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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2004 Decided July 30, 2004
No. 03-1082
ADVANCED COMMUNICATIONS CORPORATION,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
ECHOSTAR SATELLITE CORPORATION,
INTERVENOR
Appeal of an Order of the
Federal Communications Commission
Robert Corn–Revere argued the cause for appellant. With
him on the briefs was Pamela C. Cooper.
Stewart A. Block, Counsel, Federal Communications Com-
mission, argued the cause for appellee. With him on the brief
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
were John A. Rogovin, General Counsel, and Daniel M.
Armstrong, Associate General Counsel.
Pantelis Michalopoulos argued the cause and filed the
brief for intervenor. Alice E. Loughran entered an appear-
ance.
Before: ROGERS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Advanced Communications Cor-
poration (ACC) appeals from an order of the Federal Com-
munications Commission (FCC) denying the company’s peti-
tion to reopen the record in a proceeding closed nearly a
decade ago. Because we conclude that the Commission did
not abuse its discretion in declining to reopen, we affirm the
decision below.
I
The history of the Commission’s earlier ACC proceeding is
set forth in detail in our previous opinion involving this
dispute, and we therefore provide only the necessary back-
ground here. See Advanced Communications Corp. v. FCC,
84 F.3d 1452, 1996 WL 250460 (D.C. Cir. May 3, 1996)
(unpublished table decision) (Advanced I).
In 1984, the FCC awarded ACC a conditional construction
permit to provide direct broadcast satellite (DBS) service. In
the interest of ‘‘ensur[ing] the prompt use of DBS spectrum
resources,’’ id. at *1, FCC rules required ACC to satisfy two
due diligence requirements applicable to all DBS permittees.
First, ACC had to ‘‘ ‘begin construction or complete contract-
ing for construction’ ’’ within one year of receiving the permit.
Id. (quoting 47 C.F.R. § 1001.19(b)). Second, ACC had to
commence operating its system within six years of receiving
the construction permit. Id. The company fulfilled the first
requirement, and in 1986 it was assigned channels at two
orbital locations. Despite a four-year extension, however,
3
ACC failed to meet the second requirement. In April 1995,
the FCC’s International Bureau denied ACC’s request for a
second four-year extension to construct, launch, and operate a
DBS system, and it cancelled ACC’s construction permit.
On October 16, 1995, the Commission affirmed the denial of
the extension and the cancellation of ACC’s permit. Ad-
vanced Communications Corp., 11 FCC Rcd 3399, 3400
(1995) (hereinafter 1995 Order). Commissioners Quello and
Barrett dissented. Id. at 3430, 3435. In a notice of proposed
rulemaking published shortly thereafter, the Commission pro-
posed to reassign the reclaimed channels and orbital locations
(hereinafter collectively referred to as ‘‘spectrum’’) by auc-
tion. In the Matter of Revision of Rules and Policies for the
Direct Broadcast Satellite Service, 11 FCC Rcd 1297, 1298
(1995). Commissioner Barrett again dissented. Id. at 1349.
The proposal was ultimately adopted, and MCI Communica-
tions and EchoStar Communications won the subsequent
auction for a total price of more than $700 million. MCI later
assigned its spectrum to EchoStar, which currently provides
DBS service to millions of customers nationwide.
ACC appealed the 1995 Order to this court, making three
arguments: (1) the FCC’s decision constituted an arbitrary
departure from the agency’s precedents; (2) the FCC failed
to provide a reasoned explanation for its decision; and (3) in
deciding to deny ACC’s requested extension, the FCC im-
properly considered the revenues that would be gained from
the auction of ACC’s spectrum. Advanced I, 1996 WL
250460, at *2. The last argument, of particular importance
here, was based on a claim that consideration of revenues by
the FCC would violate section 309(j)(7)(A) of the Communica-
tions Act, which provides:
In making a decision pursuant to section 303(c) of this
title to assign a band of frequencies to a use for which
licenses or permits will be issued pursuant to this subsec-
tion, TTT the Commission may not base a finding of
public interest, convenience, and necessity on the expec-
4
tation of Federal revenues from the use of a system of
competitive bidding under this subsection.
47 U.S.C. § 309(j)(7)(A).
On May 3, 1996, this court rejected ACC’s appeal. We
concluded that the FCC’s decision was consistent with its
precedents, and that it included a reasoned explanation for
the disposition. Advanced I, 1996 WL 250460, at *3–4. We
also found that, ‘‘[w]hile the Commission was aware that
substantial sums could be realized from the sale of any orbital
slots and channels recovered from ACC, the Order d[id] not
base its denial of ACC’s renewal application on the expecta-
tion of such revenues.’’ Id. at *4 (internal citation omitted).
‘‘Rather,’’ we said, ‘‘the Commission’s decision was predicated
on ACC’s failure to achieve any concrete progress toward the
actual construction of its DBS system during its first exten-
sion period.’’ Id. (internal quotation marks omitted). And
we concluded that ACC had ‘‘pointed to nothing in the record
that is sufficient to overcome the strong presumption of
agency regularity.’’ Id. In light of that conclusion, we found
it unnecessary to decide ‘‘whether the Commission was in fact
barred by law from taking into account the expected impact
on federal revenues.’’ Id.
ACC continued to pursue its case in other fora. In 1998,
ACC sued MCI in Arkansas federal court, alleging tortious
interference with contract and again claiming that the FCC
had denied ACC’s request for an extension because of the
revenues that an auction would bring. The district court held
that Advanced I collaterally estopped ACC from relitigating
the revenues issue, Advanced Communications Corp. v. MCI
Communications Corp., 101 F. Supp. 2d 1154, 1159–60 (E.D.
Ark. 2000), and the Eighth Circuit affirmed, 263 F.3d 793, 795
(8th Cir. 2001). In October 2001, ACC petitioned this court
for a writ of mandamus directing the FCC to invalidate the
1995 Order in light of two affidavits that it had recently
obtained from (by then) former Commissioners Barrett and
Quello. We denied the petition, declaring that it provided no
justification for the extraordinary remedy of mandamus. In
5
re: Advanced Communications Corp., 2001 WL 1699340, at
*1 (D.C. Cir. Dec. 19, 2001).
In April 2003, Advanced petitioned the Commission to
reopen the record for further proceedings based on what it
contended was new evidence that the 1995 Order had been
the product of improper considerations. The new evidence
consisted of the aforementioned affidavits by the two Com-
missioners who had dissented from the 1995 Order. The
identically worded affidavits, signed in October 2001, declared
the affiants’ view that ‘‘at least one of the Commissioners in
the majority based his or her decision in the Advanced Order
on the expectation of Federal revenues that would result from
the reassignment by auction of the channels and orbital
locations previously assigned to ACC.’’ Affidavit of James H.
Quello (J.A. 529); Affidavit of Andrew C. Barrett (J.A. 536).
The FCC denied ACC’s petition to reopen the record, con-
cluding that the ‘‘new evidence that Advanced submits is
nothing more than another attempt to re-argue the issue that
it has presented in numerous prior court proceedings.’’ Ad-
vanced Communications Corp., 18 FCC Rcd 2926, 2929
(2003) (hereinafter 2003 Order). The affidavits, the FCC
said, failed to meet the ‘‘strong showing of sufficiency of
evidence’’ required to overcome the public interest in orderly
and final agency action. Id. at 2930.
II
Before proceeding to the merits, we must say a few words
about the standards of review applied by this court and the
FCC.
1. ‘‘[A] petition seeking review of an agency’s decision not
to reopen a proceeding is not reviewable unless the petition is
based upon new evidence or changed circumstances.’’ South-
western Bell Tel. Co. v. FCC, 180 F.3d 307, 311 (D.C. Cir.
1999). Where, as in this case, the petition is based on a claim
of new evidence, we do have jurisdiction to review, but we
may reverse only upon ‘‘a showing of the clearest abuse of
discretion.’’ Interstate Commerce Comm’n v. Brotherhood of
6
Locomotive Eng’rs, 482 U.S. 270, 278 (1987) (internal quota-
tion marks omitted).
Additional considerations further confirm the need for a
deferential standard of review. Where, as here, the petition
for reopening comes not before judicial review but after, and
not immediately after but long after, we are loathe to over-
turn settled expectations. See Greater Boston Television
Corp. v. FCC, 463 F.2d 268, 288–89 (D.C. Cir. 1971) (noting
that ‘‘investments may be made in reliance on such an order,’’
and that at some point ‘‘the public interest in finality is
dominant over the public interest in possibly improving the
administrative result on further consideration’’). Moreover,
where, as here, the petition seeks an inquiry into the motives
of decisionmakers whose decision is reflected in official find-
ings, ‘‘there must be a strong showing of bad faith or improp-
er behavior’’ before a court will permit such an inquiry.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 420 (1971); see Checkosky v. SEC, 23 F.3d 452, 489 (D.C.
Cir. 1994) (declaring that ‘‘[a]gency opinions, like judicial
opinions, speak for themselves’’); see also PLMRS Narrow-
band Corp. v. FCC, 182 F.3d 995, 1002 (D.C. Cir. 1999); San
Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 44–45
(D.C. Cir. 1986).1
1 The FCC urges us to regard ACC’s appeal not as a request to
reopen agency proceedings, but as one to recall the mandate we
issued in Advanced I. According to the Commission, it does not
have authority to reopen that closed proceeding unless we first
recall the mandate that affirmed the 1995 Order. Moreover, the
Commission continues, we may not issue such a recall except in
‘‘exceptional circumstances,’’ upon a ‘‘showing of ‘good cause’ and
the need to ‘prevent injustice.’ ’’ Greater Boston, 463 F.2d at 277–
78. To resolve this case, however, there is no need to decide
whether ACC’s appeal must be styled as a request to recall our
mandate, rather than as one to review a refusal to reopen. Com-
pare Greater Boston, 463 F.2d at 291 (denying an FCC request to
recall the court’s mandate to permit the agency to hear argument
regarding whether to reopen a comparative licensing proceeding),
with Standard Oil Co. v. United States, 429 U.S. 17, 18 (1976)
(holding that, although ‘‘Courts of Appeals have required appellate
7
2. The FCC’s own standard for reopening a closed pro-
ceeding reflects many of these same considerations. As the
FCC explained, ‘‘[u]nder ordinary circumstances,’’ an appli-
cant seeking to reopen a proceeding after the close of the
record must show:
(1) that it relies on new or newly discovered evidence
that could not, through the exercise of due diligence,
have been discovered earlier; (2) that the new evidence,
if proven, would raise a substantial and material question
of fact affecting the ultimate outcome of the proceeding;
and (3) that there is a substantial likelihood of proving its
potentially disqualifying allegations if the case is remand-
ed for further review.
2003 Order, 18 FCC Rcd at 2930 n.20 (citing, inter alia, Eve
Ackerman, 8 FCC Rcd 4205, 4205 (1993)); see also 47 U.S.C.
§ 405(a); 47 C.F.R. § 1.106(b)(2)(i)-(ii), (c). This test re-
quires ‘‘a particularly strong showing of substantive sufficien-
cy for post-hearing motions to reopen the record,’’ and re-
flects the Commission’s effort to balance the ‘‘interest in
preserving finality and expediting service to the public
against the benefits of future litigation.’’ Eve Ackerman, 8
FCC Rcd at 4205, ¶ 6. The FCC has generally employed this
test when the petition to reopen comes before judicial review
has taken place. See, e.g., id.; Omaha TV 15, Inc., 4 FCC
Rcd 730 (1988); Apogee, Inc. et al., 59 Rad. Reg. 2d (P&F)
941 (1986). In this post-review case, the FCC further raised
the threshold for reopening: ‘‘[G]iven the time that has
passed since the termination of the Advanced proceeding, and
the use that has been made of the satellite orbital locations
and frequencies, the burden is extraordinarily high.’’ 2003
Order, 18 FCC Rcd at 2930–31. Since our own standard of
review reflects these same considerations, we can hardly
leave before the District Court could reopen a case which had been
reviewed on appeal,’’ the ‘‘arguments in favor of requiring appellate
leave are unpersuasive’’). As just discussed, our standard of review
for denials of reopenings is itself highly deferential, and if there is a
material difference between that standard and the one applicable to
recalls, it is of no consequence here.
8
regard the FCC’s decision to take them into account as
unreasonable.
3. In sum, the task confronting ACC is a difficult one. It
must show that the proffered evidence clears the high hurdle
required by the FCC to reopen a closed record, and that it
does so by such a margin that it meets this court’s own high
threshold for reversing the agency’s refusal to reopen. But
we have already paid far more attention to the height of the
bar than is necessary. As we shall see, ACC’s asserted ‘‘new
evidence’’ falls short of justifying reopening even under the
standard the FCC applies in ‘‘ordinary circumstances.’’
III
ACC presented to the Commission what it regarded as new
evidence showing that, in denying ACC’s request for a permit
extension, at least one Commissioner based his decision on
the impact it would have on federal revenues. In determin-
ing whether to reopen the 1995 proceeding in light of that
evidence, the Commission assumed — without deciding — the
validity of ACC’s premise: that a decision based on revenue
considerations would have violated 47 U.S.C. § 309(j)(7)(A).
We proceed in the same manner.
The ‘‘new’’ evidence proffered by ACC consisted of the
sworn affidavits of former Commissioners Quello and Barrett.
The affidavits were identical, and stated, in pertinent part:
[B]ased on my deliberations with the other Commission-
ers, at least one of the Commissioners in the majority
based his or her decision in the Advanced Order on the
expectation of Federal revenues that would result from
the reassignment by auction of the channels and orbital
locations previously assigned to ACC, which I believe
violates 47 U.S.C. § 309(j)(7)(A).
Affidavit of James H. Quello (J.A. 529); Affidavit of Andrew
C. Barrett (J.A. 536). The Commission reasonably concluded
that the affidavits were insufficient to justify reopening the
1995 proceeding.
9
First, whether or not this evidence was available in 1995,
ACC offers no reason why it ‘‘could not, through the exercise
of due diligence, have been discovered earlier’’ than October
2001. Eve Ackerman, 8 FCC Rcd at 4205, ¶ 6; see W.S.
Butterfield Theatres, Inc. v. FCC, 237 F.2d 552, 555 (D.C. Cir.
1956) (‘‘Delay in seeking reopening of the record is a factor to
be weighed in the exercise of the Commission’s discretion.’’).
Even if ACC could not have been expected to obtain the
affidavits while Barrett and Quello were still Commissioners,
both were gone from the Commission by November 1997, see
Intervenor’s Br. at 18, and ACC has not explained why the
affidavits could not have been procured soon thereafter.
During the following four years, third parties like MCI and
EchoStar relied on the finality of the 1995 Order in ordering
their investments and operations. That good faith reliance on
a final administrative determination rightly weighed heavily
in the agency’s decision not to reopen the proceeding. See
Greater Boston, 463 F.2d at 289, 291.
Second, the affidavits themselves are insufficient to raise a
‘‘substantial and material question of fact affecting the ulti-
mate outcome’’ of the 1995 proceeding. Eve Ackerman, 8
FCC Rcd at 4205, ¶ 6. The affidavits are wholly conclusory,
lacking specificity regarding the identity of the allegedly
miscreant Commissioner, or the date or contents of his or her
offending statements. The affiants do not state what it was
about their ‘‘deliberations with the other Commissioners’’ that
formed the basis for their conclusion that at least one rested
his or her decision on the expectation of federal revenues.
Nor does ACC offer any explanation for why the affidavits
fail to provide such specificity. The company does not, for
example, contend that compulsory process is needed to ex-
tract more information from the affiants. To the contrary,
ACC concedes that its counsel had access to the former
Commissioners; indeed, ACC confesses that its own counsel
drafted the affidavits. Oral Arg. Tape at 1:58 (D.C. Cir. Jan.
16, 2004). On their face, then, the affidavits may reflect
nothing more than the common refrain of many dissenting
opinions: the majority’s position seems so ‘‘wrong’’ that it
10
‘‘must’’ have been the product of inappropriate policy consid-
erations.
Third, to the extent that the affiants have something more
specific in mind, ACC has not shown that it is truly new or
likely to alter the outcome of the 1995 proceeding. In
Advanced I, ACC made the same argument that it does here:
that the FCC based its denial of ACC’s request for a second
extension on the Commission’s consideration of the revenues
to be gained from the auction of ACC’s spectrum. See
Advanced I, 1996 WL 250460, at *2. In support of that
contention, ACC offered three pieces of evidence. First,
ACC pointed to public statements that then-Chairman Reed
Hundt made in 1995 — in congressional testimony and in a
speech at the National Consumers Week Symposium —
emphasizing the revenue generated by spectrum auctions.
See Brief for Appellants at 17, Advanced I (J.A. 158) (quoting
Hundt’s June 1995 testimony ‘‘referring to Commission as
‘the largest single government profit center’ because of auc-
tion revenues’’); id. (quoting Hundt’s October 1995 speech
declaring ‘‘that ‘FCC stands for Federal Cash Cow’ and that
the agency is ‘the goose that lays the golden eggs’ ’’). Sec-
ond, ACC noted an October 10, 1995 letter from MCI to the
Commission — cited in the 1995 Order — that offered ‘‘an
opening bid of $175 million’’ if an auction were held for ACC’s
reclaimed spectrum. Id. at 19 (J.A. 160) (quoting 1995 Order,
11 FCC Rcd at 3424 n.127). Finally, ACC pointed to Com-
missioner Barrett’s dissent from the 1995 rulemaking notice
that proposed holding an auction for the reclaimed spectrum.
In his dissent, Barrett revealed that, ‘‘prior to rendering a
decision in the Advanced Order, one of my colleagues asked
me whether this alleged opening bid [by MCI] would per-
suade me that auctioning the 27 channels was appropriate.’’
Id. at 21 (quoting Statement of Commissioner Andrew C.
Barrett, In the Matter of Revision of Rules and Policies, 11
FCC Rcd at 1351 n.5).
Notwithstanding this evidence, the Advanced I court con-
cluded that ‘‘nothing in the record TTT [was] sufficient to
overcome the ‘strong presumption of agency regularity.’ ’’
1996 WL 250460, at *4 (quoting Louisiana Ass’n of Indep.
Producers v. FERC, 958 F.2d 1101, 1111 (D.C. Cir. 1992)).
As we have discussed, the new affidavits themselves add
11
nothing that would change this conclusion. Hence, the re-
maining question — which we put to ACC at oral argu-
ment — is this: what is the most that the former Commis-
sioners can be expected to say at a reopened proceeding in
support of the conclusion recited in their affidavits? Conced-
ing that he would be speculating, ACC counsel stated that the
affiants might testify that Chairman Hundt had said, in the
privacy of the Commission’s deliberations, precisely what he
had been saying in public: that auctioning off reclaimed
spectrum would generate substantial revenue. Oral Arg.
Tape at 3:30 (D.C. Cir. Jan. 16, 2004).
But even if a reopened proceeding produced such evidence,
it would not be enough to change the original outcome. This
court has already held in Advanced I that Hundt’s public
statements were insufficient to undermine the validity of the
1995 Order. We do not see why knowing that Hundt said in
private what he had been proclaiming in public should make a
difference. Indeed, Commissioner Barrett’s 1995 dissent inti-
mated that something just like that had transpired, yet it
proved inadequate to sway the court in Advanced I. And as
we said in PLMRS Narrowband Corp. v. FCC, even direct
evidence that a Commissioner ‘‘flirted with an impermissible
rationale’’ during an agency’s decisionmaking process is gen-
erally insufficient to require reversal of the agency’s final
decision. 182 F.3d at 1001–02. The current Commission —
no member of which was serving in 1995 — has concluded
that ACC’s new evidence fails to meet the ‘‘strong showing of
sufficiency of evidence’’ required to overcome the interest in
administrative finality. 2003 Order, 18 FCC Rcd at 2930.
We detect nothing unreasonable in that conclusion.
IV
For the foregoing reasons, the FCC’s order denying Ad-
vanced’s petition is
Affirmed.