United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 17, 2009 Decided May 1, 2009
No. 08-1046
GLOBALSTAR, INC.,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
IRIDIUM SATELLITE LLC,
INTERVENOR
On Petition for Review of an Order
of the Federal Communications Commission
William T. Lake argued the cause for petitioner. With him
on the briefs were William F. Adler, Meredith B. Halama, and
Samir C. Jain.
Joel Marcus, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were Thomas O. Barnett, Assistant Attorney General, U.S.
Department of Justice, Robert B. Nicholson and Robert J.
Wiggers, Attorneys, Matthew B. Berry, General Counsel,
Federal Communications Commission, Joseph R. Palmore,
Deputy General Counsel, and Richard K. Welch, Acting Deputy
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Associate General Counsel. Daniel M. Armstrong, Associate
General Counsel, entered an appearance.
Joshua S. Turner argued the cause for intervenor Iridium
Satellite LLC. With him on the brief were R. Michael
Senkowski, Andrew G. McBride, and Elbert Lin.
Before: SENTELLE, Chief Judge, GARLAND, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 2003, the Federal
Communications Commission (“FCC” or “the Commission”)
issued a Notice of Proposed Rulemaking that sought proposals
to reassign a portion of the 33 MHz of spectrum used by mobile
satellite services (“MSS”). See Review of the Spectrum Sharing
Plan Among Non-Geostationary Satellite Orbit Mobile Satellite
Service Systems in the 1.6/2.4 GHz Bands, Notice of Proposed
Rulemaking, 18 F.C.C.R. 1962, 2087-92 (2003) (“2003
NPRM”). In 2004, in the context of this same rulemaking
proceeding, the Commission initially ordered petitioner
Globalstar, Inc. (“Globalstar”) and intervenor Iridium Satellite
LLC (“Iridium”), companies that use different technologies to
provide satellite-based voice and data communications, to share
a block of spectrum that was previously reserved for
Globalstar’s use. See Review of the Spectrum Sharing Plan
Among Non-Geostationary Satellite Orbit Mobile Satellite
Service Systems in the 1.6/2.4 GHz Bands, Report and Order
and Further Notice of Proposed Rulemaking, 19 F.C.C.R.
13,356, 13,357 (2004) (“2004 Order”). Globalstar sought
reconsideration of the 2004 Order, claiming that sharing the
spectrum would generate harmful interference between the two
communications systems. The Commission then revisited the
rulemaking and, following reconsideration, agreed with
Globalstar that spectrum sharing was technologically infeasible.
3
In 2007, the Commission issued an order that reassigned a block
of electromagnetic spectrum to Iridium. See Review of the
Spectrum Sharing Plan Among Non-Geostationary Satellite
Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz Bands,
Second Order on Reconsideration and Second Report and
Order, 22 F.C.C.R. 19,733, 19,734 (2007) (“2007
Reconsideration Order”). Globalstar now seeks review of the
2007 Reconsideration Order, claiming that it was promulgated
in violation of the notice-and-comment requirements of the
Administrative Procedure Act (“APA”), see 5 U.S.C. § 553, and
is also arbitrary and capricious, see id. § 706(2)(A).
We deny the petition for review. First, we hold that
Globalstar waived its inadequate notice claim by failing to raise
it with the Commission. Globalstar’s late-filed ex parte letter
did not give the Commission an “opportunity to pass” on this
issue as required by 47 U.S.C. § 405(a). Therefore, Globalstar’s
inadequate notice claim is not properly before us. Second, we
reject Globalstar’s argument that the Commission’s
reassignment of the disputed spectrum to Iridium was arbitrary
and capricious. The Commission properly revisited the
rulemaking pursuant to Globalstar’s petition for reconsideration
of the 2004 Order. The 2007 Reconsideration Order was an
outgrowth of the ongoing rulemaking that began with a notice
of proposed rulemaking in 2003. We find that the
Commission’s final order is based on the extensive record
compiled during this lengthy rulemaking and that the record
supports the Commission’s decision. We also find that the 2007
Reconsideration Order is a product of reasoned decisionmaking
that survives the narrow scope of review under the arbitrary and
capricious standard.
I. BACKGROUND
Among its many duties, the Commission licenses
commercial entities to use the electromagnetic spectrum. See 47
U.S.C. §§ 301, 303. The Commission has designated 33 MHz
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of spectrum for use by mobile satellite services, a satellite-
powered technology that provides email and cellular-like phone
services to remote locations across the globe and is often used
by military and public safety officials during wars and national
disasters. See Amendment of the Commission’s Rules to
Establish Rules and Policies Pertaining to a Mobile Satellite
Service in the 1610-1626.5/2483.5-2500 MHz Frequency Bands,
Report and Order, 9 F.C.C.R. 5936, 5939-41 (1994) (“1994
Order”). This spectrum, the Big Low Earth Orbit band (“Big
LEO” band), consists of two segments that are commonly
referred to as the “L band” (1610 MHz through 1626.5 MHz)
and the “S band” (2483.5 MHz through 2500 MHz). See 2004
Order, 19 F.C.C.R. at 13,357. MSS providers employ one of
two technologies: code division multiple access (“CDMA”) or
time division multiple access (“TDMA”). See id. at 13,359 &
nn.7-9. CDMA and TDMA systems differ in at least one critical
respect. In CDMA systems, the L band is used for “uplink”
operations from an earth terminal (i.e., a user’s phone handset)
to a satellite, while space-to-earth “downlink” operations are
carried on the S band. In TDMA systems, both uplink and
downlink operations are carried on the L band. See id. This
case concerns the Commission’s assignment and reassignment
of blocks of the Big LEO band to competing providers of
CDMA and TDMA satellite services.
In the early 1990s, as MSS technology was first emerging,
several companies seeking to deploy MSS systems applied to
the FCC for licenses to use the Big LEO band. All but one
proposed a CDMA system. See 1994 Order, 9 F.C.C.R. at 5942,
5955. In 1994, the FCC adopted an initial licensing scheme for
MSS providers in the Big LEO band. Id. at 5955-59. Because
the CDMA applicants outnumbered the lone TDMA applicant,
the Commission divided the 33 MHz of Big LEO spectrum into
two unequal but roughly proportionate parts. The Commission
assigned the TDMA provider exclusive access to 5.15 MHz of
spectrum in the L band and assigned the CDMA providers
5
shared access to 27.85 MHz of spectrum (11.35 MHz in the
L band and the entire S band). Id. The Commission also
considered the possibility that only one of the CDMA systems
would be launched, but it rejected a proposal that would have
automatically reassigned 3.1 MHz of spectrum in the L band to
the TDMA provider “upon a showing of need or, if this
demonstration could not be made, to a new entrant.” Id. at 5960.
Instead, the Commission stated that it would “make the decision
with respect to the 3.1 MHz, if necessary, in the context of a
rulemaking, based upon the circumstances that have developed
at that time.” Id.
By 2002, only two MSS providers had begun commercial
operations: the CDMA system now run by Globalstar and the
TDMA system now run by Iridium. In light of this
development, Iridium petitioned the FCC to undertake the
reassignment rulemaking contemplated in the 1994 Order.
Petition for Rulemaking at i (July 26, 2002), reprinted in Joint
Appendix (“J.A.”) 329. Iridium advised the agency that it was
experiencing “significant spectrum constraints” from operating
in the 5.15 MHz block of L band spectrum and that it required
additional spectrum to meet the current and future needs of its
customers. Id. at 4, J.A. 333. Iridium urged the FCC to reassign
it 5.85 MHz of spectrum currently allocated to CDMA systems.
Id. at 5, J.A. 334.
The Commission responded with a notice of proposed
rulemaking in 2003 that sought proposals to reassign a portion
of the Big LEO spectrum. 2003 NPRM, 18 F.C.C.R. at 2087-92.
The Commission recognized that because “only one CDMA Big
LEO system has deployed, it is now appropriate to consider
making at least 3.1 megahertz of additional spectrum available
to Iridium.” Id. at 2089. Though the Commission “tentatively
conclude[d]” that the new developments in the MSS market
necessitated a reallocation of the Big LEO spectrum, it noted
that it would “base [its] final judgment on the record established
6
in this proceeding.” Id. To this end, the Commission directed
both Globalstar and Iridium to submit detailed data on their
current and projected spectrum needs. Id. at 2089-90.
The FCC received extensive comments from both
Globalstar and Iridium, among other industry players. Iridium
explained that it was experiencing a “spectrum shortage” and
recounted how recent strains on its network due to the use of its
services by the U.S. military in the Middle East had caused the
Commission to grant it temporary access to a portion of
Globalstar’s spectrum. Comments of Iridium Satellite, LLC at
i, 12-15 (July 11, 2003), J.A. 344, 360-63. To relieve these
strains and to meet the growing demand for its services, Iridium
proposed a “spectrum parity” plan that would divide the 33 MHz
of Big LEO spectrum into three roughly equal blocks, with just
over 11 MHz for Iridium in the L band, just over 11 MHz for
Globalstar in the L and S bands, and 10 MHz in the S band
reclaimed for other uses. Id. at 30-34, J.A. 378-82. Globalstar
strongly opposed any change to the existing spectrum plan
because it was “using its entire spectrum assignment.” Joint
Comments of L/Q Licensee, Inc., Globalstar, L.P. and
Globalstar USA, L.L.C. at i (July 11, 2003), J.A. 464.
Globalstar also urged that if the FCC was inclined to reallocate
spectrum in the Big LEO band, it should give the two companies
an opportunity to devise a joint band plan. Joint Reply
Comments of L/Q Licensee, Inc., Globalstar, L.P. and
Globalstar USA, L.L.C. at 35-37 (July 25, 2003), J.A. 681-83.
In 2004, the FCC issued a report and order directing
Globalstar and Iridium to share 3.1 MHz of spectrum in the
L band between 1618.25 MHz and 1621.35 MHz. 2004 Order,
19 F.C.C.R. at 13,357. The Commission began by explaining
that the deployment of only one CDMA system “justif[ied] a
reassessment of the existing band plan.” Id. at 13,370. Though
the Commission found that both Globalstar and Iridium had “set
forth compelling arguments for utilizing the spectrum,” it
7
determined that sharing the spectrum would be “the most
equitable solution at this time” because Iridium’s need for
spectrum “appears to be more sporadic and geographic-
specific.” Id. at 13,377. The Commission further rejected
Iridium’s “spectrum parity” proposal because dividing the
spectrum on a “pure megahertz-per-party basis . . . would ignore
the significant encumbrances that exist in the lower portion of
the L-band” from other non-MSS satellite systems in that band
and in adjacent bandwidths. Id. at 13,378. Finally, the
Commission explained that it had limited the amount of shared
L band spectrum to 3.1 MHz because of these same
encumbrances and in order to remain consistent with the
spectrum reallotment originally proposed in the 1994 Order. Id.
In the same order, however, the Commission issued a further
notice of proposed rulemaking seeking comment on whether
Globalstar and Iridium could share an additional 2.25 MHz of
spectrum in the lower portion of the L band between 1616 and
1618.25 MHz. Id. at 13,397-99.
Globalstar sought reconsideration of the 2004 Order.
Petition for Reconsideration of Globalstar LLC (Sept. 8, 2004),
J.A. 821-56. Globalstar requested that the FCC “reverse its ill-
advised decision” because CDMA and TDMA systems could
not both utilize spectrum at the same time without generating
interference, and it submitted technical data on the harmful
effects of spectrum sharing. Id. at 6, J.A. 832; see also
Globalstar LLC Technical Appendix ¶ 2, J.A. 852; ELEC.
COMMC’NS COMM. WITHIN THE EUROPEAN CONFERENCE OF
POSTAL AND TELECOMMS. ADMINS., DRAFT ECC REPORT ON
SHARING BETWEEN MSS SYSTEMS USING TDMA AND MSS
SYSTEMS USING CDMA IN THE BAND 1610-1626.5 MHZ 36
(2006) (concluding that both Iridium and Globalstar would
suffer interference when operating in shared spectrum), J.A.
1098. In the alternative, Globalstar asked the Commission to
establish rules to permit the two companies to coordinate their
usage of the spectrum to prevent such interference. See Petition
8
for Reconsideration of Globalstar LLC at 6-8, J.A. 832-34.
Iridium maintained that sharing was in fact possible and urged
the Commission to permit further sharing in the L band because
demand for its services had continued to grow. Comments of
Iridium Satellite, LLC at ii, 7-8 (Sept. 8, 2004), J.A. 797, 805-
06. In addition, Iridium noted that the Commission had again
granted it temporary access to Globalstar’s spectrum following
Hurricane Katrina and that it had seen a spike in customer
demand following the hurricane. Ex Parte Letter from Donna
Bethea-Murphy, Vice President, Regulatory Engineering,
Iridium Satellite, LLC, to Marlene H. Dortch, Secretary, Federal
Communications Commission at 1-4 (Mar. 24, 2006), J.A. 971-
74.
In October 2007, while the FCC was weighing Globalstar’s
reconsideration petition and the comments received in response
to the further notice of proposed rulemaking, the trade press
reported that the Commission was poised to reassign a block of
Big LEO spectrum to Iridium. See Satellite, COMM. DAILY, Oct.
25, 2007, J.A. 1287. On November 7, 2007, Globalstar
submitted an ex parte letter to the Commission claiming that
such a spectrum reassignment was beyond the scope of the
rulemaking and would violate the APA’s notice-and-comment
requirements. A copy of the letter was emailed to the
Commissioners and their legal advisors. See Ex Parte Letter
from William T. Lake, Counsel to Globalstar, Inc., to Marlene
H. Dortch, Secretary, Federal Communications Commission
(Nov. 7, 2007), J.A. 1147-49; see also Petitioner’s Reply Br. at
14-15.
On the day Globalstar submitted its ex parte letter, the
Commission adopted an order assigning equal amounts of
L band spectrum to Iridium and Globalstar. See 2007
Reconsideration Order, 22 F.C.C.R. at 19,733, 19,734. Upon
reconsideration of the 2004 Order, the Commission agreed with
Globalstar that spectrum sharing would cause “harmful
9
interference” between fully loaded CDMA and TDMA systems
and would place “generally undesirable operational limitations”
on both systems. Id. at 19,741. Moreover, although neither
Globalstar nor Iridium was fully loaded at present, the
Commission found that both companies “state that their business
has grown, and confidently predict that their business will
continue to grow.” Id. The Commission found that Iridium had
“made a case demonstrating its need for more spectrum,” noting
that its communications traffic has “increased substantially” and
that it desired “more spectrum to provide full-rate voice
channels and higher speed data transmissions, as well as to
accommodate peak demand.” Id. Concluding that the
reassignment of spectrum to Iridium was necessary “to provide
long-term certainty and stability in the Big LEO market and to
avoid harmful interference,” the Commission thus divided the
L band into two equal parts, assigning each company exclusive
access to 7.775 MHz of spectrum in that band. Id. at 19,734,
19,741-42. In addition, the Commission retained a .95 MHz
portion of shared spectrum in the center of the L band to
safeguard one of Globalstar’s channels, finding that this “small
segment” of Big LEO spectrum could be effectively shared
“while both systems are relatively lightly loaded.” Id. at 19,742.
The net effect of the new spectrum plan was thus to reassign 3.1
MHz of L band spectrum to Iridium, subject to the minimal .95
MHz sharing requirement.
II. ANALYSIS
Globalstar challenges the 2007 Reconsideration Order on
two grounds. First, it argues that the Commission’s decision to
reassign spectrum to Iridium was not a “logical outgrowth” of
the 2004 decision ordering spectrum sharing and thus violated
the APA’s notice-and-comment requirements. See 5 U.S.C.
§ 553. Second, it argues that the Commission’s decision is
arbitrary and capricious because it lacks record support and
because the Commission’s rationale for ordering spectrum
10
reassignment is inconsistent with certain policies adopted in the
earlier 2004 Order. See id. § 706(2)(A).
A. Standard of Review
We will uphold an agency action unless we find it to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “The scope of
review under the ‘arbitrary and capricious’ standard is narrow
and a court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). When the Commission is
“‘fostering innovative methods of exploiting the spectrum,’ it
‘functions as a policymaker’ and is ‘accorded the greatest
deference by a reviewing court.’” Mobile Relay Assocs. v. FCC,
457 F.3d 1, 8 (D.C. Cir. 2006) (quoting Teledesic LLC v. FCC,
275 F.3d 75, 84 (D.C. Cir. 2001)). In all cases, however, the
agency “must examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’”
State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962)).
B. Globalstar’s Inadequate Notice Claim Is Barred by
§ 405(a)
As an initial matter, the Commission contends that our
consideration of Globalstar’s inadequate notice claim is barred
by § 405(a) of the Communications Act. Section 405(a)
provides that filing a petition for reconsideration 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.” 47 U.S.C. § 405(a). We have “‘strictly
construed’ § 405(a), ‘holding that we generally lack jurisdiction
to review arguments that have not first been presented to the
Commission.’” Qwest Corp. v. FCC, 482 F.3d 471, 474 (D.C.
11
Cir. 2007) (quoting In re Core Commc’ns, Inc., 455 F.3d 267,
276 (D.C. Cir. 2006)). Thus, “even when a petitioner has no
reason to raise an argument until the FCC issues an order that
makes the issue relevant, the petitioner must file ‘a petition for
reconsideration’ with the Commission before it may seek
judicial review.” In re Core Commc’ns, Inc., 455 F.3d at 276-77
(quoting 47 U.S.C. § 405(a)).
When, as here, a party “complains of only a technical or
procedural mistake, such as an obvious violation of a specific
APA requirement, we have insisted that a party raise the precise
claim before the Commission.” Time Warner Entm’t Co. v.
FCC, 144 F.3d 75, 81 (D.C. Cir. 1998). As we have explained,
such rigid adherence to § 405(a) is necessary with respect to
claims of procedural error in order to give the agency the
opportunity to consider the claim in the first instance and to
correct any error in the rulemaking process prior to judicial
review. Id. at 80; see also M2Z Networks, Inc. v. FCC, 558 F.3d
554, 558 (D.C. Cir. 2009) (“Ordinarily petitioners must give
agencies an opportunity to cure technical defect[s] before
seeking review by this court.”) (alteration in original) (internal
quotation marks and citation omitted). Accordingly, we have
repeatedly applied § 405(a) to bar inadequate notice claims
identical to the one now raised by Globalstar. See, e.g.,
Petroleum Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1171, 1169-70
(D.C. Cir. 1994) (holding that inadequate notice claim under 5
U.S.C. § 553 was a “classic example” of the type of claim
subject to § 405(a)’s exhaustion requirement and collecting
similar cases).
Because Globalstar did not raise its inadequate notice claim
in a petition for reconsideration, we must determine whether the
Commission was “afforded a ‘fair opportunity’ to pass on the
argument[] in question.” BDPCS, Inc. v. FCC, 351 F.3d 1177,
1182 (D.C. Cir. 2003). Globalstar contends that it preserved the
claim for appeal by discussing the lack of notice in an ex parte
12
letter submitted on November 7, 2007 (and emailed to the
Commissioners and their legal advisers) after press reports
indicated that the Commission was considering a reassignment
of spectrum to Iridium. Petitioner’s Reply Br. at 14-18. We
reject this argument. An ex parte submission may at times be
sufficient to preserve an issue for appeal, but we have cautioned
litigants that relying on such ex parte submissions “to satisfy
§ 405 is a risky strategy.” Sprint Nextel Corp. v. FCC, 524 F.3d
253, 257 (D.C. Cir. 2008). The risks are readily apparent when
the ex parte submission is ill-timed. For example, in AT&T
Wireless Services, Inc. v. FCC, 270 F.3d 959 (D.C. Cir. 2001),
we rejected the petitioners’ attempt to comply with § 405(a) by
relying in part on an “untimely” ex parte letter filed more than
one month before the Commission’s decision was adopted. Id.
at 966. Here, Globalstar filed the letter in question the very day
that the Commission adopted the 2007 Reconsideration Order,
so it “cannot fairly be said to have alerted the Commission” to
an issue that might have been addressed in the 2007
Reconsideration Order before the order was ready to be
released. Id. And Globalstar never raised the issue in a petition
for reconsideration, so the FCC never had a “fair opportunity”
to explain the ongoing nature of the rulemaking and pass on
Globalstar’s claim.
Globalstar further urges us to lift § 405(a)’s bar in the
present case because “the previous petition for reconsideration
in this proceeding sat before the agency for over three years.”
Petitioner’s Reply Br. at 17. We have held that § 405(a)
“‘contains the traditionally recognized exceptions to the
exhaustion doctrine,’ like futility.” M2Z Networks, Inc., 558
F.3d at 558 (quoting Freeman Eng’g Assocs., Inc. v. FCC, 103
F.3d 169, 183 (D.C. Cir. 1997)). But Globalstar makes no claim
that presenting its inadequate notice claim to the Commission in
a reconsideration petition would have been futile and points to
no case in which the Commission’s tardiness in rendering a
decision prompted this court to excuse § 405(a)’s exhaustion
13
requirement. Indeed, in AT&T Corp. v. FCC, 317 F.3d 227
(D.C. Cir. 2003), where the Commission failed for four and one-
half years to issue an initial decision on petitioners’ claim, the
court rejected the petitioners’ nearly identical plea that
“unreasonable delay [by the Commission] preclude[s] strict
application of the exhaustion doctrine.” Id. at 236 (alterations
in original). Although we certainly do not condone the
Commission’s delay in this case, it did not excuse Globalstar
from presenting its inadequate notice claim to the agency before
seeking review in this court.
In sum, because Globalstar failed to give the Commission
an opportunity to pass on its inadequate notice claim and
because it has not demonstrated that any exception to § 405(a)
applies, the claim is waived.
C. The FCC’s Decision to Reassign Spectrum to Iridium
Globalstar also contends that the Commission acted
arbitrarily and capriciously in multiple respects in reassigning
the disputed spectrum to Iridium. These arguments were raised
with the FCC and are properly before the court.
Globalstar asserts that the Commission’s reassignment of
spectrum to Iridium is unreasonable for an array of interrelated
reasons. However, the central premise of its claim is that the
Commission issued a final decision in the 2004 Order instituting
a spectrum sharing plan in the L band and then impermissibly
departed from this “precedent” in ordering reassignment in
2007. This claim does not withstand scrutiny. Globalstar
petitioned for reconsideration of the 2004 Order and this
prompted the Commission to revisit the ongoing rulemaking
record.
As this court has explained, “a petition for reconsideration
may be filed within 30 days of a final agency order and insofar
as such petitions are timely filed, the rulemaking is not final
pending their resolution.” AT&T Corp. v. FCC, 113 F.3d 225,
14
229 (D.C. Cir. 1997) (internal citation omitted). The
Commission’s 2007 Reconsideration Order thus was not the
product of a new and distinct rulemaking but was an outgrowth
of the ongoing proceeding that commenced with the 2003
NPRM that sought and generated ample comment on the
reassignment of L band spectrum to Iridium. See 2003 NPRM,
18 F.C.C.R. at 2089 (noting that “it is now appropriate to
consider making at least 3.1 megahertz of additional spectrum
available to Iridium” and that “[w]e will base our final judgment
on the record established in this proceeding”). Consequently,
once Globalstar petitioned for reconsideration of the 2004
Order, the Commission was free to reconsider the entire record
dating back to the 2003 NPRM and to modify the spectrum plan
“provided [it] gave a reasoned explanation for its decision that
is supported by the record.” AT&T Corp., 113 F.3d at 229.
Globalstar’s argument to the contrary is unavailing. It
claims that the reconsideration petition did not seek to overturn
the spectrum sharing plan announced in the 2004 Order, but
“merely asked the FCC to modify the mechanics of the sharing
regime.” Petitioner’s Reply Br. at 4. In other words, Globalstar
argues that its request for reconsideration was so narrow in
scope that it did not open the door to the Commission’s adoption
of a wholly different spectrum reassignment plan. The plain
language of Globalstar’s reconsideration petition belies this
characterization. Globalstar claimed in its reconsideration
petition that “the record in this docket cannot support any
change to the existing Big LEO spectrum plan.” Petition for
Reconsideration of Globalstar LLC at 5, J.A. 831 (emphasis
added). Globalstar further requested that “[i]f the Commission
does not reverse its ill-advised decision, then at a minimum it
must modify the plan to ensure that the goals of the order are
accomplished.” Id. at 6, J.A. 832 (emphasis added). As this
language in the reconsideration petition makes clear, Globalstar
urged the Commission to modify the sharing regime as an
alternative to outright reversal of the 2004 Order. And once
15
Globalstar sought to overturn the 2004 Order, the Commission
surely was free to modify its decision based on the evidence
amassed throughout the entire rulemaking.
Globalstar’s other challenges to the 2007 Reconsideration
Order are straightforward and easily addressed. These
challenges involve four principal claims that the order is
arbitrary and capricious. All four claims lack merit.
First, Globalstar contends that the Commission’s decision
to reassign the disputed spectrum to Iridium “finds no support
in the record, which is silent on reassignment because that issue
had been excluded from the proceeding.” Petitioner’s Br. at 27.
As explained above, this argument misses the mark by focusing
narrowly on the record compiled since the 2004 Order to the
exclusion of the rest of the record in the lengthy rulemaking
proceeding. When properly viewed as an outgrowth of the
ongoing rulemaking proceeding, the Commission’s decision to
reassign spectrum to Iridium is both well reasoned and
supported by the record.
In the 2007 Reconsideration Order, the Commission relied
on Globalstar’s own reconsideration petition and technical data
to conclude that sharing by fully loaded CDMA and TDMA
systems would cause “harmful interference” and place
“generally undesirable operational limitations” on both systems.
2007 Reconsideration Order, 22 F.C.C.R. at 19,741; see also id.
at 19,739-40 n.52. Once it declared that sharing was
technologically infeasible, the Commission then properly
revisited the entire record dating back to the beginning of the
proceeding. Having already found in 2004 that the deployment
of only one CDMA system in the MSS market “justif[ied] a
reassessment of the existing band plan,” 2004 Order, 19
F.C.C.R. at 13,370, the Commission pointed in 2007 to evidence
that both Globalstar and Iridium had grown and that both
companies predicted future growth for their businesses, 2007
Reconsideration Order, 22 F.C.C.R. at 19,741. The
16
Commission then singled out Iridium’s submission describing
its “need [for] more spectrum to provide full-rate voice channels
and higher speed data transmissions, as well as to accommodate
peak demand.” Id. Given this record, there was nothing
unreasonable about the Commission’s decision to divide the
L band equally between Globalstar and Iridium and to give
Iridium access to an additional 3.1 MHz of spectrum in that
band.
Moreover, this court is bound to defer to the Commission’s
predictive judgments that reassigning the spectrum to Iridium
was necessary “in order to account for the growth of current
CDMA and TDMA MSS systems” and “to provide long-term
certainty and stability in the Big LEO market.” Id. at 19,740,
19,741; see also Earthlink, Inc. v. FCC, 462 F.3d 1, 12 (D.C.
Cir. 2006) (“‘[A]n agency’s predictive judgments about areas
that are within the agency’s field of discretion and expertise are
entitled to particularly deferential review, as long as they are
reasonable.’”) (alteration in original) (quoting In re Core
Commc’ns, Inc., 455 F.3d at 282). The FCC explained that
“[b]y providing equal amounts of L-band spectrum for the
exclusive use of CDMA and TDMA MSS systems, we provide
a more equitable distribution of spectrum resources.” 2007
Reconsideration Order, 22 F.C.C.R. at 19,752. At the same
time, the Commission concluded that this new spectrum
allotment would “provide the opportunity for Big LEO MSS
systems to plan their future designs and operations with less
uncertainty.” Id. On this record, the Commission reasonably
exercised its predictive judgment that the spectrum reassignment
plan was well suited to the still developing MSS market and to
the changing needs of the participants in that market.
Second, Globalstar points to the Commission’s finding in
the 2004 Order that Iridium’s “need for spectrum appears to be
more sporadic and geographic-specific,” 19 F.C.C.R. at 13,377,
and insists that the Commission failed to explain why Iridium’s
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spectrum needs justified spectrum reassignment. See
Petitioner’s Br. at 28-31, 35-37. But contrary to Globalstar’s
assertions, the Commission did directly address Iridium’s
spectrum needs in the 2007 Reconsideration Order and listed
several reasons why Iridium required additional spectrum to
conduct its operations in an effective manner. The Commission
noted that it had granted Iridium temporary access to additional
spectrum to support the use of its services by both the U.S.
military in the Middle East and following the 2005 hurricane
season. 22 F.C.C.R. at 19,736. The Commission then explained
that Iridium “has shown that the communications traffic it is
handling has increased substantially” and that it “will need more
spectrum to provide full-rate voice channels and higher speed
data transmissions, as well as to accommodate peak demand.”
Id. at 19,741. The Commission therefore concluded that
“Iridium has made a case demonstrating its need for more
spectrum.” Id. This conclusion was entirely reasonable.
Third, Globalstar claims that the Commission’s 2007
Reconsideration Order “mandates precisely” the same
“spectrum parity” plan that the Commission rejected in 2004
without offering an adequate explanation for this reversal in
policy. Petitioner’s Br. at 30. Globalstar further contends that
the Commission failed to take proper account of the
encumbrances in the lower portion of the L band that had caused
it to reject the “spectrum parity” plan in the 2004 Order. Id.
Globalstar is incorrect on both counts. In response to the 2003
NPRM, Iridium proposed a “spectrum parity” plan that would
have divided the 33 MHz of Big LEO spectrum into three
roughly equal parts, with just over 11 MHz in the L band
assigned to Iridium, just over 11 MHz in the L and S bands
assigned to Globalstar, and 10 MHz reclaimed for other uses.
Comments of Iridium Satellite, LLC at 30-33, J.A. 378-81. In
the spectrum allotment announced in the 2007 Reconsideration
Order, Globalstar has access to more than 24 MHz of spectrum
in both the L and S bands, while Iridium has access to just over
18
8 MHz. Thus, in stark contrast to the “spectrum parity”
proposal, the Commission did not reassign any of Globalstar’s
spectrum in the S band and left Globalstar with a greater net
share of Big LEO spectrum than Iridium. Because the 2007
Reconsideration Order exhibited no change in policy with
respect to “spectrum parity,” there was thus no need for the
Commission to juxtapose the spectrum reassignment with a
significantly different proposal it had already rejected at an
earlier stage of the rulemaking.
Nor was the Commission required to take explicit account
of the encumbrances in the lower portion of the L band in the
2007 Reconsideration Order. Globalstar points to the
Commission’s statement in the 2004 Order that, “If the
Commission implemented ‘spectrum parity’ on a pure
megahertz-per-party basis, it would ignore the significant
encumbrances that exist in the lower portion of the L-band.” 19
F.C.C.R. at 13,378. But, as explained above, the Commission
made this comment about encumbrances while assessing the
“spectrum parity” plan, which would have left Globalstar with
5.35 MHz of spectrum confined to the lowest portion of the
L band. Elsewhere in the 2004 Order, however, the
Commission explained that it was limiting the amount of sharing
to 3.1 MHz because these same encumbrances restricted
Globalstar’s ability to operate in that spectrum. Id. When the
Commission here likewise reassigned Iridium 3.1 MHz of
spectrum in the L band (subject to the minimal .95 MHz sharing
requirement), it was not required to state this same rationale a
second time. See AT&T Corp., 113 F.3d at 229 (rejecting
petitioner’s argument that “in an ongoing rulemaking the agency
must restate its previously expressed rationale in each
subsequent order”).
Fourth, Globalstar contends that the Commission failed to
consider its alternative proposal that the agency adopt a
“reciprocal sharing” regime, whereby “each carrier [w]ould be
19
allowed to use the other’s spectrum, subject to a coordination
agreement.” Petitioner’s Br. at 37. An agency is “required ‘to
consider responsible alternatives to its chosen policy and to give
a reasoned explanation for its rejection of such alternatives.’”
Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 242 (D.C.
Cir. 2008) (quoting City of Brookings Mun. Tel. Co. v. FCC, 822
F.2d 1153, 1169 (D.C. Cir. 1987)). It is simply not true that the
Commission “did not deign to mention the [reciprocal sharing]
alternative.” Petitioner’s Br. at 39. The Commission twice
noted Globalstar’s request for “access to Big LEO TDMA
spectrum, currently used by Iridium, in an amount equal to the
amount of CDMA spectrum shared with TDMA MSS systems.”
2007 Reconsideration Order, 22 F.C.C.R. at 19,739; see also id.
at 19,742 (discussing Globalstar’s proposal to “allow it to share
TDMA-exclusive spectrum in an amount equal to the amount of
CDMA spectrum shared with TDMA systems”). However, the
Commission went on to conclude – based on Globalstar’s own
reconsideration request and technical arguments – that TDMA
and CDMA systems could not share spectrum without
generating “harmful interference.” Id. at 19,740-41. After
rejecting spectrum sharing at Globalstar’s own urging and
altering the L band spectrum assignments accordingly, the
Commission acted reasonably in declining to give more detailed
consideration to Globalstar’s proposal that would have
implemented sharing on an even broader scale.
III. CONCLUSION
For the reasons discussed above, the petition for review is
denied.