United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 1999 Decided February 11, 2000
No. 99-1025
Entravision Holdings, LLC,
Petitioner
v.
Federal Communications Commission and
United States of America,
Respondents
Davis Television Fairmont, LLC,
Intervenor
On Petition for Review of an Order of the
Federal Communications Commission
Barry A. Friedman argued the cause for petitioner. With
him on the briefs was Michael L. Martinez.
K. Michele Walters, Counsel, Federal Communications
Commission, argued the cause for respondent. With her on
the brief were Christopher J. Wright, General Counsel, Dan-
iel M. Armstrong, Associate General Counsel, Joel I. Klein,
Assistant Attorney General, and Robert B. Nicholson and
Chris Sprigman, Attorneys, U.S. Department of Justice.
Before: Ginsburg, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Entravision Holdings, LLC, peti-
tions for review of an order of the Federal Communications
Commission denying reconsideration of a prior order. Be-
cause the Commission order denying reconsideration is unre-
viewable under ICC v. Brotherhood of Locomotive Engineers,
482 U.S. 270, 280 (1987), and we cannot fairly infer from
Entravision's filings an intent to seek review of the prior
order, we dismiss the petition for lack of jurisdiction.
I. Background
In 1997 the Federal Communications Commission proposed
to reallocate channels 60-69 from broadcast television service
to other commercial and public safety uses. Latin Communi-
cations Group (LCG), Entravision's predecessor in interest in
the licenses for two low power television (LPTV) stations
operating on channels 61 and 63, submitted comments to the
Commission suggesting certain protections be granted to
LPTV stations that would be displaced by the proposed
reallocation. The Commission adopted the reallocation pro-
posal but declined to adopt the protections suggested by
LCG. In re Reallocation of Television Channels 60-69,
Report & Order, 12 F.C.C.R. 22953 (Jan. 6, 1998). LCG filed
a petition for partial reconsideration, asking the Commission
to reconsider the Report & Order and to adopt the protec-
tions LCG had suggested. The Commission denied reconsid-
eration. In re Reallocation of Television Channels 60-69,
Memorandum Opinion & Order, 13 F.C.C.R. 21578 (Oct. 9,
1998).
Entravision and LCG then timely filed a joint petition for
review. Subsequently, LCG completed assignment of the two
LPTV broadcast licenses to Entravision and withdrew from
this action, leaving Entravision as the sole petitioner.
II. Analysis
Under Fed. R. App. P. 15(a), a petition for review of an
agency order must "specify the order or part thereof to be
reviewed."* Failure to specify the correct order can result in
dismissal of the petition. See City of Benton v. NRC, 136
F.3d 824, 826 (D.C. Cir. 1998); John D. Copanos & Sons, Inc.
v. FDA, 854 F.2d 510, 527 (D.C. Cir. 1988). A mistaken or
inexact specification of the order to be reviewed will not be
fatal to the petition, however, if the petitioner's intent to seek
review of a specific order can be fairly inferred from the
petition for review or from other contemporaneous filings,
and the respondent is not misled by the mistake. See Martin
v. FERC, No. 98-1398, 1999 WL 1261546, at *2-3 (D.C. Cir.
Jan. 25, 2000) (reviewing order underlying rehearing order
specified in petition because intent to seek review fairly
inferred from contemporaneous motion for stay and respon-
dent not prejudiced); Damsky v. FCC, No. 99-1018, 1999 WL
1211668, at *5-6 (D.C. Cir. Jan. 7, 2000) (reviewing order
underlying rehearing order specified in notice of appeal be-
cause intent to seek review fairly inferred from filings at-
tached to notice and repondent not prejudiced); Southwest-
ern Bell Telephone Co. v. FCC, 180 F.3d 307, 313 (D.C. Cir.
1999) (declining to review order underlying rehearing order
specified in petition because intent to seek review not fairly
inferable from petition, docketing statement, or preliminary
statement of issues); cf. Nichols v. Board of Trustees of
Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 889
(D.C. Cir. 1987) (reviewing judgment inexactly designated in
notice of appeal because contemporaneously-filed Rule 10(b)
certification adequate to infer intent to appeal from judgment,
and appellee not prejudiced); Brookens v. White, 795 F.2d
178, 180 (D.C. Cir. 1986) (declining to review unspecified
__________
* Effective December 1, 1998, Fed. R. App. P. 15(a) was amended
(in style but not in substance) to require that a petitioner "specify"
rather than "designate" the order or part thereof to be reviewed.
Because Entravision and LCG filed their petition after the amend-
ment, we refer to the amended version of the Rule in this opinion.
judgment because intent to appeal from that judgment not
fairly inferable from appellant's notice of appeal or subse-
quent filings).
Here Entravision specified for review the Memorandum
Opinion & Order. Under ICC v. Brotherhood of Locomotive
Engineers, 482 U.S. 270, 280 (1987), however, that order, in
which the Commission merely denied reconsideration of the
prior Report & Order, is unreviewable except insofar as the
request for reconsideration was based upon new evidence or
changed circumstances. See Southwestern Bell, 180 F.3d at
311. Because Entravision gave neither as a ground for
reconsideration of the Report & Order, the Memorandum
Opinion & Order is unreviewable. Therefore we must dis-
miss Entravision's petition for lack of jurisdiction* unless we
can fairly infer that Entravision intended to seek review of
the order not specified in the petition for review.
Entravision's claim that we may infer it intended to seek
review of the Report & Order appears to be foreclosed by
Southwestern Bell, 180 F.3d at 313-14. In that case the
agency had issued an Investigation Order prescribing certain
actions that local exchange carriers (LECs) were to take.
See id. at 310. Two LECs filed petitions for rehearing, which
the Commission denied in a Reconsideration Order. South-
western Bell then petitioned for review of the Reconsidera-
tion Order. We denied the petition for review because the
Reconsideration Order was unreviewable and we could not
fairly infer from the petition for review or nearly contempora-
neous filings an intent to seek review of the Investigation
Order: the petition itself designated for review only the
Reconsideration Order, and only that order was appended to
the petition; the docketing statement likewise named and had
appended only the Reconsideration Order; and the prelimi-
nary statement of issues discussed only matters raised in the
LECs' petitions for rehearing. See id. at 313; see also City
of Benton, 136 F.3d at 825-26 (dismissing petition that speci-
fied only an unreviewable order).
__________
* To the extent that Southwestern Bell Telephone Co. v. FCC, 180
F.3d 307 (D.C. Cir. 1999), and Beehive Telephone Co. v. FCC, 180
F.3d 314 (D.C. Cir. 1999), treat nonreviewability under Brotherhood
of Locomotive Engineers as nonjurisdictional, those holdings are
disapproved. See 482 U.S. at 287. Our resolution of this issue has
Entravision points to one difference between its filings and
those in Southwestern Bell and City of Benton: Entravision
expressly mentioned not just the order denying reconsidera-
tion but the underlying Report & Order--the one it wants the
court to review--in the petition for review. In context,
however, the mere mention of the Report & Order does not
make fairly inferable Entravision's intent to seek review of
that order. On the contrary, Entravision mentions the Re-
port & Order in its petition for review only in the course of
stating the history of the proceeding prior to the order of
which review is being sought. Consider:
[Entravision and LCG] petition this Court for review of
the [FCC's] Memorandum Opinion & Order ("MO&O"),
FCC 98-261 (released October 9, 1998; published in
Federal Register November 17, 1998), in which the FCC
denied LCG's Petition for Partial Reconsideration of the
FCC's earlier Report and Order ("RO&O") [sic] in which
it decided not to protect low power television ("LPTV")
stations operating on Channels 60-69.... A copy of the
MO&O is attached hereto as Exhibit A.... The MO&O
constitutes final FCC action rejecting LCG's request for
protection....
The clear import is that only the Memorandum Opinion &
Order is under review; this is reinforced by Entravision
having attached only the Memorandum Opinion & Order to
the petition. See 28 U.S.C. s 2344 ("The petitioner shall
attach to the petition as exhibits copies of the order, report,
or decision [for review]").
Entravision's contemporaneous filings even more clearly
demonstrate that it intended to put before the court only the
order denying reconsideration. Entravision's docketing
statement, filed within a month of its petition, specifies only
the Memorandum Opinion & Order for review: In the space
for denoting the "date(s) of order(s) [under review]," Entravi-
sion entered the date of the Memorandum Opinion & Order
and only that date. Entravision's preliminary statement of
issues, filed the same day, likewise points only to the Memo-
__________
been circulated to and approved by the entire court and thus
constitutes the law of the circuit. See Irons v. Diamond, 670 F.2d
265, 268 n. 11 (D.C. Cir. 1981).
randum Opinion & Order; there Entravision identifies two
issues, both of which relate exclusively to the Commission's
denial of reconsideration in the Memorandum Opinion &
Order:
1. Whether the FCC's denial of the Petition for Partial
Reconsideration was contrary to law ...;
2. Whether the FCC's denial of the Petition for Partial
Reconsideration adequately addresses how the FCC may
weigh the public interest benefits of continued LPTV
services....
Based upon Entravision's petition for review and these nearly
contemporaneous filings, we cannot fairly infer that it intend-
ed to seek review of the Report & Order. Because Entravi-
sion fails to satisfy this first requirement for review of an
unspecified order, we need not consider the second require-
ment--that the Commission not have been prejudiced by
Entravision's mistake. See Southwestern Bell, 180 F.3d at
314. We conclude that Entravision has not brought the
Report & Order before this court for review.
In a last ditch effort to avoid this conclusion, Entravision
claims that, because the Commission's argument based upon
Brotherhood of Locomotive Engineers and Southwestern Bell
would dispose entirely of the case, the Commission was
required by Interim D.C. Circuit Rule 27(g)(1) to raise it in a
timely-filed motion, and the Commission cannot now raise it
on brief. Rule 27(g)(1) provides:
Any motion which, if granted, would dispose of the
appeal or petition for review in its entirety, or transfer
the case to another court, must be filed within 45 days of
the docketing of the case in this court, unless, for good
cause shown, the court grants leave for a later filing.
If Entravision's interpretation of our Rule were correct, then
we suppose briefs would contain only non-dispositive argu-
ments and there would be no point in counsel writing them or
in our reading them. But of course, Entravision is not
correct: the Rule governs motions, not arguments, and is
therefore no bar to the disposition of this case on the basis of
the arguments in the briefs.
III. Conclusion
Entravision petitioned for review only of the Memorandum
Opinion & Order. Under Brotherhood of Locomotive Engi-
neers, 482 U.S. at 280, that order is unreviewable. Entravi-
sion's petition is therefore
Dismissed.