United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2008 Decided May 2, 2008
No. 07-1416
SPRINT NEXTEL CORPORATION,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
Consolidated with
07-1458
On Appeal and Petition for Review of Orders of the
Federal Communications Commission
Christopher J. Wright argued the cause for appellant. With
him on the briefs were Timothy J. Simeone, Stephanie Weiner,
Leonard J. Kennedy, General Counsel, and Robert S. Foosaner,
Senior Vice President, Government Affairs, Sprint Nextel
Corporation.
Charles W. Logan, Jr. was on the brief for amicus curiae
Fraternal Order of Police in support of appellant.
Joel Marcus, Counsel, Federal Communications Commis-
2
sion, argued the cause for appellee. With him on the brief were
Thomas O. Barnett, Assistant Attorney General, Robert B.
Nicholson and James J. Fredricks, Attorneys, U.S. Department
of Justice, Matthew B. Berry, Acting General Counsel, Joseph
R. Palmore, Deputy General Counsel, and Daniel M. Armstrong,
Associate General Counsel, Federal Communications Commis-
sion.
Robert M. Gurss was on the brief for amicus curiae
A s s o c i a t i o n o f P u b l i c - S a f e t y C o mmu n i c a t i o n s
Officials-International in support of appellee.
Before: SENTELLE, Chief Judge, and GINSBURG and
BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Mobile communications devices are
now an integral part of the daily activities of consumers,
businesses, and public safety agencies alike. And when such a
device is needed—whether to track down an errant teen or
request backup while in hot-pursuit of a suspect—we expect it
to work. That requires the 800 MHz electromagnetic spectrum,
on which many of these devices operate, to be in order. This
case arises out of the Federal Communications Commission’s
efforts to ensure that it is.
The Commission set out to restructure the 800 MHz
spectrum. Sprint Nextel Corporation now appeals a Commis-
sion order implementing this restructuring. 47 U.S.C. § 405(a)
bars most of Nextel’s arguments because the Commission did
not have an “opportunity to pass” on them and Nextel failed to
petition for reconsideration. On the merits, we reject Nextel’s
argument that the Commission acted arbitrarily and capriciously.
We therefore affirm.
3
I
The Commission licenses commercial entities and public
safety agencies to use the 800 MHz band. But this band is
plagued by an “interference problem” that stems from an
“incompatible mix” of “two types of communications systems”:
(1) “cellular-architecture” systems and (2) “high-site
non-cellular systems” frequently used by public safety agencies.
Improving Public Safety Communications in the 800 MHz Band,
19 F.C.C.R. 14,969, 14,972 (Aug. 6, 2004) (“Initial Order”).
The closer these incompatible systems are to one another on the
spectrum, the more interference they cause. Mobile Relay
Assocs. v. FCC, 457 F.3d 1, 5 (D.C. Cir. 2006). Nextel holds
licenses for a large share of the 800 MHz spectrum, and it uses
ESMR1 cellular-architecture technology.
In 2002, the Commission “initiated a rulemaking and
solicited proposals to remedy the interference problem.” Id. It
sought to “abate[]” interference experienced by public safety
agencies and quickly provide them with “additional 800 MHz
spectrum”—all through an “equitable” process that minimizes
disruption to 800 MHz licensees. Initial Order, 19 F.C.C.R. at
14,972–73. Nextel and other licensees submitted a Consensus
Plan “propos[ing] that the Commission segregate high-site and
ESMR systems into a separate block of the 800 MHz band.”
Mobile Relay, 457 F.3d at 5. In 2004, the Commission’s Initial
Order “largely adopted the Consensus Plan’s structural
solution,” segregating incompatible systems by placing them in
separate “blocks” of spectrum. Id. at 5–6.
The Initial Order gave Nextel a central role in the
rebanding process. Nextel would (1) relinquish its 700 MHz
spectrum, (2) vacate certain 800 MHz spectrum in the “General
1
“ESMR” denotes Enhanced Specialized Mobile Radio.
4
Category” and “Interleaved” areas of the band, and (3) fund the
relocation of other licensees. See Initial Order, 19 F.C.C.R. at
15,080–81. For its part, the Commission would (1) allow Nextel
to operate on other 800 MHz spectrum vacated by public safety
licensees, (2) authorize commercial mobile service operations in
the 900 MHz band, and (3) favorably modify Nextel’s 1.9 GHz
spectrum licenses. Id.
Under the Initial Order, licensees would relocate to
different blocks of the 800 MHz band. “NPSPAC”2 public
safety licensees would move from the current NPSPAC channels
to General Category channels; Nextel would be responsible for
moving itself and other General Category licensees from the
General Category to other parts of the band; and Nextel would
eventually move into channels vacated by the NPSPAC
licensees. Id. at 14,984–85. In addition, Nextel would vacate its
Interleaved channels. Id.3 The Commission ordered Nextel to
complete band reconfiguration within 36 months of the starting
date announced in a public notice. Id. at 14,986–87. We now
know the 36-month deadline is June 26, 2008. Improving Public
Safety Communications in the 800 MHz Band, 22 F.C.C.R.
17,209, 17,217 (Sept. 12, 2007) (“Third MO&O”).
The facts outlined above are undisputed, but the timing of
the rebanding process is quite controversial. The Initial Order
described the timing of the spectrum exchange as follows:
2
“NPSPAC” refers to the National Public Safety Planning
Advisory Committee.
3
The Initial Order required Nextel’s approval, 19 F.C.C.R. at
15,128, but Nextel didn’t agree with all of its terms. The Commission
therefore issued a Supplemental Order modifying or clarifying certain
terms. See Improving Public Safety Communications in the 800 MHz
Band, 19 F.C.C.R. 25,120 (Dec. 22, 2004).
5
Although Nextel will ultimately relocate from the current
General Category and interleaved channels to the old
NPSPAC block, it will not do so directly. Instead, it will
need to relocate many of its operations to temporary
channels in the 800 MHz band or to spectrum in the 900
MHz band while it is clearing the General Category block
. . . . Only after the new NPSPAC block is cleared of
incumbents and NPSPAC operations can be relocated there
will Nextel be able to move its operations back from the
900 MHz band to the old NPSPAC block.
19 F.C.C.R. at 15,113 n.712; see also id. at 15,073–74.
However, the Supplemental Order assured Nextel it could retain
its General Category channels until the “last step in the process.”
19 F.C.C.R. at 25,143.
As implementation began, so did delays. By fall 2007, only
a small fraction of public agencies had relocated to their new
800 MHz spectrum. Here’s the rub: many NPSPAC licensees
will not be ready to vacate their spectrum by June 2008, and
many will need until 2009 or 2010.
In September 2007, the Commission issued the Third
MO&O. It ordered Nextel to vacate its General Category and
non-border Interleaved channels by June 26, 2008, “regardless
of whether all NPSPAC licensees in a given region are prepared
to relocate within that time frame.” Third MO&O, 22 F.C.C.R.
at 17,216–18. In other words, the Commission told Nextel to
timely vacate its channels—even if the former NPSPAC
channels to which Nextel will eventually move are currently
unavailable.
Three other aspects of the Third MO&O bear mention.
First, as of January 1, 2008, Nextel must vacate any of its
General Category channels upon 60 days’ notice from a
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NPSPAC licensee. Id. at 17,216. Second, if the Commission
grants a waiver of the June 2008 deadline to a NPSPAC
licensee, Nextel may petition for a waiver to temporarily remain
on the General Category channels the NPSPAC licensee will
eventually occupy. Id. at 17,217. Such a petition must meet
certain criteria, and no such waiver process exists for the
Interleaved channels. See id. at 17,217–18. Third, the
Commission concluded Nextel had not fully met an interim
18-month benchmark, but the Commission didn’t formally fault
Nextel for non-compliance and it deferred consideration of any
potential enforcement action. See id. at 17,213–15.
The Commission issued a Public Notice along with the
Third MO&O. See Public Notice, 22 F.C.C.R. 17,227 (Sept. 12,
2007). The Public Notice established new interim deadlines for
NPSPAC licensees. Id. at 17,227–28. However, it cautioned
them not to request extensions past June 26, 2008, and it
indicated the Commission may hold such requests in abeyance.
Id. at 17,231. Nextel then appealed the Third MO&O and the
Public Notice.4
4
Nextel filed two separate actions under two distinct
jurisdictional provisions. It filed No. 07-1458 under 47 U.S.C.
§ 402(a) and No. 07-1416 under § 402(b). These provisions are
mutually exclusive. See N. Am. Catholic Educ. Programming Found.,
Inc. v. FCC, 437 F.3d 1206, 1208 (D.C. Cir. 2006). We have
jurisdiction under § 402(b)(5), which permits “the holder of any ...
license which has been modified or revoked by the Commission” to
appeal an adverse decision. Accordingly, we dismiss the case filed
under § 402(a).
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II
A
We must determine which arguments, if any, Nextel
adequately raised before the Commission. 47 U.S.C. § 405(a)
provides that filing a reconsideration petition before the
Commission is “a condition precedent to judicial review …
where the party seeking such review … relies on questions of
fact or law upon which the Commission … has been afforded no
opportunity to pass.” Nextel did not petition for reconsideration,
so we must ask whether the Commission “has been afforded” an
“opportunity to pass” on the arguments. The pith of the test is
this: “the argument made to the Commission” must “necessarily
implicate[]” the argument made to us. Time Warner Entm’t Co.
v. FCC, 144 F.3d 75, 80 (D.C. Cir. 1998). We may, however,
consider “the same basic argument in a more polished and
imaginative form.” Sw. Bell Tel. Co. v. FCC, 100 F.3d 1004,
1007–08 (D.C. Cir. 1996).
Nextel insists it orally presented its arguments to the
Commission during meetings. But appellate briefs recounting
oral statements purportedly made to the Commission cannot
satisfy § 405. Far from it. Statutes expressly limit our review
to “the record.” 47 U.S.C. § 402(g) (citing 5 U.S.C. § 706).
Besides, expanding the § 405 inquiry to non-record material
would draw us into a messy game of fact-finding and credibility
determinations—neither of which is our forte.
Nextel also relies on ex parte notices it filed with the
Commission. Ex parte notices can satisfy § 405. See MCI
WorldCom, Inc. v. FCC, 209 F.3d 760, 765 (D.C. Cir. 2000).
We will therefore review Nextel’s ex parte notices under § 405,
but future litigants should note that relying on such notices to
satisfy § 405 is a risky strategy. After all, “the Commission
8
need not sift pleadings and documents to identify arguments that
are not stated with clarity by a petitioner.” New Eng. Pub.
Commc’ns Council, Inc. v. FCC, 334 F.3d 69, 79 (D.C. Cir.
2003) (quotation marks and brackets omitted).
Nextel insists it raised all of its arguments in the ex parte
notices. We think not. Nextel’s ex parte notice only argued—in
quite general terms—that the Commission unreasonably
changed the rebanding process from a synchronized spectrum
swap to an asynchronous exchange. Consequently, that is the
only argument Nextel preserved for our review.
B
We now proceed to the merits. “Under the arbitrary and
capricious standard, this court does not substitute its judgment
for that of the administrative agency.” U.S. Airwaves, Inc. v.
FCC, 232 F.3d 227, 234 (D.C. Cir. 2000). “A regulatory
decision in which the Commission must balance competing
goals is … valid if the agency can show that its resolution
‘reasonably advances at least one of those objectives and that its
decisionmaking process was regular.’” Id.
The crux of the dispute is this: Nextel claims the Initial
Order contemplated a simultaneous spectrum swap between
Nextel and NPSPAC licensees, but the Commission argues the
June 2008 deadline applies to Nextel regardless of whether
NPSPAC licensees are ready to swap. The words of a great
playwright aptly describe the Commission’s position: “There is
a time for departure even when there’s no certain place to go!”
TENNESSEE WILLIAMS, CAMINO REAL 78 (New Directions 1970)
(1953). But Nextel claims that this position is arbitrary and
capricious, and that it will cripple Nextel’s network, “‘squander
scarce spectrum,’” and “‘harm public safety.’” See Third
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MO&O, 22 F.C.C.R. at 17,217. Nextel also complains that the
Commission insufficiently responded to its concerns.
We disagree. In the Third MO&O, the Commission
delineated four reasons why its position would advance the
public interest. First, it would eliminate the risk of interference
between Nextel and NPSPAC licensees that could otherwise
occur if NPSPAC licensees were to relocate to an area of the
band in which Nextel still operates. Id. Second, it would
“simplify and expedite the transition process” because NPSPAC
licensees would no longer “need to coordinate their relocation
with [Nextel] to avoid … interference.” Id. Third, it would
make spectrum “available to new public safety facilities.” Id.
Fourth, it would give Nextel quicker access to certain 800 MHz
spectrum “being vacated by NPSPAC licensees.” Id.5
We hold the Commission did not act arbitrarily or
capriciously. One “paramount” reason for rebanding was to
abate interference experienced by public agencies. Initial
Order, 19 F.C.C.R. at 14,972. Nextel’s technology causes
substantial interference when operated in close proximity to
public agencies on the band. Thus, the Initial Order required
Nextel to vacate certain channels by June 26, 2008. That
deadline—which was never premised on a synchronized
spectrum swap—has not changed. What has changed are the
implications of the deadline: it now appears Nextel might have
insufficient spectrum come June because numerous NPSPAC
licensees won’t be ready to relocate.
5
This four-part response was sufficiently detailed, especially
since the ex parte notices barely even raised a legal argument. As we
have repeatedly stressed, the “‘Commission cannot be asked to make
silk purse responses to sow’s ear arguments.’” See, e.g., Competitive
Telecomms. Ass’n v. FCC, 309 F.3d 8, 17 (D.C. Cir. 2002).
10
Nonetheless, the Commission’s decision to hold Nextel to
the June 26, 2008 deadline is reasonable. If Nextel completely
vacates its General Category channels on June 26, there is
reason to believe it will immediately reduce interference
experienced by public safety licensees already operating in that
portion of the band. This rationale applies with at least as much
force in the Interleaved spectrum, where incompatible
technologies now operate in close proximity. Moreover, if
Nextel vacates non-border Interleaved spectrum by June 26, it
will probably allow the Commission to quickly achieve another
one of the Initial Order’s objectives: making additional
Interleaved spectrum available for public agencies.
Furthermore, although Nextel maintains that public agencies
using its network will be harmed, the Commission’s decision
that “NPSPAC licensees take precedence” over Nextel’s
network is a rational policy judgment. See Third MO&O, 22
F.C.C.R. at 17,216. Even if the Commission’s choice will cause
disruption to Nextel’s network, the Commission “balance[d]
competing goals” in a way that “‘reasonably advances’” some
of the Initial Order’s objectives. See U.S. Airwaves, 232 F.3d
at 234.6
III
For the foregoing reasons, the challenged orders are
Affirmed.
6
This case does not raise the issue whether the Commission may
revoke Nextel’s licenses if it fails to meet the June 26, 2008 deadline.
See generally Initial Order, 19 F.C.C.R. at 14,987 (“If Nextel fails to
meet” the June 26, 2008 deadline “for reasons that Nextel could
reasonably have avoided,” the Commission may decide “whether
forfeitures should be imposed and/or whether Nextel licenses …
should be revoked.” (emphasis added)).