Northstar Wireless, LLC v. FCC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2022 Decided June 21, 2022

No. 18-1209

NORTHSTAR WIRELESS, LLC AND SNR WIRELESS LICENSECO,
LLC,
PETITIONERS
v.

FEDERAL COMMUNICATIONS COMMISSION,
RESPONDENT

T-MOBILE USA, INC.,
INTERVENOR

Consolidated with 18-1210, 20-1507, 20-1508

On Petitions for Review of and Notices of Appeal
from Orders of the Federal Communications Commission

Catherine E. Stetson argued the cause for petitioners.
With her on the briefs were Christopher J. Wright, Timothy J.
Simeone, Daniel Tingley, Ari Q. Fitzgerald, and Michael J.
West.
 2
Bryan N. Tramont and Jennifer B. Tatel were on the briefs
for intervenor DISH Network Corporation in support of
petitioners. Joseph W. Lindsay entered an appearance.

Lawrence J. Spiwak was on the brief for amicus curiae
Phoenix Center for Advanced Legal and Economic Public
Policy Studies in support of petitioners.

Maureen K. Flood, Counsel, Federal Communications
Commission, argued the cause for respondent. With her on the
brief were Robert B. Nicholson and Robert J. Wiggers,
Attorneys, U.S. Department of Justice, and Jacob M. Lewis,
Associate General Counsel, Federal Communications
Commission. Richard K. Welch, Deputy Associate General
Counsel, entered an appearance.

James P. Young, C. Frederick Beckner III, Christopher T.
Shenk, Alice A. Wang, Russell H. Fox, Robert G. Kidwell,
Bennett L. Ross, and Jeremy J. Broggi were on the brief for
intervenors AT&T Services, Inc., et al. in support of
respondents. Helgi C. Walker entered an appearance.

Before: MILLETT and JACKSON*, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: In late 2014 and early 2015,
petitioners Northstar Wireless, LLC (“Northstar”), and SNR
Wireless LicenseCo, LLC (“SNR”) placed more than $13
billion in winning bids at a Federal Communications
Commission auction to license wireless spectrum. Because

* Circuit Judge Jackson was a member of the panel at the time
the case was argued but did not participate in this opinion.
 3
both Northstar and SNR were brand new companies with
virtually no revenue, they each claimed the 25% discounts on
their winning bids that the Commission offered in such
auctions to very small businesses. After the auction concluded,
though, the Commission determined that neither company was
eligible for the very-small-business discount because both were
de facto controlled by their biggest investor, the large
telecommunications company DISH Network Corporation
(“DISH”).

Northstar and SNR (collectively, “Companies”) petitioned
for review of that decision. In 2017, we affirmed the
Commission’s order in part. See SNR Wireless LicenseCo,
LLC v. FCC, 868 F.3d 1021, 1025 (D.C. Cir. 2017). While we
held that the Commission’s decision to deny the discounts was
generally sound, we found that agency precedent required the
Commission to give the Companies a chance to cure the
problems in their agreements with DISH. Id. This court
remanded for the Commission to afford the Companies that
opportunity. Id.

Back before the Commission, Northstar and SNR each
modified their agreements with DISH in substantially identical
fashion. After the Companies were afforded the opportunity to
meet with Commission staff and some Commissioners, the
Commission found that the Companies remained under DISH’s
de facto control and denied them the 25% discount on their bid
prices. Northstar and SNR have again sought our review,
contending that the Commission flouted this court’s orders in
SNR Wireless by not working closely enough with them to
reduce DISH’s control, wrongfully found them to be controlled
by DISH, and penalized them without fair notice.

We reject the Companies’ challenges to the Commission’s
orders. The Commission complied with our previous decision
 4
by affording the Companies an opportunity to cure. The
Commission also reasonably applied its precedent to the
Companies and gave them fair notice of the legal standards that
it would apply in analyzing their claims to be very small
companies.

I

A

The Communications Act of 1934 tasks the Commission
with regulating “all the channels of radio transmission”—that
is, the electromagnetic spectrum used to send and receive
wireless data. 47 U.S.C. § 301; see also NTCH, Inc. v. FCC,
950 F.3d 871, 874 (D.C. Cir. 2020) (per curiam). Because
transmissions can interfere with one another when they are
broadcast in the same portions of spectrum, the Commission
“awards licenses to operate in specific frequency ranges, or
‘bands.’” AT&T Servs., Inc. v. FCC, 21 F.4th 841, 843 (D.C.
Cir. 2021) (citation omitted). Licensed companies can use
spectrum to transmit content such as phone calls and videos.

In 1993, Congress gave the Commission the authority to
license spectrum through competitive auctions. See Omnibus
Budget Reconciliation Act of 1993, Pub. L. No. 103-66,
§ 6002, 107 Stat. 312, 387–397 (codified at 47 U.S.C.
§ 309(j)). Congress directed the Commission, in designing its
auction rules, to “promot[e] economic opportunity and
competition * * * by disseminating licenses among a wide
variety of applicants, including” small businesses. 47 U.S.C.
§ 309(j)(3)(B); see also id. § 309(j)(4)(D). At the same time,
Congress directed the agency to avoid “unjust enrichment” and
to allow for the “rapid deployment of new technologies,
products, and services for the benefit of the public[.]” Id.
§ 309(j)(3)(C), (A).
 5
Commission regulations encourage small businesses to
participate in spectrum auctions by offering qualifying
businesses “bidding credits[,]” which are discounts applied
after an auction to reduce the cost of the acquired licenses. See
47 C.F.R. § 1.2110(a), (f) (2014).1 To qualify for bidding
credits, a business must show that its average revenues fall
below threshold amounts set by the Commission. Id.
§ 1.2110(b)(1)(i), (f)(2).

Because acquiring and using wireless spectrum is
expensive, small companies often rely on investments from
larger, more established companies. SNR Wireless, 868 F.3d
at 1044. To ensure that “bidding credits can only be used by
genuinely small businesses—not by small sham companies that
are managed by or affiliated with big businesses”—the
Commission attributes to an applicant the revenues of any
entity that de facto or de jure controls it. Id. at 1026; see also
47 C.F.R. § 1.2110(b)(1)(i), (c). Nonetheless, to allow small
companies to participate in auctions, the Commission’s
Wireless Telecommunications Bureau (“Wireless Bureau”) has
granted some small businesses bidding credits even when they
were subject to “extensive supervision” by their established
investors. SNR Wireless, 868 F.3d at 1044.

Auction participants apply for bidding credits in a two-step
process. See United States ex rel. Vermont Nat’l Tel. Co. v.
Northstar Wireless, LLC, 34 F.4th 29, 31–32 (D.C. Cir. 2022).
Before the auction begins, a business seeking bidding credits
must file a short-form application certifying that it qualifies for
such credits. See 47 C.F.R. § 1.2105(a); id. § 1.2110(b). The
Commission does not determine bidding credit eligibility
before the auction. So a bidding credit applicant that chooses

1
All regulatory citations are to the 2014 edition of the Code of
Federal Regulations, which was in effect at the time of the auction at
issue in this case.
 6
to bid at auction “assumes a binding obligation to pay its full
bid amount upon acceptance of the winning bid at the close of
an auction.” Id. § 1.2104(g)(2); see also Auction of Advanced
Wireless Servs. (Aws-3) Licenses Scheduled for Nov. 13, 2014,
29 FCC Rcd. 8386, 8417 ¶ 101 n.180 (2014) (“2014 Auction
Notice”).

An applicant that wins a license in the auction and wishes
to obtain bidding credits must then submit a more detailed,
long-form application that the agency uses to assess whether
the applicant is eligible for bidding credits. See 47 C.F.R.
§ 1.2110(j); SNR Wireless, 868 F.3d at 1027. If the
Commission finds that a business does not qualify for bidding
credits, the company must pay the full winning price on its
licenses or face default penalties. See 47 C.F.R.
§§ 1.2104(g)(2), 1.2109(c); 2014 Auction Notice, 29 FCC Rcd.
at 8417 ¶ 101 n.180, 8450–8451 ¶¶ 239–240. While the
Commission uses bright-line rules to determine de jure control
of the applicant companies, it assesses whether they are subject
to de facto control by another entity “on a case-by-case basis.”
47 C.F.R. § 1.2110(c)(2)(i). The Commission has established
several guidelines to analyze this “highly contextual” question.
SNR Wireless, 868 F.3d at 1026.

First, under a test announced in the agency’s
Intermountain Microwave decision, the Commission considers
six factors, such as another entity’s control over the small
businesses’ daily operations and major policy decisions, to
determine whether the applicant is de facto controlled by that
other entity. See Intermountain Microwave, 12 F.C.C. 2d 559,
559–560 (1963); SNR Wireless, 868 F.3d at 1030–1031.

Second, the Commission has said that an entity may still
be considered independent even if a passive investor retains
certain veto powers over the business’s decisionmaking. See
 7
In the Matter of Implementation of Section 309(j) of the
Commc’ns Act—Competitive Bidding, 10 FCC Rcd. 403, 447–
448 ¶¶ 80–81 (1994) (referred to as the “Fifth Memorandum
Opinion & Order” or “Fifth MO&O”); see also Baker Creek
Communications, L.P., 13 FCC Rcd. 18709, 18714–18715 ¶ 9
(1998); see also In re Stratos Glob. Corp., 22 FCC Rcd. 21328,
21343 ¶ 36 n.107 (2007) (full Commission adopting Baker
Creek). A passive investor can “generally” play a role in a
small business’s major corporate decisions, such as the
assumption of “significant corporate debt” and the sale of
“major corporate assets[,]” without the Commission
automatically deeming the investor to be in de facto control.
Fifth MO&O, 10 FCC Rcd. at 448 ¶ 81. Still, the Commission
has been explicit that “the aggregate effect of multiple”
investor protections could be sufficient to find a small business
under the de facto control of the investor. Id. at 449 ¶ 82.

Third, the Commission advised, in its Fifth Memorandum
Opinion & Order, that it will closely scrutinize applicants’ “put
options”—that is, their right to sell themselves to investors.
Fifth MO&O, 10 FCC Rcd. at 455–456 ¶¶ 95–96. Although
such rights may appear to give small businesses control over
future mergers, the Commission has explained that put options
may be combined with other terms to “financially * * * force
the [small business] into a sale (or major refinancing)[.]” Id. at
¶ 96. In such a case, the Commission will deem the small
business de facto controlled from the time of the auction. Id.;
see also 47 C.F.R. § 1.2110(c)(2)(ii)(A)(2).

B

1

In 2014, the Wireless Bureau announced an upcoming
auction for companies to bid on more than 1,600 spectrum
licenses. See 2014 Auction Notice, 29 FCC Rcd. 8386. The
 8
agency offered bidding credits covering 25% of the cost of
licenses to those winning bidders that had “attributed average
annual gross revenues” of $15 million or less over the prior
three years. Id. at 8412 ¶ 82. The Bureau then referred
interested bidders to Commission regulations, as well as the
Intermountain Microwave and Baker Creek orders, for
guidance on the agency’s de facto control standards for
bidding-credit applications. Id. at 8412–8413 ¶¶ 84–86 &
n.151.

Seventy entities qualified to compete in the auction, which
ran between late 2014 and early 2015. See Auction 97:
Advanced Wireless Services (AWS-3), FCC (2020),
https://www.fcc.gov/auction/97 (last accessed June 13, 2022).
The winning bids totaled more than $41 billion. Id.

Among the biggest winners were SNR and Northstar, two
“small companies that were formed just in time to file short-
form applications” to participate in the auction as very small
businesses. SNR Wireless, 868 F.3d at 1027. At the time they
filed their short-form applications, both companies “lacked
officers, directors,” and virtually any revenue. Id.; see also In
re Northstar Wireless, LLC, 30 FCC Rcd. 8887, 8910–8911
¶ 53 (2015) (“2015 Order”). Northstar and SNR did, though,
have one very large investor: DISH, which held an 85% stake
in each company. See 2015 Order, 30 FCC Rcd. at 8893–8894
¶¶ 14, 17; see also id. (noting that DISH holds its shares in the
Companies through wholly owned subsidiaries). DISH (i)
managed the Companies’ businesses, (ii) was their principal
investor and creditor, (iii) retained the power to veto important
corporate decisions, and (iv) coordinated its own bidding
strategy in the auction with the Companies. Id. at 8896–8897
¶¶ 21, 23; SNR Wireless, 868 F.3d at 1027. Northstar and SNR
 9
both described DISH as holding “non-controlling interests” in
the Companies.2

Together, the newly formed and effectively revenue-less
Northstar and SNR won 43.5% of all the licenses in the auction,
and their winning bids collectively added up to $13.3 billion.
2015 Order, 30 FCC Rcd. at 8888 ¶ 3. Collectively, the
licenses would together give the Companies spectrum rights
“cover[ing] the entire United States.” Northstar Wireless,
LLC, 35 FCC Rcd. 13317, 13345 ¶ 84 n.191 (2020) (“2020
Order”). DISH financed approximately 98% of the
Companies’ winning bids. 2015 Order, 30 FCC Rcd. at 8924
¶ 84.

2

Shortly after the auction, Northstar and SNR each filed
long-form applications seeking to obtain very-small-business
bidding credits worth approximately $3.3 billion. SNR
Wireless, 868 F.3d at 1027–1028; 2015 Order, 30 FCC Rcd. at
8891 ¶ 10 nn.15–16. Over the next three months, SNR and
Northstar repeatedly amended their filings in response to
requests from Commission staff for more information. 2015
Order, 30 FCC Rcd. at 8891 ¶ 10 nn.15–16, 8949 ¶ 151 n.431.

Several parties petitioned the Wireless Bureau to deny the
Companies bidding credits. See 2015 Order, 30 FCC Rcd. at
8889 ¶ 4 & n.7, 8900 ¶ 30. In July 2015, officials from the
Wireless Bureau, the Office of General Counsel, and the
offices of all five Commissioners met with SNR, Northstar, and

2
SNR Wireless LicenseCo, LCC, FCC Form 175 Exhibit A,
Auction File No. 0006458318 (Sept. 12, 2014), at 6; accord
Northstar Wireless, LLC, FCC Form 601 Exhibit A, ULS File No.
0006670613 (Feb. 13, 2015), at 13 (referring to DISH’s
“noncontrolling interest”).
 10
other interested parties to lay out the Commission’s concerns
with the applications.3

In August 2015, the Commission issued an order finding
that DISH de facto controlled Northstar and SNR. See 2015
Order, 30 FCC Rcd. at 8889 ¶ 4. And because DISH had more
than $13 billion in average annual revenue in the three years
prior to the auction, the agency denied the Companies’ request
for very-small-business bidding credits. Id.

The Commission rested its decision on several findings
relevant here. First, the agency concluded that DISH’s investor
protections swept more broadly than the “typical” protections
outlined in Baker Creek. 2015 Order, 30 FCC Rcd. at 8913
¶¶ 60–61. Particularly concerning to the agency was the fact
that DISH held several levers to tightly constrain the
Companies’ spending. Id. at 8916 ¶ 64, 8918 ¶ 67. Because
the Companies would need to expend large sums to roll out the
nationwide wireless network needed to support the acquired
licenses, those spending controls placed DISH firmly in the
driver’s seat. Id. at 8918 ¶ 67.

Second, the agency found that DISH controlled the
Companies in all six ways identified in Intermountain
Microwave. See 2015 Order, 30 FCC Rcd. at 8918–8928
¶¶ 69–99. Not only did DISH possess strong contractual rights
to control Northstar and SNR’s decisions, but it had also agreed

3
See Letter from Jean L. Kiddoo, Deputy Bureau Chief,
Wireless Telecomm. Bureau, to Marlene H. Dortch, Sec’y, FCC
(July 22, 2015), https://wireless2.fcc.gov/UlsEntry/attachments/
attachmentViewRD.jsp;ATTACHMENTS=BhrpvT1PbTmyhR53D
RfGLDpJs0hZ21zkr6xC4kFmZns1cC0KPMwS!1071318750!5601
30442?applType=search&fileKey=1174580406&attachmentKey=1
9721827&attachmentInd=applAttach (“2015 Kiddoo Letter”) (last
accessed June 13, 2022).
 11
in its Management Services Agreements with the Companies
to “build out, manage, and operate [the Companies’ wireless]
network[s.]” Id. at 8919 ¶ 71; see also id. at 8935–8936 ¶ 117.
Additionally, the Companies were barred from paying any of
their employees more than $200,000 a year without DISH’s
permission, and DISH could hire and fire a wide range of
workers in its capacity as manager. Id. at 8915 ¶ 61, 8922
¶¶ 80–81. DISH also could channel most of the Companies’
profits to itself and so ensure that SNR and Northstar depended
on it for future funding. Id. at 8924–8925 ¶¶ 85, 89. The
Commission was further concerned about DISH’s power to
dictate the Companies’ “use of their licenses” and the
“fundamental choice of whether to remain in operation.” Id. at
8927 ¶ 94. The Companies’ failure to compete with one
another at the auction—instead operating in tandem to make
bids that advanced DISH’s interests—underscored their
subordinate relationship to DISH. Id. at 8931–8934 ¶¶ 109–
114.

Third, the Commission found that SNR and Northstar’s
put options were designed to force the Companies to sell
themselves to DISH. 2015 Order, 30 FCC Rcd. at 8928–8931
¶¶ 100–105. The agency observed that DISH could prevent the
Companies’ managers from selling their interests to anyone
else for 10 years. Id. at 8928–8929 ¶ 101. With the Companies
hemmed in, DISH made them offers they could hardly refuse.
In particular, the agreements with DISH gave SNR and
Northstar a single 30-day window each to exercise their put
options, be bought out by DISH at a guaranteed rate of return,
and walk away debt free. Id. at 8929–8930 ¶ 103. If they
turned that deal down, the Companies would face billions of
dollars of debt due within two years with far too little revenue
to pay it. Id. at 8930 ¶ 104. That framework closely mirrored
a scenario the Commission had previously indicated could well
 12
constitute a de facto transfer of control. Id. at 8930–8931 ¶ 105
(quoting Fifth MO&O, 10 FCC Rcd at 456 ¶ 96).

Having found the Companies ineligible for bidding
credits, the Commission applied its written policies to require
the Companies to pay the full price for their licenses or face
default penalties. 2015 Order, 30 FCC Rcd. at 8951 ¶ 156,
8949–8951 ¶¶ 152–155. The Commission did not give the
Companies an opportunity to fix the control issues the agency
had identified. See SNR Wireless, 868 F.3d at 1028.

Northstar and SNR agreed to buy some of the licenses they
had won and defaulted on others. See 2020 Order, 35 FCC
Rcd. at 13324 ¶ 23 & n.43. As to the defaulted licenses, the
Commission ordered the Companies to pay any shortfall
between their winning bids and the price the agency obtained
for those licenses in future auctions, as well as a penalty of 15%
of either the winning bid in the original auction or a subsequent
winning bid by a new purchaser, whichever is less. SNR
Wireless, 868 F.3d at 1029; see also 47 C.F.R.
§ 1.2104(g)(2)(ii); 2014 Auction Notice, 29 FCC Rcd. at 8451
¶ 240. While the final amount they owe in penalties has not yet
been determined, the Companies already have paid the
Commission hundreds of millions of dollars in interim fees.
See SNR Wireless, 868 F.3d at 1029.

3

Northstar and SNR sought review of the Commission’s
order in this court. See SNR Wireless, 868 F.3d at 1029. We
upheld the agency’s finding that DISH exercised de facto
control over both companies, explaining that the Commission’s
“pragmatic application of Intermountain Microwave”
comported with its precedent and supported denying the
Companies bidding credits. Id. at 1033–1034.
 13
We also upheld the Commission’s determination that the
Companies’ put options, in combination with their debt
obligations, gave them no practical choice but to sell
themselves to DISH just five years after acquiring their
licenses. See SNR Wireless, 868 F.3d at 1034–1035. Because
DISH could prevent Northstar and SNR from borrowing
enough money to build a wireless network, or from selling their
businesses to a third party, neither company could hope to pay
off its multi-billion-dollar debt. Id. That left the Companies
with “only one path to avoiding certain financial failure:” sell
themselves to DISH in the contractually provided single time
frame before their immense loans came due. Id. The Fifth
Memorandum Opinion & Order had warned applicants that
such an arrangement could result in a finding of de facto
control. Id. at 1035.

This court also rejected the Companies’ argument that the
Commission arbitrarily departed from previous de facto control
decisions by its Wireless Bureau, because the Bureau’s
unexplained rulings did not bind the agency as a matter of law.
See SNR Wireless, 868 F.3d at 1035–1042.

But we agreed with SNR and Northstar that they lacked
fair notice that the agency would deny them a chance to cure
the control issues it had identified. See SNR Wireless, 868 F.3d
at 1043–1046. While Commission precedent had given the
Companies fair notice of the control standards it applied in
denying them bidding credits, we held that the agency failed to
warn them that they would be denied an “opportunity to cure”
any control problems before being subjected to the
Commission’s remedies. Id. at 1025. We then ordered the
Commission to provide “an opportunity for [the Companies] to
renegotiate their agreements with DISH[,]” but added that
“[n]othing in our decision requires the [Commission] to permit
a cure.” Id. at 1046.
 14
4

Following this court’s decision, Northstar and SNR wrote
to Commission staff seeking to negotiate an agreement that
would allow them to receive the very-small-business bidding
credits. The agency did not respond. Instead, in January 2018,
the Wireless Bureau issued an order laying out its procedures
for the remand. See In re Northstar Wireless, LLC, 33 FCC
Rcd. 231 (2018). Under that plan, the Bureau gave the
Companies time to revise their agreements with DISH and re-
file a request for very-small-business bidding credits. Id. at
232–233 ¶¶ 5–6. Interested third parties could then comment
on the filings, and SNR and Northstar would have another
chance to revise their agreements in response. Id. at 233–234
¶¶ 7–8.

The Companies appealed the Bureau’s order to the
Commission. They argued, as relevant here, that this court’s
decision and agency precedent required the Commission on
remand to engage in “iterative, responsive negotiation[s]” with
SNR and Northstar to “cure the [Commission’s] de facto
control concerns.” Joint Appendix (“J.A.”) 377.

The Commission affirmed the Bureau’s order in relevant
part. See In re Northstar Wireless, LLC, 33 FCC Rcd. 7248
(2018) (“Remand Procedures Order”). The agency ruled that
our decision did not require it to work directly with the
Companies to formulate a cure. Instead, all the agency had to
do was give Northstar and SNR the opportunity to renegotiate
their agreements with DISH to come into compliance with
Commission standards. Id. at 7251–7252 ¶¶ 10–12. That, the
Commission said, was exactly what the Bureau’s procedure
allowed. Id. at 7254 ¶ 16.
 15
In August 2018, the Companies timely sought our review
and, at the request of the parties, we held the case in abeyance
pending further action by the Commission.

Meanwhile, by June 2018, SNR and Northstar had revised
their agreements with DISH and submitted new applications
for very-small-business bidding credits. Three parties opposed
the Companies’ application, all of whom have since intervened
in this case. See 2020 Order, 35 FCC Rcd. at 13327–13328
¶ 34. The Companies responded and filed an expert report
arguing that “SNR and Northstar each have viable potential
business options regarding the use of their respective
[spectrum] licenses.” J.A. 1548 (Declaration of Carlyn R.
Taylor).

In November 2020, SNR and Northstar made their case for
bidding credits during virtual meetings with Commissioners
Carr, Rosenworcel, Starks, and members of their staff, a
member of Commissioner O’Rielly’s staff, and an attorney
advisor from the agency’s Office of General Counsel.4 At
those meetings, the Companies answered questions about the
nature of their new agreements, and they then supplemented
their responses in letters filed with the Commission.5

4
See Letter from Ari Q. Fitzgerald, Counsel to SNR Wireless
LicenseCo, LLC, and Mark F. Dever, Counsel to Northstar Wireless,
LLC, to Marlene H. Dortch, Sec’y, FCC (Nov. 4, 2020) (“November
4 Meeting Letter”), J.A. 1592; Letter from Ari Q. Fitzgerald, Counsel
to SNR Wireless LicenseCo, LLC, and Mark F. Dever, Counsel to
Northstar Wireless, LLC, to Marlene H. Dortch, Sec’y, FCC (Nov.
17, 2020), J.A. 1616 (“November 17 Meeting Letter”).
5
See November 4 Meeting Letter, at J.A. 1592–1599;
November 17 Meeting Letter, at J.A. 1616–1627.
 16
Later that month, the Commission found that the attempted
cure had not taken: DISH remained in de facto control of SNR
and Northstar. See 2020 Order, 35 FCC Rcd. at 13318 ¶ 5.

In reaching that conclusion, the Commission
acknowledged that the Companies and DISH had changed their
agreements in several ways. See 2020 Order, 35 FCC Rcd. at
13326–13327 ¶ 32. For example, the amendments generally
diminished DISH’s ability to veto outright some of the
Companies’ major business decisions. Id. at 13339 ¶ 66. The
parties also eliminated the Management Services Agreements,
gave the Companies the authority to pay employees as they saw
fit, and expanded the number of decisions SNR and Northstar
could make without consulting DISH. Id. at 13326–13327
¶ 32, 13342 ¶ 79. Finally, the new agreements reduced SNR
and Northstar’s debt obligations and gave them a second
opening in which to sell themselves to DISH for a guaranteed
profit. Id. at 13326–13327 ¶ 32.

The Commission nevertheless held that DISH was still in
de facto control of both Companies for two independent
reasons.

First, applying Intermountain Microwave and Baker
Creek, the Commission found that DISH retained its power to
dominate SNR and Northstar by controlling their access to
capital and revenue. 2020 Order, 35 FCC Rcd. at 13318–
13319 ¶¶ 6–7. The fact that the Companies negotiated
substantially identical agreements on remand bolstered this
conclusion. Id. at 13319 ¶ 8.

Second, under the Fifth Memorandum Opinion & Order
the Commission found that Northstar and SNR’s put options,
considered alongside their financial obligations and DISH’s
investor protections, remained “virtually certain to entice” the
Companies to sell themselves to DISH. 2020 Order, 35 FCC
 17
Rcd. at 13319–13320 ¶ 11 (quoting SNR Wireless, 868 F.3d at
1035).

Northstar and SNR filed timely notices of appeal and
petitions for review.

While the petitions and notices of appeal were pending, the
parties advised the court that non-DISH investors in SNR and
Northstar began selling their shares. In late 2020, DISH
acquired all but three percent of Northstar’s outstanding
common shares from Northstar’s managing shareholders.6 The
following year, SNR shareholders exercised their right to sell
the company to DISH.7 And shortly after oral argument, DISH
agreed to extend Northstar’s right to sell itself—which was set
to expire on January 25, 2022—to July 24, 2022.8

6
See AT&T et al. Br. 10–11; DISH Network Corporation Form
10-Q, SEC (Nov. 4, 2021),
https://www.sec.gov/ix?doc=/Archives/edgar/data/0001001082/000
155837021014419/dish-20210930x10q.htm, at 10 (last accessed
June 13, 2022).
7
See DISH Network Corporation Form 8-K, SEC (Nov. 19,
2021), https://www.sec.gov/ix?doc=/Archives/edgar/data/0001001
082/000100108221000023/dish-20211115x8k.htm, at 2 (last
accessed June 13, 2022); Letter from Maureen K. Flood, Counsel,
FCC, to Mark Langer, Clerk, U.S. Court of Appeals for the District
of Columbia Circuit (March 22, 2022); Oral Arg. Tr. 6:12–17.
8
See Letter from Maureen K. Flood, Counsel, FCC, to Mark
Langer, Clerk, U.S. Court of Appeals for the District of Columbia
Circuit (March 1, 2022). Compare also Third Amended and
Restated Limited Liability Company Agreement of Northstar
Spectrum, LLC by and Between Northstar Manager, LLC and
American AWS-3 Wireless II L.L.C. (June 7, 2018), § 8(a), J.A. 679,
 18
II

Northstar and SNR filed timely notices of appeal under 47
U.S.C § 402(b) and petitions for review under 47 U.S.C.
§ 402(a). “Because we plainly have jurisdiction by the one
procedural route or the other, we need not decide which is the
more appropriate vehicle for our review.” Verizon v. FCC, 740
F.3d 623, 634 (D.C. Cir. 2014) (internal quotation marks and
citation omitted) (finding jurisdiction without deciding
whether it vested through a petition for review under 47 U.S.C.
§ 402(a) or a notice of appeal under 47 U.S.C. § 402(b)).

We must affirm the Commission’s decision unless it was
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law[.]” 5 U.S.C. § 706(2)(A). Our
approach is “deferential,” and our task is “simply [to] ensure[]
that the agency has acted within a zone of reasonableness”—
that is, to determine whether the agency “reasonably
considered the relevant issues and reasonably explained [its]
decision.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150,
1158 (2021).

with First Amendment to the Third Amended and Restated Limited
Liability Company Agreement of Northstar Spectrum, LLC, FCC
(Jan. 24, 2022),
https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.
jsp?applType=search&fileKey=1843738938&attachmentKey=2141
8597&attachmentInd=applAttach (last accessed June 13, 2022).
 19
III

A

1

Northstar and SNR argue that the Commission violated
our remand order by declining to negotiate iteratively with the
companies over how to secure their de facto independence
from DISH. We disagree. The agency was under no such
obligation.

As we explained in SNR Wireless, because the
Commission’s guidelines for de facto control are fact intensive
and weigh multiple criteria, the Commission has sometimes
provided applicants “a chance to cure” control problems
identified by the agency. SNR Wireless, 868 F.3d at 1045
(citing In re Application of ClearComm, L.P., 16 FCC Rcd.
18627 (2001)). It is that same “chance to cure” that we ordered
the Commission to provide the Companies on remand.
Nothing more and nothing less.

The Commission followed that directive. The
Commission gave the Companies an “opportunity * * * to
renegotiate their agreements with DISH” and then apply again
for the very-small-business bidding credits they sought. SNR
Wireless, 868 F.3d at 1046; see Remand Procedures Order, 33
FCC Rcd. at 7253 ¶ 13. Northstar and SNR had the chance to
revise their contracts with DISH in light of the detailed
guidance they had received from not only prior agency
precedent, but also a unanimous Commission decision in their
own case, and this court’s lengthy analysis of the concerns with
their prior agreements. See Remand Procedures Order, 33
FCC Rcd. at 7255 ¶ 20; see also 2015 Order, 30 FCC Rcd. at
8887–8953; SNR Wireless, 868 F.3d at 1029–1042. Together,
 20
that afforded the Companies adequate guidance for eliminating
DISH’s de facto control.

Contrary to the Companies’ argument, neither the
Commission’s decision in In re Application of ClearComm,
L.P., 16 FCC Rcd. 18627 (2001), nor our discussion of it, see
SNR Wireless, 868 F.3d at 1045–1046, required more of the
Commission. In ClearComm, a small business transferred its
licenses to NewComm, a corporation created with funding
from a large telecommunications company. 16 FCC Rcd. at
18627–18630 ¶¶ 1–5. Commission staff asked the parties
questions about their agreements and, after receiving
responses, “raised further questions regarding whether certain”
elements of the contracts gave the investor control over
NewComm. Id. at 18631 ¶ 7. The parties submitted proposed
revised agreements “to explicitly address the control
concerns[,]” and followed up with executed contracts. Id.

Likewise, the Commission here explained its control
concerns to the Companies in detail and gave them a chance to
establish their independence consistent with that guidance and
this court’s analysis. Compare Remand Procedures Order, 33
FCC Rcd. at 7255 ¶ 20, with ClearComm, 16 FCC Rcd. at
18631 ¶ 7. The main difference between the two cases is that
the agency here also gave the Companies a lengthy opinion
issued by the Commission itself to guide its renegotiations,
rather than just interactions with agency staff, and Northstar
and SNR had the benefit of additional guidance from a federal
court of appeals. On top of that, the Companies had engaged
in a back-and-forth with agency staff before the Commission
accepted their initial long-form applications, see Remand
Procedures Order, 33 FCC Rcd. at 7256 ¶ 22, and on remand
met with the majority of Commissioners to defend their
 21
amended agreements.9 Rather than a “second shot in the
dark[,]” Companies Opening Br. 26, the Companies enjoyed a
well-lit path to a cure.

The Companies contend that we ordered both that they be
permitted to renegotiate with DISH and that Commission staff
engage directly in back-and-forth discussions with them. That
is not what we said. Our prior ruling gave the Companies “an
opportunity to negotiate a cure[,]” which was to consist of “an
opportunity to renegotiate their agreements with DISH[.]”
SNR Wireless, 868 F.3d at 1046. That was “the appropriate
remedy” ordered. Id. (emphasis added). Counsel for the
Companies even acknowledged at oral argument that “precise
language [requiring] negotiating with staff, of course, isn’t in
the opinion[.]” Oral Arg. Tr. 29:4–6. In other words, our
remand order required only that the Companies be allowed the
opportunity for a cure, not that Commission staff prescribe the
cure.

2

It is black-letter law that agencies must treat like parties
alike. The Companies argue that the Commission failed to do
so by denying them the kind of repeated staff negotiations the
agency had provided to address control problems in the past.
The record does not bear out that claim.

First, the Companies are comparing apples to oranges.
That is because, “prior to any cure opportunity, [SNR and
Northstar] had extensive information about the Commission’s
views on the ways in which their initial Applications were
defective” right from the Commission’s mouth, along with this
court’s “point-by-point elaboration of the Commission’s

9
See November 4 Meeting Letter, supra, and November 17
Meeting Letter, supra.
 22
analysis[.]” Remand Procedures Order, 33 FCC Rcd. at 7255
¶ 20; see also id. at 7255–7256 ¶ 21. The Companies identify
no other entity that has been given that same amount of
individualized and on-point guidance about the basis for the
Commission’s de facto control finding.

For the same reason, the Companies get no help from the
Commission’s observation that agency “staff has usually
undertaken discussions” with bidding credit applicants “in
order to obtain revisions to agreements” and ensure their
independence. In re Implementation of the Commercial
Spectrum Enhancement Act and Modernization of the
Commission’s Competitive Bidding Rules and Procedures, 21
FCC Rcd. 4753, 4769 ¶ 43 (2006). The Companies did better
by getting guidance directly from the Commissioners
themselves.

Anyhow, the Companies have had extensive interactions
with agency staff. In 2015, Commission staff reached out to
the Companies to obtain additional information and allowed
them to update their applications repeatedly in response, much
as SNR and Northstar say the agency has done with prior
applicants. Compare 2015 Order, 30 FCC Rcd. at 8949 ¶ 151
n.431, with Companies Opening Br. 31–32 & nn.11–13 (citing
instances in which Commission staff asked applicants
questions about their bidding-credit eligibility). Top-level
Commission officials, including representatives from the
offices of all five Commissioners, also met with SNR and
Northstar to explain the agency’s view of their initial
agreements with DISH.10 Not only did the Companies
interchange their submissions with agency staff, but on remand
they were given the opportunity to field live questions about
their amended agreements from the majority of sitting
10
See 2015 Kiddoo Letter, supra.
 23
Commissioners.11 The Companies were hardly shortchanged
in Commission attention and advice.

At bottom, the Companies’ argument presupposes an
obligation on the part of the Commission to map out the precise
details of an arrangement with DISH that would pass muster.
That is not how the process works. The Companies bid at the
auction only after first agreeing to pay the full price for
acquired spectrum licenses even if they were ultimately denied
very-small-business bidding credits. See 47 C.F.R.
§§ 1.2104(g)(2), 1.2109(c); 2014 Auction Notice, 29 FCC Rcd.
at 8417 ¶ 101 n.180; Oral Arg. Tr. 32:19–22. They then bore
the burden of proving their status as genuinely independent
very small businesses to obtain bidding credits. Having failed
in that task, SNR Wireless, 868 F.3d at 1025, they were entitled
on remand only to a second opportunity to themselves cure the
problems identified. Nothing in the regulatory scheme, past
agency practice with other parties, or this court’s prior opinion
obligated the Commission to work hand in glove with the
Companies to draft their blueprint for independence.

B

On the merits, the Commission reasonably found that
DISH continues to exercise de facto control over the
Companies. The agency grounded its decision on three settled
agency rulings. First, under Baker Creek, DISH’s veto powers,
though trimmed from the prior agreements, continued to
materially dominate the Companies’ business decisions. See
2020 Order, 35 FCC Rcd. at 13340 ¶¶ 70–71. Second, under
the Commission’s Fifth Memorandum Opinion & Order, SNR
and Northstar were still financially compelled to sell

11
Compare November 4 Meeting Letter, supra, and November
17 Meeting Letter, supra, with Companies Opening Br. 31–32 &
nn.11–13.
 24
themselves to DISH. Id. at 13357–13362 ¶¶ 124–146. Third,
the Intermountain Microwave factors again pointed to DISH’s
de facto control. Id. at 13341–13357 ¶¶ 72–123. Those
conclusions by the Commission were reasoned, supported by
substantial evidence, and consistent with agency precedent.

1

The Commission’s conclusion that DISH’s revised
investor protections “reinforce[d]” its control over the
Companies was sound. 2020 Order, 35 FCC Rcd. at 13340
¶ 69. The Commission acknowledged that SNR and
Northstar’s new agreements had whittled down the number of
DISH’s veto powers over the Companies’ business
decisionmaking. Id. at 13338–13339 ¶ 65. But focusing on
quality rather than quantity, the Commission concluded that
DISH retained—and, in one critical respect, expanded—its
power to control vital business decisions going to the
Companies’ raison d’etre: developing and using the wireless
spectrum they had purchased. Id. at 13340–13341 ¶¶ 69–71.

Under Baker Creek, the agency may deem a small
company independent even if an investor retains “a decision-
making role * * * in major corporate decisions that
fundamentally affect[s] [the investor’s] interests.” 13 FCC
Rcd. at 18714–18715 ¶ 9. Baker Creek identified six business
decisions in which investors in small businesses typically
“may” participate without being found in de facto control:

(1) [the] issuance or reclassification of stock; (2) setting
compensation for senior management; (3) expenditures
that significantly affect market capitalization; (4) incurring
significant corporate debt or otherwise encumbering
corporate assets; (5) sale of major corporate assets; [and]
(6) fundamental changes in corporate structure.
 25
Baker Creek, 13 FCC Rcd. at 18715 ¶ 9; see also 2015 Order,
30 FCC Rcd. at 8913 ¶ 60.

The Baker Creek decision cautioned, though, that
“[i]nvestment protection provisions may confer actual control
upon [an investor] where they give it the power to dominate the
management of corporate affairs.” 13 FCC Rcd. at 18714 ¶ 9.

The Commission acknowledged that many of DISH’s veto
powers under the amended agreements mirror the six identified
in Baker Creek. See 2020 Order, 35 FCC Rcd. at 13339 ¶ 66.
And the agency noted that the contracts purported to limit
DISH’s authority to veto the Companies’ decisions only as
“consistent with * * * Baker Creek[.]” Id. at 13339 ¶ 68
(citation omitted).

But the Commission found that DISH’s protections, when
paired with other restrictions, went too far, in two respects. See
2020 Order, 35 FCC Rcd. at 13340–13341 ¶¶ 69–71.

First, under the new agreements, DISH had the authority
to block the Companies from “incurring any significant
indebtedness[.]” 2020 Order, 35 FCC Rcd. at 13340 ¶ 70
(internal quotation marks and citation omitted). That power
“could operate to restrict the [Companies] from obtaining
additional funding that is necessary for their business plans.”
Id. Constructing a nationwide wireless network is expensive,
so the Commission reasonably found that these provisions
empowered DISH to roadblock any of the Companies’ buildout
plans for the spectrum acquired at auction, unless they met with
DISH’s approval. See id. That left the Companies dependent
on DISH if they wanted to use a wireless network to survive as
independent businesses.

Second, the Commission found that the amendments gave
DISH a whole new power—the ability to prevent the
 26
Companies from leasing their licenses. See 2020 Order, 35
FCC Rcd. at 13340–13341 ¶ 71. Under the old agreements, the
Companies were permitted to lease their “property or assets
* * * in the ordinary course of business” without DISH’s
consent, as long as they did not lease “all or substantially all”
of their “business or property[.]” J.A. 183, 180 (Northstar 2014
Credit Agreement §§ 6.18, 6.11(c)).12

Under the new amendments, by contrast, the Companies
need DISH’s written permission to lease any “major asset[,]”
including spectrum licenses, and DISH is free to deny a request
“for any reason or no reason[.]” J.A. 644, 670 (Northstar 2018
LLC Agreement §§ 6.3, 1.1); accord J.A. 1158, 1109 (SNR
parallels). That, the Commission said, is “a critical new index
of DISH’s de facto control over the [Companies’] business
opportunities.” 2020 Order, 35 FCC Rcd. at 13340 ¶ 71. Not
only is this investor protection beyond the scope of the
provisions listed in Baker Creek, but it also allows DISH to
foreclose a critical route for the Companies to raise money:
spectrum leasing. Notably, spectrum leasing is one of the
approaches that the Companies’ own economic expert
highlighted as a pathway for SNR and Northstar to achieve
their independence. See id. Yet that path is closed without
DISH’s approval.

12
Accord First Amended and Restated Credit Agreement By
and Among American AWS-3 Wireless III L.L.C. (as Lender) and
SNR Wireless LicenseCo, LLC (as Borrower) and SNR Wireless
HoldCo, LLC (as Guarantor), §§ 6.18, 6.11(c), FCC (Oct. 13, 2014),
https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.
jsp?applType=search&fileKey=919232078&attachmentKey=19626
515&attachmentInd=applAttach, at 33, 30 (last accessed June 13,
2022) (“SNR 2014 Credit Agreement”).
 27
The Companies have three main responses, none of which
succeeds.

First, the Companies contend that the amended investor
protections comport with Baker Creek. The Commission,
though, adequately explained why the agreements actually
cemented DISH’s de facto control over SNR and Northstar. In
its initial 2015 decision finding de facto control, the
Commission was concerned about limitations on the
Companies’ ability to borrow from third parties. See 2015
Order, 30 FCC Rcd. at 8924 ¶ 85. While some restrictions on
raising debt “have been considered acceptable investor
protections in some circumstances,” the Commission
reasonably found that general rule inapplicable here because
the Companies’ original agreements allowed them to borrow
only “trivial” amounts “in comparison to the value of the[ir]
spectrum[.]” Id.; see also SNR Wireless, 868 F.3d at 1033.

True, under the agreements at issue here, the parties
removed the hard limit on the Companies’ unsecured debt. See
2020 Order, 35 FCC Rcd. at 13340 ¶ 70, 13347–13348 ¶ 91.
But the Commission sensibly concluded that DISH’s new veto
over significant debt—the lifeblood of wireless network
development—“blunt[ed] the impact” of that change. Id. at
13340 ¶ 70.

In addition, the new leasing provisions went “beyond those
identified as typical in Baker Creek[.]” 2020 Order, 35 FCC
Rcd. at 13340 ¶ 71. To be sure, Baker Creek held that it is
generally permissible for non-controlling investors to be
involved in a small business’s decisions to sell “major
corporate assets[.]” Baker Creek, 13 FCC Rcd. at 18715 ¶ 9.
But the Commission reasonably found that DISH imposed even
broader restrictions on the Companies’ power to lease or assign
licenses, which went too far. When combined with other
 28
contractual conditions, DISH’s new control over spectrum
leasing gave it “the ability to frustrate or prevent the
[Companies] from building out their networks[] [or] leasing
their spectrum in any significant amount[.]” 2020 Order, 35
FCC Rcd. at 13340 ¶ 71.

The Companies’ argument that the amended agreements
did not expand DISH’s power to nix their leasing decisions
fares no better. The prior agreements had allowed the
Companies independently to lease “property or assets * * * in
the ordinary course of business,” though SNR and Northstar
could not lease “all or substantially all” of their “business or
property” without DISH’s approval. J.A. 183, 180 (Northstar
2014 Credit Agreement §§ 6.18, 6.11(c)).13 Under the
amendments, the parties have materially narrowed the
“ordinary course of business” exception by giving DISH a
unilateral veto over the lease or transfer of any “major asset”—
including spectrum licenses. J.A. 644, 670 (Northstar 2018
LLC Agreement §§ 1.1, 6.3); accord J.A. 1109, 1158 (SNR
parallels).

The Companies contend that the 2018 agreements did not
substantively change their ability to lease licenses without
DISH’s consent. They point to the fact that the new agreements
retained the “ordinary course of business” exception and just
added on the new restriction on leasing “major asset[s.]” See
Companies Reply Br. 16–17; J.A. 644, 670 (Northstar 2018
LLC Agreement §§ 1.1, 6.3); accord J.A. 1109, 1158 (SNR
parallels). This, the Companies argue, shows that leasing a
major asset such as a spectrum license was unlikely ever to be
within the ordinary course of business.

13
Accord SNR 2014 Credit Agreement §§ 6.18, 6.11(c), at 33,
30.
 29
But DISH’s right hand took away what the left hand gave:
Its sweeping new veto power over the lease of any major asset
extinguished the force of the previously viable “ordinary
course of business” exception. So the Commission reasonably
concluded that the leasing restriction was a new and material
form of control. See 2020 Order, 35 FCC Rcd. at 13340–13341
¶ 71.14

Finally, the Companies are not saved by the clauses in their
agreements limiting DISH’s investor protections to those
“consistent with the [agency’s] decision in Baker Creek[.]”
J.A. 641 (Northstar 2018 LLC Agreement § 1.1); accord J.A.
1107 (SNR parallel). What matters in the Commission’s de
facto control analysis is “the substance of the terms of DISH’s
control”—where the rubber meets the road in DISH’s actual
reserved authority—not “formal recitations of compliance”
with the generic language of Commission orders. SNR

14
The Companies’ own expert declarant undermines their
argument that leasing licenses would “almost certainly” have been
outside of the ordinary course of business. Companies Reply Br. 17.
She averred that leasing spectrum was a leading business option for
SNR and Northstar, see J.A. 1550 (Taylor Decl.), as did the
Companies’ agreements with DISH, see J.A. 632 (Northstar 2018
LLC Agreement § 1.1, defining “Business”); J.A. 1093 (SNR
parallel). As the Companies’ own statements indicate, such basic
business opportunities are part of the “ordinary course of business”
of spectrum license holders. Or so the Commission could reasonably
conclude. See U.C.C. § 1-201(b)(9) (American Law Inst. & Uniform
Law Comm’n 2021) (Uniform Commercial Code stating that “[a]
person buys goods in the ordinary course” when a purchase
“comports with the usual or customary practices in the kind of
business in which the seller is engaged or with the seller’s own usual
or customary practices”); BLACK’S LAW DICTIONARY 404 (9th ed.
2009) (defining “course of business” as the “normal routine in
managing a trade or business”); 3 COLLIER ON BANKRUPTCY
¶ 364.02 (16th ed. 2022).
 30
Wireless, 868 F.3d at 1033; see also 2020 Order, 35 FCC Rcd.
at 13339 ¶ 68. Tellingly, the Companies’ counsel conceded at
argument that, even with this clause in place, they expected the
Commission, in its bidding credits decision, to do the enforcing
for them by bringing the contracts into compliance with Baker
Creek. See Oral Arg. Tr. 34–38. Because the Commission was
not required “to permit a cure[,]” let alone to craft it for them,
the Companies could not reasonably expect the agency to
devote its energies to securing their independence through an
ongoing process of superintending DISH through piecemeal
enforcement actions. SNR Wireless, 868 F.3d at 1046.

2

The Commission also reasonably grounded its finding of
de facto control in its Fifth Memorandum Opinion & Order. In
that Order, the Commission explained that when a company is
“financially * * * forced” to sell itself to an investor, the
investor has de facto control. See SNR Wireless, 868 F.3d at
1034–1035, 1040 (formatting modified) (quoting Fifth
MO&O, 10 FCC Rcd. at 456 ¶ 96). The record supports the
Commission’s conclusion that the revised agreements, while
moderated in some respects, nevertheless continued to apply
unrelenting financial pressure on SNR and Northstar to sell
themselves to DISH.

Under the new agreements, the Companies each had two
90-day windows—one starting in 2020 and the second in
2021—during which they could require DISH to buy them for
handsome profits. See 2020 Order, 35 FCC Rcd. at 13358–
13359 ¶¶ 128–130. After that, the Companies only had a right
to request that DISH buy them at their fair market value. And
DISH could refuse.

Those two purchase windows were keyed to the point in
time when Commission rules would require the Companies to
 31
make use of their spectrum licenses or face weighty and
escalating financial consequences. As the Commission
explained, its regulations require that licensees in relevant
bands provide “reliable signal coverage” to at least 40% of the
population in their regions within six years of receiving their
licenses. 47 C.F.R. § 27.14(s)(1); see also 2020 Order, 35 FCC
Rcd. at 13347 ¶ 90 & n.207. That means that the Companies
had to offer extensive wireless coverage in many of their
license areas by 2021, right at the start of their second put
window. If they failed to meet that deadline, the Companies’
timeline for providing service to 75% of the population in their
coverage area would accelerate by two years, to 2025. See
2020 Order, 35 FCC Rcd. at 13347 ¶ 90 & n.207; see also 47
C.F.R. § 27.14(s)(2)–(3). If the Companies missed that target,
their licenses would be revoked. See 47 C.F.R. § 27.14(s)(2)–
(4); cf. 2015 Order, 30 FCC Rcd. at 8930 ¶ 104 n.313
(Commission citing this rule in its 2015 put-option analysis).
Each of the Companies’ $500 million in debt plus accrued
interest was also to come due in 2025. See 2020 Order, 35 FCC
Rcd. at 13349–13350 ¶ 99. And throughout, the Companies
have owed DISH at least 8% annual dividends on billions of
dollars in preferred equity, which they either had to pay in cash
or add to their already sizable final tab due immediately upon
a merger with any party other than DISH. Id. at 13350 ¶¶ 99–
100, 13354–13355 ¶ 114.

Through the amended agreements, DISH presented both
Companies a financial lifeline in the face of acute financial
pressure: A “generous” price offered in both windows of time
for exercising their puts that guaranteed investors “healthy,
above-market returns even if they have not constructed
networks or repaid their loans (i.e., with virtually zero risk).”
2020 Order, 35 FCC Rcd. at 13358–13359 ¶ 130.
 32
And DISH threw that lifeline out right when a flood of
operational obligations would arise, with accumulating debt
hard on their heels. If they declined the rescue, the Companies
faced a formidable stick in the form of massive financial and
regulatory obligations that DISH could prevent them from
meeting by blocking both Companies’ ability to build a
wireless network or lease spectrum. In other words, DISH’s
powers set the Companies up to be financially stranded with no
viable route to pay off their debts other than selling out to
DISH. See 2020 Order, 35 FCC Rcd. at 13359 ¶¶ 131, 133–
134.

Nor could the Companies realistically sell themselves to
anyone else. The agreements empowered DISH to veto sales
to the most likely buyers—its own competitors. See 2020
Order, 35 FCC Rcd. at 13359–13360 ¶ 135. Further shrinking
the prospects of a non-DISH merger, the agreements also
provided that if either SNR or Northstar sold itself to anyone
but DISH, it would immediately owe DISH the full multi-
billion-dollar value of its outstanding debt and preferred equity.
See id.; see also id. at 13354–13355 ¶ 114.

As the Commission adequately explained, the Companies’
slightly longer windows to obtain a DISH buyout under the
revised agreements did not change the fundamental economics
of the pressure to sell, and to sell to DISH alone. See 2020
Order, 35 FCC Rcd. at 13360 ¶ 136. The agreements left the
Companies with the Hobson’s choice of making a riskless sale
with above-market returns, or else attempting a risky, debt-
laden venture over which DISH had essential veto powers. See
id. at 13358–13360 ¶¶ 130–136.

The amended contracts’ new option for DISH to buy the
Companies starting in 2022 at fair market value did nothing to
lessen the pressure. By that point, the Commission reasoned,
 33
DISH would have no obligation to buy the Companies—it
could simply walk away. So that provision hardly reduced the
financial pressure on the Companies to take one of the earlier-
expiring, generous, and risk-free buyouts. See 2020 Order, 35
FCC Rcd. at 13360 ¶ 137. The Commission sensibly found
that the contractual provisions once more gave SNR and
Northstar “every incentive simply to sell their interests * * * to
DISH in exchange for complete forgiveness of th[eir] loans
plus a guaranteed cash payment.” SNR Wireless, 868 F.3d at
1040.

The Companies respond that the Commission gave scant
heed to their ability to become successful independent
businesses, and so to avoid the temptation to sell themselves.
Not so. The Commission fully explained its contrary
judgment. 2020 Order, 35 FCC Rcd. at 13360–13362 ¶¶ 138–
146.

The Companies’ argument relies heavily on the analysis of
their expert, Carlyn Taylor. She posited that SNR and
Northstar had three “viable potential business options” to
pursue other than selling themselves to DISH. J.A. 1548.
Those were (i) “deploying a wireless network”; (ii) “offering
access to the[ir] spectrum * * * via a spectrum sharing model,
including spectrum leasing”; and (iii) “offering wireless
network capacity or roaming on a wholesale basis[.]” J.A.
1550. Taylor concluded that if the value of the Companies’
spectrum licenses grew faster than their financial obligations to
DISH, they could reasonably decide not to exercise their put
options. J.A. 1549–1550. Taylor added that about half of the
Companies’ licenses were in bands that had grown in value and
could fruitfully be paired with spectrum controlled by DISH.
J.A. 1552.
 34
The Commission was unpersuaded, and for good reason.
It explained that Taylor had not considered the Companies’
failure to monetize their assets even as their financial
obligations had piled up. See 2020 Order, 35 FCC Rcd. at
13361 ¶ 141. If the Companies believed they could rationally
pay their dues to DISH, they would presumably be looking for
money to do so. But there was no evidence they had taken any
steps to generate income. Id. Instead, both firms had left their
valuable spectrum “lying fallow[.]” Id. at 13361–13362 ¶ 144
n.294 (citation omitted).

The Commission also pointed out that Taylor underplayed
DISH’s power to hobble the Companies’ business prospects,
and, in that way, coerce them into selling. 2020 Order, 35 FCC
Rcd. at 13361–13362 ¶¶ 142, 146. If SNR or Northstar tried to
construct a network or lease their spectrum to other carriers—
as all three of Taylor’s options assumed they could do—DISH
could cut them off, either by starving them of buildout funds or
vetoing their leasing decisions. Id. at 13361–13362 ¶¶ 143–
145; see also id. at 13353 ¶ 109.

Lastly, the Commission pointed out that Taylor’s finding
that the Companies’ licenses paired particularly well with
DISH’s spectrum hardly suggested that they had the capacity
to go it alone. 2020 Order, 35 FCC Rcd. at 13361–13362
¶ 144.

SNR and Northstar object that the Commission ignored a
path to profitability that did not involve leasing their spectrum.
But the Commission sufficiently examined the Companies’
business options. One possibility the Companies raise in their
briefing—making money by pairing their licenses with
broadcasters’ spectrum—was mentioned by their expert only
in a cursory footnote. And the agency adequately explained
that if either SNR or Northstar tried this approach, DISH could
 35
veto it too. See 2020 Order, 35 FCC Rcd. at 13362 ¶ 144
n.297.

Neither did the Commission need to say more about the
Companies’ claim that they could pursue a “spectrum sharing
model” without leasing. Companies Opening Br. 47 (quoting
J.A. 1550). The only mechanism Taylor mentioned for sharing
spectrum was leasing, which DISH could quash. And the
Companies’ attempt to supplement Taylor’s report in their
briefing is too little too late as our review is confined to the
record before the agency at the time of its decision. See
EarthReports, Inc. v. FERC, 828 F.3d 949, 959 (D.C. Cir.
2016).

In any event, the only question before us is whether the
Commission’s decision fell within the realm of reason, not
whether other judgments could have been made. See
EarthLink, Inc. v. FCC, 462 F.3d 1, 12 (D.C. Cir. 2006). The
Commission’s conclusions meet that mark.15

3

The Commission’s conclusion that, taken together, the six
Intermountain Microwave factors indicated de facto control
was likewise proper. Those factors are:

(1) who controls the daily operations of the small business;
(2) who employs, supervises, and dismisses the small

15
The Companies argue that the Commission arbitrarily
foreclosed consideration of Taylor’s testimony. While the
Commission initially found the arguments in Taylor’s put-option
analysis precluded by SNR Wireless, it went on to explain over eight
paragraphs why it found Taylor’s report “both speculative and
conclusory—and ultimately unpersuasive.” 2020 Order, 35 FCC
Rcd. at 13360–13362 ¶¶ 139–146. That is sufficient consideration.
 36
business’s employees; (3) whether the small business has
“unfettered” use of all its facilities and equipment; (4) who
covers the small business’s expenses, including its
operating costs; (5) who receives the small business’s
revenues and profits; and (6) who makes and carries out
the policy decisions of the small business.

SNR Wireless, 868 F.3d at 1031.

a

On the first factor, the Commission held that the
Companies had not “fully resolved” its concern that DISH
controlled their daily operations. 2020 Order, 35 FCC Rcd. at
13341 ¶ 75. The revised contracts did eliminate some of the
Commission’s earlier concerns by ending the Management
Services Agreements, scrapping the mandatory business plan
consultations with DISH, and “clarif[ying]” that the
management fee provisions did not limit employee
compensation. Id. at 13341 ¶ 74.

The problem is, as the Commission explained, that the
revised agreements perpetuated five-year business plans that
had been crafted under DISH’s supervision and which were
still in force at the time of the amendments. See 2020 Order,
35 FCC Rcd. at 13342 ¶ 75. Because the parties could only
modify the five-year plans if a “material change[] affecting”
the Companies occurred, the Commission concluded that SNR
and Northstar remained “locked in to the business plans
prepared during DISH’s de facto control.” Id. at 13341–13342
¶ 75.

The Companies counter that by the time the agency issued
its decision in 2020, those business plans had lapsed. That is
true. The Companies further argue that the prior business plans
did not predetermine future plans because the revised
 37
agreements deleted a provision requiring that new plans “be as
consistent as practicable with the prior” document. J.A. 671–
672 (Northstar 2018 LLC Agreement § 6.5(a)); accord J.A.
1162 (SNR parallel). Also true. We agree with the Companies
that the agency was mistaken when it said that they were
“locked in” to business plans prepared under the old regime.
2020 Order, 35 FCC Rcd. at 13342 ¶ 75.

Still, it was reasonable for the Commission to find that
DISH continued to materially influence the Companies’ daily
operations in the period between the 2018 amendments and the
termination of the old business plans. And we cannot say that
it was arbitrary for the agency to find it significant that the
Companies had chosen not to unwind those old plans.

In any event, the Commission did not lean on this daily-
control prong when finding de facto control. It said instead that
this factor did not “support[] the [Companies’] position.” 2020
Order, 35 FCC Rcd. at 13342 ¶ 77; see also id. at 13338 ¶ 63
(recognizing that the Companies’ amendments “eliminate
some of the prior identified concerns regarding DISH’s control
over * * * aspects of the [Companies’] daily operations”). So
the agency’s “relatively thin” reasoning here does not render
its entire Intermountain Microwave analysis unreasonable, as
its consideration and balancing of the other factors shows. SNR
Wireless, 868 F.3d at 1032; see also 5 U.S.C. § 706 (in
Administrative Procedure Act review, the court shall take “due
account * * * of the rule of prejudicial error”).

b

On the second and third factors, the Commission agreed
with the Companies that the revised agreements had addressed
its prior concerns by ending the management agreements and
deleting provisions giving DISH authority over employment
 38
decisions and technology choices. See 2020 Order, 35 FCC
Rcd. at 13342–13343 ¶¶ 77–78, 13357 ¶¶ 121–123.

c

The Commission found that, under the fourth
Intermountain Microwave factor, DISH continued to dominate
the Companies’ finances. See 2020 Order, 35 FCC Rcd. at
13343–13348 ¶¶ 80–92. Even though the amendments
eliminated some of the problems in the original agreements, the
Commission reasonably concluded that the Companies remain
fundamentally dependent on DISH for financing because DISH
controls whether the Companies can access sufficient funds to
build a national network and from whom they can seek that
funding. Id. at 13344 ¶¶ 82–83.

To start, DISH committed to lending the Companies
“reasonable” sums to build a telecommunications system, but
then capped its financing obligations at an amount that the
Commission found grossly unequal to the task. See 2020
Order, 35 FCC Rcd. at 13345–13346 ¶¶ 84, 86–89. To be sure,
for Northstar—but not for SNR—DISH also agreed to lend the
company enough money to meet its “Working Capital
requirements.” Id. at 13346 ¶ 88 (quoting Northstar 2018
Credit Agreement § 2.2(b)(i)). The Commission explained that
such support was not enough because working capital loans are
typically used for short-term needs, not to finance long-term
investments like a wireless network. See id. Those provisions
left the Companies unable to rely on DISH to fund the
construction of the national networks that provided a critical
path to paying off their debt and making profitable use of their
spectrum licenses. Id. at 13346 ¶¶ 88–89.

The Commission also sensibly found that DISH’s new
power to block the Companies from incurring “significant”
indebtedness financially tethered SNR and Northstar to DISH.
 39
2020 Order, 35 FCC Rcd. at 13347–13348 ¶¶ 91–92 (citation
omitted).

The Commission also found that the funding framework
adopted by the Companies mirrored that in Baker Creek. See
2020 Order, 35 FCC Rcd. at 13348 ¶ 92. There, the agency
found that an investor exercised de facto control over a small
company’s finances because it was the source of almost all the
small business’s capital, and it could control both who funded
it and in what amounts. See Baker Creek, 13 FCC Rcd. at
18721–18723 ¶¶ 23–25. So too here: Under the revised
agreements, DISH can block the Companies from most outside
borrowing and need not lend to the Companies in adequate
amounts itself. See 2020 Order, 35 FCC Rcd. at 13348 ¶ 92.

d

Turning to the fifth Intermountain Microwave factor, the
Commission’s finding that DISH was likely to vacuum up the
Companies’ revenues and profits was well-supported in the
record. See 2020 Order, 35 FCC Rcd. at 13348–13351 ¶¶ 93–
103. In looking at the changes made by the amended contracts,
the Commission “conclude[d] that the parties [had] changed
the form but not the controlling nature of DISH’s financial
interests[.]” Id. at ¶ 98.

Critically, in 2020, the Companies still faced massive debt
obligations to DISH. 2020 Order, 35 FCC Rcd. at 13349–
13350 ¶¶ 97–100. And DISH held the ability to prevent the
Companies from “generat[ing] revenues to pay down their debt
and make their required dividend payments.” Id. at 13351
¶ 102. If the Companies could not make their payments, any
profits they generated would likely benefit only DISH, which
could force SNR and Northstar to sell themselves to it. Id. at
¶¶ 102–103 & n.237.
 40
The Companies contend that the Commission ignored the
relative modesty of their debts compared to the value of their
licenses, and so exaggerated DISH’s ability to seize their
profits. But the Commission adequately considered the value
of those licenses, explaining that (i) DISH can prevent the
Companies from profiting from, or significantly borrowing
based on, their spectrum, making the $500 million loans
difficult or impossible to pay back, and (ii) if either firm wishes
to merge with a party other than DISH, it will immediately have
to repay DISH billions of dollars. See 2020 Order, 35 FCC
Rcd. at 13340 ¶ 70, 13350–13351 ¶¶ 100–103, 13354–13355
¶ 114.

e

As to the last Intermountain Microwave factor, the
Commission found that DISH continued to dominate the
Companies’ decisionmaking. See 2020 Order, 35 FCC Rcd. at
13351–13357 ¶¶ 104–120. While the amended agreements
addressed some of the Commission’s prior concerns about
DISH’s control, the agency concluded that SNR and
Northstar’s new “rights [were] mere fig leaves” because DISH
could, by blocking their credit lines and leasing revenue,
prevent them from making money. Id. at 13353–13354
¶¶ 109–110. The Commission also found that DISH could still
“influence if, how, [and] when * * * [the Companies and their
managing investors] exit the business” because the Companies
would have little choice but to take the generous guaranteed
buyouts offered under the agreements. 2020 Order, 35 FCC
Rcd. at 13354 ¶¶ 111–112 (emphasis omitted).

Finally, the Commission determined that the Companies
were still “functioning as arms of DISH, rather than as
independent small companies[.]” 2020 Order, 35 FCC Rcd. at
13355 ¶ 115 (formatting modified; quoting SNR Wireless, 868
 41
F.3d at 1025). In 2015, the Commission was troubled by the
Companies’ joint bidding behavior in the spectrum auction.
SNR Wireless, 868 F.3d at 1042. Yet nothing seemed to change
on remand. SNR and Northstar continued to act in concert by
amending their agreements with DISH in “virtually identical”
fashion. 2020 Order, 35 FCC Rcd. at 13355–13356 ¶¶ 115–
119. Though Northstar had borrowed almost $2 billion more
from DISH than SNR had, both reduced their DISH debts to
exactly $500 million apiece in exchange for preferred equity.
Id. at 13356 ¶ 118.

On top of that, despite Northstar’s more valuable spectrum
holdings, the Companies agreed to similar limits on their ability
to borrow from DISH to finance network construction. See
2020 Order, 35 FCC Rcd. at 13356 ¶ 118. The Companies’ put
rights were also virtually identical, and both firms gave DISH
the same expanded veto over spectrum leasing. See id. at ¶ 119
& n.264. On this record, the Commission reasonably found
that SNR and Northstar, rather than acting like individual
businesses with their own interests and identities, only
pantomimed independence, while functionally operating at
DISH’s beck and call.

The Companies argue that it was natural to amend their
agreements with DISH in similar ways. That is because the
Commission and this court found their previous agreements
wanting for identical reasons, so a common response was
appropriate.

While that could explain the Companies’ similar structural
changes to their agreements, it does not address their
acquiescence in identical numerical amendments, such as
converting all but $500 million in debt into preferred equity.
See 2020 Order, 35 FCC Rcd. at 13356 ¶ 118. That entailed
converting approximately $1.8 billion more of Northstar’s debt
 42
to equity than SNR’s. Yet the Companies offer no reason for
slashing their differing debts to the exact same dollar amount.

The Companies’ second explanation for proceeding in
lockstep—that they could jointly “deploy a nationwide
network”—also falls flat. Companies Opening Br. 53 (citation
omitted). Even if the Companies were planning such a joint
venture—and they point to no evidence that they were—they
fail to explain why that would motivate them to craft nearly
mirror-image agreements with DISH.

f

SNR and Northstar mount two more general attacks on the
Commission’s Intermountain Microwave analysis. Neither is
persuasive.

First, the Companies complain that the Commission’s
decision was arbitrary because it did not find that all six
Intermountain Microwave factors favored its ultimate control
finding. The Commission, though, has not required “a finding
of control with regard to all Intermountain Microwave factors”
to conclude that a small company is de facto controlled by
another entity. 2015 Order, 30 FCC Rcd. at 8911 ¶ 56 n.202.
Instead, the agency “carefully examines the totality of the facts
and circumstances of each case” and “view[s] [the
Intermountain Microwave factors] together[.]” Id. at 8909–
8910 ¶ 50, 8911 ¶ 56 n.202.

Second, SNR and Northstar contend that the
Commission’s Intermountain Microwave analysis rested on the
false premise that DISH’s right to veto leases was materially
different from the initial contracts. As already explained, the
record fully supports the Commission’s conclusion that the
constraints on leasing were newly and consequentially
expanded. See Section III.B.1, supra.
 43
*****

As we held in the Companies’ prior appeal, so too here the
Commission closely examined the Companies’ agreements,
applied settled agency precedent, and, after weighing the
prescribed factors, reasonably explained its conclusion that
DISH continues to “control and benefit from virtually all
critical aspects of SNR and Northstar’s businesses.” SNR
Wireless, 868 F.3d at 1033. To put the point more simply, the
Commission’s finding that the Companies are not entitled to
very-small-business bidding credits was reasoned and squarely
grounded in the record.

C

1

The Companies separately argue that they lacked fair
notice of the standards that the Commission applied in finding
DISH’s de facto control, and so they should not be subject to
the agency’s denial of their bidding credits and default
penalties. They point out that they removed the contractual
provisions of greatest concern to the Commission in 2015, and
so could not have reasonably predicted the agency’s adverse
decision.

For the record, the Companies did not just subtract
provisions of concern. They also added new ones, some of
which the Commission reasonably found to substantially
solidify DISH’s control. See 2020 Order, 35 FCC Rcd. at
13340–13341 ¶ 71, 13355 ¶ 115.

In any case, a party has fair notice when, “by reviewing
the regulations and other public statements issued by the
agency,” it can “identify, with ascertainable certainty, the
standards with which the agency expects parties to conform.”
 44
General Elec. Co. v. Environmental Protection Agency, 53
F.3d 1324, 1329 (D.C. Cir. 1995) (internal quotation marks and
citation omitted); see also Otis Elevator Co. v. Secretary of
Lab., 762 F.3d 116, 125 (D.C. Cir. 2014). The record in this
case establishes that the Companies had fair notice of the legal
rules and factors that led to the Commission’s finding of de
facto control.16

First, as we previously held, the Commission’s decision
was “clearly presaged” by the Fifth Memorandum Opinion &
Order issued in 1994. SNR Wireless, 868 F.3d at 1035. In that
Order, the Commission was direct and explicit that
“agreements between [small businesses] and strategic investors
that involve terms * * * that cumulatively are designed
financially to force the [small business] into a sale * * * will
constitute a transfer of control under our rules.” Fifth MO&O,
10 FCC Rcd. at 456 ¶ 96 (emphasis added). The Commission’s
paradigm example of such ensnaring conditions was a contract
that offered the small business a temporary right to sell itself
debt-free to its large investor around the time it would
otherwise have to start paying back its loans. Id. at 455–456
¶ 95; see also 47 C.F.R. § 1.2110(c)(2)(ii)(A)(2) (providing
that the Commission will analyze put options as if already
exercised when “such ownership interests, in combination with
other terms * * * deprive an otherwise qualified applicant * * *
of de facto control” over its own operations). The agreements
at issue here parallel that model by combining brief windows
for the Companies to take guaranteed payouts from their

16
We need not decide whether the Commission’s denial of
bidding credits alone was a punishment because the default
penalties—which the Commission has not rescinded—were. See
SNR Wireless, 868 F.3d at 1045. So the agency was required to give
the Companies fair notice before applying its remedy here. See id.
at 1043.
 45
dominant investor or face looming—and overwhelming—
financial obligations.

Second, the Commission doubled down on that point in its
2015 Order. The agency stated directly that because the
Companies were “committed to repayment terms that [would]
be difficult, if not impossible to manage unless they exercise[d]
their put option[s,]” the contracts placed undue pressure on
Northstar and SNR “to refinance or exit the[ir] business[es],”
and “thereby exhibit[ed] an unacceptable degree of control on
DISH’s part.” 2015 Order, 30 FCC Rcd. at 8930 ¶ 105. Also
in 2015, as in 2020, the Commission cited the Companies’
license-deployment deadlines—timed closely to the relevant
put options—as adding pressure on SNR and Northstar to sell
themselves to DISH. Compare 2015 Order, 30 FCC Rcd. at
8930 ¶ 104 n.313, with 2020 Order, 35 FCC Rcd. at 13347 ¶ 90
& n.207. So the Companies had ample notice that the
agreements’ pairing of an approaching and seemingly
insurmountable financial commitment with irresistible get-out-
of-debt-free cards from DISH would lead to a finding of de
facto control.

The Companies also had the benefit of our 2017 decision
reinforcing that warning. We sustained the Commission’s
finding of de facto control there because DISH gave the
Companies a non-choice between undertaking “the quixotic
mission of generating enough revenue to pay back their
multibillion dollar loans” within five to seven years—well
before they could realistically earn sufficient sums by building
out their networks—or selling themselves to DISH “in
exchange for complete forgiveness of those loans plus a
guaranteed cash payment.” SNR Wireless, 868 F.3d at 1040.
Under Commission precedent, those conditions “financially
* * * forced” the Companies to exercise their put options. Id.
(formatting modified and citation omitted).
 46
Notably, the Commission’s finding of control in 2020
turned on veto powers very similar to those that led the
Commission to find de facto control by DISH just five years
earlier. In its prior order, the Commission was concerned that
DISH (i) could prevent the Companies from selling out to
another buyer, (ii) had no obligation to lend them adequate
financing, and (iii) could seize the Companies’ licenses. 2015
Order, 30 FCC Rcd. at 8930–8931 ¶ 105. Under the amended
agreements, the Commission found that DISH still could
thwart the Companies’ ability to sell their interests to third
parties, to access sufficient financing, or to profit from their
spectrum rights. See 2020 Order, 35 FCC Rcd. at 13359–
13360 ¶¶ 131–137. So while the Companies and DISH had
modified their contracts’ bells and whistles, they retained the
same essential structure that the Commission had long said—
and had just told them, with our affirmation—is a signature
form of de facto control. See Fifth MO&O, 10 FCC Rcd. at
455–456 ¶¶ 95–96.

Third, the Commission’s Baker Creek and Intermountain
Microwave decisions provided further notice that the
Companies’ overwhelming financial and decisionmaking
dependence on DISH, coupled with its restrictive investor
protections, would support a finding that DISH is in de facto
control.

Baker Creek said that when investor protections provide
“the power to dominate the management of corporate
affairs[,]” such provisions “may confer actual control upon”
the purportedly passive investor. Baker Creek, 13 FCC Rcd. at
18714–18715 ¶ 9. That decision expressed particular concern
that the investor at issue, which was “the source of all but a
negligible amount of [the small business’s] capital[,]” could
control how much the small business borrowed, and from
whom. Id. at 18721–18722 ¶¶ 23–24. Baker Creek held that
 47
terms barring the small business from taking out secured debt
and giving the investor a right of first refusal over outside loans
went “beyond permissible investment protections” when
considered alongside other provisions. Id. at ¶ 24.

That gave fair notice of the Commission’s similar finding
here that the investor protection provisions in the Companies’
agreements with DISH “reinforce[d]” its control over SNR and
Northstar. 2020 Order, 35 FCC Rcd. at 13340–13341 ¶¶ 69–
71. DISH’s power to veto significant loans ensured that DISH,
as the undisputed source of almost all the Companies’ capital,
kept their borrowing under its thumb. Id. at 13340 ¶ 70. And
DISH’s ability to prevent the Companies from leasing
spectrum, which substantially increased their financial
dependence and went “beyond [provisions] identified as
typical in Baker Creek[,]” veered outside of the control lines
drawn in Commission precedent. Id. at ¶ 71; see also Fifth
MO&O, 10 FCC Rcd. at 449 ¶ 82 (“[W]hile certain provisions
benefitting [purportedly passive] investors may not give rise to
a transfer of control when considered individually, the
aggregate effect of multiple provisions could be sufficient to
[transfer] de facto control, particularly if the terms of such
provisions vary from recognized standards.”).

Likewise, the Commission’s 2015 Order in this case
foreshadowed its application of the Intermountain Microwave
factors in its decision here. The 2015 Order told SNR and
Northstar that their abject financial dependence on DISH,
paired with DISH’s ability to dictate how they borrow money,
use their licenses, build their networks, and sell their
businesses, provided powerful evidence that they were not
freestanding small companies. See 30 FCC Rcd. at 8911 ¶ 54,
8923–8925 ¶¶ 84–86, 8925–8926 ¶¶ 87–90, 8927–8929 ¶¶ 94–
101.
 48
On remand, the Commission found no material loosening
of the Companies’ financial handcuffs. See 2020 Order, 35
FCC Rcd. at 13343–13348 ¶¶ 80–92, 13349–13351 ¶¶ 98–103
& n.237, 13353 ¶ 108. The Commission had also warned the
Companies in 2015 that if they furthered DISH’s interest at
their own expense, the natural inference was that they were its
creatures. See 2015 Order, 30 FCC Rcd. at 8931–8932 ¶¶ 109–
114. Despite that advice, the Companies again marched to
DISH’s beat on remand, rewriting their contracts in
preternaturally parallel fashion. See 2020 Order, 35 FCC Rcd.
at 13355–13356 ¶¶ 115–119.

In short, the Commission gave the Companies
comprehensible and actionable guidance about the standards it
would apply to determine if they were independent, very small
businesses or were instead under the de facto control of DISH.
Fair notice requires no more. See Maxcell Telecom Plus, Inc.
v. FCC, 815 F.2d 1551, 1558 (D.C. Cir. 1987) (“If a [regulated
party] ignores or fails to understand reasonably
comprehensible requirements, [it] cannot be heard to complain
about lack of notice.”) (citation omitted); see also Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1060 (D.C. Cir. 2007).17

To be clear, because the Commission’s order
independently rested on two grounds—the put-option analysis
under the Fifth Memorandum Opinion & Order and the
multifaceted considerations prescribed by Intermountain
Microwave and Baker Creek—the Commission’s decision
would stand as long as the Companies were “able to identify,
with ascertainable certainty” how either standard worked.
General Elec. Co., 53 F.3d at 1329 (internal quotation marks

17
Cf. November 4 Meeting Letter, at J.A. 1596 n.17
(Companies’ counsel citing Maxcell Telecom for this court’s fair
notice standard); accord November 17 Meeting Letter, at J.A. 1621
n.27.
 49
and citation omitted); see 2020 Order, 35 FCC Rcd. at 13357
¶ 124. That they had fair notice of both is icing on the cake.

2

The Companies press two more fair-notice arguments.
Neither has merit.

a

To start, SNR and Northstar contend that, because the
Commission has never before denied bidding credits to an
entity lacking a management agreement with its large investor,
they were not given fair notice that the agency would do so
here. But no Commission precedent said that such an
agreement was a necessary precondition to finding de facto
control. To the contrary, in the Fifth Memorandum Opinion &
Order, the Commission illustrated its concern about put
options with an example that did not involve management
contracts at all. See Fifth MO&O, 10 FCC Rcd. at 455–456
¶ 95.

More to the point, in the prior decisions as to these very
parties, both the Commission and this court found that the
Companies’ put options, in combination with other terms,
demonstrated DISH’s de facto control—all without relying on
the (now-defunct) Management Services Agreements. See
2015 Order, 30 FCC Rcd. at 8929–8931 ¶¶ 102–105; SNR
Wireless, 868 F.3d at 1034–1035, 1040.

b

The Companies separately argue that a contradictory
decision by the Wireless Bureau left them without fair notice.
They point to the Bureau’s decision to grant bidding credits to
Advantage Spectrum, L.P., an entity bound by restrictive
 50
agreements with a large investor, in an unexplained decision
issued after the 2015 Order. See Wireless Telecommunications
Bureau Grants AWS-3 Licenses in the 1695-1710 MHz, 1755-
1780 MHz and 2155-2180 MHz Bands, 31 FCC Rcd. 7129
(2016); J.A. 1637–1642 (SNR and Northstar presentation to
Commissioners comparing their agreements with those of other
bidders). While they acknowledge that the Bureau’s actions
are not binding on the Commission, SNR and Northstar argue
that the Advantage Spectrum decision shows the type of
“confusion at the ground level” sometimes present when fair
notice is lacking. SNR Wireless, 868 F.3d at 1045 (internal
quotation marks and citation omitted).

The Commission responds that it is not bound by staff
decisions, and parties should not count on it to follow the
Wireless Bureau’s lead. See 2020 Order, 35 FCC Rcd. at
13364–13365 ¶¶ 152–157.

On this record, that wholly unexplicated ruling by the
Bureau does not change the fair notice calculus. The clarity of
the Commission’s precedent, as applied here, the concrete
guidance in the 2015 Order and SNR Wireless, and the absence
of any contrary analysis in the Advantage Spectrum decision
provided ample notice. In fact, because the Companies were
afforded a chance to cure, the 2015 Order (at the least)
amounted to the type of “pre-enforcement effort[] to bring
about compliance” that we have said typically “provide[s]
adequate notice.” General Elec. Co., 53 F.3d at 1329; accord
SNR Wireless, 868 F.3d at 1046.18

18
Remember, the Wireless Bureau granted bidding credits to
Advantage Spectrum before our court decided SNR Wireless, which
provided the Companies with yet more analysis of the relevant de
facto control standard.
 51
The Companies rely on SNR Wireless, which found that
internal inconsistency within an agency could signal a lack of
fair notice. But in that case, the agency’s decision to deny the
Companies a chance to cure was directly undercut by a prior
“Commission-level position[.]” 868 F.3d at 1046.

Here, by contrast, the agency’s decision was supported,
rather than undermined, by prior Commission actions and a
ruling of this court. Those binding “administrative and judicial
decisions”—including those directed at these very parties—
“put the Compan[ies] on fair notice of what was required.”
Abhe & Svoboda, Inc., 508 F.3d at 1060. There is “no grave
injustice in holding parties to a reasonable knowledge of the
law[.]” Id. (citation omitted).19

IV

For all of those reasons, we reject the Companies’
challenges to the Commission’s orders.

So ordered.

19
The Companies’ argument that the Commission unlawfully
discriminated between Advantage Spectrum and them is foreclosed
by precedent, as is DISH’s similar argument regarding both
Advantage Spectrum and another bidder in the same spectrum
auction. See SNR Wireless, 868 F.3d at 1039; accord Amor Fam.
Broad. Grp. v. FCC, 918 F.2d 960, 962 (D.C. Cir. 1990)
(Commission does not act inconsistently by failing to comport with
actions of its “subordinate bod[ies]”).