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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2004 Decided June 8, 2004
No. 03-1133
PANAMSAT CORPORATION,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
LOCKHEED MARTIN CORPORATION AND COMSAT CORPORATION,
INTERVENORS
Consolidated with
03-1134
Appeal and Petition for Review of an Order of the
Federal Communications Commission
–————
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
Brita Dagmar Strandberg argued the cause for appel-
lant/petitioner. With her on the briefs were Henry Goldberg
and Joseph A. Godles.
Stanley R. Scheiner, Counsel, Federal Communications
Commission, argued the cause for appellee/respondents.
With him on the brief were Robert H. Pate III, Assistant
Attorney General, Catherine G. O’Sullivan and Andrea Lim-
mer, Attorneys, John A. Rogovin, General Counsel, Federal
Communications Commission, and Daniel M. Armstrong, As-
sociate General Counsel.
Helgi C. Walker argued the cause for intervenor COMSAT
Corporation. With her on the brief was Lawrence W. Secrest
III.
Before: EDWARDS, SENTELLE, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: This case involves petitioner
PanAmSat Corporation’s requests to the Federal Communi-
cations Commission (‘‘FCC’’ or ‘‘Commission’’) for partial
refunds of satellite regulatory fees it paid for fiscal years
1995, 1997, and 1999. For fiscal years 1995, 1997, 1998, and
1999, the FCC exempted COMSAT Corporation, a competitor
of PanAmSat, from satellite regulatory fees. COMSAT’s
exemption caused the other parties subject to satellite regula-
tory fees, including PanAmSat, to pay fee amounts that
covered COMSAT’s regulatory costs. In PanAmSat Corp. v.
FCC, 198 F.3d 890, 895 (D.C. Cir. 1999), we found that the
Commission’s exemption of COMSAT in fiscal year 1998 was
premised on an impermissible interpretation of § 9 of the
Communications Act, and remanded to the Commission for
further proceedings. On remand, in the order under review
in this case, the Commission held that in light of this court’s
decision in PanAmSat, COMSAT should have been assessed
the regulatory fee for fiscal year 1998. In the Matter of
Assessment and Collection of Regulatory Fees for Fiscal
Year 1998, 18 F.C.C.R. 6944, 6944 (2003) (‘‘Order’’). Accord-
ingly, it assessed fees on COMSAT for fiscal year 1998 and
later granted PanAmSat a partial refund of the fees overpaid
3
in 1998 as a result of COMSAT’s exemption. At the same
time, the Commission declined to apply PanAmSat to fiscal
years 1995, 1997, and 1999 to assess fees on COMSAT for
those fiscal years.
PanAmSat petitions this court for review of the Commis-
sion’s decision on remand, arguing that it is entitled to
refunds of the portion of fees it paid to cover COMSAT’s
regulatory costs for 1995, 1997, and 1999. However, PanAm-
Sat did not file timely challenges to the Commission’s orders
assessing fees and exempting COMSAT in 1995, 1997, and
1999, and PanAmSat reached no conclusion on the permissi-
bility of COMSAT’s exemption for those years. Therefore,
we hold that the FCC violated no law and engaged in no
arbitrary or capricious action in denying PanAmSat’s refund
requests for fiscal years 1995, 1997, and 1999. Accordingly,
we deny the petition for review.
I. BACKGROUND
Petitioner PanAmSat Corporation and intervenor COMSAT
Corporation are both operators of geosynchronous space sta-
tions, which are domestic and international satellites that
provide communication. Pursuant to its authority under § 9
of the Communications Act, the Commission assesses regula-
tory fees on satellite operators to recover costs of ‘‘enforce-
ment activities, policy and rulemaking activities, user informa-
tion services, and international activities.’’ 47 U.S.C.
§ 159(a)(1) (2000). The Commission divides its total satellite
regulatory costs among operational space stations and assess-
es fees on each operator based on this calculation. As a
result, the Commission’s exemption of any space station
operator from these fees increases the fees assessed on other
space station operators. During the fiscal years in question,
COMSAT operated as the United States signatory to two
satellite systems, the International Telecommunications Satel-
lite Organization (‘‘Intelsat’’) and the International Maritime
Satellite Organization (‘‘Inmarsat’’). At the time, Intelsat and
Inmarsat were international organizations that owned satel-
4
lites used by their signatories to provide international com-
munication.
In 1995, 1997, 1998, and 1999, the Commission exempted
COMSAT from space station fees for its Intelsat and Inmar-
sat satellites. Believing that Congress only intended for
space station fees to be assessed on space stations directly
licensed by the FCC under Title III of the Communications
Act, and not on space stations operated by international
organizations subject to the International Organization Im-
munities Act, see In the Matter of Assessment and Collection
of Regulatory Fees for FY 1995, 10 F.C.C.R. 13,152, 13,550
(1995), the Commission exempted COMSAT from the satellite
regulatory fee in separate orders for the years 1995, 1997,
1998, and 1999, see id.; In the Matter of Assessment and
Collection of Regulatory Fees for Fiscal Year 1997, 12
F.C.C.R. 17,161, 17,187 (1997); In the Matter of Assessment
and Collection of Regulatory Fees for Fiscal Year 1998, 13
F.C.C.R. 19,820 (1998), 1998 WL 320272 n.108 (F.C.C.); In
the Matter of Assessment and Collection of Regulatory Fees
for Fiscal Year 1999, 14 F.C.C.R. 9868, 9982-83 (1999). As a
result, in each of those fiscal years, PanAmSat paid fee
amounts that partially covered regulatory costs attributable
to COMSAT.
PanAmSat petitioned this court for review of the order
assessing fees for fiscal year 1998. While the appeal was
pending, the Commission issued an order assessing fees and
exempting COMSAT for fiscal year 1999. PanAmSat did not
petition for review of the Commission’s orders assessing
regulatory fees for 1995, 1997, or 1999.
In PanAmSat’s challenge to the 1998 fee assessment order,
the court faced a jurisdictional problem, because, ‘‘[a]lthough
PanAmSat attacks a 1998 Order, the decisions it complain[ed]
of [were] identical to the formulations reached by the Com-
mission in its 1997 Order.’’ PanAmSat, 198 F.3d at 892. We
noted that ‘‘[t]he statute authorizing judicial review states
that petitions for review must be filed within 60 days of the
final order.’’ Id. (citing 28 U.S.C. § 2344). We concluded
that ‘‘PanAmSat’s petition [was] timely for the 1998 Order
5
but not for that of 1997,’’ id., and thus reached the merits of
PanAmSat’s attack on the FCC’s exemption of COMSAT
from regulatory fees in 1998.
On the merits, PanAmSat held that § 9 of the Communica-
tions Act ‘‘plainly does not require – and may not permit –
Comsat’s exemption from space station regulatory fees.’’ Id.
at 895. We noted that the ‘‘plain terms of § 9’’ did not
require COMSAT’s exemption, and that the Commission had
‘‘relied solely’’ on legislative history when it first granted the
exemption in 1995. Id. at 895-96. The decision concluded
that, even if the House report upon which the Commission
relied were taken ‘‘as gospel,’’ ‘‘the key passage seems most
plausibly to leave Comsat subject to fees for the regulatory
activity it generates, and to exempt organizations like Intelsat
and Inmarsat themselves.’’ Id. at 896. Thus, we found that
the legislative history did not support COMSAT’s exemption.
At the same time, we recognized that ‘‘[p]erhaps there is
some ambiguity in the coverage of the ‘space station’ category
in § 9, such that the Commission might ‘permissibly’ read the
statute as allowing a Comsat exemption.’’ Id. Therefore, the
case was remanded to the Commission for reconsideration of
COMSAT’s exemption.
The Commission released its order assessing fees for fiscal
year 1999 on June 18, 1999. PanAmSat was decided on
December 21, 1999. Even though PanAmSat was still pend-
ing when the FCC’s 1999 fee order was issued, PanAmSat did
not file a petition for reconsideration of the 1999 fee order
within 30 days of the order as required by 47 U.S.C. § 405(a).
Rather, on September 22, 1999, PanAmSat paid its regulatory
fees for fiscal year 1999 ‘‘under protest,’’ and requested a
‘‘partial refund in the event that the court invalidate[d] ele-
ments of the fees as a result of the appeal.’’ See Letter from
Joseph Godles, Attorney for PanAmSat Corp. to FCC of
9/22/99 at 1, Joint Appendix (‘‘J.A.’’) 16. Subsequently, fol-
lowing release of the PanAmSat decision, PanAmSat request-
ed a refund of regulatory fees for fiscal years 1995, 1997,
1998, and 1999. See Letter from Henry Goldberg, Attorney
for PanAmSat Corp. to Christopher J. Wright, General Coun-
sel, FCC of 2/15/00 at 4, J.A. 41.
6
In the order assessing fees for fiscal year 2000, the Com-
mission concluded that COMSAT’s exemption was contrary to
Congress’s intent: ‘‘It would unreasonably frustrate the in-
tent of Congress to suppose that it framed the fee schedule in
a way that made a category of costs either unrecoverable or
not chargeable against the party most directly related to
them, without creating an express exemption.’’ In the Matter
of Assessment and Collection of Regulatory Fees for Fiscal
Year 2000, 15 F.C.C.R. 14,478, 14,488 (2000). Accordingly,
for fiscal year 2000, the Commission assessed regulatory fees
on COMSAT. This court affirmed the Commission’s decision,
holding that ‘‘we cannot find the Commission’s refusal to
fashion an exemption unreasonable.’’ See COMSAT Corp. v.
FCC, 283 F.3d 344, 347 (D.C. Cir. 2002).
On April 9, 2003, the Commission released an order ad-
dressing ‘‘whether and in what amount COMSAT Corporation
should be required to pay the geosynchronous space station
regulatory fee identified in section 9 of the Communications
Act, 47 U.S.C. § 159(g), for Fiscal Year 1998.’’ Order, 18
F.C.C.R. at 6944. In light of this court’s decisions in
PanAmSat and COMSAT, and its own 2000 fee assessment
order, the Commission concluded that ‘‘COMSAT should have
been assessed the section 9 regulatory fee for fiscal year
1998.’’ Order, 18 F.C.C.R. at 6947-48. The Commission fur-
ther held:
13. On the other hand, PanAmSat cannot be ap-
plied to fiscal years prior to 1998. Newly estab-
lished law does not apply to proceedings already
closed. See Reynoldsville Casket Co. v. Hyde, 514
U.S. 749, 758 (1995). The rulemakings for fiscal
years before 1998 have long since become final.
14. We also decline to apply PanAmSat to Fiscal
Year 1999. PanAmSat did not challenge the Com-
mission’s failure to assess a fee in FY 1999.
7
Id. at 6948. The Commission pointed out that ‘‘PanAmSat
had ample opportunity to seek review of the 1999 fee order
and did not do so.’’ Id.
PanAmSat timely petitioned this court for review of the
Commission’s order on remand assessing fees on COMSAT
for fiscal year 1998 and not for fiscal years 1995, 1997, and
1999. By letter dated December 19, 2003, the Commission
granted PanAmSat a partial refund for overpayment in 1998,
noting that ‘‘the payment of COMSAT’s FY 1998 fee warrants
the recomputation of Panamsat’s fee for that year.’’ Letter
from Mark A. Reger, Chief Financial Officer, FCC, to Henry
Goldberg of 12/19/03 at 1, J.A. 72. The parties do not dispute
that the Order reflects a final agency decision to deny
PanAmSat’s requests for partial refunds of the regulatory
fees it paid in 1995, 1997, and 1999.
II. ANALYSIS
We set aside a decision of the FCC if it is ‘‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.’’ 5 U.S.C. § 706(2)(A) (2000). It is undisput-
ed that PanAmSat did not timely seek reconsideration or
petition this court for review of the FCC’s orders assessing
fees and exempting COMSAT for fiscal years 1995, 1997, and
1999. Nonetheless, PanAmSat contends that the Commis-
sion’s denial of its refund requests for its alleged overpay-
ments in those years is arbitrary, capricious, and unlawful in
light of this court’s decision in PanAmSat. We find no merit
in this claim.
Because PanAmSat failed to challenge the underlying or-
ders assessing the fees for fiscal years 1995, 1997, and 1999,
the fee orders for those years are final. Accordingly,
PanAmSat’s refund requests are not timely. PanAmSat can-
not belatedly seek to overturn final Commission orders as-
sessing fees in the guise of refund requests. In each in-
stance, there was a 60-day time limit pursuant to 28 U.S.C.
§ 2344 during which affected parties could challenge the FCC
orders. PanAmSat could have, but did not petition for review
8
of the fee orders for 1995, 1997, and 1999. Once the 60-day
time limitations periods passed, the fee orders were final.
Our decision in PanAmSat addressed only the Commis-
sion’s 1998 fee order. Indeed, we found that ‘‘PanAmSat’s
petition [was] timely for the 1998 Order but not for that of
1997.’’ PanAmSat, 198 F.3d at 892. It is clear that PanAm-
Sat did not purport to consider the merits of PanAmSat’s
challenges to any fee order other than the one assessing fees
for 1998.
It does not matter that the 1995, 1997, and 1999 fees were
levied pursuant to the same rationale used by the Commission
to justify the 1998 fees. PanAmSat held that ‘‘the FCC was
mistaken in its conclusion that the statute compelled an
exemption for Comsat,’’ but it did not hold that an exemption
for COMSAT was impermissible under § 9 of the Communi-
cations Act. Rather, the court recognized the possibility of
‘‘some ambiguity in the coverage of the ‘space station’ catego-
ry in § 9, such that the Commission might ‘permissibly’ read
the statute as allowing a Comsat exemption.’’ Id. at 896.
Therefore, PanAmSat cannot be understood as holding un-
lawful the orders assessing regulatory fees and exempting
COMSAT in 1995, 1997, and 1999. Because PanAmSat
leaves open the possibility that a COMSAT exemption is
lawful, PanAmSat’s claim that the decision conflicts with the
1995, 1997, and 1999 fee orders is mistaken. Those orders
were never challenged and never found to be unlawful.
PanAmSat suggests that, because the Commission had not
yet ruled on another party’s petition for reconsideration of
the 1999 fee order when this court issued its decision in
PanAmSat, the 1999 fee order was not yet final at that time.
PanAmSat alleges that, under those circumstances, the Com-
mission abused its discretion in failing to reconsider, sua
sponte, COMSAT’s exemption for fiscal year 1999 after the
PanAmSat decision was issued. See Petitioner’s Br. at 25.
We disagree. The Commission correctly points out that
PanAmSat had ample opportunity to seek review of the 1999
order but failed to do so. Order, 18 F.C.C.R. at 6948. Due
to PanAmSat’s failure to challenge the agency action that
9
allegedly caused its overpayment, PanAmSat cannot now be
entitled to a refund for that purported overpayment. And we
cannot ignore PanAmSat’s failure to pursue a timely chal-
lenge simply because another party petitioned the Commis-
sion for reconsideration of the 1999 fee order on an entirely
unrelated issue. See Petition for Reconsideration of the
Cellular Telecommunications Industry Association, In the
Matter of Assessment and Collection of Regulatory Fees for
Fiscal Year 1999, MD Docket 98-200, J.A. 3-15 (challenging
the Commission’s assessment of subscriber fees for commer-
cial mobile radio services for fiscal year 1999).
PanAmSat’s reliance on National Association of Broad-
casters v. FCC, 554 F.2d 1118 (D.C. Cir. 1976) (‘‘NAB’’) is
misplaced. NAB permitted broadcasters to sue the FCC for
refunds after a Supreme Court decision invalidated certain
aspects of the fee schedule, despite their failure to appeal an
earlier Fifth Circuit decision upholding the fees. But this
court made clear that the holding permitting refunds in that
particular case was an exception to the general rule that
those who do not challenge fee assessments waive their right
to a refund:
[A]ll of the petitioners now before us could have
appeared before the Fifth Circuit upon remand of
the NCTA case from the Supreme Court to request
that the court of appeals consider its decision in
Clay Broadcasting regarding the entire 1970 fee
schedule, but did not do so. Absent extenuating
circumstances, we would normally be inclined to
hold that they had thereby waived any further chal-
lenge to the fees they were contesting in that action.
Id. at 1127 (emphasis added). In NAB, we clearly identified
those extenuating circumstances:
But here petitioners justifiably relied on statements
by the FCC to the effect that action on refunds
would be taken by the Commission on its own initia-
tive. Since the FCC led petitioners to believe that
more timely action on their part was unnecessary,
10
the prior possibility of an application to the Fifth
Circuit on remand cannot bar the present suit.
Id. In that case, the affected parties, unlike PanAmSat, were
misled by the Commission to believe that the Commission
would act on refunds on its own. And, in NAB, the court
found that the fee regime, unlike the one at issue here,
required regulated parties ‘‘to protest a fee assessment only
after payment.’’ Id. Those circumstances are not present
here. Absent such circumstances, the normal rule applies:
PanAmSat was required to raise a timely challenge to the
disputed orders assessing fees in order to be able to claim a
partial refund of fees it paid pursuant to those orders.
Finally, we find no merit in PanAmSat’s reliance on the
Commission rule authorizing the agency to grant refunds
when ‘‘no regulatory fee is required or an excessive fee has
been paid.’’ 47 C.F.R. § 1.160(a)(1) (2003). PanAmSat notes
that this regulation specifies no time limit on the availability
of refunds, suggesting that a refund request may be filed at
any time by an aggrieved party. See Petitioner’s Br. at 17.
This is a faulty construction of the rule. PanAmSat failed to
raise a timely challenge to the agency’s finding that a regula-
tory fee was ‘‘required’’ in 1995, 1997, and 1999. Indeed,
there has never been a finding that PanAmSat paid excessive
fees for those fiscal years pursuant to a timely challenge by
PanAmSat. Because the orders establishing the fees for
those years were never challenged or found to be unlawful,
the resulting fees were properly ‘‘required.’’ Therefore,
PanAmSat can claim no refunds for 1995, 1997, and 1999.
PanAmSat argues, for the first time on appeal, that finality
is a non-issue because the Commission has routinely consid-
ered and granted waivers and refunds after the underlying
fee proceedings had closed. See Petitioner’s Br. at 19.
PanAmSat never raised this argument in its filings to the
Commission, so this argument is not properly before the
court. See Washington Ass’n for Television and Children v.
FCC, 712 F.2d 677, 681 (D.C. Cir. 1983) (‘‘As a general rule,
claims not presented to the agency may not be made for the
11
first time to a reviewing court.’’). Even if we were to reach
the merits of the claim, however, the examples identified by
PanAmSat are not comparable to this case. In the cases
cited by PanAmSat, the Commission granted waivers, reduc-
tions, and refunds based on evidence of financial hardship, or
based on mistaken overpayment. PanAmSat’s payments in
1995, 1997, and 1999 involved no claimed financial hardship;
and they were not mistaken overpayments, because there has
never been a finding that the fees assessed in those years
were unlawful.
III. CONCLUSION
For the foregoing reasons, we deny the petition for review.