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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2003 Decided November 14, 2003
No. 02-1155
RANGER CELLULAR AND
MILLER COMMUNICATIONS, INC.,
APPELLANTS
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
COMMNET OF FLORIDA, LLC, ET AL.,
INTERVENORS
Appeal of an Order of the
Federal Communications Commission
Donald J. Evans argued the cause and filed the briefs for
appellants.
Stanley R. Scheiner, Counsel, Federal Communications
Commission, argued the cause for appellee. With him on the
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
brief were Jane E. Mago, General Counsel, and Daniel
Armstrong, Associate General Counsel. Pamela L. Smith,
Counsel, entered an appearance.
David J. Kaufman, Philip L. Verveer, David M. Don,
Michael F. Morrone, Timothy Feldhause, Michael Deuel
Sullivan, L. Andrew Tollin, Craig E. Gilmore, William R.
Layton, and Carol L. Tacker were on the brief for interve-
nors Commnet of Florida, LLC, et al. Richard L. Brown
entered an appearance.
Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Ranger Cellular and Miller Com-
munications, Inc. (Ranger/Miller) appeal from an order of the
Federal Communications Commission (FCC) rejecting Rang-
er/Miller’s challenge to four licenses issued by the FCC to
provide cellular phone service in rural markets. We conclude
that the appellants lack standing to challenge the validity of
the licenses, and we therefore dismiss that challenge for want
of jurisdiction. Although Ranger/Miller have standing to
challenge the FCC’s denial of their alternative demand for a
refund of their filing fees, we affirm that denial because it
was based on a reasonable reading of the agency’s own
regulation.
I
We have recently set forth some of the history of this
litigation in a related case, Ranger Cellular & Miller Com-
munications, Inc. v. FCC, 333 F.3d 255 (D.C. Cir. 2003)
(Ranger/Miller I), and discuss only the necessary background
here. Historically, the FCC first awarded cellular licenses
using comparative hearings, and then, starting in 1984, also
began awarding them by lottery. After 1986, the Commis-
sion employed lotteries exclusively. Appellants Ranger/Mil-
ler filed applications in 1988 and 1989 to participate in
lotteries for cellular telephone licenses in eight Rural Service
Area (RSA) markets, but lost each lottery in which they
participated. The Commission awarded most of the licenses
3
to initial lottery winners, but by the mid–1990s the initial
winners were disqualified in each of the eight RSAs. The
FCC planned to hold relotteries to determine replacement
winners, and, in the meantime, granted interim operating
authority to cellular telephone licensees in adjacent areas to
provide service. See Ranger/Miller I, 333 F.3d at 256–57; In
the Matter of Implementation of Competitive Bidding Rules
to License Certain Rural Service Areas, Notice of Proposed
Rule Making, 16 FCC Rcd 4296, 4301, ¶ 9 & n.21 (2001)
[hereinafter Competitive Bidding Rules, NPRM].
Before the FCC was able to award the permanent licenses,
however, Congress enacted the Balanced Budget Act of 1997,
Pub. L. No. 105–33, 111 Stat. 251, 258–60 (1997). With
limited exceptions, the Balanced Budget Act amended the
Communications Act by terminating the FCC’s authority to
‘‘issue any license or permit using a system of random
selection’’ after July 1, 1997, 47 U.S.C. § 309(i)(5)(a), and
requiring it to use instead ‘‘a system of competitive bidding,’’
id. § 309(j).1 In April 1999, concluding that it was ‘‘without
authority to process the pending mutually exclusive RSA
applications pursuant to the rules and requirements’’ of the
lottery system, the FCC dismissed without prejudice all
pending applications for the cellular telephone licenses at
issue in this case, including Ranger/Miller’s. In the Matter of
Certain Cellular Rural Service Area Applications, 14 FCC
Rcd 4619, 4620, ¶ 5 (WTB 1999) (dismissing pending applica-
tions for six of the RSA markets); In the Matter of Cellular
Rural Service Area Applications in Markets Nos. 599A and
672A, ¶ 1 (WTB April 29, 1999) (J.A. at 5) (dismissing pending
applications for two of the RSA markets).
On January 31, 2001, the FCC proposed holding an auction
open to all interested bidders at which it would award licenses
for those RSAs for which licenses had not yet been awarded
or designated. Competitive Bidding Rules, NPRM, 16 FCC
1 The Omnibus Budget Reconciliation Act of 1993 had given the
FCC the option of using lotteries or competitive bidding to assign
licenses for which applications were on file before July 26, 1993.
Pub. L. No. 103–66, § 6002(a), 107 Stat. 312, 387 (1993).
4
Rcd at 4297, ¶ 1. By that time, there were only four such
RSAs. Id.2 Ranger/Miller opposed that proposal, contend-
ing that both a provision of the Balanced Budget Act and
principles of equity required the FCC to limit the pool of
bidders to those that had filed applications prior to July 1,
1997. The Commission rejected those contentions and imple-
mented its open auction proposal. In the Matter of Imple-
mentation of Competitive Bidding Rules to License Certain
Rural Service Areas, Report and Order, 17 FCC Rcd 1960,
1961, ¶ 1, 1969, ¶ 16 (2002) [hereinafter Competitive Bidding
Rules, Report and Order]. Although eligible to do so, Rang-
er/Miller did not participate in the auctions. On June 4, 2002,
the FCC completed the auctions, and thereafter Ranger/Mil-
ler petitioned this court for review. On July 1, 2003, we
rejected Ranger/Miller’s arguments and denied their petition.
Ranger/Miller I, 333 F.3d at 262.
In the present action, Ranger/Miller challenge the validity
of the remaining four of the eight RSA licenses for which
they originally applied. Three of those licensees won their
respective lotteries in 1989 and 1990, but were disqualified in
1992 because their percentage of foreign ownership exceeded
the then-applicable statutory limits. In re Applications of
Cellwave Telephone Services L.P., FutureWave General Part-
ners L.P., and Great Western Cellular Partners, 7 FCC Rcd
5955 (1992); 47 U.S.C. §§ 310(b)(1), (3). This circuit upheld
those dismissals. Great W. Cellular Partners v. FCC, 1995
WL 761842 (D.C. Cir. 1995); Cellwave Tel. Services L.P. v.
FCC, 30 F.3d 1533 (D.C. Cir. 1994). In December 2000,
however, Congress passed the Launching Our Communities’
Access to Local Television Act of 2000 (Local Television Act),
which directed the FCC to reinstate the three dismissed
applicants. See District of Columbia Appropriations Act of
FY 2001, Pub. L. No. 106–553, § 1007, 114 Stat. 2762 (2000).
Pursuant to the Local Television Act, the FCC awarded those
licenses to the congressional designees in March 2001. In an
2 As discussed below, by 2001 three of the original eight RSAs
had been designated by Congress, and one had been awarded by
the FCC.
5
application to the FCC, Ranger/Miller challenged those
awards on the ground that, in directing the reinstatements,
the Local Television Act violated the constitutional separation
of powers by overruling the final judgment of this court.
Ranger/Miller also submitted a petition for reconsideration
to the FCC’s Wireless Telecommunications Bureau (Wireless
Bureau), challenging a fourth license that the FCC issued to
Zephyr Tele–Link in 2000. Following the disqualification of
an initial lottery winner, Zephyr’s application had been select-
ed in an April 1992 relottery. Its license had not yet been
issued, however, when the Balanced Budget Act was passed
in 1997, and Zephyr’s was among the pending applications
that the FCC dismissed in 1999. In 2000, the FCC reinstated
Zephyr’s application and awarded it a license. In the Matter
of Zephyr Tele–Link, 15 FCC Rcd 4247 (WTB 2000). Rang-
er/Miller argued that the award to Zephyr conflicted with the
provision of the Balanced Budget Act that barred the issu-
ance of licenses using lotteries after July 1, 1997. See 47
U.S.C. § 309(i)(5)(A). Finally, Ranger/Miller also sought re-
consideration of the Wireless Bureau’s rejection of their
request, in the alternative, for a refund of their initial filing
fees in the event that their other challenges were denied.
On May 9, 2002, the FCC rejected Ranger/Miller’s chal-
lenges to the award of the four licenses. In the Matter of
Certain Cellular Rural Service Area Applications, Opinion
and Order, 17 FCC Rcd 8508 (2002) [hereinafter 2002 Opin-
ion and Order]. The Commission found that the Local
Television Act required it to reinstate the three congressional
designees and that it lacked the power to declare an act of
Congress unconstitutional. Id. at 8517–18, ¶ 15. The Com-
mission also concluded that, although the Balanced Budget
Act barred it from conducting new lotteries after July 1, 1997,
the Act did not bar the FCC from processing Zephyr’s
application by using the results of a lottery that had taken
place prior to that date. Id. at 8513, ¶ 8. The Commission
did not address Ranger/Miller’s alternative request for a
refund of filing fees, leaving the Wireless Bureau’s rejection
in place.
6
Ranger/Miller now appeal both the denial of their chal-
lenges to the four licenses and the denial of their request for
a refund.
II
The FCC advances a threshold objection to Ranger/Miller’s
challenge to the four licenses, asserting that the appellants
lack standing to raise such a claim. As the Supreme Court
has explained, the ‘‘irreducible constitutional minimum’’ re-
quirements of standing are:
(1) that the plaintiff have suffered an ‘‘injury in fact’’ —
an invasion of a judicially cognizable interest which is (a)
concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) that there be a causal
connection between the injury and the conduct com-
plained of — the injury must be fairly traceable to the
challenged action of the defendant, and not the result of
the independent action of some third party not before the
court; and (3) that it be likely, as opposed to merely
speculative, that the injury will be redressed by a favor-
able decision.
Bennett v. Spear, 520 U.S. 154, 167 (1997); accord Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The
question here is whether Ranger/Miller satisfy the third,
‘‘redressability’’ prong. We conclude that they do not.
Ranger/Miller contend that their injury would be redressed
by vacating the award of the four challenged licenses because,
if the licenses were withdrawn, Ranger/Miller would have a
reasonable chance of obtaining them. The appellants concede
that, if the awards were vacated, the Balanced Budget Act
would require the FCC to reassign the licenses via auction.
Reply Br. at 6.3 But they contend that such an auction would
3 In addition, the Local Television Act independently provides
that, if the FCC finds that one of the three congressional designees
is otherwise ineligible, ‘‘the Commission shall grant the license TTT
by competitive bidding pursuant to’’ 47 U.S.C. § 309(j). Local
Television Act, § 1007(b)(5).
7
have to be ‘‘closed’’ — that is, limited to bidders ‘‘from the
original pool’’ that applied for the lotteries in 1988 and 1989.
Id. at 5–6. And because the remaining members of that
original pool are a small number of small companies like
Ranger/Miller, the appellants believe they would have a rea-
sonable chance of submitting winning bids. Id. at 5.
The flaw in this argument is that the consequence of a
Ranger/Miller victory on this appeal would not be an auction
limited to the original applicants, but rather an open auction
in which virtually any interested company would be permitted
to compete. In 2002, the FCC determined that ‘‘all entities’’
should be permitted to participate in an auction for cellular
telephone service in RSA markets. Competitive Bidding
Rules, Report and Order, 17 FCC Rcd at 1966, ¶ 10.4 As we
noted above, this court recently affirmed that decision in a
separate appeal. In Ranger/Miller I, we rejected Rang-
er/Miller’s contention that another provision of the Balanced
Budget Act, 47 U.S.C. § 309(l ), required the FCC to restrict
the pool of bidders to the original applicants. Ranger/Miller
I, 333 F.3d at 258–60. And we likewise rejected Ranger/Mil-
ler’s claim that the Commission had acted unreasonably in
opting to permit bidding by new applicants. In particular, we
rejected the appellants’ contention that the Commission had
4 Although the 2002 decision technically applied to only the four
cellular RSA markets disputed in Ranger/Miller I, there is little
doubt that the FCC would follow that recent precedent were
Ranger/Miller to win this appeal and overturn the four licenses they
have challenged here. The 2002 decision applied to the only RSA
markets that remained unlicensed or undesignated at the time.
Competitive Bidding Rules, Report and Order, 17 FCC Rcd at
1961, ¶ 1 & n.2. Those markets were available because ‘‘the initial
lottery winner was disqualified or ha[d] otherwise withdrawn its
application,’’ id. at 1961, ¶ 1, the same situation that would prevail
were we to uphold Ranger/Miller’s appeal. Moreover, in the order
under review here, the FCC rejected Ranger/Miller’s argument
that future auctions should be limited to the original applicant pool,
2002 Opinion and Order, 17 FCC Rcd at 8514, ¶ 10, thus confirming
the Commission’s intention to award through open auctions all RSA
licenses that become available.
8
failed to take appropriate account of equitable considerations
in deciding to open the auction pool. Id. at 260–61.
The appellants offer two reasons why Ranger/Miller I’s
affirmance of the FCC’s open auction policy should not apply
in the event the four licenses at issue here are vacated.
Neither survives even facial examination. First, appellants
suggest that Ranger/Miller I was wrongly decided, and that
this panel therefore should not follow it. But follow it we
must. Once a panel of this court has decided a matter,
subsequent panels are bound by that decision unless and until
it is changed by the court en banc. See, e.g., People’s
Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1244
(D.C. Cir. 2003) (citing LaShawn A. v. Barry, 87 F.3d 1389,
1395 (D.C. Cir. 1996) (en banc)). Second, at oral argument,
counsel for Ranger/Miller suggested that Ranger/Miller I
should be distinguished from the instant case on the ground
that the equitable arguments favoring closed auctions in the
four markets at issue here are different from the equitable
arguments applicable to the markets considered in Rang-
er/Miller I. But, as the FCC’s order points out, Ranger/Mil-
ler’s petition before the Commission raised the same argu-
ments for all eight licenses, 2002 Opinion and Order, 17 FCC
Rcd at 8514, ¶ 10, and on appeal Ranger/Miller have offered
no reason to distinguish between the equitable considerations
surrounding the licenses contested here and those implicated
in Ranger/Miller I.
As we have noted above, to satisfy the third prong of
constitutional standing, Ranger/Miller’s injuries must be re-
dressable by a judicial decision. In the open auction that
FCC policy dictates would follow a Ranger/Miller victory, the
appellants would face not a small number of small companies,
but rather a large number of large telecommunications firms
with the capacity to pay large sums for the RSA licenses.
And as the appellants candidly admit: ‘‘The chances of Rang-
er/Miller outbidding those giants are virtually nilTTTT By
opening the auction, the FCC as a practical matter made it
impossible for the original applicants to compete.’’ Reply Br.
at 5. That concession makes it clear that Ranger/Miller’s
alleged injuries cannot be redressed by this court. While it is
9
true that ‘‘a plaintiff suffers a constitutionally cognizable
injury by the loss of an opportunity to pursue a benefit TTT
even though the plaintiff may not be able to show that it was
certain to receive that benefit had it been accorded the lost
opportunity,’’ a plaintiff’s injury is neither cognizable nor
redressable when such an opportunity is entirely ‘‘illusory.’’
CC Distributors, Inc. v. United States, 883 F.2d 146, 150–51
(D.C. Cir. 1989) (emphasis in original). In CC Distributors,
we found that the lost opportunity to compete was not
illusory because the plaintiffs had demonstrated their ‘‘capaci-
ty to compete for and to obtain [the] contract[ ].’’ Id. at 151.
The appellants here, however, concededly have no such capac-
ity, and we ‘‘cannot find a basis for standing if there is no
realistic possibility of those competing for a position to re-
ceive it once the supposed illegality is corrected.’’ Albuquer-
que Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C. Cir. 1991).
Because it is ‘‘merely speculative’’ that Ranger/Miller’s ‘‘inju-
ry will be redressed by a favorable decision,’’ Bennett, 520
U.S. at 167, they lack standing to prosecute their challenge to
the four RSA licenses.5
III
The remaining question is whether Ranger/Miller are enti-
tled to refunds of their application filing fees. Since a victory
on that issue would bring them a small monetary reimburse-
ment (the filing fee was $200.00 per application), there is no
doubt that Ranger/Miller have standing to pursue their re-
fund claim. The FCC does, however, raise a different thresh-
old objection.
5 In a section of their brief that repeats arguments they made in
Ranger/Miller I, the appellants also contend that the FCC should
not have dismissed their then-pending cellular applications in April
1999. Appellants’ Br. at 16–35. We are uncertain whether the
appellants mean to continue to press this argument in light of the
disposition of Ranger/Miller I — which was announced after the
brief in the instant case was filed — but if they do, our conclusion
that Ranger/Miller lack standing to challenge the licenses applies
equally to their challenge to the dismissals.
10
The FCC contends that our consideration of Ranger/Mil-
ler’s refund claim is barred by § 405 of the Communications
Act, which requires that the Commission be afforded an
‘‘opportunity to pass’’ on an issue as ‘‘a condition precedent to
judicial review.’’ 47 U.S.C. § 405(a). It asserts that the
Commission did not have an opportunity to pass on the
refund issue, because Ranger/Miller did not present the
argument in briefs filed with the Commission itself, but
rather mentioned it only in a footnote to their Petition for
Reconsideration to the Wireless Bureau — a note that refer-
enced Ranger/Miller’s earlier filing on the subject.6 This
case, the FCC argues, is thus controlled by Bartholdi Cable
Co. v. FCC, in which we held that a litigant cannot preserve
an issue for judicial review merely by raising it before an
FCC bureau, and that a footnote in an application to the
Commission that does nothing more than incorporate all
claims previously made before the bureau is likewise insuffi-
cient. 114 F.3d 274, 279–80 (D.C. Cir. 1997).
The FCC’s reliance on Bartholdi is flawed for two reasons.
First, its contention that the refund issue was never before
the Commission itself is simply incorrect. It is true that
Ranger/Miller did not present this issue — or any issue — in
briefs filed directly with the Commission. But that was only
because the Commission chose to reach down into the Wire-
less Bureau and decide the case based on Ranger/Miller’s
petition for reconsideration to that bureau. See Appellees’
Br. at 35 n.30; Reply Br. at 18–19. And as the FCC order
under review makes clear, there is no question that the
Commission had that petition before it when it decided this
case. See 2002 Opinion and Order, 17 FCC Rcd at 8508, ¶ 1
& n.1 (stating that the Commission ‘‘has before it TTT [the]
petition for reconsideration filed by Ranger Cellular and
Miller Communications’’).
6 The footnote stated: ‘‘Petitioners continue to contend that, if
their applications were correctly dismissed by the Bureau, a refund
of their filing fee is due. However, we have nothing to add to our
original presentation on this point.’’ Pet. for Recons. at 20 n.12
(J.A. at 67).
11
Second, unlike the situation in Bartholdi, both Ranger/Mil-
ler’s footnote and the filing that it referenced were in submis-
sions made to the same decisionmaker.7 In Bartholdi, the
footnote was in a brief filed with the Commission, while the
arguments to which it referred were in papers filed with a
bureau. By contrast, in this case the footnote was in a
petition to the Wireless Bureau and its reference to ‘‘our
original presentation,’’ Pet. for Recons. at n.12 (J.A. at 67),
was to a filing previously made with that same bureau — a
filing that addressed the refund claim in detail. See Consol.
Pet. for Recons. at 4–6 (J.A. at 42–44). Ranger/Miller thus
had every reason to expect that the relevant decisionmaker,
which it thought would be the Wireless Bureau, would be
familiar with those arguments without the need to repeat
them. And because the Commission chose to decide the case
based on the filings made with the Bureau, those filings gave
it a fair opportunity to pass on Ranger/Miller’s claim for a
refund.
As there is no bar to our consideration of the appellants’
claim for a refund of their application fees, we turn to the
merits of that claim. Ranger/Miller’s argument rests on FCC
Rule 1.1113, which states as follows:
The full amount of any fee submitted will be returned or
refunded, as appropriateTTTT
(4) When the Commission adopts new rules that nulli-
fy applications already accepted for filing, or [a] new
law or treaty would render useless a grant or other
positive disposition of the application.
47 C.F.R. § 1.1113 (emphasis added). Ranger/Miller insist
that the new open auction rules adopted by the Commission
in the wake of the Balanced Budget and Local Television Acts
effectively ‘‘nullif[ied]’’ the lottery applications they filed in
7 We therefore need not decide whether Ranger/Miller’s terse
footnote — which, in contrast to the note in Bartholdi, clearly
specified the point at issue, see supra note 6 — would have been
sufficient to preserve the refund claim had it been part of the only
brief that Ranger/Miller filed with the expected decisionmaker.
12
1988 and 1989, thus triggering Rule 1.1113’s right to a fee
refund.
The FCC replies that the new rules did not nullify Rang-
er/Miller’s applications within the meaning of Rule 1.1113,
because the appellants got what they paid for: the right to
participate in lotteries for eight cellular licenses. There is no
dispute that Ranger/Miller did participate in those lotteries,
although they lost them all. In the FCC’s view, the fact that,
under the new rules, Ranger/Miller’s original applications did
not give them the further right to a closed auction when the
original lottery winners were disqualified, does not constitute
‘‘nullification’’ of those original applications. As the Wireless
Bureau explained:
[P]etitioners were not entitled to a refund of their filing
fees because they had actually participated in the initial
lotteries for their respective markets, thus affording
them a full opportunity to be selectedTTTT The fact that
second lotteries were held prior to the passage of the
Balanced Budget Act of 1997 for certain markets in
which the initial tentative selectee was subsequently dis-
qualified does not create a vested right in applicants that
second lotteries would be held for such markets nor
mandate the refund of fees under section 1.1113(a)(4).
In the Matter of Certain Cellular Rural Service Area Appli-
cations, Order, 16 FCC Rcd 4860, 4863–64, ¶ 7 (WTB 2001).
Reviewing courts must ‘‘defer to an agency’s reading of its
own regulations unless that reading is ‘plainly erroneous or
inconsistent with the regulation[s].’ ’’ Global Crossing Tele-
communications, Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir.
2001) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). In
light of the agency rationale described above, there is nothing
plainly erroneous or inconsistent about the FCC’s conclusion
that Ranger/Miller’s original applications were not nullified
within the meaning of Rule 1.1113. Indeed, had Ranger/Mil-
ler won the lotteries to which those applications gave them
admission, they would have received their licenses long before
the Balanced Budget Act and Local Television Act were
enacted, and the new rules would have had no impact on them
13
at all. Accordingly, we affirm the FCC’s denial of Rang-
er/Miller’s request for refunds.
IV
Concluding that Ranger/Miller lack standing to challenge
the award of four cellular telephone licenses, we dismiss that
aspect of their appeal for want of jurisdiction. While there is
no similar bar to our consideration of the appellants’ chal-
lenge to the denial of their alternative request for a refund of
filing fees, we conclude that the FCC reasonably interpreted
its own rules in denying that request.
Dismissed in part and affirmed in part.