United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 1999 Decided February 11, 2000

No. 99-1025

Entravision Holdings, LLC,

Petitioner

v\.

Federal Communications Commission and

United States of America,

Respondents

Davis Television Fairmont, LLC,

Intervenor

On Petition for Review of an Order of the

Federal Communications Commission

*Barry A. Friedman* argued the cause for petitioner. With him on the
briefs was *Michael L. Martinez*.

*K. Michele Walters*, Counsel, Federal Communications Commission, argued
the cause for respondent. With her on the brief were *Christopher J.
Wright*, General Counsel, *Daniel M. Armstrong*, Associate General
Counsel, *Joel I. Klein*, Assistant Attorney General, and *Robert B.
Nicholson* and *Chris Sprigman*, Attorneys, U.S. Department of Justice.

Before: [Ginsburg, Tatel]{.smallcaps}, and [Garland]{.smallcaps},
Circuit Judges.

Opinion for the Court filed by *Circuit Judge* [Ginsburg]{.smallcaps}.

[Ginsburg]{.smallcaps}, *Circuit Judge*: Entravision Holdings, LLC,
petitions for review of an order of the Federal Communications
Commission denying reconsideration of a prior order. Because the
Commission order denying reconsideration is unreviewable under *ICC v.
Brotherhood of Locomotive Engineers*, 482 U.S. 270, 280 (1987), and we
cannot fairly infer from Entravision\'s filings an intent to seek review
of the prior order, we dismiss the petition for lack of jurisdiction.

**I. Background**

In 1997 the Federal Communications Commission proposed to reallocate
channels 60-69 from broadcast television service to other commercial and
public safety uses. Latin Communications Group (LCG), Entravision\'s
predecessor in interest in the licenses for two low power television
(LPTV) stations operating on channels 61 and 63, submitted comments to
the Commission suggesting certain protections be granted to LPTV
stations that would be displaced by the proposed reallocation. The
Commission adopted the reallocation proposal but declined to adopt the
protections suggested by LCG. *In re Reallocation of Television Channels
60-69, Report & Order*, 12 F.C.C.R. 22953 (Jan. 6, 1998). LCG filed a
petition for partial reconsideration, asking the Commission to
reconsider the *Report & Order* and to adopt the protections LCG had
suggested. The Commission denied reconsideration. *In re Reallocation of
Television Channels 60-69, Memorandum Opinion & Order*, 13 F.C.C.R.
21578 (Oct. 9, 1998).

Entravision and LCG then timely filed a joint petition for review.
Subsequently, LCG completed assignment of the two LPTV broadcast
licenses to Entravision and withdrew from this action, leaving
Entravision as the sole petitioner.

**II. Analysis**

Under Fed. R. App. P. 15(a), a petition for review of an agency order
must \"specify the order or part thereof to be reviewed.\" [^1] Failure
to specify the correct order can result in dismissal of the petition.
*See City of Benton v. NRC*, 136 F.3d 824, 826 (D.C. Cir. 1998); *John
D. Copanos & Sons, Inc. v. FDA*, 854 F.2d 510, 527 (D.C. Cir. 1988). 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. *See Martin v. FERC*, No. 98-1398, 1999 WL
1261546, at \*2-3 (D.C. Cir. Jan. 25, 2000) (reviewing order underlying
rehearing order specified in petition because intent to seek review
fairly inferred from contemporaneous motion for stay and respondent not
prejudiced); *Damsky v. FCC*, No. 99-1018, 1999 WL 1211668, at \*5-6
(D.C. Cir. Jan. 7, 2000) (reviewing order underlying rehearing order
specified in notice of appeal because intent to seek review fairly
inferred from filings attached to notice and repondent not prejudiced);
*Southwestern Bell Telephone Co. v. FCC*, 180 F.3d 307, 313 (D.C. Cir.
1999) (declining to review order underlying rehearing order specified in
petition because intent to seek review not fairly inferable from
petition, docketing statement, or preliminary statement of issues); *cf.
Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan*,
835 F.2d 881, 889 (D.C. Cir. 1987) (reviewing judgment inexactly
designated in notice of appeal because contemporaneously-filed Rule
10(b) certification adequate to infer intent to appeal from judgment,
and appellee not prejudiced); *Brookens v. White*, 795 F.2d 178, 180
(D.C. Cir. 1986) (declining to review unspecified judgment because
intent to appeal from that judgment not fairly inferable from
appellant\'s notice of appeal or subsequent filings).

Here Entravision specified for review the *Memorandum Opinion & Order*.
Under *ICC v. Brotherhood of Locomotive Engineers*, 482 U.S. 270, 280
(1987), however, that order, in which the Commission merely denied
reconsideration of the prior Report & Order, is unreviewable except
insofar as the request for reconsideration was based upon new evidence
or changed circumstances. *See Southwestern Bell*, 180 F.3d at 311.
Because Entravision gave neither as a ground for reconsideration of the
*Report & Order*, the *Memorandum Opinion & Order* is unreviewable.
Therefore we must dismiss Entravision\'s petition for lack of
jurisdiction[^2] unless we can fairly infer that Entravision intended to
seek review of the order not specified in the petition for review.

Entravision\'s claim that we may infer it intended to seek review of the
*Report & Order* appears to be foreclosed by *Southwestern Bell*, 180
F.3d at 313-14. In that case the agency had issued an Investigation
Order prescribing certain actions that local exchange carriers (LECs)
were to take. See id. at 310. Two LECs filed petitions for rehearing,
which the Commission denied in a Reconsideration Order. Southwestern
Bell then petitioned for review of the Reconsideration Order. We denied
the petition for review because the Reconsideration Order was
unreviewable and we could not fairly infer from the petition for review
or nearly contemporaneous filings an intent to seek review of the
Investigation Order: the petition itself designated for review only the
Reconsideration Order, and only that order was appended to the petition;
the docketing statement likewise named and had appended only the
Reconsideration Order; and the preliminary statement of issues discussed
only matters raised in the LECs\' petitions for rehearing. *See id*. at
313; *see also City of Benton*, 136 F.3d at 825-26 (dismissing petition
that specified only an unreviewable order).

Entravision points to one difference between its filings and those in
*Southwestern Bell* and *City of Benton*: Entravision expressly
mentioned not just the order denying reconsideration but the underlying
*Report & Order*\--the one it wants the court to review\--in the
petition for review. In context, however, the mere mention of the
*Report & Order* does not make fairly inferable Entravision\'s intent to
seek review of that order. On the contrary, Entravision mentions the
*Report & Order* in its petition for review only in the course of
stating the history of the proceeding prior to the order of which review
is being sought. Consider:

\[Entravision and LCG\] petition this Court for review of the \[FCC\'s\]
*Memorandum Opinion & Order* (\"*MO&O*\"), FCC 98-261 (released October
9, 1998; published in Federal Register November 17, 1998), in which the
FCC denied LCG\'s Petition for Partial Reconsideration of the FCC\'s
earlier *Report and Order* (\"*RO&O*\") \[sic\] in which it decided not
to protect low power television (\"LPTV\") stations operating on
Channels 60-69\.... A copy of the *MO&O* is attached hereto as Exhibit
A\.... The *MO&O* constitutes final FCC action rejecting LCG\'s request
for protection\....

The clear import is that only the *Memorandum Opinion & Order* is under
review; this is reinforced by Entravision having attached only the
*Memorandum Opinion & Order* to the petition. *See* 28 U.S.C. s 2344
(\"The petitioner shall attach to the petition as exhibits copies of the
order, report, or decision \[for review\]\").

Entravision\'s contemporaneous filings even more clearly demonstrate
that it intended to put before the court only the order denying
reconsideration. Entravision\'s docketing statement, filed within a
month of its petition, specifies only the *Memorandum Opinion & Order*
for review: In the space for denoting the \"date(s) of order(s) \[under
review\],\" Entravision entered the date of the *Memorandum Opinion &
Order* and only that date. Entravision\'s preliminary statement of
issues, filed the same day, likewise points only to the *Memorandum
Opinion & Order*; there Entravision identifies two issues, both of which
relate exclusively to the Commission\'s denial of reconsideration in the
*Memorandum Opinion & Order*:

1\. Whether the FCC\'s denial of the Petition for Partial
Reconsideration was contrary to law \...;

2\. Whether the FCC\'s denial of the Petition for Partial
Reconsideration adequately addresses how the FCC may weigh the public
interest benefits of continued LPTV services\....

Based upon Entravision\'s petition for review and these nearly
contemporaneous filings, we cannot fairly infer that it intended to seek
review of the *Report & Order*. Because Entravision fails to satisfy
this first requirement for review of an unspecified order, we need not
consider the second requirement\--that the Commission not have been
prejudiced by Entravision\'s mistake. *See Southwestern Bell*, 180 F.3d
at 314. We conclude that Entravision has not brought the *Report &
Order* before this court for review.

In a last ditch effort to avoid this conclusion, Entravision claims
that, because the Commission\'s argument based upon *Brotherhood of
Locomotive Engineers* and *Southwestern Bell* would dispose entirely of
the case, the Commission was required by Interim D.C. Circuit Rule
27(g)(1) to raise it in a timely-filed motion, and the Commission cannot
now raise it on brief. Rule 27(g)(1) provides:

Any motion which, if granted, would dispose of the appeal or petition
for review in its entirety, or transfer the case to another court, must
be filed within 45 days of the docketing of the case in this court,
unless, for good cause shown, the court grants leave for a later filing.

If Entravision\'s interpretation of our Rule were correct, then we
suppose briefs would contain only non-dispositive arguments and there
would be no point in counsel writing them or in our reading them. But of
course, Entravision is not correct: the Rule governs motions, not
arguments, and is therefore no bar to the disposition of this case on
the basis of the arguments in the briefs.

**III. Conclusion**

Entravision petitioned for review only of the *Memorandum Opinion &
Order*. Under *Brotherhood of Locomotive Engineers*, 482 U.S. at 280,
that order is unreviewable. Entravision\'s petition is therefore

*Dismissed.*

[^1]: ^^ Effective December 1, 1998, Fed. R. App. P. 15(a) was amended
    (in style but not in substance) to require that a petitioner
    \"specify\" rather than \"designate\" the order or part thereof to
    be reviewed. Because Entravision and LCG filed their petition after
    the amendment, we refer to the amended version of the Rule in this
    opinion.

[^2]: ^^ To the extent that *Southwestern Bell Telephone Co. v. FCC*,
    180 F.3d 307 (D.C. Cir. 1999), and *Beehive Telephone Co. v. FCC*,
    180 F.3d 314 (D.C. Cir. 1999), treat nonreviewability under
    *Brotherhood of Locomotive Engineers* as nonjurisdictional, those
    holdings are disapproved. *See* 482 U.S. at 287. Our resolution of
    this issue has been circulated to and approved by the entire court
    and thus constitutes the law of the circuit. *See Irons v. Diamond*,
    670 F.2d 265, 268 n. 11 (D.C. Cir. 1981).