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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2003 Decided July 1, 2003
No. 02-1093
RANGER CELLULAR AND MILLER COMMUNICATIONS, INC.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of the
Federal Communications Commission
Donald J. Evans argued the cause and filed the briefs for
petitioners.
Stanley R. Scheiner, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on
the brief were R. Hewitt Page, Acting Assistant Attorney
General, U.S. Department of Justice, Catherine G. O’Sulli-
van, Chief Counsel, Andrea Limmer, Attorney, John A.
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
Rogovin, Deputy General Counsel, Federal Communications
Commission, and Daniel M. Armstrong, Associate General
Counsel. Pamela L. Smith, Counsel, entered an appearance.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Ranger Cellular and Miller Com-
munications, Inc. (sometimes hereinafter referred to collec-
tively as Ranger) petition for review of an order in which the
Federal Communications Commission interpreted a provision
in the Balanced Budget Act of 1997, Pub. L. No. 105–33, 111
Stat. 251, 47 U.S.C. § 309(l ), to allow new applicants to apply
for certain cellular telephone licenses. Ranger, which had
submitted an application for a cellular license several years
beforehand, argues that providers of cellular telephone ser-
vice are ‘‘commercial radio or television stations’’ within the
meaning of 47 U.S.C. § 309(l ), for which the Commission
may not accept new applications. The petitioner also claims
that, even if the statute did not bar new cellular applications,
the Commission departed from precedent in holding that the
public interest would be served by its accepting new applica-
tions, and that the Commission opened the applicant pool with
the unlawful purpose of enhancing federal revenues, in viola-
tion of 47 U.S.C. § 309(j)(7)(B). We reject Ranger’s argu-
ments and deny the petition for review.
I. Background
Prior to 1993 the Commission awarded licenses for use of
the radio spectrum through either a comparative hearing or a
lottery. Lottery entrants would file a simple application and
pay a nominal fee. The Commission then held the lottery and
determined a winner, subject to the losing parties’ right to
file a petition to disqualify the winner. If the winner was
disqualified, then the Commission held another lottery. After
1986 the Commission used the lottery system exclusively to
assign all cellular licenses.
3
The comparative hearing process, which required each
party to present a detailed case to the Commission showing
why it should win the license, was far more complex and often
led to protracted litigation. See, e.g., Bechtel v. FCC, 957
F.2d 873 (D.C. Cir. 1992); DOUGLAS H. GINSBURG, MICHAEL H.
BOTEIN, & MARK D. DIRECTOR, REGULATION OF THE ELECTRONIC
MASS MEDIA: LAW AND POLICY FOR RADIO, TELEVISION, CABLE AND
THE NEW VIDEO TECHNOLOGIES 85–134 (West 2d ed. 1991). The
Commission had used the comparative hearing process to
choose among competing applications for broadcast stations
since the decision in Ashbacker Radio Corp. v. FCC, 326 U.S.
327 (1945).
Ranger and Miller filed applications in 1988 and 1989
respectively to participate in a lottery for certain Rural
Service Area (RSA) cellular telephone licenses. The Com-
mission awarded most of the licenses but by the mid–1990s
six licenses for RSAs were still pending due to the disqualifi-
cation or withdrawal of the original winner. The Commission
then granted interim operating authority (IOA) to cellular
telephone licensees in adjacent areas to provide service until
such time as the Commission awarded a permanent license.
See In the Matter of Implementation of Competitive Bidding
Rules to License Certain Rural Service Areas, Notice of
Proposed Rule Making, 16 FCC Rcd. 4296, ¶ 9 & n.21 (2001).
Meanwhile, the Congress, in the Omnibus Budget Reconcil-
iation Act of 1993, Pub. L. No. 103–66, § 6002(a), 107 Stat.
312, 387, had amended the Communications Act of 1934 by
adding § 309(j), 47 U.S.C. § 309(j), which authorized the
Commission to award almost all spectrum licenses by compet-
itive bidding and limited the use of lotteries. With respect to
cellular telephone licenses in particular, the 1993 legislation
provided that the Commission: ‘‘shall not issue any license or
permit [by lottery] TTT unless TTT one or more applications
for such license were accepted for filing by the Commission
before July 26, 1993.’’ § 6002(e), 107 Stat. at 397. Having
been given the option of proceeding by lottery or by competi-
tive bidding to award such grandfathered licenses, the Com-
mission decided initially to use a lottery, see In the Matter of
Implementation of Section 309(j) of the Communications
4
Act–Competitive Bidding, 9 FCC Rcd. 7387 (1994), but then
decided to study the matter further. See Public Notice,
Wireless Telecommunications Bureau Postpones Cellular
Telecommunications Service Lottery for Rural Service Areas,
Mimeo No. 65051 (Sept. 10, 1996).
Before the Commission had finally decided how to award
cellular telephone licenses, however, the Congress passed the
Balanced Budget Act of 1997, Pub. L. No. 105–33, § 3002(a),
111 Stat. 251, which amended § 309(j) by requiring the
Commission to use competitive bidding (except in a few
specifically enumerated circumstances) and terminated the
Commission’s authority to use a lottery (except for a small
class of broadcast licenses). See 47 U.S.C. § 309(i). More
important for the purposes of this case, the Congress amend-
ed the Communications Act of 1934 by adding § 309(l ), which
states, under the heading ‘‘Applicability of competitive bid-
ding to pending comparative licensing cases,’’ that:
With respect to competing applications for initial licenses
or construction permits for commercial radio or televi-
sion stations that were filed with the Commission before
July 1, 1997, the Commission shall TTT treat the persons
filing such applications as the only persons eligible to be
qualified bidders for purposes of such proceeding.
(Emphasis added). This section bars the Commission from
accepting new applications for certain ‘‘commercial radio or
television stations.’’ The Conference Report on the 1997 Act
described the scope of this provision as follows:
The conferees adopted a new provision with respect to
the applicability of competitive bidding to pending com-
parative licensing cases. New section 309(l ) of the
Communications Act requires the Commission to use
competitive bidding to resolve any mutually exclusive
applications for radio or television broadcast licenses
that were filed with the Commission prior to July 1, 1997.
H.R. Conf. Rep. No. 217, 105th Cong., 1st Sess. at 573 (1997)
(emphasis added).
5
Against this background, the Commission in April 1999
dismissed all pending applications for the cellular telephone
licenses at issue in this case because it was ‘‘without authority
to process the pending mutually exclusive RSA applications
pursuant to the rules and requirements [of the lottery sys-
tem] under which they were filed.’’ In the Matter of Certain
Cellular Rural Service Area Applications, 14 FCC Rcd. 4619,
¶ 5 (WTB 1999). In 2001 the Commission proposed to open
eligibility with respect to the auctions it would hold for the
pending RSA cellular telephone licenses. See Implementa-
tion of Competitive Bidding Rules, 16 FCC Rcd. ¶ 1. After
receiving comments the Commission issued the order here
under review. In the Matter of Implementation of Competi-
tive Bidding Rules to License Certain Rural Service Areas,
17 FCC Rcd. 1960 (2002) (Order).
The Commission rejected Ranger’s argument that the term
‘‘commercial radio or television stations’’ in § 309(l ) included
cellular telephone licenses and therefore required the Com-
mission to limit the pool of bidders to those who had filed an
application prior to July 1, 1997. The Commission reasoned
that the statute – by its terms and in accordance with its
purpose and its legislative history – in using the phrase
‘‘commercial radio and television stations’’ referred only to
broadcast stations and therefore did not cover cellular tele-
phone services. The Commission went on to decide that
competitive bidding with open eligibility would best serve the
public interest: ‘‘the bidder who is willing to pay the most will
be highly motivated to rapidly put the license to a use that
the public finds valuable because only such a use will make its
investment worthwhile.’’ Id. ¶ 13. The Commission also
rejected Ranger’s comment that an auction would violate 47
U.S.C. § 309(j)(7)(b), which prohibits the Commission, in
making certain regulatory decisions, from ‘‘bas[ing] a finding
of public interest, convenience, and necessity solely or pre-
dominantly on the expectation of Federal revenues from the
use of a system of competitive bidding under this subsection.’’
The Commission explained: ‘‘Our determination to permit
open eligibility in the RSA auction is based on our statutory
obligations to promote competition and rapid deployment of
6
services to rural areas, not to enhance the Federal Treasury.’’
Id. ¶ 21.
The Commission conducted the auction for the RSA cellular
licenses on June 4, 2002. Ranger did not participate.
II. Analysis
On appeal Ranger argues first that the Commission’s inter-
pretation of § 309(l ) conflicts with the plain meaning of, and
in any event, is not a reasonable reading of, the statute.
Second, the petitioner maintains the Commission could not,
consistent with precedent specifying the relevant equitable
considerations, conclude that the public interest favored open-
ing the auction to new applicants. Finally, the petitioner
contends the Commission opened the auction unlawfully in
order to maximize federal revenues.
We consider Ranger’s first argument under the familiar
two-step analysis of Chevron U.S.A., Inc. v. Natural Resource
Defense Council, Inc., 467 U.S. 837 (1984). First we deter-
mine ‘‘whether Congress has directly spoken to the precise
question at issue;’’ if the Congress has so spoken, then ‘‘the
court, as well as the agency, must give effect to the unambig-
uously expressed intent of Congress.’’ Id. at 842–43. If,
however, ‘‘the statute is silent or ambiguous with respect to
the specific issue,’’ then we go on to determine ‘‘whether the
agency’s answer is based on a permissible construction of the
statute.’’ Id. at 843. With respect to Ranger’s other two
arguments, our review is limited to determining whether the
Order is ‘‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’’ 5 U.S.C. § 706(2)(A).
A. Section 309(l )
Section 309(l ) required the Commission, with respect to
pending comparative license cases involving applications ‘‘for
commercial radio or television stations,’’ to limit the pool of
applicants to those who had filed ‘‘competing applications for
initial licenses or construction permits’’ before July 1, 1997.
The Commission determined that a cellular telephone license
is not a license for a ‘‘commercial radio or television station’’
7
because the quoted phrase denotes only broadcast stations.
Order, 17 FCC Rcd. ¶ 17.
Ranger offers several non-frivolous arguments that
§ 309(l ) must be read to apply to licenses to provide cellular
telephone service. First, Ranger notes that cellular service is
regulated as a ‘‘commercial mobile radio service,’’ 47 C.F.R.
§ 20.9(a), which seems to place it neatly within the more
general class of ‘‘commercial radio and television stations’’
referenced in § 309(l ). Relatedly, according to Ranger,
when the Congress wanted to refer only to a broadcast
station, it said either ‘‘broadcast station’’ or ‘‘broadcasting
station.’’ See, e.g., 47 U.S.C. §§ 307(c), 311(c)(1), 315. Sec-
ond, Ranger argues that the inclusion of the phrase ‘‘initial
licenses or construction permits’’ in § 309(l ) indicates the
Congress intended to cover more than just broadcast stations
because the Commission issues a ‘‘construction permit’’ only
for a broadcast station, whereas an ‘‘initial license’’ is issued
for a common carrier radio or a commercial mobile radio
service. Therefore, the argument goes, the Commission’s
reading renders the phrase ‘‘initial license’’ superfluous.
Ranger also points out that the Commission has sometimes
referred to commercial mobile radio service as ‘‘commercial
radio.’’ See, e.g., In re Application of 360 Degrees Communi-
cations Company, 14 FCC Rcd. 2005 (1998). Finally, Ranger
argues that we should disregard the legislative history of
§ 309(l ) because it contravenes the plain meaning of the
statute–which, of course, we would do if the meaning of the
statute is plain on its face. See Ratzlaf v. United States, 510
U.S. 135, 147–48 (1994) (‘‘[W]e do not resort to legislative
history to cloud a statutory text that is clear’’).
Although not without force, Ranger’s arguments do not
demonstrate that § 309(l ) simply must be read as applying to
cellular telephone licenses. First, the phrase ‘‘commercial
radio and television stations’’ is not defined, nor is it used, in
the 1997 Act outside the provision adding § 309(l ) to the
Communications Act. The Commission points out that the
phrase ‘‘commercial radio’’ had been used, however, in both
the Communications Act and the regulations promulgated
thereunder, to mean only broadcast radio. See, e.g., 47
8
U.S.C. § 158(g), 47 C.F.R. §§ 73.3526(e)(14), 73.3555(c)(2).
The Commission then makes the point that the conjunction of
‘‘television stations,’’ which are unquestionably engaged in
broadcasting, with ‘‘commercial radio’’ in the same phrase
suggests the Congress meant to cover only broadcast media,
and thereby casts serious doubt upon the interpretation ad-
vanced by Ranger.
Furthermore, the heading of § 309(l ) strongly favors the
Commission’s view that it does not apply to cellular telephone
service. The heading – which was part of the 1997 Act, not a
later addition by the Reviser – refers to ‘‘pending compara-
tive licensing cases.’’ This implies that the provision is
inapplicable to cellular telephone services, licenses for which
have not been the subject of comparative hearings since at
least 1986. On the other hand, as of 1997 broadcast licenses
had for more than 50 years been awarded through compara-
tive hearings. The reference to comparative licensing in
§ 309(l ) therefore implies the Congress meant to apply that
section only to broadcast stations.
Hence we turn to the legislative history of § 309(l ), which,
although of distinctly lesser weight than an argument from
the text of the 1997 Act, also supports the reading that limits
§ 309(l ) to broadcast licenses. The Committee Report de-
scribes § 309(l ) specifically as applying to ‘‘any mutually
exclusive applications for radio or television broadcast licens-
es,’’ not to the broader category of licenses for all radio and
television stations. H.R. Conf. Rep. No. 217 at 573 (emphasis
added). The use of the modifier ‘‘broadcast’’ in the report
clearly implies that the Congress intended to limit the scope
of § 309(l ) to broadcast licenses.
We are led to conclude that the Congress has not directly
spoken to the question whether § 309(l ) covers only broad-
cast stations; the statute simply is not unambiguous on that
score. We must go on to determine, therefore, whether the
Commission has offered a reasonable interpretation of
§ 309(l ).
From the foregoing discussion of the parties’ positions, it is
obvious that, for the same reasons the Commission’s argu-
9
ments cast doubt upon the clarity of § 309(l ), the agency
offers a reasonable interpretation of the statute. Not sur-
prisingly, therefore, Ranger proffers no reason to reject the
Commission’s interpretation apart from the reasons for which
it argued the meaning of the statute is plainly otherwise.
Again, the Commission has shown that § 309(l ), viewed in
the context of the 1997 Act, supports a reading that covers
only broadcast stations. Although this reading is not the only
possible interpretation of § 309(l ), it is certainly a reasonable
one and therefore commands our deference.
B. Public Interest
Ranger contends the Commission neither followed nor dis-
tinguished its precedents for determining whether to open a
pending applicant pool to newcomers, citing Competitive Bid-
ding in the Broadcast Services, 13 FCC Rcd. 15920 (1998);
and Filing Procedures in the MDS and ITFS Services, 10
FCC Rcd. 9589 (1995) (MDS Order). According to the
petitioner, the Commission failed to take account of the
ordinary equitable considerations applicable to this issue,
namely, the length of time the original applications had been
pending (13 to 14 years), the number of original applicants
(3), the potential for delay occasioned by opening the filing
window, and whether the licenses to be auctioned were identi-
cal to those for which the original applications were filed
(which they were). See, e.g., MDS Order, 10 FCC Rcd.
¶ ¶ 87–95. Ranger maintains that consideration of these fac-
tors leads inexorably to the conclusion that the Commission
should not have accepted new applications.
We think the Commission reasonably applied appropriate
factors to the circumstances of this case. The Commission
first opined that open eligibility ‘‘generally favor[s]’’ the pub-
lic interest because ‘‘maximizing the pool of auction applicants
helps to ensure that licenses are awarded to entities that
value them most highly and are, therefore, most likely to
offer prompt service to the public.’’ Order, 17 FCC Rcd.
¶ 10. Opening the pool would be particularly useful in this
case because otherwise there would be only three eligible
bidders. Id. ¶ 19. Another ‘‘important factor in [the Com-
10
mission’s] decision’’ was that the licenses covered rural areas,
for which the Commission has a special responsibility under
§ 309(j)(4)(B) to promote the rapid development of service.
Id. ¶ 14. And, the Commission added, the IOA licensees
‘‘may have a substantial interest in bidding for permanent
authorizations in markets where they have been providing
interim cellular service,’’ id. ¶ 15.
The Commission has also properly distinguished its prece-
dents. The MDS Order, the Commission noted, addresses
not issues of eligibility, see Order, 17 FCC Rcd. ¶ 18 n.61, but
whether to hold an auction or to conduct a lottery for the
licenses there in question. MDS Order, 10 FCC Rcd. ¶ 88.
In addition, the Commission explained that the concern ex-
pressed in Competitive Bidding in the Broadcast Services –
that reopening the filing window would not ‘‘expedite TTT the
commencement of service to the public,’’ 13 FCC Rcd. ¶ 108 –
did not obtain in this case because customers in the RSAs
were already receiving cellular telephone service from the
IOA licensees. See Order, 17 FCC Rcd. ¶ 9 n.29. We
conclude the Commission considered the relevant factors and
did not act in an arbitrary and capricious manner in applying
the public interest standard.
C. Revenue Enhancement
Finally, Ranger argues the Commission violated 47 U.S.C.
§ 309(j)(7)(B), which provides that ‘‘in prescribing regulations
pursuant to Paragraph 4(A) of this subsection, the Commis-
sion may not base a finding of public interest, convenience
and necessity solely or predominantly on the expectation of
Federal revenues from the use of a system of competitive
bidding under this subsection.’’ Specifically, Ranger con-
tends the Commission opened the bidding to newcomers
‘‘solely or predominantly’’ for the purpose of enhancing what
the licenses would fetch.
The Commission argues first that § 309(j)(7)(B) ‘‘applies
only in specifically-enumerated circumstances, of which deter-
mining eligibility to participate in an auction does not appear
to be one.’’ The Commission maintains that, on the contrary,
it ‘‘is charged with assigning spectrum to the party that
11
places the highest value on the use of the spectrum, because
that party is presumed to be most likely to use the licenses
efficiently.’’
The Commission clearly has the better of the argument
here: Section 309(j)(7)(B) simply does not apply to this case.
It applies only to regulations concerning ‘‘alternative payment
schedules and methods of calculation’’ to be used in specifying
the methodology of competitive bidding. So far as
§ 309(j)(7)(B) is concerned, therefore, the Commission is free
to consider revenue enhancement when determining whether
to expand the pool of eligible bidders.
Unfortunately, the Commission did not notice that
§ 309(j)(7)(B) was inapplicable to this proceeding until brief-
ing the matter to this court. In the Order itself the Commis-
sion instead explained why it was in compliance with that
provision. We do not ordinarily consider an argument made
for the first time on review. District of Columbia v. Air
Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984) (‘‘It is well
settled that issues and legal theories not asserted at the
District Court level ordinarily will not be heard on appeal’’).
In this case, however, we have no qualms about doing so: The
statute is clearly inapplicable. Indeed, Ranger does not
suggest otherwise, resting instead upon the Commission’s
tardiness in raising the point.
We would be tilting at a non-existent windmill were we to
consider whether the Commission has complied with an inap-
plicable statute. Cf. United States Nat’l Bank of Oregon v.
Independent Ins. Agents of America, Inc., 508 U.S. 439, 447
(1993) (‘‘a court may consider an issue antecedent to TTT and
ultimately dispositive of the dispute before it, even an issue
the parties fail to identify and brief’’) (internal quotation
marks omitted); Hormel v. Helvering, 312 U.S. 552, 557
(1941) (‘‘There may always be exceptional cases or particular
circumstances which will prompt a reviewing or appellate
court, where injustice might otherwise result, to consider
questions of law which were neither pressed nor passed upon
by the court or administrative agency below’’). Surely, even
if it has not complied, we would not, knowing that the statute
12
is inapplicable, require the Commission to close the auction to
newcomers; to do so would thwart the clearly stated will of
the Congress because of a temporary oversight by the Com-
mission.
III. Conclusion
We conclude that the Commission offered a reasonable
interpretation of an ambiguous statute, justified its decision
under the public interest standard, and was not subject to 47
U.S.C. § 309(j)(7)(B). For those reasons the petition for
review is
Denied.