United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 27, 2005 Decided March 24, 2006
No. 04-1359
AMERICAN ASSOCIATION OF PAGING CARRIERS,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of the
Federal Communications Commission
Kenneth E. Hardman argued the cause for the petitioner.
C. Grey Pash, Jr., Counsel, Federal Communications
Commission, argued the cause for the respondent. Robert H.
Pate, III, Assistant Attorney General, Catherine G. O’Sullivan,
Counsel, and Andrea Limmer, Attorney, United States
Department of Justice, and Daniel M. Armstrong, Associate
General Counsel, Federal Communications Commission were
on brief. John A. Rogovin and Roberta L. Cook, Counsel,
Federal Communications Commission, entered appearances.
Before: HENDERSON, GARLAND and GRIFFITH, Circuit
Judges.
2
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
American Association of Paging Carriers (AAPC), a trade
association representing paging signal carrier companies, seeks
review of the September 2004 Memorandum Opinion and Order
of the Federal Communications Commission (FCC or
Commission) in Amendment of Part 90 of the Commission’s
Rules and Policies for Applications and Licensing of Low Power
Operations in the Private Land Mobile Radio 450–470 MHz
Band, 19 F.C.C.R. 18501 (2004), reprinted at Joint Appendix
(JA) 8a (Denial Order). In the Denial Order, the FCC denied
AAPC’s petition to reconsider parts of an earlier rulemaking that
revised the channeling plan in the 450–475 MHz band of the
radio spectrum, designating eight frequencies in the 462 MHz
band for low power communications operations. See Report and
Order, 18 F.C.C.R. 3948 (2003) (Low Power Order). AAPC
claims that by allocating for low power use eight frequencies
located at an unacceptably close distance of only 12.5 kHz from
existing paging-only frequencies already designated for use by
AAPC’s members, the FCC violated the requirement set out in
the 1993 Omnibus Budget Reconciliation Act (OBRA), Pub. L.
No. 103-66, 107 Stat. 312, mandating that the Commission
make “necessary and practical” modifications to ensure that
technical requirements applicable to licensees such as AAPC’s
members are “comparable” to those applicable to licensees
providing “substantially similar” services. OBRA §
6002(d)(3)(B). Specifically, AAPC claims that the Low Power
Order failed to carry out the unambiguous congressional intent
expressed in OBRA that like communications services be treated
alike. Because we find the Denial Order unreviewable,
however, we dismiss AAPC’s petition.
3
I.
A. Regulation of Commercial Paging Signal Licensing
Paging services allow both commercial subscribers and
internal (or “private”1) networks of users to receive messages
broadcast by radio waves over dedicated frequencies.
Historically, the FCC allocated frequencies for paging
operations under two parts of its rules. Part 22 covered the
traditional common carrier paging services available to the
public known as Public Mobile Services (Part 22 systems), see
47 C.F.R. § 22.99, while Part 90 covered the private paging
carrier services known as Private Land Mobile Radio Services
(Part 90 systems), including point-to-point private radio services
tailored to the needs of particular user groups for internal
use—and not subject to common carrier regulation—such as
safety operations (e.g., roadside assistance and volunteer fire
departments), systems used by school bus drivers or for disaster
relief and businesses requiring specialized internal paging
services like private ambulance companies. See 47 C.F.R. §§
90.15, 90.20. With a growing demand for private service,
however, the Commission began authorizing licensees to
provide “private carrier” service, i.e., service to third-party users
on a for-profit basis, under Part 90.2 See Inquiry Relative to the
1
“Private” in this context refers not to the licensee’s status but
to the use of the paging network; a private system broadcasts signals
for internal use only. A private paging system can therefore be
operated by either a private (i.e., commercial) or a public (i.e.,
government) licensee.
2
Unlike private licensees, who use their networks strictly for
internal communications, private carrier service providers offer
paging services to third parties.
4
Future Use of the Frequency Band 806-960 MHz, Second
Report and Order, 46 F.C.C.2d 752, 755 ¶¶ 6–10 (1974);
Implementations of Sections 3(n) and 332 of the
Communications Act, Second Report and Order, 9 F.C.C.R.
1411, 1414 ¶ 4 (1994). As private carrier service was offered to
third parties for profit, and as the FCC permitted private land
mobile service operators to interconnect with the public
telephone network and thereby provide the same service
traditionally offered by common carriers only, private carriers
became indistinguishable from common carriers. Nevertheless
the two remained subject to separate regulatory schemes. See
H.R. Rep. No. 103–111, at 259–60 (1993). Common carriers
were subject to rate regulation on both state and federal levels,
for example, while private carriers were not. Id. at 260.
In August 1993, the Congress enacted the Omnibus Budget
Reconciliation Act (OBRA). Pub. L. No. 103-66, 107 Stat. 312
(1993). Seeking to establish a single regulatory framework for
all for-profit mobile radio licensees offering services to the
public and a different framework for private licensees, OBRA
amended section 332 of the Communications Act of 1934.
OBRA section 6002(b) modified the regulation of all mobile
radio services, including paging services, by creating two
statutorily defined categories of mobile services: commercial
mobile radio services (CMRS) and private mobile radio services
(PMRS). It defined CMRS as “any mobile service . . . that is
provided for profit and makes interconnected service available
(A) to the public or (B) to such classes of eligible users as to be
effectively available to a substantial portion of the public.” See
47 U.S.C. § 332(d)(1). In response to this congressional
mandate, the FCC concluded that all existing common carrier
mobile radio services operating under Part 22 of its rules,
including common carrier paging services, and a number of the
then-private radio services operating under Part 90 of its rules,
5
including private carrier paging services provided by AAPC
members, would now be subject to the new CMRS
classification.3 Implementations of Sections 3(n) and 332 of the
Communications Act, Second Report and Order, 9 F.C.C.R. at
1452–53 ¶ 97. Through OBRA the Congress also sought to
ensure that Part 90 licensees receive substantially similar
regulatory treatment as the Part 22 licensees with which they
now share the CMRS classification by providing that the
Commission, “in the regulations that will, after such date of
enactment, apply to a service that was a private land mobile
service and that becomes a commercial mobile service (as a
consequence of such amendments), shall make such other
modifications or terminations as may be necessary and practical
to assure that licensees in such service are subjected to technical
requirements that are comparable to the technical requirements
that apply to licensees that are providers of substantially similar
common carrier services.” OBRA § 6002(d)(3)(B).
3
Other existing private land mobile services regulated under Part
90 like government, public safety and certain specialized industrial
services did not come within the CMRS definition and were therefore
classified as PMRS services. Regarding the private paging services
offered by AAPC members, however, the FCC “determined that [its]
private land mobile service rules allow (although they do not require)
[private paging] licensees to offer for-profit, interconnected service
to the public or a substantial portion of the public, thus meeting the
CMRS definition. We therefore concluded that licensees in these
Part 90 service categories who are in fact providing such service
would be classified as CMRS, while Part 90 licensees whose
operations do not meet the CMRS definition would continue to be
classified as private.” Further Notice of Proposed Rulemaking,
Implementations of Sections 3(n) and 332 of the Communications Act,
Second Report and Order, 9 F.C.C.R. 2863, 2864 ¶ 3 (1994).
6
B. Procedural History
AAPC challenges the FCC’s revision of existing policies
governing low power operations in the 450–470 MHz land
mobile radio frequency bands.4 Regular channels employing
high-power transmissions in these bands are normally spaced 25
kHz apart.5 Recognizing the need for low power operations
while at the same time encouraging efficient spectrum use,6
however, the FCC in March 2003 made certain “offset
channels”—frequencies only 12.5 kHz removed from the 25
kHz frequencies—available for low power operations.7
4
“Land mobile” radio sends messages via radio signal between
a stationary transmission point and mobile receiving units. It is
generally used for cellular telephony, dispatch services (e.g., taxis,
delivery vehicles and police cars) and mobile paging services such as
those AAPC’s members provide. See Telocator Network of Am. v.
F.C.C. 691 F.2d 525, 527 (D.C. Cir. 1982); 17 F.C.C.R. 6194,
6222 (2002).
5
The FCC states that for many years its practice has been to
permit the use of frequencies that are 12.5 kHz removed from the
regularly assigned frequencies for low power use on a “secondary
basis.” See Resp’s Br. 3 n.2. Radio communications authorized on
a “secondary basis” must not cause interference with those offered
on a “primary basis” and are not protected from interference from
those primary operations. 47 C.F.R. § 90.7.
6
See 10 F.C.C.R. 10076, 10110 (1995); 47 C.F.R. § 90.267(a).
7
In September 2000, the Land Mobile Communications Council,
an association composed of land mobile radio service users and
providers such as railroads, state highway and transportation
officials, fire chiefs and fish and wildlife agencies, petitioned for a
7
Amendment of Part 90 of the Commission’s Rules and Policies
for Applications and Licensing of Low Power Operations in the
Private Land Mobile Radio 450–470 MHz Band, Report and
Order, 18 F.C.C.R. 3948, 3949 (2003). The new offset
channels, referred to as “Group C” channels in the Low Power
Order, were intended for small business use, particularly by
individuals like plumbers and electricians who move among
fixed job locations and need short-term on-site communications
capacity on an “itinerant” basis.8 Id. at 3970–71.
After the Low Power Order issued, AAPC petitioned for
reconsideration, requesting the FCC to “eliminate the licensing
and use” of the offset frequencies that are only 12.5 kHz
removed from eight frequencies used by a number of its
members to provide mobile paging services in the 462 MHz
band. AAPC Petition for Reconsideration, WT Docket No. 01-
146, May 21, 2003, at 7–8. In its petition, AAPC noted that it
was a “newly organized national trade association” formed after
the comment period for the Notice of Proposed Rulemaking that
led to the Low Power Order had closed. Id. at 3. AAPC based
its petition for reconsideration on two related grounds: (1)
relying on Chevron v. Natural Resources Defense Council, 467
rulemaking to allow offset channels in the 450–470 band of
frequencies to be made available to provide low power users “needed
flexibility in establishing short-term communications systems.” Land
Mobile Communications Council, Petition for Rule Making, RM-
9966 (filed Sept. 11, 2000). The FCC largely adopted the Council’s
proposal in the Low Power Order.
8
“Itinerant” operation is defined as operation of a radio station
at unspecified locations for varying periods of time. 47 C.F.R. §
90.7.
8
U.S. 837 (1984), it claimed that the allocation of the offset
frequencies was “fundamentally inconsistent with the statutory
requirement” that “Part 90 CMRS licensees be subjected to
technical requirements that apply to licensees that are providers
of substantially similar common carrier services”; and (2) it
maintained the offset frequencies would necessarily subject its
members to unreasonable interference, degrading the quality of
service provided by Part 90 carriers as compared to Part 22
carriers. Id. at 3–4.
The FCC rejected both grounds.9 It first disagreed with
AAPC’s claim that it was statutorily required to ensure that Part
90 paging operations now subject to CMRS regulatory treatment
meet the same technical requirements as common carrier paging
operations subject to Part 22 of the rules. Denial Order, 19
F.C.C.R. at 18505 ¶ 11. The Commission noted that OBRA
section 6002(d)(3) required it to “modify its rules, to the extent
‘necessary and practical,’ to ensure that substantially similar
services are subject to ‘comparable’ technical
requirements”—not identical requirements—and that the statute
confers “substantial discretion on the Commission to determine
how this objective should be accomplished.” Id. (citing Further
Notice of Proposed Rulemaking, Implementations of Sections
3(n) and 332 of the Communications Act, Second Report and
Order, 9 F.C.C.R. 2863, 2864–69 ¶¶ 21–24). The Commission
concluded that it was not required by OBRA “to modify existing
rules if such modification is unnecessary to achieve regulatory
9
The FCC first concluded that, to the extent the petition
requested that the licensing and use of offset channels be eliminated,
it was untimely filed because the offset channels were not
“established” by the Low Power Order; instead, they had been
available for years. Denial Order at 4–5.
9
symmetry or is otherwise impractical.” Id. In addition, because
Part 90 paging services were licensed in a different manner from
Part 22 paging services and operated on channels that were
shared rather than exclusive, AAPC had no support for its view
that eliminating the use of offset channels was necessary and
practical to make the technical treatment of the two services
comparable. Id. Regarding AAPC’s interference challenge, the
FCC concluded that it rested on a faulty premise; namely, the
reduction of buffer protection from 25 kHz to 12.5 kHz caused
interference. The offset frequencies had been available for
construction and small business use before the Low Power
Order and “the lack of interference complaints [due to use of
those frequencies] to date [was] significant.” Id. at 18506 ¶ 13.
In addition, the nature of the Part 90 channels also precluded a
claim to exclusive use or freedom from interference because
Part 90 channels “are available only on a shared basis . . . [and]
entities [operating on those channels] are not entitled to specific
interference protection and should expect other operations in the
same area.” Id. The FCC stated that it “continue[d] to believe”
that the paging and low power operations could compatibly exist
in the 450–470 MHz band, id. at 18506 ¶ 14, and denied
AAPC’s petition. AAPC now petitions for review of the denial
of its petition for reconsideration.
II.
Both the Communications Act, 47 U.S.C. §§ 402 et seq.
(the Act), and the Judicial Review Act, 28 U.S.C. §§ 2341 et
seq., provide for our jurisdiction to review Commission
decisions. Section 402(a) of the Act governs a proceeding “to
enjoin, set aside, annul, or suspend any order of the [Federal
Communications] Commission under this Act.” 47 U.S.C. §
402(a). Section 2342 of the Judicial Review Act confers on the
court of appeals “exclusive jurisdiction to enjoin, set aside,
10
suspend (in whole or in part), or to determine the validity of . .
. all final orders of the Federal Communications Commission
made reviewable by section 402(a) of title 47.” 28 U.S.C. §
2342. The FCC argues that we have no jurisdiction to review
the Denial Order because an order that merely denies a petition
for agency reconsideration is committed to the agency’s
discretion, see 5 U.S.C. § 701(a)(2), and is therefore
unreviewable. Sendra Corp. v. Magaw, 111 F.3d 162, 166 (D.C.
Cir. 1997) (agency’s denial of request for consideration
committed by law to agency discretion and therefore generally
unreviewable); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,
279 (1987) (BLE) (agency’s denial of petition for
reconsideration not subject to judicial review if petition alleges
only material error in agency’s original decision).10
AAPC posits two theories under either of which, it
maintains, its petition is excepted from the nonreviewability
rule: (1) the FCC “reopened” the proceeding when it addressed
the merits of AAPC’s OBRA claim in the Denial Order, see,
e.g., Sendra, 111 F.3d at 167; or (2) AAPC’s OBRA claim
pressed in its reconsideration petition constitutes “new
information” that makes the denial of the petition reviewable.
See, e.g., Fritsch v. ICC, 59 F.3d 248, 251–52 (D.C. Cir. 1995)
10
AAPC seeks review of the Denial Order only; it makes no
mention of the Low Power Order nor can inclusion of that order be
fairly inferred. Pet’r’s Reply Br. 7 n.13. Cf. Schoenbohm v. FCC,
204 F.3d 243, 245-46 (D.C. Cir. 2000) (holding petitioner’s intent
to seek review of order not designated in its petition for review can
be “fairly inferred” from petition or documents filed
contemporaneously with that order); Sinclair Broad. Group, Inc. v.
FCC, 284 F.3d 148, 155 (D.C. Cir. 2002) (same); Damsky v. FCC,
199 F.3d 527, 533 (D.C. Cir. 2000) (same).
11
(information provided by petitioner not able to participate in
earlier proceeding considered “new evidence” permitting
review).
It is true that if an agency issues a new order after
reconsideration, the new order constitutes final agency action
that is subject to judicial review, even if the new order merely
reaffirms the previous decision. BLE, 482 U.S. at 278 (“When
the Commission reopens a proceeding for any reason and, after
reconsideration, issues a new and final order setting forth the
rights and obligations of the parties, that order—even if it
merely reaffirms the rights and obligations set forth in the
original order—is reviewable on its merits.”). Reopening,
however, does not necessarily occur by dint of the agency’s
consideration of the merits. In Sendra we held that an agency
order that denies reconsideration and does not alter the original
decision is “conclusive” and, unless “the agency has clearly
stated or otherwise demonstrated that it has reopened the
proceeding,” its denial of reconsideration is only that; “[c]ourts
will not, in other words, look behind the agency’s formal
disposition of the reconsideration request to see whether the
agency ‘in fact’ reopened its original decision (and thus
rendered a new final order).” Sendra, 111 F.3d at 167 (citing
BLE, 482 U.S. at 280–81) (internal quotations omitted); see also
BLE, 482 U.S. at 273 (irrelevant to reviewability that agency
order denying reconsideration discussed merits at length).11
11
AAPC’s reliance on Graceba Total Communications v. FCC,
115 F.3d 1038 (D.C. Cir. 1997), is misplaced. Graceba’s argument
that the denial of reconsideration was reviewable was a constitutional
one made in the wake of an intervening Supreme Court decision
rather than an argument based on the same record. Graceba, 115
F.3d at 1041–42.
12
AAPC’s second theory is that its non-participation in the
proceeding that produced the Low Power Order means that its
petition for reconsideration constitutes “new information” that
permits us to review the Denial Order. As AAPC correctly
argues, we have found in the past that factual developments that
occur post-rulemaking can be “new evidence,” creating a second
exception to the nonreviewability rule. Jost v. Surface Transp.
Bd., 194 F.3d 79, 94 (D.C. Cir. 1989); Petr’s Reply Br. 9. But
the basis for finding that the information in Jost constituted new
evidence—the fact that the information did not exist before the
agency took action—is absent here. See Jost, 194 F.3d at 86
(“we believe that it is clear that the purpose of Jost’s petition
was not to challenge the Board’s reasoning but to bring new
material to its attention, and therefore the decision not to reopen
the proceeding is reviewable”) (citing Fritsch). Here, the “new
evidence” AAPC proffers is the Low Power Order’s alleged
noncompliance with the congressional mandate contained in
OBRA—“evidence” that existed and could have been submitted
before the FCC promulgated its final rule. Nor does the
possibility of interference due to the availability of the offset
channels for low power use constitute new evidence under Jost.
If the Low Power Order results in actual interference, as AAPC
predicted at oral argument, that interference may constitute new
evidence and review of the denial of a renewed petition for
reconsideration on that basis might well be granted.
AAPC also relies on the holding in Transportation
Intelligence, Inc. v. FCC, 336 F.3d 1058 (D.C. Cir. 2003)
(TransIntel), where we stated that “the principle that agency
denials of reconsideration are generally nonreviewable is
inapplicable where the Commission decision being reviewed
were dispositions of the petitioner’s first filings at each level of
the agency.” Pet’r’s Reply Br. 8 (citing TransIntel, 336 F.3d at
1062). But not every first filing before an agency is a first filing
13
for TransIntel purposes. TransIntel contested the FCC’s Office
for Engineering Technology’s grant of an equipment
certification application to another party. TransIntel, 336 F.3d
at 1061. TransIntel then petitioned the Commission to review
the decision and the FCC denied the petition. We found the
FCC’s denial reviewable because, under the Commission’s
rules, the petition for reconsideration of the Engineering
Technology decision was the first opportunity TransIntel had to
make any kind of filing regarding the application; the “rules
concerning equipment certification applications provide no
mechanism for an opponent to contest an application before it is
granted.” Id. at 1062 (citing 47 C.F.R. § 2.923, which provides
that “[p]ersons aggrieved by virtue of an equipment
authorization action may file with the Commission a petition for
reconsideration or an application for review”). TransIntel’s
“petition for reconsideration” in that case was not simply its first
appearance before the Commission; it was its “only option and
revocation [of the certification] its only remedy.” Id. at 1063.
Properly read, TransIntel held that if a party’s appearance before
the agency is its first, and only possible, opportunity to seek
review of agency action, the nonreviewability rule does not
apply.
While AAPC did not participate in the rulemaking until the
petition for reconsideration stage, AAPC’s members had the
opportunity to participate before the Denial Order. AAPC
contends that it was not in existence when the rulemaking
occurred and therefore could not formally participate through
notice and comment. But AAPC’s members could have
individually participated in the rulemaking before AAPC’s
creation. In addition, even now, the rulemaking process is open
to AAPC or any of its members, both of whom are free to
petition the FCC for a new rulemaking to challenge—by
amendment or repeal—the Low Power Order and, specifically,
14
its authorization of low power operations on the 462 MHz band.
See 47 C.F.R. § 1.401 (“[A]ny interested person may petition for
the issuance, amendment, or repeal of a rule or regulation.”). If
in fact the use of the low-power frequencies exposes AAPC’s
members to increased interference, the denial of a petition for
rulemaking based thereon could be subject to review
notwithstanding the generous measure of discretion usually
afforded an agency in its rulemaking process. See Geller v.
FCC, 610 F.2d 973, 979 (D.C. Cir. 1979) (court reviewed
agency’s denial of petition for new rulemaking to revisit original
rule where subsequent events affected continuing validity of
rule).
For the foregoing reasons, AAPC’s petition for review of the
FCC’s denial of reconsideration is dismissed.
So ordered.