The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2000 Decided February 6, 2001
No. 99-1346
Bachow Communications, Inc., et al.,
Appellants/Petitioners
v.
Federal Communications Commission
and United States of America,
Appellees/Respondents
Columbia Millimeter Communications, L.P., et al.,
Intervenors
Consolidated with
Nos. 99-1347, 99-1360, 99-1361, 99-1362, 99-1363,
99-1364, 99-1365, 99-1391, 99-1392, 99-1393,
99-1394, 99-1533
On Appeals From and Petitions for Review of Orders of the
Federal Communications Commission
---------
Robert L. Corn-Revere argued the cause for appellants/pe-
titioners. With him on the briefs were Catherine E. Stetson,
Walter H. Sonnenfeldt, Robert J. Keller, Thomas J. Dougher-
ty, Jr., Christa M. Parker, Louis Gurman, and E. Ashton
Johnston. Doane F. Kiechel III entered an appearance.
Pamela L. Smith, Counsel, Federal Communications Com-
mission, argued the cause for appellees/respondents. With
her on the briefs were Christopher J. Wright, General Coun-
sel, Daniel M. Armstrong, Associate General Counsel, Joel I.
Klein, Assistant Attorney General, U.S. Department of Jus-
tice, Robert B. Nicholson and Andrea Limmer, Attorneys.
Roberta L. Cook, Counsel, entered an appearance for appellee
Federal Communications Commission.
Before: Edwards, Chief Judge, Sentelle and Randolph,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The issues in these consolidated
cases center on the Federal Communications Commission's
conversion of its system for awarding licenses in the 39 GHz
(gigahertz) band from a comparative application process to a
public auction. The 39 GHz band, comprising the 38.6 to 40.0
GHz frequencies on the electromagnetic spectrum, appears to
have attracted little commercial interest until the mid-1990s,
when newly developed technology became available. Until
late 1995, the Commission processed non-mutually exclusive
applications (that is, applications having no competition for
the same frequency and territory),1 but resolved mutually
exclusive applications by holding a comparative hearing.
Increased commercial interest in the 39 GHz band ren-
dered the comparative application system impracticable.
From January to November 1995 alone, the Commission
received more than 2,100 applications for licenses. In late
__________
1 See, e.g., 47 C.F.R. s 101.45(a) ("the Commission will consider
applications to be mutually exclusive if their conflicts are such that
the grant of one application would effectively preclude by reason of
harmful electrical interference, or other practical reason, the grant
of one or more of the other applications").
1994 the Commission also received a telecommunications in-
dustry association petition for rulemaking. In response to
the petition and the growing number of applications, the
Commission considered changing its method of allocating
licenses and eventually adopted a competitive bidding system.
The Commission commenced the transition on November
13, 1995, by imposing, without notice and opportunity for
comment, an application freeze. See 11 F.C.C.R. 1156 (Nov.
13, 1995). In the course of two Notices of Proposed Rule-
making and two reconsideration orders issued between De-
cember 1995 and July 1999, the Commission implemented
interim licensing procedures and disposed of applications still
pending under the comparative application system. It dis-
missed without prejudice applications that were not filed at
least 30 days before the November 13, 1995, freeze date, or,
in Commission parlance, that were not "ripe." It also dis-
missed "ripe" applications--those filed at least 30 days before
the freeze date--that were mutually exclusive with other
applications on the freeze date and whose mutual exclusivity
had not been resolved by amendment or voluntary dismissal
by December 15, 1995, the cut-off date for amendments. See
11 F.C.C.R. 4930 (Dec. 15, 1995); 12 F.C.C.R. 2910 (Jan. 17,
1997); 12 F.C.C.R. 18,600 (Nov. 3, 1997); 14 F.C.C.R. 12,428
(July 29, 1999). Conversely, the Commission processed appli-
cations filed at least 30 days before November 13, 1995, and
that were not mutually exclusive on that date or that had
their mutual exclusivity resolved by amendment or voluntary
dismissal by December 15, 1995.2
I.
The private parties--the appellants and petitioners--object
to the Commission's dismissal of their pending applications, to
the 30-day ripeness period, and to the amendment cut-off.
They do not contest the application freeze itself or the
Commission's adoption of a competitive bidding system.
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2 The Commission made other changes to the licensing system
not relevant to this appeal. For example, it replaced applicant-
defined rectangular service areas with Commission-defined geo-
graphic areas. See 12 F.C.C.R. at 18,610.
A. Dismissal of Applications
Once the Commission decided to adopt new licensing rules
for the 39 GHz band, it had to choose the effective date of the
rules and dispose of applications still pending under the old
regime. As appellants see it, the Commission's decision to
dismiss all pending mutually exclusive applications was arbi-
trary and capricious. Naturally, they hoped to avoid having
to start the application process all over again in a public
auction. We have, however, recognized the Commission's
authority to change license allocation procedures midstream.
See Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551 (D.C.
Cir. 1987) (upholding change from comparative application
system to lottery); DIRECTV, Inc. v. FCC, 110 F.3d 816
(D.C. Cir. 1997) (upholding change from pro rata distribution
policy to competitive bidding).
In deciding to dismiss applications that either did not
satisfy the 30-day ripeness requirement or were mutually
exclusive, the Commission balanced the need to implement
the new regulatory regime against the effect of upsetting the
expectations of appellants and others. We perceive no error
in its resolution of these opposing interests. The Commission
reasonably feared that processing mutually exclusive applica-
tions under an antiquated and burdensome comparative appli-
cation system would diminish the efficiency gains expected
from competitive bidding. See 12 F.C.C.R. at 18,642.
In appellants' view, their side of the balance weighs much
heavier because they obtained rights against prospective com-
petitors who were foreclosed from applying by the Commis-
sion's cut-off rules. Under rules existing when appellants
filed, public notice of the filing of the first application for a
given license triggered a 60-day filing window; that is,
competing applicants had to file within 60 days of the public
notice or lose their right to file. See 47 C.F.R.
s 21.31(b)(2)(i) (1995).3 Several applicants for 39 GHz licens-
__________
3 The filing rule also provided a shorter time period, but not less
than 30 days, in cases where the Commission "takes final action on
the previously filed application." 47 C.F.R. s 21.31(b)(2)(ii) (1995).
es filed more than 60 days before the freeze order, yet saw
their applications dismissed because of mutual exclusivity.
Upon reaching the sixtieth day following public notice of the
first application but before the freeze order, the filing rule
theoretically should have closed the application pool to com-
peting filers, protecting these applications from additional
competition. Appellants complain that the application freeze
and subsequent dismissal of pending mutually exclusive appli-
cations defeated the cut-off rule by permitting people who
would have been closed out of applicant pools in the compara-
tive application system to bid for the same licenses in the
public auction.4 In their words, "the Commission's decision
effectively required pending mutually exclusive applicants to
bid against new applicants filing years after the established
cut-off dates." Brief for Appellants at 58.
Appellants claim that McElroy Electronics Corp. v. FCC,
86 F.3d 248 (D.C. Cir. 1996), renders the Commission's
actions arbitrary. See Brief for Appellants at 57-60. In
McElroy, we recognized that "as against latecomers, timely
filers who have diligently complied with the Commission's
requirements have an equitable interest in enforcement of the
cut-off rules." 86 F.3d at 257. That equitable interest arose
in circumstances not present here. The appellants in McEl-
roy filed cellular applications even though the Commission
had not yet formulated rules for those licenses. See id. at
250. The Commission dismissed the applications as prema-
ture and later established a one-day filing window. On the
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4 We doubt whether 39 GHz licenses in the public auction are
really the same as the licenses in the comparative application
system. As noted previously, the Commission changed the manner
in which it designated service areas for those licenses, in part to
reduce mutual exclusivity problems. See supra note 2; 12 F.C.C.R.
at 18,610. Because an application pool consists of a set of mutually
exclusive applications or chains of mutually exclusive applications,
see 47 C.F.R. s 21.31(b) (1995), licensing changes that alter mutual
exclusivity presumably will also alter application pools. In any
event, we find the Commission's dismissal of pending mutually
exclusive applications lawful regardless of the identity of licenses in
the comparative application and competitive bidding systems.
filing date, which was approximately five years after the
appellants had filed, 517 applicants filed for the Los Angeles
licenses and 494 filed for the Minneapolis licenses. See id. at
251. The first time McElroy came to this court, we ordered
the Commission to reinstate, nunc pro tunc, the applications
previously dismissed as premature. See McElroy Elec. Corp.
v. FCC, 990 F.2d 1351 (D.C. Cir. 1993). The Commission
then decided that the reinstated applicants would have to
enter a lottery with those who filed under the later one-day
window, reasoning that the public notices announcing appel-
lants' applications did not establish a deadline for competing
applications. See 86 F.3d at 252. We reversed, citing the
Commission's "notice and cut-off procedure under which the
applications at issue ... were filed, [wherein] competing
applicants were entitled to participate in a comparative hear-
ing or lottery only if they filed their applications within 'sixty
(60) days after the date of the public notice listing the first of
the conflicting applications as accepted for filing'." Id. at 253.
The issue was "whether the public notices gave sufficient
notice of [the Commission's acceptance of appellants' applica-
tions for filing] to cut off third parties' rights." Id. We
found the public notice sufficient to trigger the 60-day cut-off
period. See id. at 257.
McElroy stands for the proposition that the Commission
must follow its own rules. See, e.g., Reuters Ltd. v. FCC, 781
F.2d 946, 950 (D.C. Cir. 1986). It does not create some
generalized right to exclude competitors. The "equitable
interest" in McElroy was the applicants' interest in the
Commission enforcing its filing and notice rules, not an
interest in preventing the Commission from changing them.
As we have recognized before, the Commission may make
midstream rule adjustments, even though it disrupts expecta-
tions and alters the competitive balance among applicants.
See Maxcell, 815 F.2d 1551; DIRECTV, 110 F.3d 816.
Moreover, any interest in enforcement of cut-off rules is
just that--an interest, not a vested right: "timely applicants
have no 'vested right against challenge from untimely com-
petitors,' in the sense of precluding the FCC from ever
granting a cut-off waiver, but they certainly have an equitable
interest whose weight it is 'manifestly within the Commis-
sion's discretion to consider'." Florida Inst. of Tech. v. FCC,
952 F.2d 549, 554 (D.C. Cir. 1992). The Commission's author-
ity to change rules that affect pending applications is bounded
by principles of retroactivity, not by an abstract interest in
excluding competitors. McElroy holds only that if the Com-
mission decides to process timely applications, it generally
may not also process competing applications filed out of time.
The case does not govern the present situation in which the
Commission decides, without violating its rules, not to process
pending mutually exclusive applications at all.5
Even if McElroy stood for all that appellants read into it,
they could not have obtained any "equitable interest" to
immunize their applications against dismissal. The most they
could have obtained is the relief we granted in McElroy--an
order requiring dismissal of applications filed after the cut-off
date. See 86 F.3d at 259. McElroy does not require the
Commission to process all applications pending under an
obsolete license allocation system just because applicants who
were otherwise cut off might re-apply in a new system.6
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5 In Title III of the Balanced Budget Act of 1997, Congress
amended the Communications Act to include a right to exclude
competitors. See Pub. L. No. 105-33, s 3002(a)(3), 111 Stat. 251,
260 (1997) (codified at 47 U.S.C. s 309(l )). That provision states:
"With respect to competing applications for initial licenses or con-
struction permits for commercial radio or television stations that
were filed with the Commission before July 1, 1997, the Commission
shall (1) have the authority to conduct a competitive bidding pro-
ceeding pursuant to subsection (j) to assign such license or permit;
[and] (2) treat the persons filing such applications as the only
persons eligible to be qualified bidders for purposes of such pro-
ceeding." 47 U.S.C. s 309(l ). Neither party cited this provision.
In any event, it would not affect our analysis because appellants
have not alleged that the Commission has permitted entities who
did not apply before July 1, 1997, to bid for licenses.
6 We also reject appellants' argument that the Commission de-
parted from its own precedents in dismissing pending applications.
See Brief for Appellants at 62-65. Prior instances in which the
Commission has adopted a new license allocation system yet pro-
B. The Ripeness Period
The Commission imposed a ripeness period co-extensive
with the time period in which competitors had the right to file
competing applications. The point apparently was to avoid
granting applications under the old system when the time
period for others to file a mutually exclusive application had
not yet expired. The Commission originally used a 60-day
period, representing the period during which prospective
applicants could file competing applications under the Com-
mission's rules. See 47 C.F.R. s 21.31(b) (1995); but see
supra note 3 (contemplating shorter filing period under some
circumstances). It later shortened the period to 30 days,
explaining that "it is our practice to process applications as
soon after the close of the 30-day public notice period as
possible." See 14 F.C.C.R. at 12,430 & 12,449; see also 47
C.F.R. s 101.37(c) (1998) (Commission cannot grant applica-
tion until 30 days after application appears on public notice).
The Communications Act, with a few exceptions not rele-
vant here, forbids the Commission to grant an application
"earlier than thirty days following issuance of public notice by
the Commission of the acceptance for filing of such applica-
__________
cessed applications pending under the old one rested on different
fact-specific cost/benefits balances the Commission drew under
Maxcell. See 815 F.2d at 1554; Brief for Appellee/Respondents at
20-21. In the wireless cable services order appellants cite, the
Commission expressly premised its decision "on the basis of this
record." 10 F.C.C.R. 9589 (1995) (para. 92). Significantly, that
order involved a small number of pending applications. Id. at para.
89; cf. Kessler v. FCC, 326 F.2d 673, 686 (D.C. Cir. 1963) ("Nor do
we dispute the Commission's judgment in this instance that equita-
ble considerations required or at least justified the processing of
pending applications where an analysis showed that they involved
potential grants not so numerous as to frustrate the ends sought in
the rule making proceeding."). Similarly, in the commercial broad-
cast and ITFS proceedings, the Commission found that "the re-
opening of filing windows would certainly not expedite the disposi-
tion of the pending applications or the commencement of service to
the public, but would produce further delays." 13 F.C.C.R. 15,920
(1998) (para. 108).
tion or of any substantial amendment thereof." 47 U.S.C.
s 309(b). The Commission reasonably determined that its
ripeness period "will assure fairness to potential applicants
who were precluded by the freeze from filing competing
applications in time to be entitled to comparative consider-
ation." 11 F.C.C.R. at 4989 n.197. Had the Commission
granted applications filed less than 30 days before the freeze
date, it would have denied potential competing applicants the
30-day filing period the Act guarantees them.
The Supreme Court long ago recognized the procedural
rights the Communications Act guarantees to those who file
mutually exclusive applications. Ashbacker Radio Corp. v.
FCC, 326 U.S. 327 (1945), held that the Commission could not
grant one mutually exclusive application without holding the
comparative hearing required by the Communications Act.
See also McElroy, 86 F.3d at 253. In Kessler v. FCC, 326
F.2d 673 (D.C. Cir. 1963), we decided that Ashbacker proce-
dural rights apply also to potential applicants whose applica-
tions would have been mutually exclusive but for an applica-
tion freeze. In Kessler, the Commission froze applications
effective close-of-business on May 10, 1962. Appellants in
that case filed applications between May 11 and June 15,
1962. Some of the late applicants claimed their applications
were mutually exclusive with applications on file. Unlike the
present case, the Commission employed no ripeness period;
it processed all applications pending on the freeze date. We
held that the Commission's refusal to process mutually exclu-
sive applications filed after the freeze but that were otherwise
timely denied those applicants their Ashbacker rights: "those
appellants who tendered applications which are, or become, in
fact mutually exclusive with an application pending on May
11, 1962, or one accepted for filing since that date, are
entitled to participate in a comparative hearing on that appli-
cation under the Ashbacker case--if any grant is to be
made--and [ ] the Commission may not deprive them of this
right when their applications were timely but were rejected
only because of a temporary freeze on accepting new applica-
tions." 326 F.2d at 687-88. We reasoned that "the substan-
tial effect of a contrary view would be not only to freeze the
acceptance for filing of a timely application but to freeze new
applicants permanently out of a right of substance--the com-
parative hearing on the pending application to which they are
entitled when their application is timely." Id. at 688.
Kessler's reasoning applies here. Without the ripeness
period, the Commission could have granted applications filed
less than 30 days before the freeze date, abrogating the
Ashbacker rights of prospective applicants who could have
filed timely competing applications but for the freeze. The
ripeness period quite sensibly guarantees that all applications
that are granted were on public notice for the 30 days
required by the Communications Act. See 47 U.S.C.
s 309(b).7
C. The Amendment Cut-Off
The Commission apparently intended the November 13,
1995, freeze to cut off amendments as well as applications.
But the freeze order specified only the latter. See 11
F.C.C.R. 1156. Despite this oversight, the Commission, in
the first Notice of Proposed Rule Making and Order it issued
on December 15, 1995, stated that the November 13 freeze
applied to amendments, except for a limited class of license
modification amendments. See 11 F.C.C.R. at 4988-90. In
its first Reconsideration Order, issued on January 17, 1997,
the Commission changed the cut-off date for amendments of
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7 Appellants cite the principle that Ashbacker "applies not to
prospective applicants, but only to parties whose applications have
been declared mutually exclusive." Brief for Appellants at 28
(quoting Reuters Ltd. v. FCC, 781 F.2d 946, 951 (D.C. Cir. 1986)).
We have held that not everybody interested in a telecommunica-
tions license has a right to a comparative hearing, that the right
inheres in those who actually file timely, mutually exclusive applica-
tions. See Reuters, 781 F.2d at 951. But we have also held that
Ashbacker rights inhere in potential applicants whose right to file a
timely competing application is frustrated by a Commission freeze
order. See Kessler, 326 F.2d at 686-88. There is such a class of
potential applicants in this case--those whose timely applications
would be mutually exclusive with applications filed in the 30 days
preceding November 13, 1995--and Ashbacker applies to them.
right from November 13, 1995, the application freeze date, to
December 15, 1995, the date it promulgated the interim
licensing procedures.8 The Commission recognized that it
was the December 15 order, not the November 13 order, that
"suspended any further action on these amendments." 12
F.C.C.R. at 2918.
The amendment cut-off precluded private resolution of
mutual exclusivity after December 15, 1995. It was no longer
possible for amendments (or, apparently, voluntary dismiss-
als) to cure mutual exclusivity and render an application
eligible for processing under the old regime. Appellants
claim they had a substantive right to cure mutual exclusivity
that may not be abrogated without notice and comment.
Relying on Ashbacker, they insist that "the right of competing
applicants to simultaneous consideration under Ashbacker is a
'right of substance' " and that "equally of substance is an
applicant's right to avoid consolidated treatment and its unin-
tended consequences by means of conflict-resolving minor
amendments and voluntary dismissals." Brief for Appellants
at 46.
The "right to avoid consolidated treatment" finds no sup-
port in Ashbacker or any other authorities the appellants
have brought to our attention. The right to amend is no
more substantive than the right to file an application in the
first place, which we have previously held the Commission
may suspend without notice and comment. See Kessler, 326
F.2d at 682; Neighborhood TV Co. v. FCC, 742 F.2d 629, 637
(D.C. Cir. 1984). Like the rules governing the filing of
applications, rules permitting (or suspending) amendments
are "rules of agency organization, procedure, or practice"
exempt from the Administrative Procedure Act's notice and
comment requirement. See 5 U.S.C. s 553(b)(A); James V.
Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280-82 (D.C.
Cir. 2000); JEM Broad. Co. v. FCC, 22 F.3d 320, 326-28
__________
8 Commission rules at the time defined an amendment of right as
an amendment that "cures a mutually exclusive situation without
creating a new one." 12 F.C.C.R. at 2918; 47 C.F.R. ss 101.29 &
101.45 (1997).
(D.C. Cir. 1994) (FCC "hard look" rules prohibiting amend-
ment did not require notice and comment: "we conclude that
a license applicant's right to a free shot at amending its
application is not so significant as to have required the FCC
to conduct notice and comment rulemaking, particularly in
light of the Commission's weighty efficiency interests.");
Maxcell, 815 F.2d at 1561 (stating but not deciding that a
"cut-off rule arguably may be understood as an 'interpretive'
rule, a rule of agency 'procedure' or of agency 'practice', any
of which is exempt from the notice and comment require-
ments").
We also reject appellants' claim that the amendment cut-off
was arbitrary and capricious.9 Appellants' panoply of argu-
ments in this regard reduce to a central premise: refusal to
accept amendments after December 15, 1995, "artificially
preserved mutual exclusivity with respect to [39 GHz] appli-
cations, creating the fiction that applications that were mutu-
ally exclusive before December 15, 1995, remained so even
after their frequency conflicts had been resolved" in violation
of Ashbacker. Brief for Appellants at 49-50 (emphasis omit-
ted). Appellants read Ashbacker far too broadly.10 In the
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9 Contrary to appellants' assertion, the Commission provided a
reasoned basis for its action. The Commission adequately ex-
plained that "accepting and processing such amendments would
burden Commission resources and could lead to results inconsistent
with our intent in this proceeding to update the regulatory struc-
ture of the 39 GHz band in light of contemporary market condi-
tions." 14 F.C.C.R. at 12,437-38; see also id. at 12,447 (The
Commission "froze new applications for 39 GHz licenses because of
its concern that applications filed under the former rules may not
conform to the technical and service requirements being considered.
For the same reason, it froze certain amendments to pending 39
GHz applications...."); Maxcell, 815 F.2d at 1555 (accepting Com-
mission's efficiency justification for change from comparative appli-
cation system to lottery).
10 The right to a hearing recognized in Ashbacker applies only in
a comparative application system. See 47 U.S.C. s 309(a) & (e)
(Communications Act hearing provision for applications to be grant-
ed on the basis of "public interest, convenience, and necessity"). It
Court's words: "We only hold that where two bona fide
applications are mutually exclusive the grant of one without a
hearing to both deprives the loser of the opportunity which
Congress chose to give him." Ashbacker, 326 U.S. at 333;
see also Maxcell, 815 F.2d at 1561 ("Ashbacker therefore
simply is irrelevant to a situation where a license applicant
complains that its application was not considered due to a
'regulation' that 'for orderly administration, requires an appli-
cation ... to be filed within a certain date'."); Reuters, 781
F.2d at 951 (criticizing an attempt to bootstrap a fairness
argument onto Ashbacker's narrow holding). Ashbacker con-
strains only the grant of mutually exclusive applications; it
does not touch the Commission's authority to dismiss or
suspend amendments of mutually exclusive applications.
II.
Appellants contend that the Commission's treatment of
their applications violated 47 U.S.C. ss 309(j)(6)(E) and
309(j)(7). We hold the former was not violated and the latter
does not apply.
A. Section 309(j)(6)(E)
The Communications Act permits the Commission to adopt
a system of competitive bidding to resolve mutually exclusive
applications subject to "obligations described in paragraph
(6)(E)." 47 U.S.C. s 309(j)(1). Paragraph (6)(E) of subsec-
tion 309(j) states that "nothing in [the subsection authorizing
competitive bidding], or in the use of competitive bidding,
shall be construed to relieve the Commission of the obligation
in the public interest to continue to use engineering solutions,
negotiation, threshold qualifications, service regulations, and
other means in order to avoid mutual exclusivity in applica-
tion and licensing proceedings." 47 U.S.C. s 309(j)(6)(E).
In appellants' view, subsection (j)(6)(E) requires the Com-
mission to permit private resolution of mutual exclusivity.
__________
does not apply when licenses are allocated by lottery or auction.
See 47 U.S.C. s 309(i) & (j); McElroy, 86 F.3d at 253 n.5.
We think the obligation that provision imposes on the Com-
mission in designing a competitive bidding system is some-
thing less than allowing license applicants to file applications
or amend them at will under an obsolete licensing system.
Subsection (j)(6)(E) affirms Congress' view that statutory
competitive bidding authority does not wholesale replace "en-
gineering solutions, negotiation ... and other means" to
avoid mutual exclusivity; it does not, as appellants would
have it, forbid resort to competitive bidding unless no other
means to resolve mutual exclusivity are available. In Benkel-
man Telephone Co. v. FCC, 220 F.3d 601, 606 (D.C. Cir.
2000), we rejected the argument that the Commission created
"artificial" mutual exclusivity in adopting a competitive bid-
ding system: "having found the policy changes in the public
interest, the Commission was authorized to implement them
without regard to section 309(j)(6)(E)[,] which imposes an
obligation only to minimize mutual exclusivity 'in the public
interest' and 'within the framework of existing policies'."
Orion Communications Ltd. v. FCC, 213 F.3d 761 (D.C. Cir.
2000), also refutes appellants' contention. There we held that
the Commission is not required to allow bidders to use
negotiated settlements to reduce mutual exclusivity; settle-
ments may be " 'other means' of avoiding mutual exclusivity,
but the statute cannot be read to direct the FCC to adopt all
other means available." Id. at 763. As we stated in DI-
RECTV, "nothing in s 309(j)(6)(E) requires the FCC to ad-
here to a policy it deems outmoded 'in order to avoid mutual
exclusivity in ... licensing proceedings'; rather, that provi-
sion instructs the agency, in order to avoid mutual exclusivity,
to take certain steps, such as the use of an engineering
solution, within the framework of existing policies." 110 F.3d
at 828; see also Orion, 213 F.3d at 763; Benkelman, 220 F.3d
at 605.
B. Section 309(j)(7)
Title 47, U.S.C. s 309(j)(7) restricts consideration of the
public fisc in certain of the Commission's decisions.11 As the
__________
11 Section 309(j)(7)(A) states: "In making a decision pursuant to
section 303(c) of this title to assign a band of frequencies to a use
introductory clauses of s 309(j)(7)(A) & (B) indicate, the
restriction pertains only to three types of decisions, none of
which is implicated here. The covered decisions concern
assignment of bands of frequencies to classes of stations
under 47 U.S.C. s 303(c), development of alternative payment
methods under 47 U.S.C. s 309(j)(4)(A), and area designa-
tions and bandwidth assignments under 47 U.S.C.
s 309(j)(4)(C). Section 309(j)(7) does not restrict the Com-
mission's choice of an overall license allocation mechanism.
* * *
The Commission's dismissal of pending 39 GHz applica-
tions, use of a 30-day "ripeness" period, and imposition of an
amendment cut-off date were reasonable and in accordance
with law. We therefore deny the petitions for review and
affirm the Commission's orders.12
So ordered.
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for which licenses or permits will be issued pursuant to this
subsection, and in prescribing regulations pursuant to paragraph
4(C) of this subsection, the Commission may not base a finding of
public interest, convenience, and necessity on the expectation of
Federal revenues from the use of a system of competitive bidding
under this subsection." Section 309(j)(7)(B) states: "In prescribing
regulations pursuant to paragraph (4)(A) of this subsection, the
Commission may not base a finding of public interest, convenience,
and necessity solely or predominantly on the expectation of Federal
revenues from the use of a system of competitive bidding under this
subsection."
12 We have considered appellants' other contentions and reject
them.