commission and the court to apply s 3512 to this case
after October 1, 1995, therefore, is merely to follow the rule,
which the Supreme Court acknowledged in Plaut itself, that
"each court, at every level, must 'decide according to existing
laws.' " 514 U.S. at 226 (quoting United States v. The
Schooner Peggy, 5 U.S. (1 Cranch) 103, 109 (1801)).
B. Did the Commission Violate the PRA?
The public protection provision of the PRA provides that
"no person shall be subject to any penalty for failing to
comply with a collection of information" that lacks a currently
valid OMB control number. 44 U.S.C. s 3512(a). When
PortCell filed its application, the Commission had not ob-
tained OMB approval for the firm-financial-commitment filing
requirement then codified at 47 C.F.R. s 22.917(b) (1986).
Therefore, to the extent that s 22.917(b) mandated a collec-
tion of information, the Commission could not lawfully penal-
ize PortCell for failing to comply with it.
Northeast makes three arguments for the proposition that
s 3512 of the PRA does not prevent the Commission from
punishing PortCell for failing to comply with s 22.917(b):
First, the mandate to demonstrate a firm financial commit-
ment originated with the Congress (as opposed to the Com-
mission); therefore PortCell was obligated to comply with the
filing requirement regardless of the Commission's failure to
comply with the PRA. Second, the Commission's failure to
comply with the PRA was at most harmless error because the
Commission had obtained an OMB control number for
s 22.917(b) by the time it penalized PortCell. Third,
s 22.917(b) is a substantive legal requirement rather than a
"collection of information" requirement. For the reasons set
out below, we reject these three arguments and conclude that
the Commission was obliged, as it held, to permit PortCell to
amend its application in order to demonstrate that it had
complied with s 22.917(b).
1. Statutory obligation
Northeast contends that the requirement that an applicant
demonstrate a firm financial commitment is a statutory obli-
gation and therefore not subject to the PRA. The OMB's
regulations clearly state that s 3512 "does not preclude the
imposition of a penalty on a person for failing to comply with
a collection of information that is imposed ... by statute," 5
C.F.R. 1320.6(e), and we shall assume that is a reasonable
interpretation of the law.
As the OMB has explained, however, that principle "does
not extend to situations in which a statute authorizes, or
directs, an agency to impose a collection of information on
persons, and the agency does so." Controlling Paperwork
Burdens on the Public; Regulatory Changes Reflecting Reco-
dification of the Paperwork Reduction Act, 60 Fed. Reg.
30438, 30441 (1995). That is all that has happened here.
Section 308(b) of the Communications Act provides that "[a]ll
applications for station licenses ... shall set forth such facts
as the Commission by regulation may prescribe as to the ...
financial ... qualifications of the applicant to operate the
station." 47 U.S.C. s 308(b). The Commission duly required
that each applicant submit information showing that it had a
firm financial commitment. There is no collection of informa-
tion imposed by statute, much less a specific congressional
command to provide information showing a firm financial
commitment. The Congress merely authorized, it did not
require, the Commission to collect information regarding the
financial qualifications of applicants for a license. According-
ly, the Commission must itself have complied with the PRA
before it may enforce that information collection requirement
under s 308 of the Communications Act.
2. Harmless error
Northeast argues that the Commission's temporary failure
to adhere to the PRA was harmless as far as PortCell is
concerned. The OMB issued a control number for the firm-
financial-commitment regulation in 1990, which was after the
information was collected from PortCell but before the Com-
mission dismissed PortCell's application (in 1991) for failure
to comply with the regulation. Northeast reminds us that the
PRA "does not prevent the promulgation of a rule, only its
enforcement." Dithiocarbamate Task Force v. EPA, 98 F.3d
1394, 1405 (D.C. Cir. 1996).
Northeast's argument loses sight of the Congress's purpose
in enacting the PRA--to "minimize the paperwork burden for
individuals, small businesses, educational and nonprofit insti-
tutions, Federal contractors, State, local and tribal govern-
ments, and other persons." 44 U.S.C. s 3501(1). In order to
fulfill that purpose, the PRA must protect a member of the
public when the agency imposes the paperwork burden upon
it, not merely when the agency relies upon the paperwork in
making a decision, which (as this case illustrates) can be
years later. Therefore, an agency may not, having belatedly
gotten OMB approval of an information collection require-
ment, punish a respondent for its faulty compliance while the
collection was still unauthorized. Because s 22.917(b) lacked
a control number when the Commission required that Port-
Cell submit information about its financial commitment, the
Commission could not punish PortCell for failing to submit
the information it required.
3. Not a collection of information
The regulation in force at the time PortCell became the
tentative selectee required that a cellular applicant "obtain a
firm financial commitment for the financing necessary to
construct and operate for one year its proposed cellular
system and amend its application to so demonstrate." 47
C.F.R. s 22.917(b)(1)(1986). Northeast submits that this reg-
ulation is not a "collection of information" within the meaning
of the PRA because it requires the tentative selectee not
merely to provide information about but actually to obtain a
firm financial commitment. The Commission, on the other
hand, considers the regulation to be a collection of informa-
tion because the selectee must provide the Commission with
evidence of the commitment.
Clearly enough the regulation imposes both a substantive
and a reporting requirement. The selectee must obtain a
firm financial commitment as a precondition to receiving a
license, and it must amend its application to demonstrate that
it has obtained the commitment. The latter requirement is a
collection of information; therefore, the Commission may not
punish a selectee for failing to provide the information unless
it has first obtained a valid OMB control number.
In the present case the letter of credit from NYNEX
Credit that PortCell submitted in 1986 was "incomplete be-
cause it failed to provide all of the evidence required by the
regulation" and thus " 'failed to comply' with the requirement
of the information collection." 11 FCC Rcd at 20007. The
1986 letter of credit did not, however, demonstrate that
PortCell had failed to obtain the required firm financial
commitment, and the Commission did not fault PortCell on
that substantive ground. Therefore, this case involves Port-
Cell's failure to comply with a collection of information that
lacks an OMB control number and not, as Northeast would
have it, PortCell's failure to fulfill an underlying substantive
requirement. Accordingly, we have no occasion to decide
whether the PRA prevents an agency from punishing a party
for a failure to fulfill a substantive legal requirement that is
brought to light only because that substantive requirement is
also the subject of an information collection requirement.
C. Did the Commission Rely upon Inapposite Information in
Granting the License to PortCell?
The OMB regulations implementing the PRA require that
where, as here,
an agency has imposed a collection of information as a
means for proving or satisfying a condition for the re-
ceipt of a benefit or the avoidance of a penalty, and the
collection of information does not display a currently
valid OMB control number ... [the agency must] permit
respondents to prove or satisfy the legal conditions in
any other reasonable manner.
5 C.F.R. s 1320.6(c). Hence, the Commission appropriately
allowed PortCell to amend its application in order to demon-
strate that it had obtained the firm financial commitment that
is a prerequisite to receiving a license to provide cellular
service.
We note that the Commission disqualified PortCell for want
of evidence that PortCell had obtained a firm financial com-
mitment as of 1986, while PortCell's amended application
demonstrates only that it had obtained a firm financial com-
mitment as of 1995; the amendment sheds no light upon what
commitment, if any, PortCell had obtained in 1986. Cf., e.g.,
Pontchartrain Broadcasting Co. v. FCC, 15 F.3d 183, 184
(D.C. Cir. 1994) ("In cases involving amendment of an appli-
cant's initial financial certification, the Commission generally
requires that the applicant also demonstrate that it had a
reasonable assurance of financing at the time that it made its
initial certification." (citing Aspen FM, Inc., 6 FCC Rcd 1602,
1603-04 (1991))). At oral argument Northeast responded to
an inquiry from the court by arguing for the first time that
the Commission erred in accepting PortCell's amendment
because it failed to demonstrate that it had a firm financial
commitment as of 1986. As the Commission correctly noted
in its 1996 order, however, before the agency "Northeast [did]
not oppose the amendment or argue that it is insufficient."
11 FCC Rcd at 20008. Because no one challenged the
amendment as anachronous before the Commission, the agen-
cy did not have an opportunity to consider that charge.
Therefore, the issue was neither preserved nor presented for
our review, and we do not pass upon it. Cf. United States v.
Tucker Truck Lines, 344 U.S. 33, 37 (1952) ("Simple fairness
to those who are engaged in the tasks of administration, and
to litigants, requires as a general rule that court should not
topple over administrative decisions unless the administrative
body not only has erred but has erred against objection made
at the time appropriate under its practice"); Center for Auto
Safety v. Peck, 751 F.2d 1336, 1360 (D.C. Cir. 1985) ("Such an
ambush at this late stage cannot be allowed").
III. CONCLUSION
For the foregoing reasons we affirm the Commission's
order rescinding the grant of the Portland, Maine Block B
cellular license to Northeast, reinstating PortCell's applica-
tion, and granting the license to PortCell. Accordingly, we
vacate our order of March 10, 1997 staying the Commission's
order, and we dismiss as moot Saco River's challenges to the
Commission's handling of its application for a cellular license.
It is so ordered.