*Pages 1--14 from  O:\Opinions\04-1359-op.wpd*
 United  States  Court  of  Appeals  FOR  THE  DISTRICT  OF  COLUMBIA  CIRCUIT 
 Argued  September  27,  2005  Decided  March  24,  2006 
 No.  04-  1359 
 AMERICAN  ASSOCIATION  OF  PAGING  CARRIERS,  PETITIONER 


 v. 
 FEDERAL  COMMUNICATIONS  COMMISSION  AND  UNITED  STATES  OF  AMERICA, 
 RESPONDENTS 


 On  Petition  for  Review  of  an  Order  of  the  Federal  Communications  Commission 


 Kenneth  E.  Hardman  argued  the  cause  for  the  petitioner. 
 C.  Grey  Pash,  Jr.,  Counsel,  Federal  Communications  Commission,  argued  the  cause  for  the  respondent.  Robert  H. 


 Pate,  III,  Assistant  Attorney  General,  Catherine  G.  OSullivan,  Counsel,  and  Andrea  Limmer,  Attorney,  United  States 
 Department  of  Justice,  and  Daniel  M.  Armstrong,  Associate  General  Counsel,  Federal  Communications  Commission  were 
 on  brief.  John  A.  Rogovin  and  Roberta  L.  Cook,  Counsel,  Federal  Communications  Commission,  entered  appearances. 


 Before:  HENDERSON,  GARLAND  and  GRIFFITH,  Circuit  Judges. 
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 2 
 Opinion  for  the  court  filed  by  Circuit  Judge  HENDERSON. 
 KAREN  LECRAFT  HENDERSON,  Circuit  Judge:  The  American  Association  of  Paging  Carriers  (AAPC),  a  trade 


 association  representing  paging  signal  carrier  companies,  seeks  review  of  the  September  2004  Memorandum  Opinion  and  Order 
 of  the  Federal  Communications  Commission  (FCC  or  Commission)  in  Amendment  of  Part  90  of  the  Commissions 
 Rules  and  Policies  for  Applications  and  Licensing  of  Low  Power  Operations  in  the  Private  Land  Mobile  Radio  450  470  MHz 
 Band,  19  F.  C.  C.  R.  18501  (2004),  reprinted  at  Joint  Appendix  (JA)  8a  (Denial  Order).  In  the  Denial  Order,  the  FCC  denied 
 AAPCs  petition  to  reconsider  parts  of  an  earlier  rulemaking  that  revised  the  channeling  plan  in  the  450  475  MHz  band  of  the 
 radio  spectrum,  designating  eight  frequencies  in  the  462  MHz  band  for  low  power  communications  operations.  See  Report  and 
 Order,  18  F.  C.  C.  R.  3948  (2003)  (Low  Power  Order).  AAPC  claims  that  by  allocating  for  low  power  use  eight  frequencies 
 located  at  an  unacceptably  close  distance  of  only  12.5  kHz  from  existing  paging-  only  frequencies  already  designated  for  use  by 
 AAPCs  members,  the  FCC  violated  the  requirement  set  out  in  the  1993  Omnibus  Budget  Reconciliation  Act  (OBRA),  Pub.  L. 
 No.  103-  66,  107  Stat.  312,  mandating  that  the  Commission  make  necessary  and  practical  modifications  to  ensure  that 
 technical  requirements  applicable  to  licensees  such  as  AAPCs  members  are  comparable  to  those  applicable  to  licensees 
 providing  substantially  similar  services.  OBRA    6002(  d)(  3)(  B).  Specifically,  AAPC  claims  that  the  Low  Power 
 Order  failed  to  carry  out  the  unambiguous  congressional  intent  expressed  in  OBRA  that  like  communications  services  be  treated 
 alike.  Because  we  find  the  Denial  Order  unreviewable,  however,  we  dismiss  AAPCs  petition. 
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 3 
 1  Private  in  this  context  refers  not  to  the  licensees  status  but 
 to  the  use  of  the  paging  network;  a  private  system  broadcasts  signals 
 for  internal  use  only.  A  private  paging  system  can  therefore  be 
 operated  by  either  a  private  (i.  e.,  commercial)  or  a  public  (i.  e., 
 government)  licensee. 


 2  Unlike  private  licensees,  who  use  their  networks  strictly  for 
 internal  communications,  private  carrier  service  providers  offer 
 paging  services  to  third  parties. 


 I. 
 A.  Regulation  of  Commercial  Paging  Signal  Licensing 
 Paging  services  allow  both  commercial  subscribers  and  internal  (or  private  1  )  networks  of  users  to  receive  messages 


 broadcast  by  radio  waves  over  dedicated  frequencies.  Historically,  the  FCC  allocated  frequencies  for  paging 
 operations  under  two  parts  of  its  rules.  Part  22  covered  the  traditional  common  carrier  paging  services  available  to  the 
 public  known  as  Public  Mobile  Services  (Part  22  systems),  see  47  C.  F.  R.    22.99,  while  Part  90  covered  the  private  paging 
 carrier  services  known  as  Private  Land  Mobile  Radio  Services  (Part  90  systems),  including  point-  to-  point  private  radio  services 
 tailored  to  the  needs  of  particular  user  groups  for  internal  use  and  not  subject  to  common  carrier  regulation  such  as 
 safety  operations  (e.  g.,  roadside  assistance  and  volunteer  fire  departments),  systems  used  by  school  bus  drivers  or  for  disaster 
 relief  and  businesses  requiring  specialized  internal  paging  services  like  private  ambulance  companies.  See  47  C.  F.  R.   
 90.15,  90.20.  With  a  growing  demand  for  private  service,  however,  the  Commission  began  authorizing  licensees  to 
 provide  private  carrier  service,  i.  e.,  service  to  third-  party  users  on  a  for-  profit  basis,  under  Part  90.  2  See  Inquiry  Relative  to  the 
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 4 
 Future  Use  of  the  Frequency  Band  806-  960  MHz,  Second  Report  and  Order,  46  F.  C.  C.  2d  752,  755    6  10  (1974); 


 Implementations  of  Sections  3(  n)  and  332  of  the  Communications  Act,  Second  Report  and  Order,  9  F.  C.  C.  R. 
 1411,  1414    4  (1994).  As  private  carrier  service  was  offered  to  third  parties  for  profit,  and  as  the  FCC  permitted  private  land 
 mobile  service  operators  to  interconnect  with  the  public  telephone  network  and  thereby  provide  the  same  service 
 traditionally  offered  by  common  carriers  only,  private  carriers  became  indistinguishable  from  common  carriers.  Nevertheless 
 the  two  remained  subject  to  separate  regulatory  schemes.  See  H.  R.  Rep.  No.  103  111,  at  259  60  (1993).  Common  carriers 
 were  subject  to  rate  regulation  on  both  state  and  federal  levels,  for  example,  while  private  carriers  were  not.  Id.  at  260. 


 In  August  1993,  the  Congress  enacted  the  Omnibus  Budget  Reconciliation  Act  (OBRA).  Pub.  L.  No.  103-  66,  107  Stat.  312 
 (1993).  Seeking  to  establish  a  single  regulatory  framework  for  all  for-  profit  mobile  radio  licensees  offering  services  to  the 
 public  and  a  different  framework  for  private  licensees,  OBRA  amended  section  332  of  the  Communications  Act  of  1934. 
 OBRA  section  6002(  b)  modified  the  regulation  of  all  mobile  radio  services,  including  paging  services,  by  creating  two 
 statutorily  defined  categories  of  mobile  services:  commercial  mobile  radio  services  (CMRS)  and  private  mobile  radio  services 
 (PMRS).  It  defined  CMRS  as  any  mobile  service  .  .  .  that  is  provided  for  profit  and  makes  interconnected  service  available 
 (A)  to  the  public  or  (B)  to  such  classes  of  eligible  users  as  to  be  effectively  available  to  a  substantial  portion  of  the  public.  See 
 47  U.  S.  C.    332(  d)(  1).  In  response  to  this  congressional  mandate,  the  FCC  concluded  that  all  existing  common  carrier 
 mobile  radio  services  operating  under  Part  22  of  its  rules,  including  common  carrier  paging  services,  and  a  number  of  the 
 then-  private  radio  services  operating  under  Part  90  of  its  rules, 
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 5 
 3  Other  existing  private  land  mobile  services  regulated  under  Part 
 90  like  government,  public  safety  and  certain  specialized  industrial 
 services  did  not  come  within  the  CMRS  definition  and  were  therefore 
 classified  as  PMRS  services.  Regarding  the  private  paging  services 
 offered  by  AAPC  members,  however,  the  FCC  determined  that  [its] 
 private  land  mobile  service  rules  allow  (although  they  do  not  require) 
 [private  paging]  licensees  to  offer  for-  profit,  interconnected  service 
 to  the  public  or  a  substantial  portion  of  the  public,  thus  meeting  the 
 CMRS  definition.  We  therefore  concluded  that  licensees  in  these 
 Part  90  service  categories  who  are  in  fact  providing  such  service 
 would  be  classified  as  CMRS,  while  Part  90  licensees  whose 
 operations  do  not  meet  the  CMRS  definition  would  continue  to  be 
 classified  as  private.  Further  Notice  of  Proposed  Rulemaking, 
 Implementations  of  Sections  3(  n)  and  332  of  the  Communications  Act, 
 Second  Report  and  Order,  9  F.  C.  C.  R.  2863,  2864    3  (1994). 


 including  private  carrier  paging  services  provided  by  AAPC  members,  would  now  be  subject  to  the  new  CMRS 
 classification.  3  Implementations  of  Sections  3(  n)  and  332  of  the  Communications  Act,  Second  Report  and  Order,  9  F.  C.  C.  R.  at 
 1452  53    97.  Through  OBRA  the  Congress  also  sought  to  ensure  that  Part  90  licensees  receive  substantially  similar 
 regulatory  treatment  as  the  Part  22  licensees  with  which  they  now  share  the  CMRS  classification  by  providing  that  the 
 Commission,  in  the  regulations  that  will,  after  such  date  of  enactment,  apply  to  a  service  that  was  a  private  land  mobile 
 service  and  that  becomes  a  commercial  mobile  service  (as  a  consequence  of  such  amendments),  shall  make  such  other 
 modifications  or  terminations  as  may  be  necessary  and  practical  to  assure  that  licensees  in  such  service  are  subjected  to  technical 
 requirements  that  are  comparable  to  the  technical  requirements  that  apply  to  licensees  that  are  providers  of  substantially  similar 
 common  carrier  services.  OBRA    6002(  d)(  3)(  B). 
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 6 
 4  Land  mobile  radio  sends  messages  via  radio  signal  between 
 a  stationary  transmission  point  and  mobile  receiving  units.  It  is 
 generally  used  for  cellular  telephony,  dispatch  services  (e.  g.,  taxis, 
 delivery  vehicles  and  police  cars)  and  mobile  paging  services  such  as 
 those  AAPCs  members  provide.  See  Telocator  Network  of  Am.  v. 
 F.  C.  C.  691  F.  2d  525,  527  (D.  C.  Cir.  1982);  17  F.  C.  C.  R.  6194, 
 6222  (2002). 


 5  The  FCC  states  that  for  many  years  its  practice  has  been  to 
 permit  the  use  of  frequencies  that  are  12.5  kHz  removed  from  the 
 regularly  assigned  frequencies  for  low  power  use  on  a  secondary 
 basis.  See  Resps  Br.  3  n.  2.  Radio  communications  authorized  on 
 a  secondary  basis  must  not  cause  interference  with  those  offered 
 on  a  primary  basis  and  are  not  protected  from  interference  from 
 those  primary  operations.  47  C.  F.  R.    90.7. 


 6  See  10  F.  C.  C.  R.  10076,  10110  (1995);  47  C.  F.  R.    90.267(  a). 


 7  In  September  2000,  the  Land  Mobile  Communications  Council, 
 an  association  composed  of  land  mobile  radio  service  users  and 
 providers  such  as  railroads,  state  highway  and  transportation 
 officials,  fire  chiefs  and  fish  and  wildlife  agencies,  petitioned  for  a 


 B.  Procedural  History 
 AAPC  challenges  the  FCCs  revision  of  existing  policies  governing  low  power  operations  in  the  450  470  MHz  land 


 mobile  radio  frequency  bands.  4  Regular  channels  employing  high-  power  transmissions  in  these  bands  are  normally  spaced  25 
 kHz  apart.  5  Recognizing  the  need  for  low  power  operations  while  at  the  same  time  encouraging  efficient  spectrum  use,  6 
 however,  the  FCC  in  March  2003  made  certain  offset  channels  frequencies  only  12.5  kHz  removed  from  the  25 
 kHz  frequencies  available  for  low  power  operations.  7 
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 7 
 rulemaking  to  allow  offset  channels  in  the  450  470  band  of 
 frequencies  to  be  made  available  to  provide  low  power  users  needed 
 flexibility  in  establishing  short-  term  communications  systems.  Land 
 Mobile  Communications  Council,  Petition  for  Rule  Making,  RM-9966 
 (filed  Sept.  11,  2000).  The  FCC  largely  adopted  the  Councils 
 proposal  in  the  Low  Power  Order. 


 8  Itinerant  operation  is  defined  as  operation  of  a  radio  station 
 at  unspecified  locations  for  varying  periods  of  time.  47  C.  F.  R.   
 90.7. 


 Amendment  of  Part  90  of  the  Commissions  Rules  and  Policies  for  Applications  and  Licensing  of  Low  Power  Operations  in  the 
 Private  Land  Mobile  Radio  450  470  MHz  Band,  Report  and  Order,  18  F.  C.  C.  R.  3948,  3949  (2003).  The  new  offset 
 channels,  referred  to  as  Group  C  channels  in  the  Low  Power  Order,  were  intended  for  small  business  use,  particularly  by 
 individuals  like  plumbers  and  electricians  who  move  among  fixed  job  locations  and  need  short-  term  on-  site  communications 
 capacity  on  an  itinerant  basis.  8  Id.  at  3970  71. 
 After  the  Low  Power  Order  issued,  AAPC  petitioned  for  reconsideration,  requesting  the  FCC  to  eliminate  the  licensing 


 and  use  of  the  offset  frequencies  that  are  only  12.5  kHz  removed  from  eight  frequencies  used  by  a  number  of  its 
 members  to  provide  mobile  paging  services  in  the  462  MHz  band.  AAPC  Petition  for  Reconsideration,  WT  Docket  No.  01- 
 146,  May  21,  2003,  at  7  8.  In  its  petition,  AAPC  noted  that  it  was  a  newly  organized  national  trade  association  formed  after 
 the  comment  period  for  the  Notice  of  Proposed  Rulemaking  that  led  to  the  Low  Power  Order  had  closed.  Id.  at  3.  AAPC  based 
 its  petition  for  reconsideration  on  two  related  grounds:  (1)  relying  on  Chevron  v.  Natural  Resources  Defense  Council,  467 
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 8 
 9  The  FCC  first  concluded  that,  to  the  extent  the  petition 
 requested  that  the  licensing  and  use  of  offset  channels  be  eliminated, 
 it  was  untimely  filed  because  the  offset  channels  were  not 
 established  by  the  Low  Power  Order;  instead,  they  had  been 
 available  for  years.  Denial  Order  at  4  5. 


 U.  S.  837  (1984),  it  claimed  that  the  allocation  of  the  offset  frequencies  was  fundamentally  inconsistent  with  the  statutory 
 requirement  that  Part  90  CMRS  licensees  be  subjected  to  technical  requirements  that  apply  to  licensees  that  are  providers 
 of  substantially  similar  common  carrier  services;  and  (2)  it  maintained  the  offset  frequencies  would  necessarily  subject  its 
 members  to  unreasonable  interference,  degrading  the  quality  of  service  provided  by  Part  90  carriers  as  compared  to  Part  22 
 carriers.  Id.  at  3  4. 
 The  FCC  rejected  both  grounds.  9  It  first  disagreed  with  AAPCs  claim  that  it  was  statutorily  required  to  ensure  that  Part 


 90  paging  operations  now  subject  to  CMRS  regulatory  treatment  meet  the  same  technical  requirements  as  common  carrier  paging 
 operations  subject  to  Part  22  of  the  rules.  Denial  Order,  19  F.  C.  C.  R.  at  18505    11.  The  Commission  noted  that  OBRA 
 section  6002(  d)(  3)  required  it  to  modify  its  rules,  to  the  extent  necessary  and  practical,    to  ensure  that  substantially  similar 
 services  are  subject  to  comparable  technical  requirements  not  identical  requirements  and  that  the  statute 
 confers  substantial  discretion  on  the  Commission  to  determine  how  this  objective  should  be  accomplished.  Id.  (citing  Further 
 Notice  of  Proposed  Rulemaking,  Implementations  of  Sections  3(  n)  and  332  of  the  Communications  Act,  Second  Report  and 
 Order,  9  F.  C.  C.  R.  2863,  2864  69    21  24).  The  Commission  concluded  that  it  was  not  required  by  OBRA  to  modify  existing 
 rules  if  such  modification  is  unnecessary  to  achieve  regulatory 
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 symmetry  or  is  otherwise  impractical.  Id.  In  addition,  because  Part  90  paging  services  were  licensed  in  a  different  manner  from 


 Part  22  paging  services  and  operated  on  channels  that  were  shared  rather  than  exclusive,  AAPC  had  no  support  for  its  view 
 that  eliminating  the  use  of  offset  channels  was  necessary  and  practical  to  make  the  technical  treatment  of  the  two  services 
 comparable.  Id.  Regarding  AAPCs  interference  challenge,  the  FCC  concluded  that  it  rested  on  a  faulty  premise;  namely,  the 
 reduction  of  buffer  protection  from  25  kHz  to  12.5  kHz  caused  interference.  The  offset  frequencies  had  been  available  for 
 construction  and  small  business  use  before  the  Low  Power  Order  and  the  lack  of  interference  complaints  [due  to  use  of 
 those  frequencies]  to  date  [was]  significant.  Id.  at  18506    13.  In  addition,  the  nature  of  the  Part  90  channels  also  precluded  a 
 claim  to  exclusive  use  or  freedom  from  interference  because  Part  90  channels  are  available  only  on  a  shared  basis  .  .  .  [and] 
 entities  [operating  on  those  channels]  are  not  entitled  to  specific  interference  protection  and  should  expect  other  operations  in  the 
 same  area.  Id.  The  FCC  stated  that  it  continue[  d]  to  believe  that  the  paging  and  low  power  operations  could  compatibly  exist 
 in  the  450  470  MHz  band,  id.  at  18506    14,  and  denied  AAPCs  petition.  AAPC  now  petitions  for  review  of  the  denial 
 of  its  petition  for  reconsideration. 
 II. 
 Both  the  Communications  Act,  47  U.  S.  C.    402  et  seq.  (the  Act),  and  the  Judicial  Review  Act,  28  U.  S.  C.    2341  et 


 seq.,  provide  for  our  jurisdiction  to  review  Commission  decisions.  Section  402(  a)  of  the  Act  governs  a  proceeding  to 
 enjoin,  set  aside,  annul,  or  suspend  any  order  of  the  [Federal  Communications]  Commission  under  this  Act.  47  U.  S.  C.   
 402(  a).  Section  2342  of  the  Judicial  Review  Act  confers  on  the  court  of  appeals  exclusive  jurisdiction  to  enjoin,  set  aside, 
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 10 
 10  AAPC  seeks  review  of  the  Denial  Order  only;  it  makes  no 
 mention  of  the  Low  Power  Order  nor  can  inclusion  of  that  order  be 
 fairly  inferred.  Petrs  Reply  Br.  7  n.  13.  Cf.  Schoenbohm  v.  FCC, 
 204  F.  3d  243,  245-  46  (D.  C.  Cir.  2000)  (holding  petitioners  intent 
 to  seek  review  of  order  not  designated  in  its  petition  for  review  can 
 be  fairly  inferred  from  petition  or  documents  filed 
 contemporaneously  with  that  order);  Sinclair  Broad.  Group,  Inc.  v. 
 FCC,  284  F.  3d  148,  155  (D.  C.  Cir.  2002)  (same);  Damsky  v.  FCC, 
 199  F.  3d  527,  533  (D.  C.  Cir.  2000)  (same). 


 suspend  (in  whole  or  in  part),  or  to  determine  the  validity  of  .  .  .  all  final  orders  of  the  Federal  Communications  Commission 
 made  reviewable  by  section  402(  a)  of  title  47.  28  U.  S.  C.    2342.  The  FCC  argues  that  we  have  no  jurisdiction  to  review 
 the  Denial  Order  because  an  order  that  merely  denies  a  petition  for  agency  reconsideration  is  committed  to  the  agencys 
 discretion,  see  5  U.  S.  C.    701(  a)(  2),  and  is  therefore  unreviewable.  Sendra  Corp.  v.  Magaw,  111  F.  3d  162,  166  (D.  C. 
 Cir.  1997)  (agencys  denial  of  request  for  consideration  committed  by  law  to  agency  discretion  and  therefore  generally 
 unreviewable);  ICC  v.  Bhd.  of  Locomotive  Engrs,  482  U.  S.  270,  279  (1987)  (BLE)  (agencys  denial  of  petition  for 
 reconsideration  not  subject  to  judicial  review  if  petition  alleges  only  material  error  in  agencys  original  decision).  10 


 AAPC  posits  two  theories  under  either  of  which,  it  maintains,  its  petition  is  excepted  from  the  nonreviewability 
 rule:  (1)  the  FCC  reopened  the  proceeding  when  it  addressed  the  merits  of  AAPCs  OBRA  claim  in  the  Denial  Order,  see, 
 e.  g.,  Sendra,  111  F.  3d  at  167;  or  (2)  AAPCs  OBRA  claim  pressed  in  its  reconsideration  petition  constitutes  new 
 information  that  makes  the  denial  of  the  petition  reviewable.  See,  e.  g.,  Fritsch  v.  ICC,  59  F.  3d  248,  251  52  (D.  C.  Cir.  1995) 
10
 11 
 11  AAPCs  reliance  on  Graceba  Total  Communications  v.  FCC, 
 115  F.  3d  1038  (D.  C.  Cir.  1997),  is  misplaced.  Gracebas  argument 
 that  the  denial  of  reconsideration  was  reviewable  was  a  constitutional 
 one  made  in  the  wake  of  an  intervening  Supreme  Court  decision 
 rather  than  an  argument  based  on  the  same  record.  Graceba,  115 
 F.  3d  at  1041  42. 


 (information  provided  by  petitioner  not  able  to  participate  in  earlier  proceeding  considered  new  evidence  permitting 
 review). 
 It  is  true  that  if  an  agency  issues  a  new  order  after  reconsideration,  the  new  order  constitutes  final  agency  action 


 that  is  subject  to  judicial  review,  even  if  the  new  order  merely  reaffirms  the  previous  decision.  BLE,  482  U.  S.  at  278  (  When 
 the  Commission  reopens  a  proceeding  for  any  reason  and,  after  reconsideration,  issues  a  new  and  final  order  setting  forth  the 
 rights  and  obligations  of  the  parties,  that  order  even  if  it  merely  reaffirms  the  rights  and  obligations  set  forth  in  the 
 original  order  is  reviewable  on  its  merits.).  Reopening,  however,  does  not  necessarily  occur  by  dint  of  the  agencys 
 consideration  of  the  merits.  In  Sendra  we  held  that  an  agency  order  that  denies  reconsideration  and  does  not  alter  the  original 
 decision  is  conclusive  and,  unless  the  agency  has  clearly  stated  or  otherwise  demonstrated  that  it  has  reopened  the 
 proceeding,  its  denial  of  reconsideration  is  only  that;  [  c]  ourts  will  not,  in  other  words,  look  behind  the  agencys  formal 
 disposition  of  the  reconsideration  request  to  see  whether  the  agency  in  fact  reopened  its  original  decision  (and  thus 
 rendered  a  new  final  order).  Sendra,  111  F.  3d  at  167  (citing  BLE,  482  U.  S.  at  280  81)  (internal  quotations  omitted);  see  also 
 BLE,  482  U.  S.  at  273  (irrelevant  to  reviewability  that  agency  order  denying  reconsideration  discussed  merits  at  length).  11 
11
 12 
 AAPCs  second  theory  is  that  its  non-  participation  in  the  proceeding  that  produced  the  Low  Power  Order  means  that  its 


 petition  for  reconsideration  constitutes  new  information  that  permits  us  to  review  the  Denial  Order.  As  AAPC  correctly 
 argues,  we  have  found  in  the  past  that  factual  developments  that  occur  post-  rulemaking  can  be  new  evidence,  creating  a  second 
 exception  to  the  nonreviewability  rule.  Jost  v.  Surface  Transp.  Bd.,  194  F.  3d  79,  94  (D.  C.  Cir.  1989);  Petrs  Reply  Br.  9.  But 
 the  basis  for  finding  that  the  information  in  Jost  constituted  new  evidence  the  fact  that  the  information  did  not  exist  before  the 
 agency  took  action  is  absent  here.  See  Jost,  194  F.  3d  at  86  (  we  believe  that  it  is  clear  that  the  purpose  of  Josts  petition 
 was  not  to  challenge  the  Boards  reasoning  but  to  bring  new  material  to  its  attention,  and  therefore  the  decision  not  to  reopen 
 the  proceeding  is  reviewable)  (citing  Fritsch).  Here,  the  new  evidence  AAPC  proffers  is  the  Low  Power  Orders  alleged 
 noncompliance  with  the  congressional  mandate  contained  in  OBRA  evidence  that  existed  and  could  have  been  submitted 
 before  the  FCC  promulgated  its  final  rule.  Nor  does  the  possibility  of  interference  due  to  the  availability  of  the  offset 
 channels  for  low  power  use  constitute  new  evidence  under  Jost.  If  the  Low  Power  Order  results  in  actual  interference,  as  AAPC 
 predicted  at  oral  argument,  that  interference  may  constitute  new  evidence  and  review  of  the  denial  of  a  renewed  petition  for 
 reconsideration  on  that  basis  might  well  be  granted. 
 AAPC  also  relies  on  the  holding  in  Transportation  Intelligence,  Inc.  v.  FCC,  336  F.  3d  1058  (D.  C.  Cir.  2003) 


 (TransIntel),  where  we  stated  that  the  principle  that  agency  denials  of  reconsideration  are  generally  nonreviewable  is 
 inapplicable  where  the  Commission  decision  being  reviewed  were  dispositions  of  the  petitioners  first  filings  at  each  level  of 
 the  agency.  Petrs  Reply  Br.  8  (citing  TransIntel,  336  F.  3d  at  1062).  But  not  every  first  filing  before  an  agency  is  a  first  filing 
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 for  TransIntel  purposes.  TransIntel  contested  the  FCCs  Office  for  Engineering  Technologys  grant  of  an  equipment 


 certification  application  to  another  party.  TransIntel,  336  F.  3d  at  1061.  TransIntel  then  petitioned  the  Commission  to  review 
 the  decision  and  the  FCC  denied  the  petition.  We  found  the  FCCs  denial  reviewable  because,  under  the  Commissions 
 rules,  the  petition  for  reconsideration  of  the  Engineering  Technology  decision  was  the  first  opportunity  TransIntel  had  to 
 make  any  kind  of  filing  regarding  the  application;  the  rules  concerning  equipment  certification  applications  provide  no 
 mechanism  for  an  opponent  to  contest  an  application  before  it  is  granted.  Id.  at  1062  (citing  47  C.  F.  R.    2.923,  which  provides 
 that  [  p]  ersons  aggrieved  by  virtue  of  an  equipment  authorization  action  may  file  with  the  Commission  a  petition  for 
 reconsideration  or  an  application  for  review).  TransIntels  petition  for  reconsideration  in  that  case  was  not  simply  its  first 
 appearance  before  the  Commission;  it  was  its  only  option  and  revocation  [of  the  certification]  its  only  remedy.  Id.  at  1063. 
 Properly  read,  TransIntel  held  that  if  a  partys  appearance  before  the  agency  is  its  first,  and  only  possible,  opportunity  to  seek 
 review  of  agency  action,  the  nonreviewability  rule  does  not  apply. 


 While  AAPC  did  not  participate  in  the  rulemaking  until  the  petition  for  reconsideration  stage,  AAPCs  members  had  the 
 opportunity  to  participate  before  the  Denial  Order.  AAPC  contends  that  it  was  not  in  existence  when  the  rulemaking 
 occurred  and  therefore  could  not  formally  participate  through  notice  and  comment.  But  AAPCs  members  could  have 
 individually  participated  in  the  rulemaking  before  AAPCs  creation.  In  addition,  even  now,  the  rulemaking  process  is  open 
 to  AAPC  or  any  of  its  members,  both  of  whom  are  free  to  petition  the  FCC  for  a  new  rulemaking  to  challenge  by 
 amendment  or  repeal  the  Low  Power  Order  and,  specifically, 
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 its  authorization  of  low  power  operations  on  the  462  MHz  band.  See  47  C.  F.  R.    1.401  ([  A]  ny  interested  person  may  petition  for 


 the  issuance,  amendment,  or  repeal  of  a  rule  or  regulation.).  If  in  fact  the  use  of  the  low-  power  frequencies  exposes  AAPCs 
 members  to  increased  interference,  the  denial  of  a  petition  for  rulemaking  based  thereon  could  be  subject  to  review 
 notwithstanding  the  generous  measure  of  discretion  usually  afforded  an  agency  in  its  rulemaking  process.  See  Geller  v. 
 FCC,  610  F.  2d  973,  979  (D.  C.  Cir.  1979)  (court  reviewed  agencys  denial  of  petition  for  new  rulemaking  to  revisit  original 
 rule  where  subsequent  events  affected  continuing  validity  of  rule). 


 For  the  foregoing  reasons,  AAPCs  petition  for  review  of  the  FCCs  denial  of  reconsideration  is  dismissed. 


 So  ordered. 
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