United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 1998 Decided January 8, 1999
No. 97-1630
BellSouth Corporation and
BellSouth Wireless, Inc.,
Appellants
v.
Federal Communications Commission,
and United States of America,
Appellees
U S WEST, Inc. and
Rural Telecommunications Group,
Intervenors
Consolidated with
No. 97-1630
Appeal and Petition for Review of an Order of
the Federal Communications Commission
---------
L. Andrew Tollin argued the cause for appellants/petition-
ers. With him on the briefs were Michael Deuel Sullivan,
Robert G. Kirk, Craig E. Gilmore, William B. Barfield, M.
Robert Sutherland, Jim O. Llewellyn and David G. Frolio.
Jeffrey H. Dygert, Counsel, Federal Communications Com-
mission, argued the cause for appellee. With him on the brief
were Joel I. Klein, Assistant Attorney General, U.S. Depart-
ment of Justice, Catherine G. O'Sullivan and Andrea Lim-
mer, Attorneys, Christopher J. Wright, General Counsel,
Federal Communications Commission, and Daniel M. Arm-
strong, Associate General Counsel. John E. Ingle, Deputy
Associate General Counsel, and Joel Marcus, Counsel, en-
tered appearances.
Before: Edwards, Chief Judge, Rogers and Tatel, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In 1994, the Federal Communica-
tions Commission established a 45 MHz spectrum cap on
commercial mobile radio services ("CMRS") that limited the
total amount of cellular, broadband personal communication
service ("PCS"), and specialized mobile radio ("SMR") spec-
trum that a given entity could accumulate. See 9 F.C.C.R.
7988, 7999, para. 16. Because BellSouth1 had an ownership
interest in RAM Mobile Data USA, L.P., a holder of SMR
licenses, BellSouth's combined CMRS spectrum holdings pre-
vented it from acquiring two 10 MHz PCS licenses in certain
markets without exceeding the cap. See Request for Waiver
at 1-4. BellSouth requested a waiver of the spectrum cap as
well as reconsideration of the rule on the grounds that the
cap was designed to ensure competition in voice transmission
and should apply only to "covered" SMR spectrum (i.e., SMR
__________
1 BellSouth Corporation petitions for review of the Commis-
sion's order enforcing the 45 MHz cap. BellSouth Wireless appeals
the Commission's denial of its waiver request. For ease of refer-
ence, at times we will refer to them collectively as "BellSouth."
spectrum that is interconnected with the public switched
network and devoted to real-time, two-way switched voice
service). The Commission denied both requests. On appeal,
BellSouth contends that the Commission's action was arbi-
trary because the cap is overbroad and virtually unwaivable.
We deny the petition for review and affirm the Commission's
denial of the waiver request.
I.
CMRS encompasses different types of spectrum put to a
variety of uses. It includes all mobile services commercially
offered to the public that are connected to the telephone
network, such as cellular phone service, paging, mobile data,
mobile satellite, and other wireless services. See generally
Second Report & Order, 9 F.C.C.R. 1411, 1422-42, paras. 30-
70 (1994). CMRS is composed of cellular, PCS, and SMR
spectrum. Within each of these categories, spectrum is de-
scribed as narrowband (using less than 5 MHz of spectrum)
and broadband (using more than 5 MHz of spectrum). The
narrowband/broadband distinction rests in part on whether it
is possible to accumulate enough spectrum to provide voice
communication. Entities can use CMRS spectrum to provide
voice-to-voice service, such as cellular phone or dispatch
service, as well as data-only service, such as paging.
In 1994, the Commission adopted changes to the technical,
operational, and licensing rules "to establish regulatory sym-
metry among similar mobile services." Third Report &
Order, 9 F.C.C.R. 7988, 7992, para. 1 (1994). These changes
included imposition of a 45 MHz cap on the total amount of
cellular, PCS, and SMR spectrum an entity could have in any
geographic area. Id. at 7999, para. 16. The Commission
justified the cap "as a minimally intrusive means of ensuring
that the mobile communications marketplace remains compet-
itive and retains incentives for efficiency and innovation." Id.
at 8100, para. 238; see also id. at 8104, para. 248. The
spectrum cap would prevent entities from accumulating spec-
trum and thereby "precluding entry by other service provid-
ers." Id. at 8101, para. 240. Rejecting a "case-by-case"
approach, the Commission described the cap as a "bright line
test" that would provide certainty and ease the Commission's
"administrative burden." Id. at 8104-05, para. 250.
The changing nature of the market was key to determining
the scope of the cap. The Commission first observed that
services provided on the CMRS spectrum were converging.
See id. at 8020, para. 56. The Commission explained that the
various mobile services shared the common purpose of servic-
ing customers who "need to communicate electronically on a
real-time basis (or virtually real-time basis) while they are 'on
the move.' " Id. at 8021, para. 58. Technological innovation
influenced market trends that would allow various CMRS
licensees to compete. The Commission observed that voice
communication providers had the capacity to provide data
services and that data service providers had the option, with
reconfiguration and accumulation of spectrum, to provide
voice services. See id. at 8026-35, paras. 69-77. The Com-
mission concluded that "trends in the CMRS marketplace ...
illustrate a strong potential for further competition among all
CMRS services." Id. at 8035, para. 77.
In defining the scope of the cap's coverage, the Commission
decided to exclude all terrestrial narrowband radio services.
See id. at 8111, para. 267. Because it was "highly unlikely
that one entity could ever accumulate as much as 5 MHz in
any given geographic market" and other regulatory safe-
guards existed, the Commission concluded that "there is little
risk that an entity could use narrowband allocations to exert
undue market power over CMRS as a whole." Id. The
Commission also excluded Mobile Satellite Service ("MSS")
from the cap, in view of the differences between satellite and
terrestrial service, capacity, and spectrum use that "mak[e] it
unreasonable to equate relative spectrum usage for purposes
of determining a spectrum aggregation limit." Id. at 8112,
para. 269. By contrast, while acknowledging some merit to
the view that SMR spectrum is not currently equivalent to
cellular or broadband PCS spectrum, the Commission con-
cluded that SMR would be subject to spectrum aggregation
limits. To take account of the unique nature of SMR spec-
trum, each licensee would be attributed a maximum of 10
MHz of SMR spectrum, regardless of how much spectrum
above 10 MHz it actually held, because 10 MHz constituted
the largest attainable block of contiguous SMR spectrum.
See id. at 8113-14, para. 275. The Commission specifically
recognized that "small" SMR providers, i.e. entities with
under 5 MHz of attributable SMR spectrum, would be subject
to the cap. It viewed this result as acceptable because these
entities were still eligible for up to 40 MHz of broadband PCS
spectrum, and able to acquire both a 30 MHz and a 10 MHz
PCS license in the same geographic area. See id. at 8114,
para. 275; 8109, para. 263. The Commission also placed all
SMR channels under the cap, and rejected the view that 900
channel SMR should be excluded due to its small spectrum
and narrow channel bandwidth, explaining that "high quality
mobile telephony service can be provided on 900 MHz SMR
channels and there is the possibility of aggregating up to 5
MHz of spectrum in this band, [so] there seems no compelling
reason to exclude those channels." Id. at 8116, para. 280.
The Commission reconsidered the cap following a remand
from the United States Court of Appeals for the Sixth
Circuit, in a case in which the 45 MHz cap itself was not at
issue but the attribution and eligibility rules were. See
Cincinnati Bell Tel. Co. v. FCC, 69 F.3d 752 (6th Cir. 1995).2
__________
2 The attribution rule provided that any entity with a twenty
percent ownership interest in an existing cellular provider was
deemed to be a cellular provider subject to limits on how much PCS
spectrum it could acquire. The cellular eligibility rules limited the
amount of PCS spectrum that a cellular licensee could obtain in
regions where its cellular and PCS license areas overlapped. The
Sixth Circuit held that both rules were arbitrary, concluding that:
while avoiding excessive concentration of licenses certainly is a
permissible goal under the Communications Act, simply pre-
cluding a class of potential licensees from obtaining licenses
(without a supported economic justification for doing so) solves
the problem arbitrarily. The FCC must supply a reasoned
basis for its decision. The need to avoid "excessive concentra-
tion of licenses" does not provide the requisite "reasoned
basis." Without any economic rationale, the Cellular eligibility
rules are nothing more than an arbitrary regulation....
In response to the court's holding that the attribution rule
was arbitrary because the Commission had failed to present
any support for its common sense predictive judgment about
market behavior, see 69 F.3d at 761, the Commission did two
things, see Report & Order, 11 F.C.C.R. 7824 (1996). First, it
eliminated the spectrum-specific caps,3 observing that most
commentators considered the 45 MHz cap adequate to avoid
concentration and entry barriers. See id. at 7865, para. 87.
Second, it conducted a Herfindahl-Hirschman Index analysis
to determine what level of concentration of ownership would
result in an undesirable level of competition. See id. at 7869-
73, paras. 94-102. Concluding that a spectrum cap was
needed to avoid "excessive concentration of licenses" and to
promote competition in the CMRS marketplace, id. at 7869,
para. 94, the Commission considered various hypothetical
market structures for mobile two-way voice communications
service in the same geographic area.4 It determined that the
45 MHz cap would do the trick--guard against high concen-
tration in the market, prevent licensees from gaining too
great a competitive advantage over new entrants, and further
the goal of diversity. See id. at 7873-74, paras. 101-02. The
__________
Cincinnati Bell, 69 F.3d at 764 (citations omitted).
3 The Commission had earlier imposed a cap of 25 MHz on
cellular spectrum and a cap of 40 MHz on PCS spectrum. See
Third Report & Order, 9 F.C.C.R. 7988, 8104 n.479 (1994).
4 For purposes of its HHI analysis, the Commission defined the
product market as "mobile two-way voice communications service."
11 F.C.C.R. at 7904, App. A. "Competitors" were defined as
licensees for cellular service, broadband PCS, and the largest
interconnected SMR. See id. Market share was measured in
terms of "[a]llocated spectrum," which gauges a CMRS carrier's
long-term capacity, id. at 7870, para. 96, and the "capacity" for a
geographic market was represented by licensed spectrum for
cellular service (two licenses for 25 MHz), broadband PCS (three
licenses for 30 MHz and three licenses for 10 MHz), and the largest
potential interconnected SMR provider (holding multiple licenses
for a maximum total of 10 MHz), see id. at 7870, para. 97. The
Commission compared the market concentration that would result
with and without the spectrum cap.
Commission noted that divestiture, see id. at 7876, para. 107,
and eventually disaggregation and geographic partitioning,
see id. at 7873, para. 100, would be available to allow an entity
to bid on blocks of PCS spectrum as they became available.
Shortly thereafter, BellSouth Wireless requested a waiver
of the spectrum aggregation limit.5 Explaining that RAM
Mobile (an entity in which it holds a 49% ownership interest)
had a number of 900 MHz SMR licenses, BellSouth pledged
that with those licenses RAM provided data-only services and
"does not offer now and does not intend in the future to offer
real time, two-way switched voice service given the architec-
ture of its network and the telecommunications market seg-
ments it has targeted." The spectrum cap would prevent
BellSouth from bidding on two 10 MHz packages of PCS
spectrum because its .5 MHz (or less) of SMR would take it
over the spectrum cap when added to the 25 MHz of cellular
spectrum it already held. Consequently, BellSouth proposed
that the Commission apply to the spectrum cap the distinction
it had recognized in other contexts between "covered" and
"non-covered" SMR.6 BellSouth Corporation, in turn, re-
quested reconsideration of the rule so that it would include
only "covered" SMR in the spectrum cap, asserting that this
modification would bring the Commission's spectrum cap
policy in line with other decisions in the wireless area.
__________
5 At footnote 18 of its waiver request, BellSouth suggested that
the waiver could include the condition that the .5 MHz of spectrum
not be used for "real-time, two-way switched voice service."
6 In other proceedings, the Commission had defined "covered
SMR" as spectrum devoted to licensees that offer real-time, two-
way switched voice service that is interconnected with the public
switched network. That term did not include "local SMR licensees
offering mainly dispatch services to specialized customers in a non-
cellular system configuration, ... licensees offering only data, one-
way, or stored voice services on an interconnected basis" or "any
SMR provider that is not interconnected to the public switched
network." Interconnection and Resale Obligations Pertaining to
CMRS, First Report & Order, 11 F.C.C.R. 18455, 18466, para. 19
(1996).
The FCC's response was two-fold. First, in a letter dated
August 29, 1996, the Wireless Telecommunications Bureau
denied BellSouth's request for a waiver. See Letter re:
BellSouth Wireless, Inc. Request for Waiver in Auction No.
11, 11 F.C.C.R. 9970 (1996). The Bureau stated that Bell-
South's assertion that RAM does not compete with real-time
two-way voice service was based on a misconception about the
underlying purpose of the CMRS spectrum cap; the cap in
fact arose out of concerns about excessive horizontal concen-
tration and market barriers. See id. at 9971. Additionally,
while covered versus non-covered SMR was a significant
distinction in some contexts, it was not so in the spectrum
aggregation context. See id. The Bureau also invited Bell-
South to seek to divest itself of the .5 MHz of SMR spectrum
if it wished to bid for two 10 MHz bundles of PCS or to
pursue its argument as part of a request for reconsideration
of related orders. See id. at 9972.
The Commission affirmed the Bureau's denial of a waiver,
rejecting BellSouth's arguments that the rule was in effect
unwaivable and that the Bureau had not given a "hard look"
at the waiver application. See Memorandum Opinion & Or-
der, 12 F.C.C.R. 14031 (1997). The Bureau had considered
the facts proffered, balanced them and the purposes underly-
ing the CMRS spectrum aggregation limit, and noted the
availability of alternative ways that BellSouth could obtain
relief. The Commission also declined to reconsider the cap,
rejecting BellSouth's narrow view of its purpose. The cap,
the Commission explained, was designed
to promote diversity and competition in mobile services,
by recognizing the possibility that mobile service licen-
sees might exert undue market power or inhibit market
entry by other service providers if permitted to aggre-
gate large amounts of spectrum.... Despite BellSouth's
contention to the contrary, the underlying purpose of the
spectrum cap was not limited to promoting competition
in voice services only.
Id. at 14038-39, para. 12. Further, the Commission explained
that it distinguished covered and non-covered SMR in rules
that only affected two-way voice services interconnected to
the public switched network. See id. at 14040, para. 14.
With regard to spectrum aggregation, the Commission ex-
plained that it
still concludes that SMR technology holds the potential
to permit SMR operators to offer services that are nearly
identical to those offered by both cellular and broadband
PCS providers, and thus that all SMR services regulated
as CMRS should be within the cap in order to guard
against excessive spectrum aggregation. Further, tech-
nological innovation may drive cellular, broadband PCS,
and SMR services toward a convergence of similar ser-
vice offerings designed to respond to consumer demand.
Id.
II.
In its petition and appeal to this court, BellSouth makes
two principal contentions: first, that the spectrum cap rule is
overbroad, extending beyond its purpose to assure competi-
tion in voice communications, and second, that the Commis-
sion has adopted a virtually unwaivable rule and failed to give
the waiver request a "hard look." Just as narrowband is
exempt from the cap, BellSouth contends, SMR dedicated to
data-only services should be as well. Essentially, BellSouth
maintains that the only purpose of the rule was to prevent the
exercise of market power in voice services, not non-voice
data-only services. This purpose is clear, BellSouth main-
tains, from the fact that (1) the Commission exempted nar-
rowband spectrum, which is used for non-voice services; (2)
in conducting its market analysis following the remand from
the Sixth Circuit, the Commission defined the market and
other terms such that the only economic justification for the
cap is to deter excess spectrum concentration and market
power in the voice communication market; and (3) the Com-
mission has repeatedly distinguished between covered SMR
(voice services) and non-covered SMR (non-voice services) in
regulatory decisions on the ground that the services did not
compete in the same market. Finally, BellSouth contends
that by failing to identify the standards for evaluating waiver
requests, the Commission has engaged in the type of tauto-
logical reasoning rejected by this court in WAIT Radio v.
FCC, 418 F.2d 1153, 1158 (D.C. Cir. 1969)(WAIT I). See
Pet'r's Br. at 19 ("In sum, the [Commission's] failure to cure
the overbreadth of its rule, coupled with its unwillingness to
entertain a clearly de minimis waiver was unreasoned deci-
sionmaking.").
A.
Under the Administrative Procedure Act, the court must
"hold unlawful and set aside agency action" that is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law." 5 U.S.C. s 706(2)(A) (1994). Thus, in
reviewing decisions of the Commission, the court
must affirm the decision if we find that it is not contrary
to law, that it is supported by substantial evidence and
based upon a consideration of the relevant factors, and if
we determine that the conclusions reached have a ration-
al connection to the facts found. When, as in this case,
an agency is obliged to make policy judgments where no
factual certainties exist or where facts alone do not
provide the answer, our role is more limited; we require
only that the agency so state and go on to identify the
considerations it found persuasive.
Melcher v. FCC, 134 F.3d 1143, 1152 (D.C. Cir. 1998) (cita-
tions and quotation marks omitted). Although the arbitrary
and capricious standard of review is deferential, the court will
"intervene to ensure that the agency has examine[d] the
relevant data and articulate[d] a satisfactory explanation for
its action. Where the agency has failed to provide a reasoned
explanation, or where the record belies the agency's conclu-
sion, we must undo its action." Petroleum Communications,
Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994) (alteration in
original) (citation and quotation marks omitted). However, to
the extent that the FCC's decision is based upon a "predictive
judgment," the court's review is "particularly deferential."
Melcher, 134 F.3d at 1151. The Commission is not required
"to 'conclusively establish' the factual validity of the agency's
premises." Id. (quoting FCC v. National Citizens Comm. for
Broad., 436 U.S. 775, 796 (1978)).
Challenging the denial of a waiver is likewise not an easy
task because an applicant for waiver bears the heavy burden
on appeal to show that "the Commission's reasons for declin-
ing to grant the waiver were so insubstantial as to render
that denial an abuse of discretion." Turro v. FCC, 859 F.2d
1498, 1499 (D.C. Cir. 1988); see also Thomas Radio Co. v.
FCC, 716 F.2d 921, 924 (D.C. Cir. 1983).
B.
Central to BellSouth's challenge to the spectrum cap is its
view that the cap has one goal: to foster competition in
mobile voice-to-voice communication. With this goal as a
basis for regulation, BellSouth contends that the FCC irra-
tionally included within the CMRS spectrum cap SMR spec-
trum dedicated to data services, which, BellSouth maintains,
can have no impact on the competitive nature of the voice
communication market. Yet the Commission has taken a
different position, maintaining that it was concerned with the
effect of CMRS spectrum aggregation on the development of
market power and on the competitive market for mobile
services as a whole in light of the predicted potential for
various services along that spectrum to converge. The gen-
eral cap on CMRS spectrum thus reflects concern for the
CMRS market generally. The Commission has predicted
that mobile services will converge because of consumer de-
mands and providers' technological capabilities to offer vari-
ous voice and data services. Contrary to BellSouth's charac-
terization, which either ignores or discredits other concerns
and objectives that resulted in the spectrum cap, the Commis-
sion has consistently maintained that general spectrum ag-
gregation will enable an anticompetitive exercise of market
power absent a cap on the amount of spectrum one entity can
hold. So viewed, BellSouth's contentions about the effects of
excluding SMR spectrum used to provide data-only services
falter. To exempt SMR spectrum "dedicated" to data-only
use, as BellSouth proposes, would not prevent an entity from
accumulating spectrum and in the process, would allow that
entity to preclude others from obtaining it. The same entity
could subsequently decide to use that spectrum to provide
voice services, a change over which the Commission has
limited control. Further, even the provision of data-only
services would have an impact on the market because mobile
voice and data services are marketed to the same consumers
and, under the Commission's theory, they are converging
services.
BellSouth maintains, however, that the economic analysis
conducted by the Commission in response to the remand by
the Sixth Circuit in Cincinnati Bell demonstrates that the
Commission is only concerned with the market for voice
communication. For purposes of its economic analysis, the
Commission defined the product market as "mobile two-way
voice communications service," and competitors as "licensees
for cellular service and broadband PCS, and the largest
interconnected SMR." Report & Order, 11 F.C.C.R. 7824,
7904 (1996). For purposes of its rulemaking, however, the
Commission has viewed the market as the CMRS spectrum
as a whole, not merely the provision of certain services on
that spectrum. It was this construction of the market that
controlled when the spectrum cap was first established in the
1994 Third Report and Order. While its HHI analysis
focused on voice-to-voice communication, thus indicating that
voice communication was high on the Commission's list of
concerns, there is nothing to suggest that the Commission
abandoned its more general concern in responding to the
Sixth Circuit's direction for a "reasoned basis" and "an eco-
nomic rationale" for the Commission's attribution and eligibil-
ity rules. To the contrary, what BellSouth fails to acknowl-
edge is that the HHI market analysis, although confined to
voice communication, takes into account general spectrum
aggregation and market concentration concerns underlying
the spectrum cap.
Since its Third Report and Order, the Commission has
focused on the CMRS spectrum as a whole. It has predicted
that the services provided on the CMRS spectrum will con-
verge. Those service providers who are not already actual
competitors are certainly potential competitors. See 9
F.C.C.R. at 8003, para. 27. As a cellular licensee, BellSouth
qualifies as a competitor. Once an entity qualifies as a
competitor, the Commission is concerned with how much
spectrum that entity accumulates. In its view, market power
hinges on the amount of spectrum an entity holds. CMRS
spectrum is a finite resource and is also exclusive in that
whatever one entity holds cannot be held by another. More-
over, all the spectrum included under the cap could potential-
ly be used to provide voice services. It follows that identifica-
tion of voice communications as the product market would not
undermine the force of the Commission's conclusion that a 45
MHz cap is needed to prevent the exercise of market power.
Furthermore, the fact that the Commission has distin-
guished between voice and data uses of SMR spectrum in
other regulatory decisions7 does not, as BellSouth appears to
conclude, necessarily demonstrate that the Commission's re-
fusal to do so with regard to the spectrum cap is arbitrary
and capricious. Rather, an examination of these decisions
reveals that the Commission made the "covered"/"non-
covered" distinction primarily in addressing how a carrier
could structure its CMRS services after acquiring the spec-
trum.
For example, in CMRS Resale Order, the Commission
decided that only covered SMR providers would be required
to comply with the cellular resale obligation, which prohibits
__________
7 See Telephone Number Portability, CC Docket No. 95-116
RM 8535, FCC 98-275 (released Oct. 20, 1998); In re Application
of Motorola, Memorandum Opinion & Order, 13 F.C.C.R. 5182
(1998) (ARDIS Order); Interconnection and Resale Obligations
Pertaining to CMRS, First Report & Order, 11 F.C.C.R. 18455
(CMRS Resale Order) (1996); Interconnection and Resale Obli-
gations Pertaining to CMRS, Second Report & Order, 11 F.C.C.R.
9462 (CMRS Roaming Order) (1996); Revision of the Commis-
sion's Rules to Ensure Compatibility with Enhanced 911 Emergen-
cy Calling Systems, Report & Order, 11 F.C.C.R. 18676 (E911
Order) (1996); Telephone Number Portability, First Report &
Order, 11 F.C.C.R. 8352 (1996) (Number Portability Order).
cellular carriers from restricting resale of their services. See
11 F.C.C.R. at 18,466, para. 19. The Commission concluded
that non-covered licensees, who offer narrowband-type ser-
vices, do not compete substantially with cellular and broad-
band PCS providers, and wished only to regulate providers
with "significant potential to compete directly with cellular
and broadband PCS providers in the near term." Id. Simi-
larly, in CMRS Roaming Order, the Commission extended
the manual roaming rule only to "all CMRS licensees compet-
ing in the mass market for real-time, two-way voice services"
including covered SMR providers. 11 F.C.C.R. at 9470, para.
12. With regard to non-covered licensees, the Commission
concluded that because they "do not compete substantially
with cellular and broadband PCS providers," these providers
would not be covered. Id. at 9471, para. 14. In other
proceedings, the Commission has continued to recognize the
covered/non-covered distinction in determining how carriers
can use their spectrum. See E911 Order, 11 F.C.C.R. at
18716, para. 81; Number Portability Order, 11 F.C.C.R. at
8355, para. 4 & 8433-34, para. 156. Recently the Bureau
permitted Motorola to transfer ownership interests in certain
telecommunications holdings to the American Mobile Satellite
Corporation, see ARDIS Order 13 F.C.C.R. at 5193-94, paras.
18-21, and the Commission decided that any CMRS system
not offering two-way switched voice service would be exempt
from the requirements of number portability, see Telephone
Number Portability, CC Docket No. 95-116 RM 8535, FCC
98-275 (released Oct. 20, 1998).
The Commission can reasonably and rationally distinguish
between regulating spectrum already held and regulating the
accumulation of spectrum. As the Commission notes in its
brief, the orders BellSouth cites for the covered/non-covered
SMR distinction address the current state of the market,
while the spectrum cap is forward looking, designed to pre-
vent the exercise of market power by providers in the future.
In addition, covered and non-covered SMR are not necessari-
ly mutually exclusive over time because the distinction is
based on the services offered. Presumably, a licensee may
choose to offer services that would render it subject to the
regulations for covered SMR; thus, a built-in remedy exists
for such developments should they occur. By contrast, the
acquisition of spectrum must be limited from the outset.
Once an entity acquires the spectrum, it can exercise market
power and prevent other licensees from acquiring that spec-
trum. Although BellSouth argues that the covered/non-
covered SMR distinction should operate in the spectrum
aggregation context just as it does in the spectrum regulation
context, BellSouth has identified no parallel built-in remedy
whereby an entity can be divested of spectrum if the Commis-
sion later discovers that the market is anticompetitive. The
practical differences between regulating the use--as opposed
to the acquisition--of spectrum can reasonably render the
covered/non-covered SMR distinction inapplicable in this con-
text.
Ultimately, BellSouth's contentions fail because of its re-
stricted view of the Commission's goals and purposes that
directly contradicts the Commission's analysis. Absent a
showing that SMR spectrum dedicated to data is virtually
identical to the "narrowband" spectrum excluded from the
cap, which BellSouth failed to make in its briefs or at oral
argument, BellSouth cannot demonstrate that the Commis-
sion acted arbitrarily when it drew the line between SMR and
narrowband spectrum and included SMR in the 45 MHz cap.
The Commission's reliance on the converging nature of the
CMRS market is sufficient to justify its inclusion of all SMR
in the spectrum cap. Similarly, its explanation for the exclu-
sion of narrowband PCS from the cap, namely that it is
virtually impossible to accumulate sufficient spectrum, is ade-
quate.
C.
BellSouth's attack on the denial of its request for a waiver
of the spectrum cap fares no better. BellSouth focuses on
the fact that granting its waiver would have involved a de
minimis exception to the cap, and maintains that the RAM
spectrum was "incapable" of being used for voice communica-
tion.8 For these reasons it contends that the Commission
failed to give the requisite "hard look" at its waiver request
and that the Commission has effectively adopted a "no waiv-
er" policy for the spectrum cap. Maintaining further that the
Commission failed to articulate the standards it would apply
for waivers, BellSouth wants the court to require such articu-
lation. For the following reasons we conclude that BellSouth
has failed to show that the Commission's "reasons for declin-
ing the waiver were 'so insubstantial as to render that denial
an abuse of discretion.' " Thomas Radio Co. v. FCC, 716
F.2d 921, 924 (D.C. Cir. 1983) (quoting WAIT Radio v. FCC,
459 F.2d 1203, 1207 (D.C. Cir. 1972) (WAIT II)).
The "hard look" requirement assures that a general rule
serving the public interest for a broad range of situations will
not be rigidly applied where its application would not be in
the public interest as, for example, where an applicant "pro-
poses a new service that will not undermine the policy"
served by the rule. WAIT Radio v. FCC, 418 F.2d 1153, 1157
(D.C. Cir. 1969) (WAIT I). Therefore, when an agency
receives a request for waiver that is "stated with clarity and
accompanied by supporting data," such requests "are not
subject to perfunctory treatment, but must be given a hard
look." Id. While an agency must consider the relevant
factors, see KCST-TV, Inc. v. FCC, 699 F.2d 1185, 1191-92
(D.C. Cir. 1983), in explaining the denial of a waiver request,
"the agency is not required to author an essay for the
disposition of each application. It suffices, in the usual case,
that we can discern the why and wherefore." ICBC Corp. v.
FCC, 716 F.2d 926, 929 (D.C. Cir. 1983) (quotations omitted);
see also P&R Temmer v. FCC, 743 F.2d 918, 932 (D.C. Cir.
1984).
At the same time, an agency that is required to give a
"hard look" at a waiver request is not necessarily required to
have an existing waiver policy for all of its rules. The "strict
adherence to a general rule may be justified by the gain in
certainty and administrative ease, even if it appears to result
__________
8 Contrary to BellSouth's contentions, the record does not
confirm that SMR "dedicated" to data-only use is truly "incapable"
of being used for voice-to-voice services.
in some hardship in individual cases." Turro v. FCC, 859
F.2d 1498, 1500 (D.C. Cir. 1988); see also FCC v. WNCN
Listeners Guild, 450 U.S. 582, 601 n.44 (1981); Thomas
Radio, 716 F.2d at 925 & n.20. Rigid and consistent adher-
ence to a policy will be upheld if it is valid. See ICBC, 716
F.2d at 929.
From the outset, the Commission has characterized the
spectrum cap as a "bright line" rule. Third Report & Order,
9 F.C.C.R. 7988, 8104-05, para. 250 (1994). A spectrum cap,
unlike many other regulations, might actually require a
bright-line rule to be effective. Moreover, refusal to grant a
waiver to BellSouth does not necessarily mean that the
Commission has created a "no-waiver" policy. The Commis-
sion has consistently stated that the de minimis nature of the
excess above the cap, standing alone, would not justify a
waiver. At oral argument, the Commission explained that,
hypothetically, if a market was not adequately served by
providers, the Commission would consider permitting a carri-
er already in the market to accumulate spectrum above the
cap if it seemed that no competitor would enter the market
and use otherwise fallow spectrum. In other words, even a
bright-line rule may give way to special circumstances war-
ranting an exception in the public interest. Such circum-
stances do not arise, however, where, as here, a waiver
applicant seeks to circumvent a rule merely because it does so
only minimally.9
__________
9 To the contrary, BellSouth's situation arguably presents an
instance where the cap should apply. BellSouth is a major player
in the CMRS market, and the aggregation of CMRS spectrum,
regardless of the use to which it is put, allows BellSouth to exercise
market power. BellSouth's situation is also far less sympathetic
given the alternatives available, including divestiture of the .5 MHz
of SMR spectrum, geographic partitioning, and disaggregation of
larger spectrum blocks. Insofar as the record shows, BellSouth did
not attempt to exercise the divestiture option as the Bureau hinted
it could. Nor does BellSouth challenge the Commission's further
observations about how it might either acquire 19.5 MHz of
disaggregated PCS spectrum in the "after market" or partition its
licensing areas.
The Commission reasonably determined that the Bureau
gave BellSouth's waiver request a "hard look," explaining that
the cap was designed to prevent aggregation of spectrum as
well as spur competition and that BellSouth had alternative
ways to avoid exceeding the cap. Because BellSouth did not
explicitly present a de minimis argument in its waiver peti-
tion, the Bureau had no reason to address this argument in
its letter ruling.10 In any event, as we have explained, the de
minimis amount of excess above the cap will not suffice to
warrant a waiver. BellSouth has never explained how the
public interest would be served by granting its waiver re-
quest; instead it merely equates its own business interest
with the public interest. In the end, BellSouth's waiver
request, aside from its de minimis nature, is nothing but a
further attack on the Commission's decision to include all
SMR spectrum within the 45 MHz cap, a decision which we
have held to be reasonable.
Accordingly, we deny BellSouth's petition and affirm the
Commission's denial of the waiver request.
__________
10 Furthermore, BellSouth's contention that the Wireless Tele-
communications Bureau applied the wrong standard of review is of
no moment, given the virtual identity of material provisions of the
correct standard. The standard the Bureau should have applied
allows the Commission to grant a waiver that is founded upon an
appropriate general standard, shows special circumstances warrant-
ing a deviation from the general rule, and would serve the public
interest. See WAIT Radio, 418 F.2d at 1157-59. The standard the
Bureau used, which applies only to broadband PCS waivers, ex-
plains that a waiver will be granted upon a showing that "the
underlying purpose of the rule will not be served, or would be
frustrated, by its application in a particular case, and that grant of
the waiver is otherwise in the public interest," 47 C.F.R.
s 24.819(a)(1)(i), or that "unique facts and circumstances of a partic-
ular case render application of the rule inequitable, unduly burden-
some or otherwise contrary to the public interest," id.
s 24.819(a)(1)(ii).