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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2003 Decided July 25, 2003
No. 02-1098
TRANSPORTATION INTELLIGENCE, INC.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
HIGHWAY INFORMATION SYSTEMS, INC.,
INTERVENOR
Appeal of an Order of the
Federal Communications Commission
Donald J. Evans argued the cause and filed the briefs for
appellant.
Pamela L. Smith, Counsel, Federal Communications Com-
mission, argued the cause for appellee. With her on the brief
were Jane E. Mago, General Counsel, and John E. Ingle,
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
Deputy Associate General Counsel. Daniel M. Armstrong,
Associate General Counsel, entered an appearance.
James A. Stenger argued the cause and filed the brief for
intervenor. Charles A. Zdebski entered an appearance.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Transportation Intelligence, Inc.
appeals from an order of the Federal Communications Com-
mission denying the company’s application for review of a
decision to authorize a competitor to market a radio transmit-
ter. Finding that the Commission’s order was neither arbi-
trary nor capricious, we affirm.
I
Both Transportation Intelligence (TransIntel) and Highway
Information Systems (Highway) manufacture and sell high-
way advisory radio systems, which use low-power AM radio
transmitters to broadcast traffic, emergency, and other infor-
mation to drivers.1 TransIntel is a competitor, as well as a
customer, of Highway; each company has developed and
markets its own radio transmitter, while TransIntel also
resells some of Highway’s devices. TransIntel’s principals,
Joanne and John Alpiser, were employed by Highway until
they left to start TransIntel in 1994. Joanne Alpiser’s father,
Virgil Duncan, was also employed by Highway until he left
the firm in 1998.
The Communications Act of 1934 grants the Federal Com-
munications Commission (FCC) authority to promulgate ‘‘rea-
sonable regulations,’’ consistent with ‘‘the public interest,
convenience, and necessity,’’ to govern ‘‘the interference po-
tential of devices which in their operation are capable of
emitting radio frequency energy TTT in sufficient degree to
1 Highway is a successor in interest to a chain of companies that
marketed the transmitter at issue in this case. For convenience, we
refer to all of the companies as ‘‘Highway.’’
3
cause harmful interference to radio communications.’’ 47
U.S.C. § 302a(a). Acting pursuant to that authority, the
FCC generally prohibits the sale of radio frequency devices
absent FCC authorization, which for the type of transmitter
at issue in this case requires the seller to obtain ‘‘certifica-
tion.’’ See 47 C.F.R. §§ 2.803(a), 2.907; see generally id.
§ 2.801 et seq. A party seeking certification must submit a
written application to the Commission, complete with detailed
descriptions and measurements, ‘‘showing compliance with
the pertinent FCC technical requirements.’’ Id.
§ 2.1033(b)(6); see id. §§ 2.1031-.1060. The Commission will
grant a certificate only if it determines that the equipment is
capable of complying with those requirements and that the
grant ‘‘would serve the public interest, convenience and ne-
cessity.’’ Id. § 2.915(a); see id. § 2.919.2
Once the FCC grants an application, any modification in
the ‘‘design, circuitry or construction’’ of the equipment re-
quires a new application for certification. Id. § 2.932(a).
There is an exception, however, for certain minor modifica-
tions classified as ‘‘permissive.’’ Id. § 2.932(b). If the FCC
finds that a manufacturer has failed to abide by these rules, it
may revoke the device’s certification or assess a forfeiture
penalty. See id. §§ 1.80(a), 2.939.
On May 19, 2000, TransIntel filed a complaint with the
Commission, alleging, among other things, that Highway had
made substantial modifications to a low-power AM transmit-
ter that the FCC had originally authorized in 1979, without
seeking a new equipment certification. TransIntel stated
that it discovered those modifications when purchasers of that
2 As of 1999, the FCC permitted parties to submit an application
either to the agency or to a designated private entity, known as a
‘‘Telecommunication Certification Body,’’ authorized by the FCC to
certify equipment. Streamlining the Equipment Authorization Pro-
cess, 64 Fed. Reg. 4984, 4985-90 (FCC Feb. 2, 1999) (codified at 47
C.F.R. §§ 2.960, .962); see 47 U.S.C. § 302a(e) (authorizing the
FCC to use ‘‘private organizations for testing and certifying the
compliance of devices’’). The application at issue in this case was
submitted to the FCC itself.
4
Highway transmitter, which TransIntel had resold, com-
plained that the device caused interference with radio trans-
missions in Rockland County, New York. TransIntel asked
the FCC to revoke Highway’s certification, require a recall,
impose a fine, and conduct a hearing on Highway’s character
and fitness to hold an FCC equipment certification.
Highway responded to TransIntel’s complaint by submit-
ting an application for a new certification of the modified
transmitter, which Highway had also altered to address the
complained-of interference. Highway stated that it regarded
the modifications it had made in its authorized device as
‘‘permissive,’’ but was applying for a new certification because
it could not locate the original test data. On June 28, the
FCC’s Office of Engineering and Technology (OET) granted
Highway’s application.
On July 28, 2000, TransIntel filed a petition for reconsider-
ation with OET. It asked that Highway’s certification be
rescinded or that a hearing be held on the matter in light of
what it described as Highway’s willful violations of FCC
regulations. In a letter dated November 17, 2000, addressing
both TransIntel’s complaint and its petition for reconsidera-
tion, OET denied the petition, refused to revoke Highway’s
new certification, and deferred a decision on whether High-
way’s alleged earlier infractions warranted a forfeiture penal-
ty. OET stated that, because Highway’s modified device had
now been properly certified and the interference concerns
resolved, revocation of the certification was inappropriate.
On December 15, 2000, TransIntel applied for review by
the Commission of OET’s decision on its petition for reconsid-
eration. TransIntel again requested that the FCC revoke
Highway’s certification or hold a hearing to determine wheth-
er Highway had the qualifications for an equipment certifica-
tion. After considering the parties’ written submissions, the
Commission denied TransIntel’s application for review and
refused to revoke the certification or designate the matter for
a hearing. See Highway Info. Sys., 17 F.C.C.R. 4027, 4029-
30 (2002) [hereinafter FCC Order].
In denying TransIntel’s application for review, the Com-
mission rejected Highway’s argument that the modifications
5
it had made to its transmitter were permissive changes that
did not require a new equipment authorization. Nonetheless,
the FCC affirmed OET’s grant of certification. Although the
modifications were not permissive as defined by FCC rules,
the Commission determined that they were ‘‘relatively innoc-
uous,’’ that ‘‘the resulting modified transmitter readily passed
the Certification process,’’ and that the device was ‘‘now
properly certified.’’ Id. at 4029. It also explained that the
interference of which TransIntel complained ‘‘was not the
result of a rule violation or the lack of appropriate re-
Certification.’’ The Commission noted that although it might
have pursued the imposition of a fine as an enforcement
matter, the one-year statute of limitations for such a sanction
had already passed. Id. (citing 47 C.F.R. § 1.80(a)(3)); see
47 C.F.R. § 1.80(c)(3). But ‘‘revocation of the equipment
authorization sought by TransIntel is not an appropriate
remedy or sanction in this case,’’ the Commission said, noting
that it had ‘‘stated before that violation of section 2.803 of our
rules generally does not form the basis for a denial of an
equipment authorization.’’ Id. (citing Toshiba Corp., 57 Rad.
Reg. 2d (P & F) 1619, 1622 & n.5 (1985)).
The FCC did not exclude the possibility that ‘‘perpetration
of a fraud on the Commission TTT could form the basis of such
a denial.’’ Id. It concluded, however, that ‘‘TransIntel has
not raised a substantial and material question of fact as to
whether Highway’s actions were so willful or deliberate as to
rise to the level of implicating Highway’s fitness to hold a
FCC equipment authorization.’’ Id. Nonetheless, the Com-
mission noted that it might ‘‘call in further post-grant samples
of the Highway device to ensure that it continues to comply,’’
and warned that ‘‘[a]ny new instance of non-compliance by
Highway could result in sanctions including fines and forfei-
tures’’ and, if continuous or repeated, ‘‘could call into question
Highway’s fitness to hold an equipment authorization.’’ Id.
II
As we have recounted, the Commission’s order denied
TransIntel’s application for review of OET’s denial of
6
TransIntel’s petition for reconsideration, including TransIn-
tel’s request for revocation of the certification granted to
Highway by OET. TransIntel now appeals from the FCC’s
order. Before we may address the merits of that appeal, we
must consider threshold questions concerning our jurisdiction
and standard of review.
A
The denial of a petition for reconsideration by the Commis-
sion is generally nonreviewable, unless the request for recon-
sideration was based on ‘‘ ‘new evidence or changed circum-
stances.’ ’’ Schoenbohm v. FCC, 204 F.3d 243, 250 (D.C. Cir.
2000) (quoting ICC v. Brotherhood of Locomotive Eng’rs, 482
U.S. 270, 284 (1987)); see Entravision Holdings, LLC v. FCC,
202 F.3d 311, 313 & n.** (D.C. Cir. 2000). The FCC does not
contend that TransIntel’s appeal is unreviewable on this
ground, however, and rightly so. In this case, the FCC did
not deny a petition for reconsideration of its own prior
decision, but rather that of a staff office. Moreover, although
TransIntel characterized its filing with OET as a ‘‘petition for
reconsideration’’ of OET’s decision to grant Highway’s appli-
cation for a new certification, it was in fact the first opportu-
nity that the FCC’s rules afforded TransIntel to make any
filing at all regarding that application, and hence the first
opportunity OET had to rule on TransIntel’s opposition to the
application. See 47 C.F.R. § 2.923 (providing that only
‘‘[p]ersons aggrieved by virtue of an equipment authorization
action’’ may file ‘‘a petition for reconsideration or an applica-
tion for review’’ (emphasis added)). Accordingly, both the
OET decision of which TransIntel sought review before the
Commission, and the FCC decision of which TransIntel seeks
review in this court, were dispositions of TransIntel’s first
filings at each level of the agency. The principle that agency
denials of reconsideration are generally nonreviewable is
therefore inapplicable to this case.
The Commission does advance another ground, however,
for concluding that this court lacks jurisdiction to review its
order. The FCC argues that the order was nothing more
7
than a determination not to take enforcement action, a cate-
gory of decision that — like a denial of reconsideration — is
presumptively ‘‘committed to agency discretion’’ and hence
unreviewable. Heckler v. Chaney, 470 U.S. 821, 838 (1985)
(quoting 5 U.S.C. § 701(a)(2)); see id. at 832–33. But it is not
accurate to characterize the FCC’s decision here as a refusal
to take enforcement action. Nor is it correct to describe
TransIntel’s petition for reconsideration or subsequent appli-
cation for review as a request to take such action.
It may well be fair to describe as an enforcement request
TransIntel’s initial complaint to the Commission, which asked
that Highway be fined and its certification revoked for,
among other things, selling its modified transmitter without a
new certification. But the FCC’s refusal to sanction Highway
for that violation is not the subject of this appeal; indeed,
TransIntel concedes that that refusal is unreviewable. See
Reply Br. at 2–3. After TransIntel filed its complaint, how-
ever, Highway responded by submitting an application for a
new certification of the modified device, which OET then
granted. And it is that grant of Highway’s application — an
affirmative act of approval, not merely a refusal to take
action — that TransIntel challenges here. See Heckler, 470
U.S. at 831 (stating that affirmative acts of approval, in
contrast to refusals to take action, are judicially reviewable).
It is true, as the FCC contends, that TransIntel’s opposi-
tion to Highway’s application took the form of a request to
revoke Highway’s newly granted certification. But as we
have just described, that was simply a function of the agen-
cy’s rules. In contrast to the rules governing broadcast
license applications,3 the rules concerning equipment certifica-
tion applications provide no mechanism for an opponent to
contest an application before it is granted. Hence, a petition
for reconsideration was TransIntel’s only option and revoca-
tion its only remedy. See 47 C.F.R. § 2.923; see also Toshi-
ba Corp., 57 Rad. Reg. 2d at 1620 (‘‘[T]he Commission’s rules
3 See 47 U.S.C. § 309(d)(1) (permitting interested parties to lodge
their opposition to a broadcast license application prior to FCC
action on the application); 47 C.F.R. § 21.30 (same).
8
do not contemplate petitions to deny equipment authorization
applicationsTTTT The only prescribed procedure for challeng-
ing an equipment authorization is by a petition for reconsider-
ation or application for review.’’). Nor does the fact that
revocation is TransIntel’s requested remedy in this court put
its appeal in a materially different posture from that routinely
presented when a party appeals from the FCC’s denial of a
challenge to an application for a broadcast license: in such
cases, the FCC normally has already granted the license, see,
e.g., Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392,
394 (D.C. Cir. 1985), and vacatur is a logical remedy, see, e.g.,
Weyburn Broad. Ltd. v. FCC, 984 F.2d 1220, 1222 (D.C. Cir.
1993).
Furthermore, in contrast to the circumstances that face a
court trying to review a failure to take enforcement action,
here the FCC’s grant of Highway’s application ‘‘provides a
focus for judicial review, inasmuch as the agency [did] exer-
cise[ ] its power,’’ and ‘‘[t]he action TTT can be reviewed to
determine whether the agency exceeded its statutory’’ author-
ity. Heckler, 470 U.S. at 832. Nor is this a case in which
‘‘the statute is drawn so that a court would have no meaning-
ful standard against which to judge the agency’s exercise of
discretion.’’ Id. at 830. The Communications Act grants the
FCC authority to promulgate ‘‘reasonable regulations,’’ con-
sistent with ‘‘the public interest, convenience, and necessity,’’
to govern the manufacture and sale of radio transmitting
devices. 47 U.S.C. § 302a(a). Under that authority, the
Commission has promulgated regulations4 providing that it
will grant an application for certification only if it finds that
the ‘‘equipment is capable of complying with pertinent techni-
cal standards,’’ and that a ‘‘grant of the application would
serve the public interest, convenience and necessity.’’ 47
4 See CC Distribs., Inc. v. United States, 883 F.2d 146, 154 (D.C.
Cir. 1989) (holding that ‘‘regulations promulgated by an administra-
tive agency in carrying out its statutory mandate can provide
standards for judicial review of agency action’’ (internal quotation
marks omitted)).
9
C.F.R. § 2.915(a); see id. § 2.919.5 There is no question that
this ‘‘public interest’’ standard constitutes a broad grant of
discretion to the FCC. But there is also no question that this
is the same standard that governs the FCC’s actions in a
multitude of areas,6 and against which this court routinely
judges the Commission’s actions to determine whether they
are arbitrary or capricious.7
B
Having concluded that we have jurisdiction to review the
FCC’s decision, we now turn to the remaining threshold issue,
our standard of review. All parties agree — as do we — that
5The regulations further provide that the Commission may re-
voke an equipment authorization ‘‘[b]ecause of conditions TTT which
would warrant it in refusing to grant an original application.’’ 47
C.F.R. § 2.939.
6 See, e.g., 47 U.S.C. § 309(a) (directing the FCC to grant broad-
cast license applications when it ‘‘find[s] that public interest, conve-
nience, and necessity would be served’’); id. § 316 (authorizing the
FCC to modify a station license or construction permit ‘‘if in the
judgment of the Commission such action will promote the public
interest, convenience, and necessity’’); see also id. § 160 (requiring
the FCC to ‘‘forbear from applying any regulation or any provision
of the’’ Communications Act to a telecommunications carrier if,
among other things, the FCC determines that such forbearance ‘‘is
consistent with the public interest’’).
7 See, e.g., Serafyn v. FCC, 149 F.3d 1213, 1218–19 (D.C. Cir.
1998); Astroline Communications Co. v. FCC, 857 F.2d 1556, 1561–
62 (D.C. Cir. 1988); National Ass’n for Better Broad. v. FCC, 591
F.2d 812, 816 (D.C. Cir. 1978); see also National Broad. Co. v.
United States, 319 U.S. 190, 225–26 (1943) (holding that the Com-
munication Act’s public interest standard is sufficiently definite to
overcome a challenge under the nondelegation doctrine).
Highway also argues that we are barred from considering
TransIntel’s appeal of the denial of its request to hold a hearing
because, although TransIntel asked the Commission to hold a
hearing, it never specifically argued that the Commission was
10
this court must review the merits of the FCC’s order under
the traditional ‘‘arbitrary or capricious’’ standard applied to
Commission decisions. Under that standard, we will uphold
the FCC’s order as long as it was not ‘‘ ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.’ ’’ Global Crossing Telecomms., Inc. v. FCC, 259 F.3d
740, 745 (D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)); see
47 U.S.C. § 402(g).
TransIntel, however, contends that a stricter — or at least
more structured — standard must apply to the FCC’s refusal
to hold a hearing regarding Highway’s application for certifi-
cation. In support, it cites cases like Astroline Communica-
tions Co. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988), which
set forth a two-step test that the FCC must use to determine
whether to hold an evidentiary hearing regarding a broadcast
license application. First, the protesting party must submit
‘‘a petition containing ‘specific allegations of fact sufficient to
show TTT that a grant of the application would be prima facie
inconsistent’ ’’ with the public interest, convenience, and ne-
cessity. Id. at 1561 (quoting 47 U.S.C. § 309(d)(1)). The
FCC must examine the petition ‘‘on the basis of the petition-
er’s allegations alone,’’ proceeding ‘‘ ‘on the assumption that
the specific facts set forth [in the petition] are true.’ ’’ Id.
(quoting Citizens for Jazz, 775 F.2d at 397). Second, if the
FCC determines that the petition satisfies this requirement,
it must then determine whether, ‘‘ ‘on the basis of the applica-
tion, the pleadings filed, or other matters which it may
officially notice[,] TTT a substantial and material question of
fact is presented.’ ’’ Id. (quoting 47 U.S.C. § 309(d)(2)). If
the FCC finds that such a question is presented, the Commis-
sion ‘‘shall proceed’’ to an evidentiary hearing. 47 U.S.C.
§ 309(d)(2) (emphasis added); see id. § 309(e).
But Astroline makes clear that this structured, two-step
process is required by the statute that governs hearings
concerning broadcast license applications.8 Indeed, the dou-
required to do so. We think that TransIntel’s arguments were
sufficiently specific.
8 Astroline, 857 F.2d at 1561 (‘‘Parties challenging an application
by means of a petition to deny and who seek a hearing thereon
must satisfy a two-step test established in 47 U.S.C. § 309(d)(1) &
11
ble quotation marks and citations in the above paragraph
demonstrate that the Astroline analysis is drawn directly
from 47 U.S.C. § 309(d) and (e). There is, however, no such
statutory provision for hearings concerning equipment certifi-
cation applications. Rather, the Communications Act simply
grants the FCC authority to promulgate regulations to gov-
ern the manufacture and sale of such devices. See 47 U.S.C.
§ 302a.
Pursuant to this grant of authority, the Commission has
promulgated the following regulation: ‘‘Whenever it is deter-
mined that an application for equipment authorization pres-
ents substantial factual questions relating to the qualifications
of the applicant or the equipment TTT, the Commission may
designate the application for hearing.’’ 47 C.F.R. § 2.921
(emphasis added).9 As is apparent on its face, the regulation
does not contain the language that led the Astroline court to
conclude that the agency must follow a two-step test in
deciding whether to designate a hearing for a broadcast
license.10 Equally important, the regulation states only that,
when there is a substantial factual question, the Commission
‘‘may’’ designate an equipment certification application for
hearing — as compared to § 309(e), which states that it
‘‘shall’’ do so when there is such a question concerning a
broadcast license application. And the FCC reasonably ar-
(2).’’); see also Citizens for Jazz, 775 F.2d at 394 (describing the
Commission’s two-step process as ‘‘statutorily prescribed’’).
9 This regulation could be read as applying only to hearings on
‘‘an application,’’ and not to hearings concerning petitions for recon-
sideration, because the latter are not mentioned. The FCC does
not suggest such a reading, however, and because it would not
affect our disposition, we do not consider it.
10 The regulation does refer to the existence of a ‘‘substantial
factual question[ ],’’ which is similar to the issue in the second step
of the test applicable to broadcast licenses. But Astroline makes
clear that ‘‘Congress intended that courts play a limited role in
reviewing the Commission’s determinations at this second stage,’’
and that ‘‘[w]e may disturb the Commission’s decision to deny [a]
petition for a hearing only if TTT we determine that that decision
was arbitrary or capricious.’’ 857 F.2d at 1562.
12
gues that ‘‘may’’ denotes discretion rather than obligation on
the part of the Commission. Cf. Appalachian Power Co. v.
EPA, 135 F.3d 791, 807 (D.C. Cir. 1998) (stating that ‘‘when a
statute uses the permissive ‘may’ rather than the mandatory
‘shall,’ this choice of language suggests that Congress intends
to confer some discretion on the agency’’ (internal quotation
marks omitted)).
We therefore conclude that the standard of review appro-
priate for the FCC’s refusal to designate Highway’s applica-
tion for a hearing is the same as that applicable to the merits
of the agency’s decision: we may overturn those determina-
tions only if they were arbitrary or capricious.
III
The Commission denied TransIntel’s application for review,
without designating an evidentiary hearing, concluding that
the company had ‘‘not raised a substantial and material
question of fact as to whether Highway’s actions were so
willful or deliberate as to rise to the level of implicating
Highway’s fitness to hold a FCC equipment authorization.’’
FCC Order, 17 F.C.C.R. at 4029. Because we find that this
conclusion was neither arbitrary nor capricious, we reject
both TransIntel’s challenge to the Commission’s denial of a
hearing, and the company’s challenge to the denial of its
underlying application for review.
First, it does not appear that any further facts were
required to dispose of TransIntel’s application for review. Cf.
California Pub. Broad. Forum v. FCC, 752 F.2d 670, 674
(D.C. Cir. 1985) (holding that ‘‘the dispute must truly be
factual’’ for a hearing on a petition to deny a television license
to be required). TransIntel submitted a variety of factual
materials, including affidavits from its principals, the Alpis-
ers, asserting that Highway’s management had discussed the
need for obtaining a new certification for the modified trans-
mitter during the time that they worked for Highway. Ms.
Alpiser’s father, Virgil Duncan, also attested to providing
Highway’s management with a copy of the FCC regulations
that require manufacturers to obtain fresh certifications for
13
modified transmitters. TransIntel argues that these facts
show that Highway was aware that a new certificate was
required, and that its decision not to apply for one (until
TransIntel complained) was willful and deliberate. TransIn-
tel does not, however, contend that there were any additional
facts that a hearing might have unearthed, and, even when
pressed at oral argument, company counsel could not suggest
any.
Second, the FCC’s order rested not on the truth of
TransIntel’s factual allegations, but rather on their materiali-
ty: in the Commission’s view, TransIntel had not asserted
facts that, even if true, would have rendered Highway’s
actions ‘‘so willful or deliberate as to rise to the level of
implicating Highway’s fitness to hold a FCC equipment au-
thorization.’’ FCC Order, 17 F.C.C.R. at 4029 (emphasis
added). The Commission made clear that the threshold for
such a finding of materiality is high, and that under FCC
precedent, ‘‘violation of section 2.803 TTT generally does not
form the basis for a denial of an equipment authorization.’’
Id. (citing Toshiba Corp., 57 Rad. Reg. 2d at 1622 & n.5).
Rather, what is required, the FCC said, is ‘‘the perpetration
of a fraud on the Commission or conduct likely to undermine
the integrity of the equipment authorization process.’’ Id.
In this case, the Commission found that ‘‘the equipment
changes made by Highway’’ were not permissive, and that
Highway therefore violated § 2.803 by marketing its device
without recertification. But the Commission also determined
that the changes ‘‘were relatively innocuous and [that] the
resulting modified transmitter readily passed the Certifica-
tion process.’’ Id. TransIntel does not dispute that determi-
nation, other than to point out that the modified transmitter
did cause interference. The FCC further determined, howev-
er, that ‘‘the interference that TransIntel cites as a negative
consequence of the modifications was not the result of a rule
violation or the lack of appropriate re-Certification,’’ and that
‘‘this potential for interference would not likely have been
discovered’’ even if Highway had submitted a timely applica-
14
tion. Id.11 TransIntel does not dispute that assessment,
either. Rather, it rests its challenge on its claim that High-
way’s violation was deliberate. But it was reasonable for the
FCC to conclude that a single, minor regulatory violation —
even if deliberate — did not rise to the level of ‘‘fraud on the
Commission’’ or ‘‘conduct likely to undermine the integrity’’ of
the certification process. And that reasonableness dooms
TransIntel’s procedural as well as substantive challenges.12
Moreover, we also note the FCC’s recognition that it had
other means available to ensure that Highway’s transgression
would not be repeated. The Commission retained the option,
it said, to ‘‘call in further post-grant samples of the Highway
device to ensure that it continues to comply.’’ Id. And it
warned that ‘‘[a]ny new instance of non-compliance by High-
way could result in sanctions including fines and forfeitures’’
and, if ‘‘[c]ontinuous or repeated[,] TTT could call into question
Highway’s fitness to hold an equipment authorization.’’ Id.
We cannot second-guess the Commission’s determination that
such post-certification monitoring was the more appropriate
way to deal with the case of a ‘‘relatively innocuous’’ regulato-
ry violation. See generally Global Crossing, 259 F.3d at 745.
Finally, TransIntel argues that the FCC’s order was incon-
sistent with two prior Commission decisions, Atkins Broad-
casting, 71 Rad. Reg. 2d (P & F) 1398 (1993), and TeleSTAR,
11 The Commission explained that ‘‘[t]he interference cited by
TransIntel was apparently due to a 22nd harmonic,’’ while FCC
rules ‘‘require testing only through ten harmonics.’’ FCC Order, 17
F.C.C.R. at 4029.
12 See National Ass’n for Better Broad., 591 F.2d at 816 (holding
that if the FCC’s decision that there were no ‘‘substantial and
material questions of fact’’ was ‘‘not arbitrary, capricious or unrea-
sonable,’’ a court must uphold the Commission’s denial of an eviden-
tiary hearing); Toshiba Corp., 57 Rad. Reg. 2d at 1622 & n.5
(refusing to deny certification because, although ‘‘particularly seri-
ous violations, such as the perpetration of a fraud on the Commis-
sion,’’ could form the basis for denial of an equipment authorization,
‘‘we have no allegations of such serious violations before us’’).
15
Inc., 64 Rad. Reg. 2d (P & F) 1444 (1988). In those cases,
TransIntel asserts, the Commission either denied a license
application or designated it for a hearing on the ground that
the applicant had prematurely constructed the very facilities
for which it was seeking approval. The FCC notes, however,
that Atkins and TeleSTAR involved broadcast and common
carrier microwave stations, respectively, and contends that
cases involving licensing of the use of the public spectrum are
not true precedents for equipment certifications. In the
latter, the Commission points out, its primary focus has been
on the technical performance of the device, rather than on the
character of the applicant. See Toshiba Corp., 57 Rad. Reg.
2d at 1622 & n.5. Indeed, TransIntel concedes that there are
‘‘no recorded cases of a certification application being denied
based on the qualifications of the applicant rather than the
device itself.’’ TransIntel Br. at 16.
In any event, neither TeleSTAR nor Atkins was a case in
which the violation was merely that the applicant had deliber-
ately begun station construction before obtaining FCC ap-
proval. To the contrary, in TeleSTAR the applicant submit-
ted ‘‘patently false information’’ to the Commission, 64 Rad.
Reg. 2d at 1452, while in Atkins the applicant ‘‘admitted
knowingly submitting fabricated letters’’ and ‘‘false state-
ments of fact,’’ which the FCC concluded were ‘‘calculated to
mislead’’ the Commission, 71 Rad. Reg. 2d at 1400–01. The
allegations asserted in this case simply do not rise to that
level.
In sum, because the FCC’s order rested not on a factual
dispute but rather on the Commission’s estimation of the
relative insignificance of Highway’s infraction, and because
that policy judgment was neither arbitrary nor capricious, we
have no basis for overturning the decision of the Commission.
IV
For the foregoing reasons, the order of the Federal Com-
munications Commission is
Affirmed.