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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2003 Decided April 23, 2004
No. 02-1370
CALIFORNIA METRO MOBILE COMMUNICATIONS, INC.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
Appeal of an Order of the
Federal Communications Commission
Christopher D. Imlay argued the cause for the appellant.
Pamela L. Smith, Counsel, Federal Communications Com-
mission, argued the cause for the appellee. John A. Rogovin,
General Counsel, and Daniel M. Armstrong, Associate Gener-
al Counsel, Federal Communications Commission were on
brief. Jane E. Mago, Assistant General Counsel, Federal
Communications Commission, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, HENDERSON and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: California Met-
ro Mobile Communications, Inc. (CMMC) appeals the Federal
Communications Commission’s (Commission’s) order denying
review of the decision of its Public Safety and Private Wire-
less Division to modify CMMC’s trunked radio station by
removing one frequency. CMMC first contends that the
Commission lacks authority under the Communications Act of
1934 (Communications Act or Act), 47 U.S.C. §§ 151 et seq.,
and the implementing regulations to modify CMMC’s license.
Second, CMMC maintains that, even if the Commission has
authority to modify its license, the decision to do so violates
the Administrative Procedure Act (APA), 5 U.S.C.
§ 706(2)(A). We reject CMMC’s claims as explained below
and, accordingly, affirm the Commission’s order.
I.
CMMC, a provider of mobile radio equipment and two-way
radio service, applied to the Commission for a license to
operate a trunked1 radio station on Very High Frequency
(VHF) channels in the Industrial/Business radio pool of the
1 The process of ‘‘trunking’’ increases efficiency in spectrum use
by ‘‘giving a single transmitting station simultaneous access to
multiple channels so that it can systematically scan all lines until it
finds an open channel on which to place a waiting call. This pooling
enables expeditious handling of many more calls than is possible if
each call had to be completed, if at all, only through one preas-
signed channel.’’ Telocator Network of Am. v. FCC, 691 F.2d 525,
530 n.36 (D.C. Cir. 1982). In Telocator Network we analogized
trunking to customer lines at a bank: ‘‘If there is a separate line for
each teller, the customer gets on what he thinks is a short line only
to find out that the customer in front of him has a lengthy
transaction. On the other hand, if there was only one line feeding
into all the tellers, the line would keep moving because only one
teller out of many would be slowed down by the lengthy transac-
tion.’’ Id.
3
Private Land Mobile Radio (PLMR) services in Twin Creeks,
California. The Personal Communications Industry Associa-
tion (PCIA), an organization certified by the FCC to coordi-
nate frequencies, submitted CMMC’s application to the Com-
mission’s Licensing and Technical Analysis Branch (Branch)
of the Public Safety and Private Wireless Division (Division)
of the Wireless Telecommunications Bureau and recom-
mended appropriate frequencies for operation of CMMC’s
proposed station. On September 8, 1999 the Branch granted
CMMC a license to operate a trunked radio station under the
call sign WPOY920 on five channels, including frequency
153.6125 MHz.
On September 19, 2000 Pacific Gas & Electric (PG&E)
petitioned2 the Commission to revoke CMMC’s license be-
cause, it claimed, CMMC’s operation on frequency 153.6125
MHz potentially interfered with the operations of its earlier-
licensed stations (KJX775, WNFM314 and WPPX407) on
frequency 153.6050 MHz. PG&E submitted an interference
study done by the Industrial Telecommunications Association
(ITA) which demonstrated that CMMC’s interference signal
contour overlapped PG&E’s service area signal contours. As
the stations’ signals overlapped, PG&E contended that the
Commission improperly granted CMMC’s application because
PG&E had a prior and exclusive right to operate on frequen-
cy 153.6050 MHz and CMMC had failed to comply with
Commission rules by obtaining PG&E’s consent to operate on
frequency 153.6125 MHz. In this regard, PG&E asserted
that, given the ‘‘critical nature of [its] operation,’’ ‘‘in no way’’
would it have consented to CMMC’s operation on frequency
153.6125 MHz. Joint Appendix (JA) 1.
Responding to PG&E’s petition, the Branch sent a letter to
the PCIA on February 15, 2001 asking it to demonstrate that
2 PG&E’s letter, which it styled a ‘‘Petition for Revocation,’’ was
filed under section 1.91 of the Commission rules, which, inter alia,
provides that, if it appears that a license should be revoked, ‘‘the
Commission will issue an order directing the person to show cause
why an order of revocation TTT should not be issued.’’ 47 C.F.R.
§ 1.91(a).
4
the frequency coordination it performed for CMMC’s applica-
tion complied with Commission rules and, if it in fact failed to
do so, to submit a proposal to remedy the defect. On March
12, 2001 the PCIA responded, stating that the frequency
coordination it did for CMMC’s application had in fact failed
to take into account licenses held by PG&E and proposing
that the Commission ‘‘correct’’ CMMC’s license ‘‘by removing
frequency 153.6125.’’ JA 9.
On August 14, 2001 the Division denied PG&E’s petition
but, on its own motion, initiated a proceeding to modify
CMMC’s license by deleting frequency 153.6125 MHz. Pacif-
ic Gas & Elec. Co., Petition to Revoke Grant of License for
California Metro Mobile Communications for Industri-
al/Business Private Land Mobile Radio Station, WPOY920,
Twin Creeks, California & California Metro Mobile Commu-
nications, Licensee of Trunked Industrial/Business Pool Sta-
tion WPOY920, Twin Creeks, California, Memorandum Opin-
ion & Order, 16 FCC Rcd 15419 (released Aug. 17, 2001).
The Division first addressed CMMC’s contention that the
Commission lacked authority to entertain PG&E’s petition
because it was in effect an untimely petition for reconsidera-
tion under section 405 of the Communications Act, 47 U.S.C.
§ 405.3 The Commission rejected CMMC’s contention, ex-
plaining that PG&E’s request ‘‘is most properly characterized
as an informal request for Commission action under [s]ection
1.41 of the Commission’s [r]ules.’’4 16 FCC Rcd at 15421.
3 Section 405 provides in part: ‘‘After an order, decision, report,
or action has been made or taken in any proceeding by the
Commission, or by any designated authority within the Commission
pursuant to a delegation under section 155(c)(1) of this title, any
party thereto, or any other person aggrieved or whose interests are
adversely affected thereby, may petition for reconsideration only to
the authority making or taking the order, decision, report, or
action.’’ 47 U.S.C. § 405(a). The petition must ‘‘be filed within
thirty days from the date upon which public notice is given of the
order, decision, report, or action complained of.’’ Id.
4Section 1.41 provides: ‘‘Except where formal procedures are
required under the provisions of this chapter, requests for action
may be submitted informally.’’ 47 C.F.R. § 1.41.
5
Turning to the merits of the request, the Division agreed with
PG&E that CMMC’s application was improperly coordinated
because it failed to provide PG&E’s operations with the
required level of interference protection. Id. The Division
explained, however, that revocation of CMMC’s license was
unnecessary under the circumstances because PCIA had
‘‘proposed changes to the CMMC license designed to elimi-
nate interference to PG&E’s stations.’’ Id. at 15422. The
Division concluded instead that section 316 of the Communi-
cations Act,5 47 U.S.C. § 316, which authorizes the Commis-
sion to modify a license in the public interest, convenience
and necessity, provided the ‘‘appropriate vehicle for resolving
this matter.’’ Id. And the Division found that section 316’s
requirements were met: ‘‘[T]he proposed modification would
serve the public interest by preserving the existing coverage
areas of affected parties and preventing harmful interference,
while not unduly disrupting CMMC’s operations.’’ Id. Thus,
the Division proposed to modify CMMC’s license by deleting
frequency 153.6125 MHz following notice to CMMC and an
opportunity for CMMC to protest it. Id.; see 47 U.S.C.
§ 316(a)(1) (modification order not final until licensee notified
of proposed action and given at least thirty days to protest);
47 C.F.R. § 1.87(a) (same). CMMC availed itself of this
opportunity.
On December 27, 2001 the Division denied CMMC’s peti-
tion for reconsideration and modified CMMC’s license by
deleting frequency 153.6125 MHz. California Metro Mobile
Communications, Inc., Modification of Industrial/Business
Pool Trunked Station WPOY920 Frequency 153.1625 MHz,
Memorandum Opinion & Order & Order of Modification, 17
FCC Rcd 112 (released Dec. 31, 2001). In its petition CMMC
had again challenged the Commission’s authority to modify its
5Section 316 provides in part: ‘‘Any station license TTT may be
modified by the Commission either for a limited time or for the
duration of the term thereof, if in the judgment of the Commission
such action will promote the public interest, convenience, and
necessity, or the provisions of this chapter or of any treaty ratified
by the United States will be more fully complied with.’’ 47 U.S.C.
§ 316(a)(1).
6
license. CMMC claimed that PG&E’s request constituted an
untimely petition for reconsideration under 47 C.F.R. § 1.1066
and that, because PG&E failed to file its petition within
section 405’s 30–day window, the Commission could not con-
sider PG&E’s request as an informal petition under 47 C.F.R.
§ 1.41. CMMC also claimed that 47 C.F.R. § 1.113,7 which
allows an action taken under delegated authority to be modi-
fied or set aside within 30 days of its public notice, prevented
the Division from modifying a license once the 30 days
expired.
Finding CMMC’s procedural arguments to be ‘‘without
merit,’’ the Division rejected them. 17 FCC Rcd at 113–14.
The Division first reasserted that, in proposing to modify
CMMC’s license, it did not purport to act under the authority
of 47 C.F.R. § 1.113 but instead pursuant to section 316 of
the Act and 47 C.F.R. § 1.87(a). Id. at 114. The Division
further explained that, while CMMC correctly noted that
section 405 of the Act requires petitions for reconsideration to
be filed within 30 days following public notice of the action
the Commission is asked to reconsider, the Division proposed
to modify CMMC’s license on its own motion. Id. Turning
to the proposed modification itself, the Division explained that
CMMC had waived its right to protest the modification by
failing to object to it on the merits within the prescribed 30–
day period. Id. Finding that the modification served the
public interest, the Division deleted frequency 153.6125 MHz
from CMMC’s license. Id. CMMC then filed an application
for review with the Commission.
On October 29, 2002 the Commission denied CMMC’s
application for review. License of California Metro Mobile
Communications, Inc., Modification of Industrial/Business
6 Section 1.106 requires that a petition for reconsideration ‘‘be
filed within 30 days from the date of public notice of the final
Commission action.’’ 47 C.F.R. § 1.106(f).
7 Section 1.113 provides that ‘‘[w]ithin 30 days after public notice
has been given of any action taken pursuant to delegated authority,
the person, panel, or board taking the action may modify or set it
aside on its own motion.’’ 47 C.F.R. § 1.113(a).
7
Pool Trunked Station WPOY920; Frequency 153.6125, Mem-
orandum Opinion & Order, 17 FCC Rcd 22974 (released Nov.
13, 2002) [hereinafter California Metro Mobile Order]. The
Commission rejected CMMC’s contention that section 316 did
not authorize the license modification, concluding that section
316 authorizes it to modify a license if, in its judgment, the
modification will serve the public interest, convenience and
necessity with ‘‘no limitation on the time frame within which
the Commission may act to modify a license.’’ Id. at 22975.
The Commission went on to explain that ‘‘[a]lthough [s]ection
405 of the Act explicitly requires that petitions for reconsider-
ation be filed within thirty days after public notice of the
action is given, Commission action under section 316 of the
Act is not subject to the limitations on revocation, modifica-
tion or reconsideration imposed by [s]ection 405 of the Act
and implemented by’’ Commission rules. Id. (footnote omit-
ted). Indeed, according to the Commission, CMMC’s reading
of section 316 ‘‘would vitiate the Commission’s authority
under [s]ection 316.’’ Id. at 22976.
The Commission also distinguished an earlier FCC order
CMMC relied on. Id. The Commission explained that its
San Mateo8 decision differed because it dealt with the
Branch’s authority to correct clerical errors after the period
for sua sponte action had run. Id. By contrast, the Commis-
sion explained, ‘‘[n]othing’’ in that decision touched on the
subject of CMMC’s case: the Commission’s ability to modify
a license post-grant under section 316. Id. The Commission
further stated that, ‘‘[a]lthough the Division relied on a faulty
coordination in granting the frequency at issue to CMMC, it
8 Applications of County of San Mateo, California, To Modify
Public Safety Land Mobile Radio Station WIG278, Memorandum
Opinion & Order, 16 FCC Rcd 16501 (released Sept. 11, 2001)
[hereinafter San Mateo II]; see also County of San Mateo, Califor-
nia, Applications to Modify Public Safety Land Mobile Radio
Station WIG278, Order on Review & Reconsideration, 16 FCC Rcd
4291 (released Jan. 8, 2001) [hereinafter San Mateo I].
8
did intend at the time to grant that particular frequency, and,
thus, its grant was not a ministerial or clerical error.’’ Id.
In addition, the Commission rejected CMMC’s claim that
the Commission lacked authority to modify its license because
the sole basis for the modification was PG&E’s petition for
revocation. Id. The Commission explained that the Division
denied PG&E’s petition for revocation and acted on its own
motion to modify CMMC’s license under section 316. Id.
The Commission further noted that deleting a single frequen-
cy from CMMC’s trunked station ‘‘was not tantamount to a
revocation of [its] license.’’ Id.
Finally, the Commission addressed CMMC’s protest (which
the Division deemed waived because it never received the
protest). Id. at 22976–78. The Commission rejected
CMMC’s argument that the public interest would not be
served by modifying a license based on potential interference
only, observing that, under its rules, ‘‘ ‘objectionable interfer-
ence will be considered to exist’ when the interference con-
tour of a proposed trunked station would intersect the service
contour of an existing station.’’ Id. at 22977 (quoting 47
C.F.R. § 90.187(b)(2)(iii)). Thus, the Commission explained,
the overlap of the two contours alone ‘‘is sufficient to create a
violation’’ of the rule which required CMMC to obtain
PG&E’s consent. Id. The Commission pointed out that,
especially with trunked stations, stations with overlapping
contours ‘‘cannot effectively cooperate in sharing the frequen-
cy and minimizing and reducing interference as required’’ by
Commission rules. Id. (citing 47 C.F.R. §§ 90.173, 90.403).
Accordingly, the Commission concluded that modifying
CMMC’s license served the public interest by curing an
‘‘ongoing violation TTT that can unavoidably and presumptive-
ly[ ] only lead to predictable interference difficulties in a
shared spectrum environment.’’9 Id.
9 The Commission also rejected CMMC’s complaint that modify-
ing its license would hamper its ability to provide adequate service,
calling it a ‘‘bare’’ assertion because CMMC failed to substantiate it.
Id.; see 47 U.S.C. § 309(d)(1) (‘‘allegations of fact shall TTT be
supported by affidavit of a person or persons with personal knowl-
9
CMMC now appeals the Commission’s order pursuant to 47
U.S.C. § 402(b)(5) and 28 U.S.C. § 2342(1).
II.
Our review of the Commission’s action is guided by familiar
administrative law standards. We defer to the Commission’s
interpretation of the Communications Act so long as the
Congress has not unambiguously forbidden it and it is other-
wise permissible. Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984); see also Barnhart
v. Walton, 535 U.S. 212, 218 (2002). Under Chevron’s classic
formulation, if the Congress ‘‘has directly spoken to the
precise question at issue,’’ we ‘‘give effect to [its] unambigu-
ously expressed intent’’; ‘‘if the statute is silent or ambigu-
ous,’’ we defer to the Commission’s interpretation so long as
it is ‘‘based on a permissible construction of the statute.’’ 467
U.S. at 842–43. We will affirm the Commission’s action
unless it is ‘‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with lawTTTT’’ 5 U.S.C.
§ 706(2)(A); see City of Brookings Mun. Tel. Co. v. FCC, 822
F.2d 1153, 1164 (D.C. Cir. 1987). We do not prefer our
judgment to that of the Commission and require only that it
‘‘examine the relevant data and articulate a satisfactory expla-
nation for its action including a ‘rational connection between
the facts found and the choice made.’ ’’ Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quoting Burlington Truck Lines v. United States, 371
U.S. 156, 168 (1962)). The Commission’s modification of
CMMC’s license easily survives the application of these stan-
dards of review.
edge thereof’’); 47 C.F.R. § 1.87(d) (protest must comply with
requirements of section 309). CMMC’s unsupported allegation, the
Commission noted, failed to ‘‘raise a substantial and material ques-
tion of fact concerning the modification of CMMC’s license.’’ 17
FCC Rcd at 22978. Further, because CMMC is licensed to operate
on other frequencies, the modification of its license, according to the
Commission, ‘‘may have a minor effect on CMMC’s operations.’’ Id.
10
CMMC initially claims, as it did below, that neither section
405 nor section 316 authorized the Commission to modify its
license. We need not be detained long by CMMC’s argument
that PG&E’s petition for revocation was an untimely petition
for reconsideration under section 405 of the Act (and sections
1.106 and 1.113 of the rules). PG&E’s petition was filed
approximately one year after the time for filing a petition for
reconsideration had expired and therefore it could not be
treated as a petition for reconsideration. See 47 U.S.C.
§ 405(a); 47 C.F.R. § 1.106(f). We see nothing impermissi-
ble, however, in the Commission’s treating it as an informal
request for action. See 47 C.F.R. § 1.41(a); see JPJ Elec.
Communications, Inc., For Reconsideration of Dismissal of
Informal Request to Modify Station KNNQ312, Licensed to
the Town of Clay, New York, Order on Reconsideration, 16
FCC Rcd 2902, 2904 (Div. 2001) (addressing petition for
modification filed outside time for petition for reconsideration
under section 1.41). Moreover, the Commission could not
have been clearer that, in modifying CMMC’s license, it acted
on its own motion and pursuant to section 316 of the Act and
section 1.87(a) of its rules. See California Metro Mobile
Order, 17 FCC Rcd at 22975.
CMMC argues, however, that the Commission’s decision in
San Mateo I, 16 FCC Rcd at 4291–94, prevented the Com-
mission from proceeding as it did. It contends that San
Mateo I holds that a license issued pursuant to delegated
authority may not be modified for any reason more than 30
days after its grant. But the holding in San Mateo I is not so
broad. Id. at 4294. At issue in San Mateo I was the
Branch’s decision to rescind, more than five months after its
grant of San Mateo’s applications to add certain frequencies
to its license, upon learning that it had granted San Mateo’s
applications ahead of an earlier-filed application for the fre-
quencies. Id. at 4292–94. The Commission reinstated the
grant of San Mateo’s applications, concluding that the Branch
was not authorized to set aside an action on its own motion
once section 1.113(a)’s 30–day period expired. Id. at 4294.
The Commission also observed that the earlier applicant had
failed to file a timely petition for reconsideration challenging
11
the grant of San Mateo’s applications.10 Id. CMMC’s case,
however, involves the Commission’s ability to modify a license
under section 316. Thus, San Mateo I does not stand for the
broad proposition, as CMMC would have it, that a license
issued pursuant to delegated authority is generally immune to
modification; it holds only that the delegatee may not set its
own action aside once the time period for doing so has
expired. Id.
CMMC’s more substantial claim is that the Commission
lacked authority to modify its license under section 316 of the
Act and section 1.87 of its rules. The gravamen of CMMC’s
claim is that the Commission cannot bypass the time limit
established in section 405 by relying on section 316 because,
in its view, the latter section permits the Commission to
modify a license based only on changed circumstances follow-
ing grant of the license. According to CMMC, because a
licensee is entitled to ‘‘administrative finality,’’ section 316
authorizes the Commission simply to address ‘‘changed cir-
cumstances following the initial license grant’’—not to ‘‘revisit
initial grants of licenses after the statutory [s]ection 405
period has elapsed.’’ Appellant’s Br. at 13. The Commission
rejected this contention and so do we.
Under step one of Chevron, 467 U.S. at 842–43, we use the
customary statutory interpretation tools of ‘‘text, structure,
purpose, and legislative history’’ to determine whether the
Congress has spoken directly ‘‘to the precise question at
issue’’—here the scope of section 316. Consumer Elecs.
Ass’n v. FCC, 347 F.3d 291, 297 (D.C. Cir. 2003) (internal
quotation and citations omitted). CMMC points to nothing in
the text or structure of the Communications Act or in its
purpose or legislative history (other than the mere existence
of the two provisions) that remotely suggests section 316 is
limited by section 405. See id. Indeed CMMC offers nary
10On reconsideration, the Commission further explained that ‘‘the
erroneous grant of an application can be corrected sua sponte more
than 30 days after it becomes final only where the grant was
premised upon or contains a ministerial error.’’ San Mateo II, 16
FCC Rcd at 16504.
12
an authority to support its interpretation. See Appellant’s
Br. at 13. And the plain language of section 316 does not
disclose any such limitation either: The section vests the
Commission with the authority to modify a license ‘‘either for
a limited time or for the duration of the term thereof, if in the
judgment of the Commission such action will promote the
public interest, convenience, and necessity.’’ 47 U.S.C.
§ 316(a)(1). While the section does explicitly restrict the
Commission’s authority to modify a license—that is, the Com-
mission must find the modification in the public interest,
convenience and necessity—it imposes no express limitation
on when the Commission may do so.11 See id. The signifi-
cance of the Congress’s silence here gains additional meaning,
we believe, when section 316 is compared with section 312,
which latter section authorizes the Commission to revoke a
license or construction permit in certain circumstances. Id.
at § 312(a)(1)-(7). That the Congress took care to specify in
section 312 the circumstances following the grant of a license
that warrant its revocation tends to show that if the Congress
was focused on post-grant events, it mentioned them. Id.
The Congress did not do so in section 316, which fact tends to
bolster, if only slightly, the conclusion that section 316 is not
limited to circumstances occurring after the license grant.
We conclude, however, that section 316 is not unambiguous
and therefore consider the gloss the Commission has given it
under step two of Chevron, 467 U.S. at 843.
In its order the Commission asserted that section 316
‘‘contains no limitation on the time frame within which [it]
may act to modify a license’’ and that its action under the
section ‘‘is not subject to the limitations on revocation, modifi-
cation or reconsideration imposed by [s]ection 405.’’ Califor-
nia Metro Mobile Order, 17 FCC Rcd at 22975. This inter-
pretation reasonably comports with section 316’s language.
See 47 U.S.C. § 316(a)(1). Section 316 grants the Commis-
11 Similarly, section 1.87 of the rules does not impose any time
limit on the Commission’s modification of a license. 47 C.F.R.
§ 1.87(a) (‘‘[w]henever it appears that a station license TTT should
be modified’’ (emphasis added)).
13
sion broad power to modify licenses; the Commission need
only find that the proposed modification serves the public
interest, convenience and necessity. See id. No doubt licen-
sees have a strong and legitimate interest in administrative
repose, see, e.g., 47 U.S.C. § 405(a), but the Congress gave
the Commission the authority in section 316 to override that
interest if doing so serves the public interest, convenience and
necessity. See id. at § 316(a)(1); Greater Boston Television
Corp. v. FCC, 463 F.2d 268, 287 (D.C. Cir. 1971) (‘‘administra-
tive finality is subject to certain powers conferred in the FCC
by the Act for appropriate cases’’ such as license modification
power conferred by section 316), cert. denied sub nom.
WHDH, Inc. v. FCC, 406 U.S. 950 (1972). CMMC’s interpre-
tation would, as the Commission pointed out, see California
Metro Mobile Order, 17 FCC Rcd at 22976, significantly limit
the Commission’s ability to modify a license in the public
interest, convenience and necessity because it would confine
the Commission to furthering those interests based only on
circumstances following a license grant—a result not even
hinted at by the statute’s text. See 47 U.S.C. § 316(a)(1).
Accordingly, because the Commission’s interpretation of sec-
tion 316 is reasonable, we defer to it. See Chevron, 467 U.S.
at 843.
In addition, CMMC maintains that, even if the Commission
is authorized to modify its license under section 316, the
Commission acted arbitrarily and capriciously in doing so.
CMMC contends that the Commission modified its license in
the absence of actual interference. Moreover, CMMC con-
tends, the Commission failed to consider a less ‘‘draconian’’
remedy, its good faith reliance on the PCIA’s frequency
coordination, its interest in ‘‘administrative finality’’ and the
costs resulting from the modification, including lost custom-
ers, disruption of service and the station’s diminished capaci-
ty. Appellant’s Br. at 15–18.
We think that the Commission’s modification of CMMC’s
license serves the public interest. The Commission expressly
rejected CMMC’s claim that modification required actual
interference with PG&E’s operations, explaining that the
modification was needed to cure an ongoing violation. Cali-
14
fornia Metro Mobile Order, 17 FCC Rcd at 22977. The
Commission also rejected as unsubstantiated CMMC’s claim
that the modification would hamper its service. Id. at 22977–
98. The Commission noted, moreover, that the modification
would leave CMMC’s other frequencies intact and that, to the
extent it caused a ‘‘minor’’ disruption in CMMC’s operations,
it was ‘‘nonetheless in the public interest, as required by
[s]ection 316.’’ Id. at 22978. Accordingly, the Commission
acted neither arbitrarily nor capriciously in modifying
CMMC’s license. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at
43.
* * *
For the foregoing reasons, we affirm the Commission’s
order modifying CMMC’s license by deleting frequency
153.6125 MHz therefrom.
So ordered.