United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2001 Decided June 8, 2001

No. 99-1543

Small Business in Telecommunications,

Petitioner

v\.

Federal Communications Commission and

United States of America,

Respondents

On Petition for Review of Orders of the

Federal Communications Commission

Robert H. Schwaninger, Jr. argued the cause for the petitioner.

Roberta L. Cook, Counsel, Federal Communications Commission, argued the
cause for the respondents. Christopher J. Wright, General Counsel, and
Daniel M. Armstrong, Associate General Counsel, Federal Communications
Commission, A. Douglas Melamed, Acting Assistant Attorney General, and
Catherine G. O\'Sullivan and Andrea Limmer, Attorneys, United States
Department of Justice, were on brief.

Before Henderson, Rogers and Tatel, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: The petitioner, Small Business
in Telecommunications (SBT), seeks to challenge rulemaking orders of the
Federal Communications Commission (FCC or Commission) that, inter alia,
devised service and competitive bidding rules as well as technical and
operational rules for 800 MHz Specialized Mobile Radio (SMR)
service.[^1] For the reasons set forth below, we dismiss the petition
for review with respect to the Upper Channel First Reconsideration Order
and deny the petition with respect to the Lower Channel Report and Order
and the Lower Channel Reconsideration Order.

**Background**

In 1974 the FCC created the SMR service. SMR licensees use bandwidth[^2]
in the 800 MHz and 900 MHz ranges to provide \"land mobile
communications services\" on a commercial basis. 47 C.F.R. § 90.7. In
order to accommodate new uses of the bandwidth, including cellular
telephone and data transmission services, and to respond to changes in
statutory law, see Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 967
(D.C. Cir. 1999), in 1995 the Commission adopted a regime for the upper
200 channels of the SMR bandwidth which planned to auction licenses for
each of 175 newly-designated Economic Areas (EA). Each EA license
includes a large block of spectrum[^3] for an entire geographic area,
thereby making transmitter-by-transmitter and channel-by-channel
licensing unnecessary. To help EA licensees obtain the contiguous
spectrum needed to provide competitive wide-area services, the
Commission determined that any EA licensee can require any incumbent SMR
licensee to relocate to the lower 230 channels of the SMR spectrum,
provided the EA licensee gives the displaced licensee comparable
facilities and spectrum, pays its relocation expenses and ensures a
\"seamless\" transition between the old and new frequencies. See In the
Matter of Amendment of Part 90 of the Commission\'s Rules to Facilitate
Future Development of SMR Systems in the 800 MHz Frequency Band, First
Report and Order, 11 F.C.C.R. 1463 (1995). Although the Commission
adhered to the new regulatory scheme for the upper 200 channels of SMR
bandwidth, it ultimately changed its procedure to give small businesses
an advantage in the auction process by allowing bidding credits for
which only small businesses could qualify.[^4] It maintained its
two-tiered definitions of small business but adjusted for the deletion
of the installment payment plan. See Upper Channel First Reconsideration
Order, 12 F.C.C.R. 9972, pp 125-34.

In June 1997 the Commission adopted a similar set of rules for the lower
230 channels. Again, the FCC decided to auction the new EA licenses,
each of which was intended to cover a wide geographic area and a large
block of spectrum. As before, the Commission decided to aid small
businesses with bidding credits but deferred deciding whether to
eliminate installment payments. It again used the two-tiered definitions
of small business based on average gross revenue. The FCC also required
an EA licensee displacing an incumbent licensee to reimburse the
incumbent for relocation expenses. See Lower Channel Report and Order,
12 F.C.C.R. 19,079, pp 123-25, 272-87.

On September 2, 1997 the petitioner filed two petitions for
reconsideration. One requested the FCC to reconsider portions of the
Lower Channel Report and Order while the other sought reconsideration of
the Upper Channel First Reconsideration Order. On October 24, 1997 the
petitioner filed a \"Consolidated Supplement to Petitions for
Reconsideration,\" contending that the FCC failed to obtain the
requisite approval of its \"small business\" definitions from the Small
Business Administration (SBA). JA 563. The last paragraph of the
Consolidated Supplement requested \"that the Commission reconsider its
Orders in accord with the foregoing, obtain necessary prior approval
from the Small Business Administration, provide necessary time prior to
the scheduling of its auction in accord with 47 U.S.C. § 309(j)(3(E)
\[sic\], and take such other action that is necessary to cause its
decisions and Orders to be rendered in accord with applicable statutory
law.\" JA 566.

On October 8, 1999 the FCC issued its Lower Channel Reconsideration
Order, in which it addressed the issues raised both in SBT\'s petition
for reconsideration of the Lower Channel Report and Order and in SBT\'s
Consolidated Supplement. The Commission rejected the petitioner\'s
contention that the failure to obtain SBA approval of the \"small
business\" definitions suspended the operation of the Lower Channel
Report and Order until the SBA\'s approval was secured, explaining that
the SBA had by then approved the definitions. Lower Channel
Reconsideration Order, 14 F.C.C.R. 17,566, p 87 n.251. The Commission
also \"reiterated that payment of relocation costs\" by an EA licensee
to an incumbent licensee \"will not be due until the incumbent has been
fully relocated and the frequencies are free and clear.\" Id. at p 58.
On October 19, 1999 the petitioner filed a petition for review of both
the Lower Channel Reconsideration Order and the Lower Channel Report and
Order as well as the Upper Channel First Reconsideration Order. See
Small Business in Telecommunications v. FCC, No. 99-1419 (D.C. Cir.
filed Oct. 19, 1999). The respondents moved to dismiss on the ground
that the petition was premature because the Lower Channel
Reconsideration Order had not yet been published in the Federal
Register. The petitioner then moved for voluntary dismissal, which the
court granted. The Lower Channel Reconsideration Order was subsequently
published in the Federal Register on December 20, 1999. 64 Fed. Reg.
71,042.

On December 2, 1999 the FCC issued its Upper Channel Second
Reconsideration Order, denying the petitioner\'s petition for
reconsideration of the Upper Channel First Reconsideration Order. The
Commission stayed with its decision to eliminate installment payments,
rejecting the contention that installment payments were necessary to
ensure \"a meaningful opportunity\" for small businesses to participate
in the 800 MHz SMR auction. See In the Matter of Amendment of Part 90 of
the Commission\'s Rules to Facilitate Future Development of SMR Systems
in the 800 MHz Frequency Band, Second Memorandum Opinion and Order on
Reconsideration, 14 F.C.C.R. 21,068, p 3 (1999) \[Upper Channel Second
Reconsideration Order\]. The Upper Channel Second Reconsideration Order
was published in the Federal Register on July 14, 2000.

On December 29, 1999 the petitioner filed a petition \"for review of the
Federal Communications Commission\'s Memorandum Opinion and Order on
Reconsideration In the Matter of Amendment of Part 90 of the
Commission\'s Rules; Implementation of Sections 3(n) and 332 of the
Communications Act; and Implementation of Section 309(j) of the
Communications Act adopted on September 30, 1999 \[Lower Channel
Reconsideration Order\].\" Petition for Review, No. 99-1543 (filed Dec.
29, 1999). On January 6, 2000 the petitioner filed a \"Certificate as to
Parties, Rulings and Related Cases,\" noting the above cited Lower
Channel Reconsideration Order as well as the Lower Channel Report and
Order. Certificate as to Parties, Rulings and Related Cases, No. 99-1543
(filed Jan. 6, 2000). On April 24, 2000 the petitioner moved to amend
the Certificate to \"include Amendment of Part 90 of the Commission\'s
Rules to Facilitate Future Development of SMR Systems in the 800 MHz
Frequency Band, PR Docket No. 93-144, Memorandum Opinion and Order on
Reconsideration, 12 FCC Rcd 9972 (1997) \[Upper Channel First
Reconsideration Order\], as a ruling under review.\" Motion to Amend
Certificate as to Parties, Rulings and Related Cases, No. 99-1543 (filed
Apr. 24, 2000). The petitioner\'s motion declared that the Upper Channel
First Reconsideration Order \"is an underlying Order to the \[Lower
Channel Reconsideration Order\] released on October 8, 1999 in the same
matter, which order is the primary order on review in the
above-captioned case.\" Id. The motion was granted on April 28, 2000.

**Discussion**

The petitioner argues that in issuing the Lower Channel Report and
Order, Lower Channel Reconsideration Order and Upper Channel First
Reconsideration Order, the FCC violated (1) 15 U.S.C. §
632(a)(2)(C)(iii) and 5 U.S.C. § 553(d) by failing to obtain prior SBA
approval of its \"small business\" definitions, (2) 47 U.S.C. § 309(j)
by failing to allow interested parties sufficient time to participate in
the 800 MHz SMR auction and (3) 5 U.S.C. § 604(a)(5) by failing to
address the economic impact of relocation on \"small business\"
incumbent licensees. Because we dispose of the petitioner\'s challenges
to the upper and lower channel orders in different ways, we address the
orders separately.

A. Upper Channel First Reconsideration Order

The Federal Rules of Appellate Procedure \"govern procedure in the
United States courts of appeal,\" Fed. R. App. P. 1, as do the Circuit
Rules of our Circuit. See Circuit Rule 1. Rule 15(a) of the Federal
Rules of Civil Procedure requires that a petition for review \"specify
the order or part thereof to be reviewed.\" Fed. R. App. P. 15(a)(2)(C).
\"Failure to specify the correct order can result in dismissal of the
petition.\" Entravision Holdings, LLC v. FCC, 202 F.3d 311, 312 (D.C.
Cir. 2000). \"A mistaken or inexact specification of the order to be
reviewed will not be fatal to the petition, however, if the
petitioner\'s intent to seek review of a specific order can be fairly
inferred from the petition for review or from other contemporaneous
filings, and the respondent is not misled by the mistake.\" Id. at 313
(collecting cases). It is undisputed that the petitioner failed to
specify the Upper Channel First Reconsideration Order in its petition
for review filed December 29, 1999.[^5] Accordingly, we examine not only
the petition for review but also other documents contemporaneously filed
therewith to determine whether we can fairly infer the petitioner\'s
intent to seek review of the Upper Channel First Reconsideration Order.
Our caselaw provides instructions for undertaking this task.

In Entravision Holdings LLC v. FCC, the petitioner, Entravision,
specified only the order denying reconsideration and not the underlying
order it later sought to challenge in its brief. Entravision, 202 F.3d
at 312. Even though Entravision\'s petition noted the underlying order
in setting out the history of the proceedings, the court held that it
could not determine whether Entravision intended to seek review of the
underlying order. It then looked at Entravision\'s contemporaneous
filings. See id. at 314. Entravision\'s docketing statement,[^6] filed
within one month of its petition, also specified only the
reconsideration order. Additionally, Entravision\'s \"Preliminary
Statement of Issues,\"[^7] filed the same day, identified only two
issues, \"both of which relate\[d\] exclusively to the Commission\'s
denial of reconsideration.\" Id. After looking at the contemporaneously
filed documents as well as the petition for review, the court concluded
that it \"cannot fairly infer that \[Entravision\] intended to seek
review of the \[underlying order\].\" Id.

By contrast, in Martin v. FERC, 199 F.3d 1370, 1371-73 (D.C. Cir. 2000),
the court held that the petitioner\'s intent to seek review of the
Certificate Order, instead of the Rehearing Order specified in its
petition, was evident from a contemporaneously filed (same day) motion
to stay. The court found that by attaching to the motion a copy of his
application for rehearing, in which the petitioner took issue with the
Certificate Order, the petitioner had sufficiently identified the
Certificate Order as the order from which his challenge to the
Commission action arose. Additionally, the court found that the nature
of the motion to stay itself sufficed to indicate that the petitioner\'s
purpose in filing his petition for review was to obtain review of the
Certificate Order. The court also looked at the docketing statement
which \"indicated he was challenging the Certificate Order as well as
the Rehearing Order.\" Id. at 1373. Finally, the court found that the
Commission understood the petitioner to be challenging the Certificate
Order as was apparent from its responsive filings. See id.; see also
Schoenbohm v. FCC, 204 F.3d 243, 245-46 (D.C. Cir. 2000) (fair to infer
intent from \"concise statement of reasons\" required by 47 U.S.C. §
402(c) to be filed together with notice of appeal, which failed to
specify correct decision).

We came to the opposite conclusion in Southwestern Bell Telephone Co. v.
FCC, 180 F.3d 307, 313 (D.C. Cir. 1999). There, the petitioner,
Southwestern Bell, requested the court to consider its petition for
review of a reconsideration order, which the court held was
unreviewable, to include an investigation order, which was reviewable.
The court denied the request. It noted that the petition for review
named only the reconsideration order and only that order was appended to
the petition, see id., and that the docketing statement mentioned and
attached only the reconsideration order. Finally, the court stated that
Southwestern Bell\'s Preliminary Statement of Issues both began and
ended by referring to the reconsideration order and included only those
issues raised in its petition for reconsideration. The court concluded:
\"In short, nothing prior to the brief filed in this court (by appellate
counsel) gave the Commission any notice of Southwestern Bell\'s intent
to seek review of the Investigation Order. Nor should that intent have
been obvious.\" Id.

In City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998) (per curiam),
the petitioner conceded that it had named the wrong order in its
petition. Nevertheless, it argued that the Nuclear Regulatory Commission
was not prejudiced because the agency knew which order it wanted to
challenge. The court explained that \"\[w\]hichever order ACC intended
to ask the court to review, it named the wrong order in its petition.
Fed. R. App. P. 15(a) requires that ACC\'s petition be dismissed for
failing properly to designate the order to be challenged.\" Id. at 826
(emphasis original). The court, citing John D. Copanos & Sons, Inc. v.
FDA, 854 F.2d 510, 527 (D.C. Cir. 1988), noted that a petition for
review designating only one order issued in an administrative proceeding
was not adequate to obtain review of any other order included in the
same administrative record. The court rejected the reasoning of
Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir. 1991) (refusing
\"to allow a mere technicality in pleading to result in a denial of an
opportunity for petitioner to obtain a decision on the merits\" and
concluding \"that we should treat the petition for review of the
immigration judge\'s order as \'effective, although inept, attempt\' to
seek review of the final order of the Board\"), and dismissed the
petition.

These cases illustrate that the court considers not only the contents of
the petition for review but also any documents affixed thereto or filed
contemporaneously therewith in ascertaining the petitioner\'s intent.
Here SBT failed to designate in its petition for review the order that
it ultimately challenged in its brief. SBT\'s \"Petition for Review\"
named only the Lower Channel Reconsideration Order; it included neither
the Upper Channel First Reconsideration Order nor the Upper Channel
Second Reconsideration Order. SBT attached only the Lower Channel
Reconsideration Order to its petition. Likewise, SBT\'s \"Certificate As
To Parties, Rulings and Related Cases,\" filed January 6, 1999, failed
to mention either upper channel order; the Certificate designated only
the Lower Channel Reconsideration Order and the underlying Lower Channel
Report and Order.[^8]

SBT also filed a \"Docketing Statement\" on January 6, 1999, listing the
docket numbers as \"PR Doc. No. 93-144; GN Doc. No. 93-252; PP Doc. No.
93-253.\" In Entravision, Martin and Southwestern Bell, the court
considered the Docketing Statement as a contemporaneous filing from
which it could infer the petitioner\'s intent. Although the two lower
channel and two upper channel orders at issue share the same docket
number, the manner in which the petitioner described the dates of the
orders indicates to us that it sought review of the lower channel orders
only. It described the orders as: \"Released Dates: MO&O, 10/8/99;
Second Order, 7/10/97.\" Its use of \"Second Order\" instead of \"Second
Orders\" or \"Second Order and Reconsideration Order\" manifests that it
sought review of only one of the July 10, 1997 orders. SBT\'s
description of the challenged order as \"Second Order\" also indicates
that it sought review of the Lower Channel Report and Order, which was
entitled \"Second Report and Order,\" and not the Upper Channel First
Reconsideration Order, which was entitled \"Memorandum Opinion and Order
on Reconsideration.\" And, as we have held in the past, the
petitioner\'s designation of only one order does not \"suffice\[ \] to
obtain review of any other order that is part of the same administrative
record\" even if the order specified has the same docket number as
another order sought to be reviewed. John D. Copanos & Sons, 854 F.2d at
527.

On April 24, 2000, almost four months after it filed its petition for
review, SBT filed a \"Motion to Amend Certificate as to Parties, Rulings
and Related Cases.\" We do not regard this document to be a filing
contemporaneous with the petition for review. The dictionary definition
of \"contemporaneous\" is \"existing or occurring during the same
time.\" Webster\'s Third International Dictionary 491 (1981).[^9] We use
the term \"contemporaneous filing\" to include documents filed at or
near the same time as the petition for review. See, e.g., Entravision,
202 F.3d at 313-14; Martin, 199 F.3d at 1371-73. Although these
documents can include \"Docketing Statements,\" \"Certificates as to
Parties, Rulings and Related Cases,\" and \"Statements of Issues\" as
well as documents attached to the petition for review, the petitioner\'s
motion to amend filed almost four months after its petition for review
is plainly not a contemporaneous filing.[^10] Moreover, we could easily
conclude from the motion to amend that it was not SBT\'s intent to seek
review of the Upper Channel First Reconsideration Order at the time it
filed the petition for review, but instead an afterthought occurring
several months down the road.[^11] Accordingly, we find nothing in the
petition for review or documents filed contemporaneously therewith from
which we can fairly infer that the petitioner sought review of the Upper
Channel First Reconsideration Order in its petition for review.[^12]

The petitioner next argues that the Lower Channel Report and Order and
the Upper Channel First Reconsideration Order are part of a single
consolidated rulemaking, thereby making the separate identification of
the upper channel order surplusage. To support its contention, SBT
points to its \"Consolidated Supplement to Petitions for
Reconsideration\" filed October 24, 1997, maintaining that it worked to
combine the two petitions for reconsideration, both of which were denied
in the Lower Channel Reconsideration Order. Nevertheless, SBT had filed
two separate petitions for reconsideration: The first \"request\[ed\]
that the Commission reconsider its decisions within \[the Lower Channel
Report and Order\].\" JA 477. The second, filed the same day,
\"request\[ed\] that the Commission reconsider its decisions within its
\[Upper Channel First Reconsideration Order\].\" JA 511. The filing of
two separate petitions for reconsideration indicates not only that the
Lower Channel Report and Order and the Upper Channel First
Reconsideration Order are separate orders but also that SBT viewed them
as such notwithstanding they arose from the same rulemaking proceeding.

Contrary to SBT\'s claim, moreover, its Consolidated Supplement nowhere
expressly requested that the Commission consolidate the petitions for
reconsideration. Rather, it argued that the Commission failed to obtain
SBA approval of its \"small business\" definitions in the Commission\'s
1997 orders. JA 563. The FCC responded separately to the issues raised
in the Supplement, addressing only the issues regarding the lower
channel rulemaking in the Lower Channel Reconsideration Order. See Lower
Channel Reconsideration Order, 14 F.C.C.R. 17,566, p 87 n.251. Although
the Appendix to the Lower Channel Reconsideration Order, listing the
petitions addressed in the order, noted an SBT petition for
reconsideration as well as SBT\'s Supplement, by the time the petitioner
filed its petition for review (on December 29, 1999), the FCC had issued
its Upper Channel Second Reconsideration Order, putting SBT on notice
that the FCC had also denied SBT\'s petition for reconsideration of the
Upper Channel First Reconsideration Order. The petitioner\'s argument
that the Commission\'s Lower Channel Reconsideration Order ignored
issues included in its petition for reconsideration of the Upper Channel
First Reconsideration Order further manifests that SBT believed the FCC
treated the petitions separately, responding to one in its Lower Channel
Reconsideration Order and to the other in its Upper Channel Second
Reconsideration Order. Accordingly, we must dismiss SBT\'s petition for
review to the extent that it attempts to challenge the Upper Channel
First Reconsideration Order because it failed to designate that order in
accordance with Fed. R. App. P. 15(a)(C).

Even if we found no violation of Rule 15(a)(C), we would nevertheless
dismiss the challenge to the Upper Channel First Reconsideration Order
because it is incurably premature. A party that files a petition for
reconsideration before an agency \"render\[s\] the underlying agency
action nonfinal (and hence unreviewable) with respect to th\[at\]
party.\" United Transp. Union v. ICC, 871 F.3d 1114, 1116 (D.C. Cir.
1989). \"Therefore, a party that stays before an agency to seek
reconsideration of an order cannot at the same time appear before a
court to seek review of that same order, any more than the party could
literally be in two places at the same time.\" BellSouth Corp. v. FCC,
17 F.3d 1487, 1489 (D.C. Cir. 1994).

The petitioner filed a separate petition for reconsideration of each of
the 1997 SMR orders. Its two petitions had the effect of making both the
Lower Channel Report and Order and the Upper Channel First
Reconsideration Order nonfinal as to it, for the purpose of judicial
review, until \"entry\" of the Lower Channel Reconsideration Order and
of the Upper Channel Second Reconsideration Order respectively. See 28
U.S.C. § 2344. 28 U.S.C. § 2344 \"imposes a jurisdictional bar to
judicial consideration of petitions filed prior to entry of the agency
orders to which they pertain.\" Western Union Tel. Co. v. FCC, 773 F.2d
375, 378 (D.C. Cir. 1985). \"Entry of the agency order\[ \]\" occurs on
the date the Commission gives public notice of the order. See 47 U.S.C.
§ 405; 47 C.F.R. § 1.103(b); Western Union Tel. Co., 773 F.2d at 376.
The FCC\'s rules identify the date of public notice as \"the date of
publication in the Federal Register.\" 47 C.F.R. § 1.4(b). On December
29, 1999, the date the petitioner filed its petition for review, the
Upper Channel Second Reconsideration Order denying the petitioner\'s
petition for reconsideration of the Upper Channel First Reconsideration
Order had not been entered,[^13] making the petition for review
\"incurably premature\" as to the Upper Channel First Reconsideration
Order. BellSouth, 17 F.3d at 1490.

SBT responds that the Upper Channel Second Reconsideration Order was a
duplicate order \"which again denied SBT\'s consolidated petitions and
supplement.\" Reply Br. 12. We fail to understand how the petitioner
could have \"rightfully determined that although the duplicate Order did
add to the record, it was not significant for the purpose of the
Court\'s jurisdiction.\" Id. Aside from its bare assertion, the
petitioner has no record support for its claim. Paragraph six of the
Lower Channel Reconsideration Order states: \"In response to the \[Lower
Channel Report and Order\], the Commission received a number of
pleadings requesting reconsideration, modification or clarification of
its rules relating to mandatory relocations, co-channel interference,
spectrum block size, geographic area licensing, and partitioning and
disaggregation. We address these concerns below.\" 14 F.C.C.R. 17,566 at
p 6. Throughout the \"Discussion\" portion of the Lower Channel
Reconsideration Order, the Commission primarily referred to the Lower
Channel Report and Order. Although it did mention the Upper Channel
First Reconsideration Order in a limited context, see, e.g., id. at pp
33, 41, 70, it addressed only those arguments presented in SBT\'s
petition for reconsideration of the Lower Channel Report and Order,[^14]
not SBT\'s petition for reconsideration of the Upper Channel First
Reconsideration Order.[^15] We thus find no merit in SBT\'s contention
that the Upper Channel Second Reconsideration Order was a duplicate
order relieving it of the obligation to separately challenge that order.

B. Lower Channel Orders

We turn to SBT\'s challenge to the Lower Channel Report and Order and
Lower Channel Reconsideration Order. SBT makes two claims: (1) the
FCC\'s failure to obtain SBA approval of its small business definitions
violated 15 U.S.C. § 632(a)(2)(C)(iii) and 5 U.S.C. § 553(d) and (2) the
Commission\'s Final Regulatory Flexibility Act (FRFA) analysis in the
Lower Channel First Report and Order was invalid under 5 U.S.C. §
604(a)(5).

15 U.S.C. § 632(a)(2)(C) provides: \"Unless specifically authorized by
statute, no Federal department or agency may prescribe a size standard
for categorizing a small business concern, unless such proposed size
standard \... (iii) is approved by the Administrator \[of the SBA\].\"
SBT argues that in failing to obtain the SBA Administrator\'s prior
approval of its definition of \"small business,\" the FCC violated its
statutory duties under Title 15 and Title 5. The FCC acknowledges that
it did not have SBA approval at the time it adopted the Lower Channel
Report and Order on June 23, 1997. Nevertheless the SBA had approved the
definitions before the FCC commenced the lower channel auction, see JA
609 (Aug. 10, 1999 approval letter for lower channel auction). The
SBA\'s tardy approval does not, in our view, nullify the entire
rulemaking; the SBA approved the definitions before the auction and SBT
failed to show that any of its members were harmed in any way by the
timing of the SBA approval.[^16]

The petitioner next asserts that the FRFA analysis contained in the
Lower Channel First Report and Order violated 5 U.S.C. § 604(a)(5).
Pursuant to 5 U.S.C. § 604(a)(5) an agency is required to include in its
FRFA analysis \"a description of the steps the agency has taken to
minimize the significant economic impact on small entities consistent
with the stated objectives of applicable statutes.\" The petitioner
challenges the FCC\'s decision to require EA licensees to pay relocation
costs to an incumbent licensee for expenses incurred from relocating
from the upper 200 channels to the lower 230 channels only after the
relocation is complete and the upper channel frequencies are clear. See
Lower Channel Reconsideration Order, 12 F.C.C.R. 17,566 pp 57-58. It
maintains that the FCC failed to describe what steps it took to minimize
the economic impact on the small incumbent licensees that will have to
pay relocation costs up front.

Acknowledging that the Lower Channel Reconsideration Order is unclear on
when incumbent licensees will be reimbursed for relocation costs,[^17]
the Commission asked that the court await the Commission\'s decision on
a petition for clarification filed by the American Mobile
Telecommunications Association, Inc. (AMTA). The FCC subsequently
reconsidered the issue in \"In the Matter of Amendment of Part 90 of the
Commission\'s Rules to Facilitate Future Development of SMR Systems in
the 800 MHz Frequency Band,\" FCC 01-33 (released February 2, 2001)
\[Lower Channel Second Reconsideration Order\]. The FCC noted that
\"neither the \[Lower Channel Report and Order\] nor the \[Lower Channel
Reconsideration Order\] adequately addressed the question of when
incumbent licensees should be repaid for their involuntary relocation
costs.\" Id. p 7. It explained that, because EA licensees bear the costs
of building and testing the replacement system, \"it is clear that the
primary cost burden for involuntary relocations rests on the EA
licensee, not the incumbent.\" Id. p 8. It therefore concluded that to
the extent the incumbent may incur additional relocation costs, they
will be reimbursed by the EA licensee after relocation is complete. Id.
pp 8-10.

From our review of the record, however, it appears that SBT failed to
raise the FRFA analysis issue during the rulemaking, see 47 U.S.C. §
405; Southwestern Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d
Cir. 1997), and the FCC noted that \"\[n\]o reconsideration petitions
were submitted in response to the FRFA.\" Lower Channel Reconsideration
Order, 14 F.C.C.R. 17,566, at App. C p 3. Assuming arguendo that SBT\'s
failure is understandable in light of the Commission\'s admission that
neither the Lower Channel Report and Order nor the Lower Channel
Reconsideration Order clearly addressed the issue, we would nonetheless
reject the challenge. Cf. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49
(1967) (ripeness); Star, Inc. v. FCC, 888 F.2d 132, 134 (D.C. Cir. 1989)
(same); Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.
Cir. 1978) (same); see also Public Citizen v. NRC, 845 F.2d 1105,
1108-10 (D.C. Cir. 1988) (final agency action).

**Conclusion**

To sum up, we conclude that SBT\'s failure to specify the Upper Channel
First Reconsideration Order as an order under challenge violates Federal
Rules of Appellate Procedure 15 and mandates that we dismiss the
petition to the extent it seeks review of that order. With respect to
SBT\'s challenges to the lower channel orders\--failure to obtain SBA
approval of the small business definitions and failure to perform an
adequate FRFA analysis\--we conclude the first challenge is without
merit and the second was waived. For the foregoing reasons, and in
accordance with this opinion, the petition for review is dismissed in
part and denied in part.

So ordered.

[^1]: The rulemakings include: In the Matter of Amendment of Part 90 of
    the Commission\'s Rules to Facilitate Future Development of SMR
    Systems in the 800 MHz Frequency Band, Second Report and Order, 12
    F.C.C.R. 19,079 (1997) \[Lower Channel Report and Order\], In the
    Matter of Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, Memorandum Opinion and Order on Reconsideration, 12
    F.C.C.R. 9972 (1997) \[Upper Channel First Reconsideration Order\]
    and In the Matter of Amendment of Part 90 of the Commission\'s Rules
    to Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, Memorandum Opinion and Order on Reconsideration, 14
    F.C.C.R. 17,566 (1999) \[Lower Channel Reconsideration Order\].

[^2]: Bandwidth is \"\[t\]he capacity of a telecom line to carry
    signals. The necessary bandwidth is the amount of spectrum required
    to transmit the signal without distortion or loss of information.
    FCC rules require suppression of the signal outside the band to
    prevent interference.\" Federal Communications Comm\'n, What We\'re
    All About: A Consumer\'s Guide to the FCC (FCC Handbook) 2001,
    available at http://www.fcc.gov/cib/handbook.html.

[^3]: Spectrum is \"\[t\]he range of electromagnetic radio frequencies
    used in the transmission of sound, data and television.\" FCC
    Handbook, supra.

[^4]: Previously it had allowed them to pay for their license in
    installments.

[^5]: As already noted, although the petitioner\'s October 19, 1999
    petition for review included the Upper Channel First Reconsideration
    Order, the petitioner voluntarily dismissed that petition on
    December 20, 1999.

[^6]: Under D.C. Circuit Rules the docketing statement \"must be on a
    form furnished by the clerk\'s office and contain such information
    as the form prescribes\" including case name, type of case and
    identifying information about the order to be reviewed. Circuit Rule
    15(c). \"Attached to the docketing statement must be a provisional
    certificate \... setting forth the information required by Circuit
    Rule 28(a)(1),\" which includes parties and amici, rulings under
    review and related cases. Circuit Rule 15(a)(3); see Circuit Rule
    28(a)(1).

[^7]: The court routinely requests a \"Preliminary Statement of Issues\"
    as part of the information included with the Docketing Statement.
    See Circuit Rule 15(c)(2); D.C. Circuit Handbook of Practice and
    Internal Procedures §§ IV.A3 & IV.B, at 21-22 (\"The docketing
    statement includes \... a non-binding preliminary state-ment of the
    issues involved\....\"); see also United States v. Pogue, 19 F.3d
    663, 666 & n.2 (D.C. Cir. 1994) (per curiam).

[^8]: The \"Statement of Issues\" which prefaced the Certificate did
    include two issues that referred to \"the FCC\'s scheduling of the
    800 MHz auction.\" Requested Information, No. 99-1543 (filed Jan. 6,
    2000). The petitioner did not argue, and we do not find, that these
    references allow us to fairly infer that the petitioner sought
    review of the Upper Channel First Reconsideration Order.

[^9]: We acknowledge that while courts use the term \"contemporaneous\"
    to mean \"close in time,\" it is a relative term. For example, under
    the contemporaneous construction doctrine, a court or agency
    decision or practice interpreting an ambiguous statute may be
    considered a contemporaneous construction even though the
    interpreting act occurs months or even one year or more after the
    statute was enacted. See Andrus v. Shell Oil Co., 446 U.S. 657, 673
    n.12 (1980); Norwegian Nitrogen Prods. Co. v. United States, 288
    U.S. 294, 315 (1933). On the other hand, under the contemporaneous
    objection rule, an objection to the admission of evidence may not be
    considered a contemporaneous objection even if made within a few
    minutes of the objected-to admission. See Henry v. Mississippi, 379
    U.S. 443 567-68 (1965); Wilson v. Waggener, 837 F.2d 220, 222 (5th
    Cir.1988).

[^10]: SBT maintains that its failure to specify the Upper Channel First
    Reconsideration Order was a ministerial oversight which \"was
    corrected by amendment accepted by the Court,\" relying on this
    court\'s opinion in City of Oconto Falls v. FERC, 204 F.3d 1154,
    1160 (D.C. Cir. 2000). But our holding in Oconto Falls does not
    depart from our decisions in Entravision, Martin, Southwestern Bell
    and City of Benton: It did not hold that a brief, or any document
    not filed contemporaneously with the petition for review (like the
    motion to amend here), may be considered a contemporaneous filing
    from which a court may infer intent.

[^11]: After all, in its original October 19, 1999 petition for review
    (subsequently voluntarily dismissed), SBT specified each of the
    lower channel orders and the Upper Channel First Reconsideration
    Order, manifesting that it knew how to specify the orders it sought
    to challenge.

[^12]: SBT asserts that the FCC would not be prejudiced by our review of
    the Upper Channel First Reconsideration Order. But we consider
    prejudice to the opposing party only if we first find it fair to
    infer the petitioner\'s intent. See City of Benton, 136 F.3d at
    826-27.

[^13]: Entry of the Upper Channel Second Reconsideration Order occurred
    on July 14, 2000. 65 Fed. Reg. 43,716.

[^14]: For example, footnote 35 of the Lower Channel Reconsideration
    Order cites \"SBT Petition at 7, n.5.\" Id. at p 12 n.35. Only the
    petitioner\'s petition for reconsideration of the Lower Channel
    Report and Order has a footnote on its seventh page.

[^15]: Footnote 1 of the Upper Channel Second Reconsideration Order
    notes that the Industrial Telecommunications Association, Inc. filed
    a single Petition for Clarification and Reconsideration of both the
    Lower Channel Report and Order and the Upper Channel First
    Reconsideration Order. The FCC explained that it addressed the
    issues raised in that petition in its Lower Channel Reconsideration
    Order. While the FCC\'s notation may have recognized that the 1997
    orders contained overlapping issues, at the same time the Commission
    sent a clear message to SBT that the FCC did not consider its
    petitions to be consolidated and that the Lower Channel
    Reconsideration Order did not address issues raised in SBT\'s
    petition for reconsideration of the Upper Channel First
    Reconsideration Order.

[^16]: SBT claims that the FCC knowingly published a misrepresentation
    by stating, erroneously, in its FRFA analysis accompanying the Lower
    Channel Report and Order that the SBA \"has approved these
    definitions for 800 MHz SMR services.\" Although SBT did bring the
    issue of SBA approval to the attention of the Commission in its
    Consolidated Supplement, it never claimed before now that the FCC
    misrepresented the facts. Because the Commission was not given \"a
    meaningful \'opportunity to pass\' on the issue,\" the claim is not
    properly before this court. See 47 U.S.C. § 405; Bartholdi Cable
    Co., Inc. v. FCC, 114 F.3d 274, 280 (D.C. Cir. 1997).

[^17]: In the Lower Channel Report and Order, the Commission addressed
    when an EA licensee must reimburse another EA licensee for costs
    associated with relocating an incumbent licensee. See Lower Channel
    Report and Order, 12 F.C.C.R. 19,079, at pp 120-25. But the
    Commission did not address the timing of payments between EA
    licensees and incumbent licensees. In response to petitions for
    reconsideration filed by the AMTA and the Personal Communications
    Industry Association (PCIA), which contended that incumbent
    licensees should be reimbursed for relocation costs as those
    expenses are incurred, see Lower Channel Reconsideration Order, 14
    F.C.C.R. 17,566, at p 58, the Commission purported to \"reiterate\"
    its previous position that \"relocation costs will not be due until
    the incumbent has been fully relocated and the frequencies are free
    and clear.\" Id.