Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
–————
No. 01-1435 September Term, 2002
Filed On: February 6, 2003
21ST CENTURY TELESIS JOINT VENTURE AND
21ST CENTURY BIDDING CORPORATION,
APPELLANTS
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
SALMON PCS, LLC,
INTERVENOR
–————
Appeal of Orders of the
Federal Communications Commission
–————
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
ORDER
It is ORDERED, sua sponte, that the opinion filed herein
on January 31, 2003 is amended as follows:
Page 2, first paragraph of the decision, line 6, replace the
words ‘‘petitions for review of’’ with ‘‘appeals’’
Page 2, first paragraph of the decision, line 17, replace the
word ‘‘petition’’ with ‘‘appeal’’
2
Page 2, first paragraph of the decision, line 18, replace the
words ‘‘deny the petition in part’’ with ‘‘affirm the Commis-
sion’s decision’’
Page 2, first paragraph of the decision, line 22, replace the
word ‘‘petition’’ with ‘‘appeal’’
Page 2, first paragraph of the decision, line 28, replace the
words ‘‘deny the petition in part’’ with ‘‘affirm the Commis-
sion’s orders’’
Page 7, section II.A., line 2, replace the word ‘‘petitioner’’
with ‘‘appellant’’
Page 9, lines 13–14, replace the words ‘‘the court granted
its petition’’ with ‘‘it prevailed on appeal.’’
Page 9, line 38, replace the word ‘‘petition’’ with ‘‘appeal’’
Page 12, section III, line 2, replace the words ‘‘petition for
review’’ with ‘‘appeal’’
Page 15, first full paragraph, last line, replace the word
‘‘Respondent’s’’ with ‘‘Appellee’s’’
Page 15, replace the last paragraph with ‘‘Accordingly,
because 21st Century lacks standing to challenge the cancel-
lation of its C block licenses, we dismiss that portion of its
appeal; because 21st Century’s hearing contentions are not
properly before the court, as 21st Century failed to exhaust
its administrative remedies by timely presenting its hearing
arguments to the Commission, and its notice contentions fail
in light of record evidence that it had sufficient notice of its
payment obligations, we affirm the orders of the Commis-
sion.’’
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 01-1435 September Term, 2002
Filed On: January 31, 2003
21ST CENTURY TELESIS JOINT VENTURE AND
21ST CENTURY BIDDING CORPORATION,
APPELLANTS
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
SALMON PCS, LLC,
INTERVENOR
Appeal of Orders of the
Federal Communications Commission
–—————
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
ORDER
It is ORDERED, sua sponte, that the opinion filed herein
on January 31, 2003 is amended by adding a new sentence on
page 10, line 5, after the word ‘‘Act’’ as follows:
‘‘21st Century points to FCC v. NextWave Pers. Communi-
cations Inc., 2003 WL 166615 (U.S.), as supporting its claim
2
that the automatic cancellation of its licenses was effectively a
revocation requiring a hearing under § 312, but we do not
reach the merits of 21st Century’s argument because its
hearing contentions are time-barred.’’
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2002 Decided January 31, 2003
No. 01-1435
21ST CENTURY TELESIS JOINT VENTURE AND
21ST CENTURY BIDDING CORPORATION,
APPELLANTS
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
SALMON PCS, LLC,
INTERVENOR
Appeal of Orders of the
Federal Communications Commission
Russell D. Lukas argued the cause for appellants. With
him on the briefs was George L. Lyon, Jr. Thomas Gutierrez
entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Stanley R. Scheiner, Counsel, Federal Communications
Commission, argued the cause for appellee. With him on the
brief were John A. Rogovin, Deputy General Counsel, and
Daniel M. Armstrong, Associate General Counsel.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge WILLIAMS.
ROGERS, Circuit Judge: The Federal Communications Com-
mission canceled nineteen broadband licenses held by 21st
Century Telesis Joint Venture and 21st Century Bidding
Corporation (collectively ‘‘21st Century’’) following 21st Cen-
tury’s failure to make timely installment payments on
its licenses. 21st Century appeals Commission orders
determining that 21st Century was provided adequate
notice before cancellation of its licenses, and declining to
consider 21st Century’s late filed arguments that the auto-
matic cancellation rule exceeds the Commission’s statutory
authority and as applied violates due process. In re Request
for Extension of Installment Payment Due Date, 15 F.C.C.R.
14,814 (2000) (‘‘Division Order’’), reconsideration denied, In
re Licenses of 21st Century, 15 F.C.C.R. 25,113 (2000) (‘‘Re-
consideration Order’’), further reconsideration denied, In re
Licenses of 21st Century, 16 F.C.C.R. 17,257 (2001) (‘‘Second
Reconsideration Order’’). We dismiss the appeal in part
and affirm the Commission's deceison. Because 21st Century’s
challenges to the automatic cancellation of its C block licenses
are either moot or unripe, 21st Century lacks standing to
bring those challenges, and we dismiss that part of the
appeal. Because 21st Century fails to show with respect to
its F block licenses either that the Commission abused its
discretion under 47 U.S.C. § 405 and 47 C.F.R. § 1.106(f) by
declining to consider late filed hearing arguments, thus mak-
ing it improper for the court to address those contentions, or
that the Commission failed to provide sufficient notice of 21st
Century’s payment obligations, we affirm the Commission's orders.
3
I.
The Communications Act of 1934 (‘‘Act’’), as amended in
1993, authorizes the Commission to award radio licenses
‘‘through a system of competitive bidding.’’ 47 U.S.C.
§ 309(j)(1). In designing such a system, Congress directed
the Commission to ‘‘promot[e] economic opportunity TTT by
disseminating licenses among a wide variety of applicants,
including small businesses.’’ Id. § 309(j)(3)(B). Consistent
with this goal, Congress further directed the Commission to
‘‘consider alternative payment schedules and methods of cal-
culation, including lump sums or guaranteed installment pay-
ments.’’ Id. § 309(j)(4)(A). Pursuant to this mandate, the
Commission reserved two blocks of licenses, the ‘‘C’’ and ‘‘F’’
blocks, for bidding by small businesses, as defined in terms of
annual gross revenues and total assets. In re Implementa-
tion of Section 309(j) of the Communications Act, 9 F.C.C.R.
5532 ¶ ¶ 12, 115 (1994). Noting that the ‘‘primary impediment
to participation’’ in license auctions by small businesses is
‘‘lack of access to capital,’’ id. at ¶ ¶ 10, 135, the Commission
adopted an installment payment plan to allow successful
bidders in the C and F blocks to ‘‘pay their winning bid over
time.’’ Id. at ¶ ¶ 16, 136–38. In announcing these measures,
the Commission stated that ‘‘[t]imely payment of all install-
ments will be a condition of the license grant and failure to
make such timely payment will be grounds for revocation of
the license.’’ Id. at ¶ 138.
In May 1996 and January 1997, 21st Century was a suc-
cessful bidder, ultimately obtaining thirteen C block licenses
and six F block licenses. Each license stated on its face that
it was ‘‘conditioned upon the full and timely payment of all
monies due [under the Commission’s installment plan]’’ and
that ‘‘[f]ailure to comply with this condition will result in
automatic cancellation of this authorization.’’ Under the
Commission’s installment plan C block licensees were re-
quired to pay 90% of their net bid price over ten years, with
interest only paid for the first six years and interest and
principal paid for the remaining four, 47 C.F.R. § 24.711(b)(3)
(1996), and F block licensees were required to pay 80% of
their net bid price over ten years, with interest only paid for
4
the first two years and interest and principal paid for the
remaining eight. 47 C.F.R. § 24.716(b)(3) (1996).
After receiving numerous requests for relief from finan-
cially troubled licensees, the Commission, on March 31, 1997,
suspended installment payment obligations for C block licen-
sees, and on April 28, 1997, extended the suspension to F
block licensees. In re Amendment of the Comm’n’s Rules
Regarding Installment Payment Financing for PCS Licen-
sees, Second Report and Order and Further Notice of Pro-
posed Rule Making, 12 F.C.C.R. 16,436 ¶ ¶ 6, 14 (1997)
(‘‘Restructuring Order’’). The suspensions ended on Sep-
tember 25, 1997, when the Commission adopted three new
payment methods ‘‘designed to assist C block licensees expe-
riencing financial difficulties.’’ Id. at ¶ ¶ 1, 31–69. The
Commission gave licensees until June 8, 1998 to choose one
of the three restructuring schemes, and until July 31, 1998
to resume installment payments. Public Notice, Wireless
Telecommunications Bureau Announces June 8, 1998 Elec-
tion Date for Broadband PCS C Block Licensees, 13
F.C.C.R. 7413 (1998). Among the restructuring options, 21st
Century chose disaggregation, which required it to return
half of its 30 MHz of spectrum to the Commission in return
for forgiveness of the outstanding debt associated with the
returned 15 MHz, Restructuring Order, 12 F.C.C.R. 16,436
¶ ¶ 39–40, and the Commission sent 21st Century a Note
Modification dated July 15, 1998, setting the dates for fu-
ture installment payments as ‘‘October 31, January 31, April
30, and July 31 of each year.’’
Several months before licensees were to resume payment,
the Commission adopted rules regarding untimely payments.
47 C.F.R. § 1.2110(f) (1999). Under the new regulations,
licensees have an automatic 90–day ‘‘non-delinquency’’ period
after the installment payment due date, during which time
payment can be made with a five percent late fee. Id. at
§ 1.2110(f)(4)(I). If the licensee fails to remit the missed
installment during this first grace period, the rule provides
for a second automatic 90–day period in which the licensee
can remit payment with an additional late fee of ten percent.
Id. at § 1.2110(f)(4)(ii). Failure to submit an installment by
5
the last day of the second 90–day period results in automatic
cancellation of the license without further action by the
Commission. Id. at § 1.2110(f)(4)(iii).
21st Century made timely installment payments through
April 30, 1999. On July 20, 1999, 21st Century received a
payment notice from the Commission reminding it of the July
31, 1999 payment deadline. 21st Century missed this dead-
line, and in accordance with 47 C.F.R. § 1.2110(f)(4)(I), re-
ceived a ninety-day extension. On October 19, 1999, 21st
Century received a notice from the Commission reminding it
to make its October 31 payment and its July 31 payment with
the requisite late fee. 21st Century again failed to make its
July 31 payment, and in accordance with 47 C.F.R.
§ 1.2110(f)(4)(ii), received a second ninety-day extension,
making the final deadline for payment January 27, 2000.
When 21st Century did not submit its July 31, 1999 payment
by January 27, 2000, its licenses were automatically cancelled.
Thereafter, beginning on February 2, 2000, 21st Century
sought an extension of the payment deadline or a waiver of
the automatic cancellation rule. In the first of three letters,
James LaBelle, 21st Century’s Chief Executive Officer, ex-
plained that 21st Century was ‘‘unable to ensure that wire
transfers would be received [by the Commission by] January
27, 2000,’’ but that as of February 2, 2000, such funds were
available to be sent upon assurance from the Commission that
the licenses had not been canceled; the letter also stated that
some of the payment notices from the Commission had not
been received or had been received late. See Letter from
James A. LaBelle to Magalie Roman Salas (Feb. 2, 2000).
The second letter did not mention the payment notices, but
reiterated that 21st Century had the funds to cover the
payment if the Commission could assure it that its licenses
had not been canceled. See Letter from James A. LaBelle to
Magalie Roman Salas (Apr. 25, 2000). The third letter
stated both that the Commission had not met its responsibili-
ty of sending payment notices to 21st Century, and that 21st
Century had sufficient funds to make payment. See Letter
from James A. LaBelle to Magalie Roman Salas (July 25,
2000). On August 7, 2000, the Commission’s Auction and
6
Industry Analysis Division (‘‘Division’’) denied 21st Century’s
request for an extension of the January 27, 2000 late payment
deadline and its request for waiver of the Commission’s
automatic cancellation rule, stating that ‘‘21st Century was
aware of the deadline for submission of the installment pay-
ment and had ample time to secure financing.’’ Division
Order, 15 F.C.C.R. 14,814 (referred to by 21st Century as
‘‘Division Letter Ruling’’). The Division referenced notice of
the applicable deadlines from the Commission’s rules, the face
of the licenses, and the installment payment plan notes 21st
Century executed. Id.
Pursuant to 47 C.F.R. § 1.106(f), providing thirty days
from the denial of its requests to submit a ‘‘petition for
reconsideration and any supplement,’’ 21st Century timely
filed, on September 6, 2000, a petition for reconsideration of
the Division Order, arguing that 21st Century had not re-
ceived clear notice from the Commission with respect to its
payments and that the Division did not give the waiver
request a ‘‘hard look.’’ After the thirty-day period had
expired, 21st Century filed, on November 9, 2000, a motion
for leave to file a supplement to its petition for reconsidera-
tion and a Supplement to the Petition, which argued that the
Commission’s automatic cancellation rule violates due process
and that 21st Century had a statutory right to a pre-
cancellation hearing. The Commission denied 21st Century’s
petition for reconsideration on December 21, 2000, finding
that 21st Century had ample notice of the payment deadline
and that a waiver would not be in the public interest; the
Commission declined to address 21st Century’s hearing argu-
ments because they had not been timely filed. Reconsidera-
tion Order, 15 F.C.C.R. 25,113 n.4. The Commission also
denied 21st Century’s second petition for reconsideration on
the grounds that 21st Century’s requests for an extension of
time or waiver were filed after the payment deadline, that
21st Century had failed to raise any new facts as required for
reconsideration, and that the Commission was not required
under 47 C.F.R. § 1.106(f) to accept the untimely filed due
process claim because 21st Century provided no explanation
7
for its absence from the initial petition. Second Reconsidera-
tion Order, 16 F.C.C.R. 17,257 ¶ ¶ 11–24.
II.
Before turning to the merits of 21st Century’s challenges to
the Commission orders, the court must address two threshold
issues. The Commission contends, first, that 21st Century
has neither Article III standing to contest the cancellation of
its C block licenses nor prudential standing to raise its due
process and hearing contentions before the court. Second,
even if 21st Century has standing, the Commission contends
that 21st Century’s due process and hearing contentions are
time barred and thus unreviewable. Unlike our dissenting
colleague, neither we nor the parties find an exception in
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83
(1998), to the requirement that the court must initially deter-
mine whether a party has standing to bring each of its
contentions before the court. In Steel Co. the Supreme Court
rejected ‘‘the doctrine of hypothetical jurisdiction,’’ id. at 94,
and in distinguishing cases of ‘‘extraordinary procedural pos-
tures,’’ id. at 98, the Court does not suggest that the excep-
tion identified by the dissent applies where party A is chal-
lenging agency actions on several grounds, as distinct from
circumstances where resolution of the appeal of party B in
separate litigation has the effect of resolving a merits ques-
tion raised by party A ‘‘with the consequence that the juris-
dictional question could have no effect on the outcome.’’ Id.
at 98.
A.
The ‘‘irreducible constitutional minimum’’ for Article III
standing is that the appellant was injured in fact, that its
injury was caused by the challenged conduct, and that the
injury would likely be redressed by a favorable decision of the
court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992); Microwave Acquisition Corp. v. FCC, 145 F.3d 1410,
1412 (D.C. Cir. 1998). The Commission contends that 21st
Century lacks Article III standing with regard to its C block
8
licenses because it no longer seeks reinstatement of those
licenses and, therefore, has no redressable injury. 21st Cen-
tury responds that it has Article III standing both because it
had standing on the day it filed its notice of appeal, and
because it remains subject to FCC ‘‘debt collection proce-
dures,’’ as well as higher bidding requirements in future
auctions, which could be redressed by a decision in its favor.
We conclude that the court does not have jurisdiction to
review 21st Century’s challenge to the cancellation of its C
block licenses.
Article III, section 2 of the Constitution limits federal
courts to deciding ‘‘actual, ongoing controversies.’’ Honig v.
Doe, 484 U.S. 305, 317 (1988). Although standing is deter-
mined ‘‘at the time [an] action commences,’’ Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167,
191 (2000); Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d
633, 636 (D.C. Cir. 2000); U.S. Airwaves, Inc. v. FCC, 232
F.3d 227, 232 (D.C. Cir. 2000) (citing Smith v. Sperling, 354
U.S. 91, 93 n.1 (1957)), the court is not relieved from evaluat-
ing mootness ‘‘through all stages’’ of the litigation in order to
ensure there remains a live controversy. Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477 (1990); see also Laidlaw, 528
U.S. at 189. Thus, ‘‘[e]ven where litigation poses a live
controversy when filed, the doctrine [of mootness] requires a
federal court to refrain from deciding it if ‘events have so
transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future.’ ’’ Clarke v. United States, 915
F.2d 699, 701 (D.C. Cir. 1990) (citation omitted); see also Am.
Family Life Assurance Co. v. FCC, 129 F.3d 625, 628 (D.C.
Cir. 1997).
When 21st Century filed its appeal to the court, it had
suffered a financial injury-in-fact from the loss of its C block
licenses; that injury resulted from the Commission’s auto-
matic cancellation of its licenses; and it was seeking rein-
statement of its C block licenses. 21st Century’s subsequent
decision not to seek reinstatement of its C block licenses,
however, rendered moot its claim of financial injury resulting
from the loss of those licenses by eliminating any possibility
9
that a decision of the court could redress that injury. Fur-
ther, contrary to 21st Century’s position, its standing cannot
be based on the fact that it remains subject to the Commis-
sion’s debt collection procedures and higher bidding require-
ments in future auctions. First, regarding debt collection,
because 21st Century defaulted in making timely payments
for its licenses, it is required, under 47 C.F.R. §§ 1.2104(g)(2),
1.2109, to pay the difference between the amount of its
outstanding debt and the reauction price of its licenses, as
well as a penalty of three percent of the reauction price. See
also Mountain Solutions, Ltd. v. FCC, 197 F.3d 512, 522–23
(D.C. Cir. 1999). However, 21st Century would remain sub-
ject to such debt collection even if it prevailed on
appeal. By choosing not to seek reinstatement of its C
block licenses, 21st Century is effectively giving up the licens-
es, which subjects it to the same penalties under
§ 1.2104(g)(2) for defaulting. Second, regarding future bid-
ding, the matter is unripe. While the Commission’s rules
require previous defaulters to pay 1.5 times more on future
winning auction bids than non-defaulters, see In re Amend-
ment of Part 1 of the Comm’ns Rules, 15 F.C.C.R. 15,293 ¶ 42
(2000), 21st Century has provided no evidence that it intends
to participate in future auctions. The Supreme Court has
instructed that ‘‘[a] claim is not ripe for adjudication if it rests
upon contingent future events that may not occur as antici-
pated, or indeed may not occur at all.’’ Texas v. United
States, 523 U.S. 296, 300 (1998) (internal quotation marks
omitted). Without any indication from 21st Century that its
participation in a Commission auction is ‘‘certainly impend-
ing,’’ Wyoming Outdoor Council v. United States Forest
Serv., 165 F.3d 43, 48 (D.C. Cir. 1999) (citation omitted), its
challenge to the cancellation of its C block licenses by reason
of future bidding requirements is unripe for review.
Accordingly, because ‘‘Congress’ decision to grant a partic-
ular plaintiff the right to challenge an Act’s constitutionality
TTT eliminates any prudential standing limitationsTTTT’’
Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997), we dismiss the
appeal with regard to the challenges to the C block licenses
cancellation.
10
B.
The second threshold question is whether the court can
properly consider 21st Century’s contentions that the Com-
mission’s automatic cancellation rule violates due process and
that it was entitled to a pre-cancellation hearing under
§ 312(c) of the Act. 21st Century points to FCC v. NextWave
Pers. Communications Inc., 2003 WL 166615 (U.S.), as sup-
porting its claim that the automatic cancellation of its licenses
was effectively a revocation requiring a hearing under § 312,
but we do not reach the merits of 21st Century’s argument
because its hearing contentions are time-barred. Section
405(a) of the Act provides that ‘‘[a] petition for reconsidera-
tion must be filed within thirty days from the date upon
which public notice is given of the order.’’ 47 U.S.C.
§ 405(a). Section 1.106(f) of the Commission’s rules further
states that ‘‘[n]o supplement or addition to a petition for
reconsideration TTT, filed after expiration of the 30 day
period, will be considered except upon leave granted upon a
separate pleading for leave to file, which shall state the
grounds therefor.’’ 47 C.F.R. § 1.106(f). Although § 405
does not prohibit the Commission’s consideration of late filed
petitions, and the language of its rule affords discretion to the
Commission to review late-filed claims, Second Reconsidera-
tion Order, we find no abuse of discretion by the Commission
in declining to address 21st Century’s hearing and due pro-
cess arguments. Consequently, these contentions are not
properly before the court.
21st Century filed its hearing arguments on November 9,
2000, more than thirty days after the Division Order of
August 7, 2000. It never stated any grounds for its failure to
meet the filing deadline. Thus, 21st Century failed both to
meet the filing deadline and to provide an explanation of why
the arguments in its Supplement to the Petition were not part
of its initial petition for reconsideration. The Commission
explained that 21st Century’s failure to raise its hearing
arguments in either its letters or its initial petition ‘‘thwarts
procedures designed to bring a prompt and final resolution to
matters.’’ 16 F.C.C.R. 17257 ¶ 18.
The court has discouraged the Commission from accepting
late petitions in the absence of extremely unusual circum-
11
stances. Virgin Islands Tel. Corp. v. FCC, 989 F.2d 1231,
1237 (D.C. Cir. 1993); Reuters Ltd. v. FCC, 781 F.2d 946,
951–52 (D.C. Cir. 1986); cf. Gardner v. FCC, 530 F.2d 1086,
1091–92 & n.24 (D.C. Cir. 1976). In Virgin Islands, for
example, the court found no abuse of discretion when the
Commission declined to entertain a late-filed petition in the
absence of extenuating circumstances prohibiting a timely
filing. 989 F.2d at 1237; cf. Reuters, 781 F.2d at 952.
Similarly here, the Commission could properly conclude that
it was ‘‘not inclined to exercise [its] discretion to hear late-
filed supplements when [the] petitioner offers no plausible
explanation as to why supplemental arguments were not
made in an initial petition.’’ Second Reconsideration Order,
16 F.C.C.R. 17,257 ¶ 18. 21st Century’s position that the
Commission was required to review its late-filed due process
claim because it raises a constitutional issue is without merit.
While 21st Century focuses on the court’s statement that
‘‘agencies do have ‘an obligation to address properly present-
ed constitutional claims which TTT do not challenge agency
actions mandated by Congress,’ ’’ McBryde v. Comm. to Rev.
Circuit Council Conduct, 264 F.3d 52, 62 (D.C. Cir. 2001)
(quoting Graceba Total Communications, Inc. v. FCC, 115
F.3d 1038, 1042 (D.C. Cir. 1997)), it ignores the fact that 21st
Century’s hearing arguments were not properly presented,
and hence the Commission was under no obligation to review
them.
Nonetheless, 21st Century maintains that the court can
review its hearing arguments on the merits even though the
Commission declined to do so. Responding to the Commis-
sion’s reliance on Virgin Islands for the proposition that
‘‘issues must be raised before the Commission as a prerequi-
site to our review,’’ 989 F.2d at 1237 (citation omitted), 21st
Century relies on Time Warner Entm’t Co. v. FCC, 144 F.3d
75 (D.C. Cir. 1998), in support of its view that its hearing
arguments were flagged such that ‘‘a reasonable Commission
necessarily would have seen the question TTT as part of the
case presented to it,’’ id. at 81, and thus the court can review
its hearing contentions. However, the requirement that ar-
guments be ‘‘raised before the Commission’’ is not satisfied
by an untimely supplement filed without excuse such that the
12
Commission could properly deny leave to file. See Virgin
Islands, 989 F.2d at 1237. 21st Century’s reliance on AT&T
Co. v. FCC, 974 F.2d 1351 (D.C. Cir. 1992), is to no avail as
nothing in that case indicates that there was a late filing or
other procedural default. Id. at 1354. 21st Century’s hear-
ing arguments were not properly raised before the Commis-
sion because they were untimely filed. By failing to comply
with the Commission’s procedural requirements, 21st Century
thus failed to exhaust its administrative remedy. As the
court held in Northwestern Indiana Tel. Co., Inc. v. FCC, 872
F.2d 465, 470–71 (D.C. Cir. 1989), cert. denied, 493 U.S. 1035
(1990), a case in which constitutional claims were at issue:
Petitioners contend, however, that section 405’s ex-
haustion requirement has been met by virtue of the
[Commission’s] having enjoyed an ‘‘opportunity’’ TTT
to address these claims. As we just noted, however,
exhaustion principles normally require compliance
with the agency’s procedural rulesTTTT The rele-
vant inquiry is thus whether, in light of petitioners’
initial failure to raise constitutional and statutory
issues, the Commission erred in not addressing
these argumentsTTTT We think not.
Consequently, 21st Century is procedurally barred under
§ 405 of the Act and § 1.106(f) of the Commission’s rules
from presenting its hearing contentions to the court.
III.
Turning to the remaining merits contentions in 21st Centu-
ry’s appeal, 21st Century challenges the Commis-
sion’s orders on the ground the Commission failed to provide
it with notice of its payment obligations before canceling its
licenses, as required by the Commission’s rules. The court
need not decide if the Commission’s rules require such notice
because the record shows that 21st Century had notice of its
payment obligations before its F block licenses were canceled.
The Commission notified 21st Century of the terms of its
installment plan on at least six different occasions: (1) Each
of the installment plan notes, signed by the President or the
Secretary of 21st Century, included an amortization table
13
setting forth the specific amounts due and the date by which
the payments were due; (2) The face of each license issued to
21st Century stated that full and timely payment was re-
quired to avoid license cancellation; (3) The Restructuring
Order, 12 F.C.C.R. 16,436, described the new payment dead-
lines associated with the restructuring scheme, reiterated the
importance of full and timely payments, and provided exam-
ples of how to calculate those payments; (4) The Note Modi-
fication sent after 21st Century elected disaggregation set
forth the actual dates for 21st Century’s future installment
payments; (5) The Commission’s payment policy, announced
by public notice and subsequently codified at 47 C.F.R.
§ 1.2110(f), stated that licensees that miss a payment dead-
line by more than 180 days are in default and face automatic
license cancellation, see Public Notice, Wireless Telecommu-
nications Bureau Provides Guidance on Grace Period and
Installment Payment Rules, 13 F.C.C.R. 18,213 (1998); and
(6) The Commission sent notices, which it characterizes as
‘‘courtesy payment notices,’’ to remind licensees of their
impending payment deadlines.
Notwithstanding these notices of its payment obligations,
21st Century contends that the payment rules were confusing
and that it often received incorrect or late payment notices
from the Commission, thereby making any notice it did
receive ineffective. James LaBelle, 21st Century’s Chief
Executive Officer, stated in his declaration that 21st Century
was ‘‘never clear as to the amount of [its] installment pay-
ments;’’ received payment notices late in January 2000; re-
ceived payment notices for licenses the company no longer
owned; and received notices containing incorrect calculations
of late fees and accrued interest. Relying on Trinity Broad.
of Florida, Inc. v. FCC, 211 F.3d 618 (D.C. Cir. 2000), Salzer
v. FCC, 778 F.2d 869 (D.C. Cir. 1985), Satellite Broad. Co. v.
FCC, 824 F.2d 1 (D.C. Cir. 1987), and Gardner, 530 F.2d
1086, 21st Century maintains that the court should excuse its
failure to comply with uncertain rules. However, the cases
on which 21st Century relies do not support its position.
In Trinity, the court held that a newly announced rule
could not be applied against Trinity because the rule was not
‘‘ascertainably certain,’’ and Trinity did not have fair notice of
14
the new requirement. 211 F.3d at 628. The regulation in
Trinity required companies to establish ‘‘minority control’’
over their stations, and Trinity had done so by making
minorities a majority of its governing board. Id. Unlike
Trinity, 21st Century never attempted to comply with the
Commission’s rule by making its July 2000 payment in a
timely manner, and the approximate amounts and require-
ments for making the payments were clear at the time 21st
Century defaulted, as is evidenced by 21st Century’s success-
ful compliance with the payment rule for more than a year.
Moreover, 21st Century never claimed in its three post-
default-and-license-cancellation letters that its failure to pay
timely was related to its inability to understand what it owed.
Rather, 21st Century’s letters stated that it had not met the
payment deadline because it was unable to arrange for timely
financing due to its general financial problems.
21st Century’s reliance on Salzer and Satellite Broadcast-
ing is also misplaced. In those cases the failure to follow an
unclear rule was excused in light of an attempt to comply and
a genuine question of interpretation. In Salzer, the Commis-
sion had not provided the supplemental form required for a
filing and thus it was reasonable for Salzer to file an other-
wise complete application, only filing the supplemental form
when it became available. 778 F.2d at 875. Similarly, in
Satellite Broadcasting, the company met its deadline but filed
in the wrong place because the rule described the filing
location in a ‘‘baffling and inconsistent’’ way. 824 F.2d at 2–4.
Here, the requirements of the rule admit of no such confu-
sion, as again is evident from 21st Century’s timely payments
for more than a year without claiming uncertainty about the
amount of payment due. Nor can 21st Century prevail under
the rationale of Gardner, where the petitioner lacked actual
notice of the final decision and therefore missed the filing
deadline. 530 F.2d at 1088–90. 21st Century had actual
notice of its payment obligations independent of the Commis-
sion’s January 2000 payment notice, and 21st Century’s as-
serted confusion about what it owed is linked, according to its
own correspondence with the Commission, to its lack of
timely financing. Even if the payment notices contained
errors, unlike Gardner, 21st Century knew that payments for
15
the disaggregated C block licenses were half what they had
been before disaggregation, knew that payment for its F
block licenses were unchanged, was aware of the original
amortization scheme, and had successfully met prior dead-
lines.
In any event, 21st Century may not ‘‘turn a clerical error
into a windfall of ‘rights it would not otherwise enjoy.’ ’’
State of Oregon, 102 F.3d 583, 586 (D.C. Cir. 1996) (quoting
Florida Inst. of Tech. v. FCC, 952 F.2d 549, 553 (D.C. Cir.
1992)). 21st Century’s first two post-default-cancellation let-
ters indicate that the reason 21st Century missed the pay-
ment deadline was because it was unable to arrange for
timely financing; 21st Century sought a waiver of the auto-
matic cancellation rule not because of confusion about the
amount it owed but because it was not in possession of
sufficient funds to make timely payment. Furthermore, even
if it was uncertain about the precise dollar amount, a prudent
licensee would have attempted to make ‘‘a reasonable effort
to comply,’’ Florida Inst., 952 F.2d at 550. As the Commis-
sion states in its brief, ‘‘discrepancies in payment notices,
even had they produced some genuine uncertainty, would
hardly have justified 21st Century’s decision to make no
payment at all.’’ Appellee’s Br. at 39.
Accordingly, because 21st Century lacks standing to
challenge the cancellation of its C block licenses, we dismiss
that portion of its appeal; because 21st Century's hearing
contentions are not properly before the court, as 21st Century
failed to exhaust its administrative remedies by timely
presenting its hearing arguments to the Commission,
and its notice contentions fail in light of record evidence that it
had sufficient notice of its payment obligations, we affirm the
orders of the Commission.
1
WILLIAMS, Senior Circuit Judge, concurring in part and
dissenting in part: I agree with the majority opinion in every
respect except the conclusion that we cannot decide the
claims regarding the C block licenses. The majority may well
be right in rejecting 21st Century’s standing argument, but it
does so on the basis of extremely sketchy briefing, resolving a
number of substantive issues of communications law en route.
This trip is not necessary. Under Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83 (1998), of course, a court
faced with a difficult jurisdictional issue generally may not
proceed to the merits without resolving that issue, even
‘‘where (1) the merits question is more readily resolved, and
(2) the prevailing party on the merits would be the same as
the prevailing party were jurisdiction denied.’’ Id. at 93.
But Steel Co. recognized an exception. Where the court
actually decides the merits question ‘‘in a companion case,’’
there is no need to address the jurisdictional question. Id. at
98. In such a situation the disposition in the companion case
‘‘renders the merits in the present case a decided issue and
thus one no longer substantial in the jurisdictional sense.’’
Id. (quoting Norton v. Mathews, 427 U.S. 524, 530–31 (1976)).
Here the disposition of the F block license claims totally
resolves the merits on the C block licenses, as no merits
difference exists between them. Since we plainly have juris-
diction over the F block claims, I see no reason not to employ
the Steel Co. exception here.
The rule in Steel Co. is driven by concern that otherwise
courts would violate separation of powers by expounding on
substantive issues of law where they lack jurisdiction. Steel
Co., 523 U.S. at 101–02. Here the majority’s failure to apply
the exception ironically leads it to resolve sharply disputed
and ill-briefed substantive issues. Of course the court always
has jurisdiction to determine such questions as are necessary
to determining its jurisdiction, so the court does not affirma-
tively violate Steel Co. But disregard of the Steel Co. excep-
tion leads it into quite unnecessary merits decisions, in ten-
sion with the case’s basic message.
2
Nor can I understand the reason proffered by the majority
for non-application of the exception. See Maj. Op. at 7. It
seems to be saying that the exception can apply only where
the case of questionable jurisdiction is brought by a party
different from the one bringing the other case. Nothing in
Steel Co. suggests any such second-party requirement, and no
reason for the requirement comes to mind. To the extent
that the majority’s wording suggests that different issues are
raised with respect to the C and F blocks, that is simply not
the case.