United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2019 Decided February 21, 2020

No. 18-1241

NTCH, INC.,

APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLEE

DISH NETWORK CORPORATION,

INTERVENOR

Consolidated with 18-1242

On Petition for Review and Notice of Appeal of

Orders of the Federal Communications Commission

Donald J. Evans argued the cause for appellant. With him 

on the briefs was Keenan Adamchak.

Maureen K. Flood, Counsel, Federal Communications 

Commission, argued the cause for appellee. With her on the 

brief were Michael F. Murray, Deputy Assistant Attorney 

General, U.S. Department of Justice, Robert B. Nicholson and 

Frances E. Marshall, Attorneys, Thomas M. Johnson Jr., 

General Counsel, Federal Communications Commission, 
2

David M. Gossett, Deputy General Counsel, and Richard K. 

Welch, Deputy Associate General Counsel. Jacob M. Lewis, 

Associate General Counsel, Federal Communications 

Commission, entered an appearance. 

Bryan N. Tramont and J. Wade Lindsay were on the brief 

for intervenor. Jennifer B. Tatel entered an appearance.

No. 18-1243

NTCH, INC.,

PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 

STATES OF AMERICA,

RESPONDENTS

DISH NETWORK CORPORATION,

INTERVENOR

On Petition for Review of Orders of the 

Federal Communications Commission

Donald J. Evans argued the cause for petitioner. With him 

on the briefs was Keenan Adamchak.

Sarah E. Citrin, Counsel, Federal Communications 

Commission, argued the cause for respondents. With her on the 
3

brief were Michael F. Murray, Deputy Assistant Attorney 

General, U.S. Department of Justice, Robert B. Nicholson and 

Frances E. Marshall, Attorneys, Thomas M. Johnson Jr., 

General Counsel, Federal Communications Commission, 

David M. Gossett, Deputy General Counsel, and Richard K. 

Welch, Deputy Associate General Counsel. Jacob M. Lewis, 

Associate General Counsel, and Maureen K. Flood and Thaila 

Sundaresan, Counsel, Federal Communications Commission, 

entered appearances. 

Bryan N. Tramont and J. Wade Lindsay were on the brief 

for intervenor. Jennifer B. Tatel entered an appearance.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the court filed PER CURIAM.

PER CURIAM: Title III of the Communications Act of 1934

charges the Federal Communications Commission with the 

regulation of the “channels of radio transmission.” 47 U.S.C. 

§ 301. These cases arise out of three Commission spectrummanagement decisions. First, the Commission “modified” Dish 

Network Corporation’s licenses in the “Advanced Wireless 

Services-4 Band” (the “AWS-4 Band”) to authorize the 

company to develop a stand-alone terrestrial network that could 

support wireless broadband services. Then, a year later, the 

Commission “waived” certain technical restrictions on these 

modified licenses, though it conditioned the waivers on Dish’s 

commitment to bid a certain sum of money in a public auction 

for adjacent spectrum in the so-called “H Block.” And finally, 

the Commission designed and conducted “Auction 96,” in 

which Dish bid as promised and won the H Block licenses.

NTCH, Inc., a competitor to Dish, challenges all three 

decisions. For the reasons set forth below, we deny its petitions 
4

for review of the orders modifying Dish’s AWS-4 licenses and 

establishing Auction 96’s procedures. But because the 

Commission wrongly dismissed NTCH’s challenges to the 

waiver orders for lack of administrative standing, we remand 

to the Commission to consider those claims on the merits.

I.

A.

The AWS-4 Band’s history begins, for present purposes, 

with the disappointing commercial deployment of “mobile 

satellite service” (MSS)— “a satellite-powered technology that 

provides email and cellular-like phone services,” particularly 

in hard-to-reach areas and during natural disasters. Globalstar, 

Inc. v. FCC, 564 F.3d 476, 480 (D.C. Cir. 2009). Back in 1997, 

bullish on MSS, the Commission allocated spectrum for MSS 

and soon granted licenses to eight operators. 

By 2003, however, satellite’s prospects seemed bleak 

compared to terrestrial technologies—i.e., those that route 

radio communications through cell towers. To put MSS 

spectrum to better use, the Commission authorized MSS 

licensees to offer “ancillary” terrestrial services. See In re 

Service Rules for Advanced Wireless Services in the 2000-2020 

MHz and 2180-2200 MHz Bands, 27 FCC Rcd. 3561, 3564–

65, ¶¶ 5–6 (2012) (“AWS-4 NPRM”). The Commission thus 

allowed “MSS operators to augment their satellite services with 

terrestrial facilities” by “re-using frequencies assigned to MSS 

operations.” Id. at 3564, ¶ 5. But the Commission imposed a 

condition on this new flexibility: before an MSS licensee could 

offer terrestrial services, it would first need to provide 

“substantial satellite service.” Id.
5

This condition thwarted the development of terrestrial 

networks. Unable to make “substantial” satellite service

commercially viable, licensees could not avail themselves of 

the terrestrial option. Id. at 3565, ¶ 8. By 2011, six of eight 

MSS licensees had surrendered their licenses. When the last 

two licensees filed for bankruptcy, Dish swooped in, acquiring 

the licenses from the bankrupt companies.

As the MSS spectrum fell into desuetude, the market for 

“wireless broadband” (which sends information to data-hungry 

devices like iPhones and iPads) was booming. Indeed, the 

Commission worried that, soon enough, “mobile data demand 

[would] exhaust spectrum resources.” Id. at 3567, ¶ 10. In 

response, Congress enacted legislation instructing the 

Commission to develop a “national broadband plan” to “ensure 

that all people of the United States have access to broadband 

capability.” American Recovery and Reinvestment Act of 

2009, Pub. L. No. 111-5, § 6001(k)(2)(D), 123 Stat. 115, 516. 

The Commission’s resulting National Broadband Plan

acknowledged that its insistence on “substantial satellite 

service” in the AWS-4 Band made it “difficult for MSS 

providers to deploy ancillary terrestrial networks.” See 

FEDERAL COMMUNICATIONS COMMISSION, CONNECTING 

AMERICA: THE NATIONAL BROADBAND PLAN 87-88 (2010).

The plan thus recommended a subtle but critical shift in the 

AWS-4 Band: authorize “stand-alone terrestrial services” 

without the requirement that licensees first offer satellite 

service. Id. And in 2011, the Commission took a first step 

towards implementing this recommendation, setting aside “coprimary” terrestrial allocations in the satellite ranges. AWS-4 

NPRM, 27 FCC Rcd. at 3568, ¶ 14.

NTCH’s first challenge—to the modification of Dish’s 

licenses, see infra Part II—arises out of the Commission’s 

efforts to further implement the National Broadband Plan’s 
6

recommendation. In March 2012, the Commission sought 

comments on a proposal to “increase the Nation’s supply of 

spectrum for mobile broadband” by creating service rules and 

assigning licenses for “terrestrial services” in the AWS-4 Band. 

AWS-4 NPRM, 27 FCC Rcd. at 3563, ¶ 1. But the Commission 

also sought to preserve the possibility of satellite service. 

Noting that its 2011 decision allocated the AWS-4 Band “on a 

co-primary basis,” the Commission insisted that its new 

policies should protect satellite systems from “harmful 

interference caused by [terrestrial] systems.” Id. at 3569–70, 

¶ 17; 3587, ¶ 80.

Given its continued commitment to satellite, the 

Commission proposed to use its authority under § 316 of the 

Communications Act to “modify” Dish’s licenses to allow it to 

offer terrestrial services. Id. at 3585–86, ¶¶ 74–78; see 47 

U.S.C. § 316(a). The Commission reasoned that allowing 

“same-band, separate-operator” sharing of the spectrum—i.e., 

dividing the terrestrial and satellite rights between two 

licensees—could hinder coordination between the two 

operators, and thus cause interference between the two 

services. Id. at 3586–87, ¶¶ 79–80. Back in 2003, when the 

Commission first opened the AWS-4 Band for ancillary

terrestrial use, the Commission found that same-band, 

separate-operator sharing was unworkable, and the 

Commission expected that operators would face the same 

issues in 2012. Seeking more information, however, the 

Commission asked commenters whether “technological 

advances” since 2003 should “reinforce or alter” the 

Commission’s expectations. Id. at 3584, ¶ 72. If commenters 

established the feasibility of separate licensees, the 

Commission explained, it would consider changing course to 

“seek comment on other approaches,” including “the 

assignment of new initial licenses” to the terrestrial rights 

through “competitive bidding.” Id. at 3587, ¶ 80.
7

Nobody changed the Commission’s mind. And so, in

December 2012, the Commission’s AWS-4 Order adopted the 

AWS-4 NPRM’s proposed approach. See In re Service Rules for 

Advanced Wireless Services in the 2000-2020 MHz and 2180–

2200 MHz Bands, 27 FCC Rcd. 16,102, 16,110–12 (2012) 

(“AWS-4 Order”). As the Commission explained, it “received 

numerous comments” confirming that “technical hurdles [to 

operator sharing] remain” and that granting a terrestrial license 

to “an entity other than the MSS incumbent remains 

impractical.” Id. at 16,165, ¶ 166. Although one commenter 

suggested that “known technologies” would allow spectrum 

sharing, id. at 16,172, ¶ 182; see 18-1243 J.A. 142–54 

(comments of MetroPCS), the Commission disagreed, 

claiming that these technologies were not “market-proven” and 

could only work if one operator controlled both uses of the 

spectrum. Id. at 16,172, ¶ 182. The Commission also noted that 

“no commenter,” MetroPCS included, submitted technical 

evidence that disputed its 2003 finding. Id. at ¶ 183.

The Commission announced that it would use its § 316 

modification authority to “allow [Dish] to operate terrestrial 

services, rather than make the band available . . . under a 

sharing regime.” Id. at 16,171, ¶ 181. Acknowledging that

Dish’s licenses would “increase in value,” the Commission 

reasoned that modifying these licenses was the “best and fastest 

method for bringing this spectrum to market.” Id. at 16,170, 

¶ 178.

The AWS-4 Order also imposed two relevant restrictions 

on Dish’s licenses. First, the Commission protected the 

remaining satellite services from interference by designating 

the AWS-4 Band’s lower portion (i.e., 2000–2020 MHz) for 

“uplink” operations and the upper portion (i.e., 2180–2200 

MHz) for “downlink” operations. Id. at 16,117, ¶ 39. The
8

“downlink” channel sends information from cell towers to 

mobile devices, and the “uplink” channel goes the other way. 

18-1241 FCC Br. 9 n.2. Although mobile data networks use far 

more downlink than uplink data, the Commission concluded 

that this limitation was necessary to ensure functioning satellite 

service in the AWS-4 Band. AWS-4 Order, 27 FCC Rcd. at 

16,117, ¶ 39. Second, to ensure the “timely deployment” of 

Dish’s new terrestrial rights, the Commission imposed 

“performance requirements” on Dish’s use of the AWS-4 

Band. Id. at 16,176, ¶ 193; 16,173–74, ¶¶ 187–88. Relevant 

here, failure to offer reliable terrestrial services within seven 

years of the order would trigger the automatic termination of 

Dish’s licenses. Id.

In February 2013, the Wireless Telecommunications 

Bureau (the “Bureau”)—a sub-delegee within the Commission, 

see 47 C.F.R. § 0.131—modified Dish’s licenses according to 

the terms of the AWS-4 Order. The following month, NTCH 

filed identical petitions for reconsideration with the 

Commission, challenging the AWS-4 Order and the 

modification of Dish’s license. In August 2018, the 

Commission dismissed and alternatively denied the petitions.

NTCH timely filed a petition for review, and we have 

jurisdiction under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342.

We address the merits of this petition in Part II.

B.

In 2012, as the Commission took steps to modify Dish’s 

AWS-4 licenses, Congress also sought to address the “growing 

need for spectrum” for wireless networks. National Ass’n of 

Broadcasters v. FCC, 789 F.3d 165, 168–69 (D.C. Cir. 2015). 

Congress thus passed the Spectrum Act, which directed the 

Commission to use a “system of competitive bidding” to

“allocate” a spectrum band dubbed the “H Block.” Middle 
9

Class Tax Relief and Job Creation Act of 2012 (the “Spectrum 

Act”), Pub. L. No. 112-96, § 6401(a)-(b), 126 Stat. 156, 222-

23 (codified at 47 U.S.C. § 1451(b)).

In response, the Bureau announced that it would hold

Auction 96 to allocate 176 licenses in the H Block, segregated 

based on geographic area. See Auction of H Block Licenses in 

the 1915-1920 MHz and the 1995-2000 MHz Bands, 28 FCC 

Rcd. 10,013, 10,045-46 (2013) (“Auction Proposal”). The 

Bureau sought comment on whether it should “establish a 

reserve price” for the auction, below which the spectrum would 

not be sold. Id. at 10,026, ¶ 52. The Bureau further proposed to 

set that reserve price based “on the aggregate of the gross bids 

for the H Block licenses, rather than license-by-license.” Id. 

Commenters generally agreed with the Bureau’s proposal, 

though none suggested a specific aggregate reserve price. 

On September 9, 2013, after the comment period closed, 

Dish filed a two-page letter suggesting an aggregate reserve 

price of at least “$0.50 per megahertz of bandwidth per 

population (‘MHz-POP’).” 18-1241 J.A. 50. MHz-POP is a 

unit equal to the number of megahertz multiplied by the 

population of a region; for example, if ten megahertz of 

spectrum reaches 750,000 people, then MHz-POP equals 

7,500,000. See 18-1241 FCC Br. 12 n.3. Dish derived its 

estimate from private sales and Commission auctions of similar 

spectrum, and referenced reports from financial institutions 

valuing the H Block between $0.62 and $1 per MHz-POP. 

That same day, Dish also filed a petition asking the Bureau 

to “waive” some of the restrictions on its AWS-4 licenses. 18-

1241 J.A. 54. Specifically, Dish sought to use the lower AWS4 Band for downlink operations (rather than just uplink 

operations, as the AWS-4 Order required). See 47 C.F.R. 

§§ 27.5(j), 27.53(h)(2)(ii). Dish also requested a one-year 
10

extension to the seven-year deadline to offer substantial 

terrestrial service in the AWS-4 Band. Dish claimed that the 

waivers would allow it to “harmonize[]” its uses of the H Block

and the AWS-4 Band, and Dish committed to bid the

“aggregate nationwide reserve price . . . in the upcoming H 

Block auction (not to exceed $0.50 per MHz/POP)” if the 

Bureau granted the waivers. 18-1241 J.A. 68.

Four days later, on September 13, the Bureau took two key 

actions: it sought public comment on Dish’s waiver petition 

and announced the procedures for the H Block auction. In its

announcement, the Bureau credited Dish’s valuation of $0.50 

per MHz-POP and thus set the aggregate reserve price at 

$1.564 billion.

NTCH quickly registered its opposition to both proposed 

actions. First, on September 30, it filed a public comment 

objecting to Dish’s waiver petition, claiming that Dish and the 

Commission made a “backroom deal” amounting to a “cashfor-waiver quid pro quo.” 18-1241 J.A. 194–95. NTCH further 

objected that granting Dish’s waivers would bring no “public 

interest benefits.” Id. Second, on October 18, NTCH filed a 

petition for reconsideration of the auction procedures. Id. at

215. NTCH asked the Bureau to revisit Auction 96’s aggregate 

reserve price, claiming that a “deal brokered by the 

Commission” generated this “astronomical” sum. Id. at 218–

220. Meanwhile, as Dish’s waiver petition and NTCH’s 

petition for reconsideration were pending, NTCH chose not to 

sign up for Auction 96 by the deadline. NTCH thus never bid 

on the H Block licenses.

The Bureau denied NTCH’s petition for reconsideration,

explaining that NTCH offered no reason to lower the reserve 

price, and that any “arrangement” was already disclosed 

because Dish’s waiver petition was filed in a public docket 
11

where interested parties could submit comments. See In re 

NTCH, Inc., 28 FCC Rcd. 16,108, 16,112–13, ¶¶ 13–17

(Wireless Bureau 2013). Moreover, to the extent NTCH took 

issue with Dish’s commitment to pay the reserve price in the

waiver request, the Bureau concluded that NTCH’s objection 

was misplaced. Id. at 16,113–14, ¶¶ 17–19. Because Dish’s 

petition would be “resolved in a separate proceeding,” NTCH’s

petition for reconsideration of the auction procedures was not 

an “appropriate vehicle for a premature attack on . . . the 

waiver request.” Id.

The Bureau then granted Dish’s waiver petition on 

December 20. See In re Dish Network Corp., 28 FCC Rcd. 

16,787 (Wireless Bureau 2013). Responding to NTCH’s 

objections, the Bureau denied any inappropriate backroom deal 

with Dish and stated that it had made its decision “based on the 

public record.” Id. at 16,808, ¶ 53. Given Dish’s “unique” 

status as an AWS-4 and MSS licensee, the Bureau concluded 

that applying the rules to Dish “would be both unduly 

burdensome and contrary to the public interest.” Id. at 16,794, 

¶ 18. The Bureau further concluded that it could consider 

Dish’s “commitment to ensure that the H Block auction 

satisfies the aggregate reserve price” as an “additional public 

interest benefit.” Id. at 16,808–09, ¶ 53. The Bureau therefore 

granted Dish’s waiver, allowing Dish to “elect” whether to 

switch to downlink operations. Id. at 16,802–03, ¶ 38. The 

Bureau also granted the one-year extension for Dish’s 

performance requirements in the AWS-4 Band. Id. at 16,804–

05, ¶¶ 41–43.

The Bureau then conducted Auction 96 as proposed. Dish 

bid a total of $1.564 billion on the licenses—exactly the 

aggregate reserve price—and won them all.
12

In December 2013 and January 2014, NTCH timely filed 

two applications for review of the Bureau’s orders—one 

challenging Auction 96’s procedures, the other challenging the 

Bureau’s grant of Dish’s waivers for its AWS-4 licenses. The

Commission sat on these applications until 2018, then rejected 

both. Regarding NTCH’s objections to the auction procedures,

the Commission dismissed NTCH’s application because it

failed to “specify with particularity” the Bureau’s errors, as the 

Commission’s rules required. In re NTCH, Inc., 33 FCC Rcd. 

8446, 8450–51, ¶ 11 (2018); see 47 C.F.R. § 1.115(b). 

Alternatively, the Commission rejected NTCH’s various 

arguments on the merits. Id. at 8451–54, ¶¶ 12–18. Regarding 

NTCH’s objections to the Bureau’s grant of Dish’s waivers, the

Commission dismissed NTCH’s application for lack of 

administrative standing, concluding that NTCH’s failure to 

register for the auction—not the Commission’s grant of the

waivers—caused NTCH to lose its opportunity to bid on the 

licenses. In re Dish Network Corp., 33 FCC Rcd. 8456, 8459 

¶ 9 (2018).

NTCH timely petitioned for review of the auction orders, 

and we have jurisdiction under 47 U.S.C. § 402(a) and 28 

U.S.C. § 2342. NTCH also timely appealed the Commission’s

denial of its application for review of the waiver order, and we 

have jurisdiction under 47 U.S.C. § 402(b). We address the 

merits of both petitions in Part III. 

II.

We begin with NTCH’s petition for review of the 

Commission’s decision to modify Dish’s licenses in the AWS4 Band. NTCH advances three reasons that we should set aside 

these modifications: (1) the Commission’s decision was 

arbitrary and capricious because the Commission failed to 

consider reasonable alternatives and because the decision 
13

lacked support in the record; (2) § 309(j) of the 

Communications Act compelled the Commission to auction off 

the terrestrial rights as “initial licenses”; and (3) the 

Commission’s changes to Dish’s licenses were so substantial 

that they exceeded its authority to modify licenses under § 316. 

Because we find the first and second arguments meritless and 

the third forfeited, we deny NTCH’s petition for review.

A.

Before tackling NTCH’s arguments, we must confirm our 

jurisdiction to consider them. See American Rivers v. FERC, 

895 F.3d 32, 40 (D.C. Cir. 2018). To have Article III standing, 

NTCH must show that it suffered an “injury in fact,” that the 

“conduct under challenge” caused such injury, and that a 

“favorable decision” will likely “redress the injury.”

DIRECTV, Inc. v. FCC, 110 F.3d 816, 829 (D.C. Cir. 1997). 

NTCH argues that it has done so because the Commission’s 

modification of Dish’s licenses “deprived [it] of an opportunity 

[to] obtain an AWS-4 license by a fair and open process.” 18-

1243 NTCH Br. 15.

This suffices to show standing. An “unsuccessful bidder”

in a Commission auction suffers a cognizable injury if the 

Commission deprives the bidder of the right to a “legally valid 

procurement process.” DIRECTV, 110 F.3d at 829; see also 

Alvin Lou Media, Inc. v. FCC, 571 F.3d 1, 6-7 (D.C. Cir. 2009). 

An unfair auction places a bidder at a “substantial competitive 

disadvantage” that constitutes Article III harm. DIRECTV, 110 

F.3d at 830. It makes no difference whether that disadvantage 

flows from unfair procedures or the Commission’s failure to 

conduct any auction at all. NTCH contends that the 

modification decision was flawed and that the Commission 

should have auctioned off the terrestrial rights instead, and we 

must assume—at this stage—NTCH’s success on the merits. 
14

See City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 

2003). Assuming as much, NTCH’s loss of a chance to bid on 

the spectrum constitutes an Article III harm caused by the 

Commission’s decision to modify Dish’s licenses.

The Commission contends, however, that NTCH cannot 

satisfy Article III’s “redressability” element. According to the 

Commission, it has no obligation to conduct a public auction, 

so a favorable decision is not likely to redress NTCH’s injury. 

18-1243 FCC Br. 33-35. As the Commission explains, its duty

to auction off licenses only kicks in once it receives “mutually 

exclusive applications” for “initial licenses,” 47 U.S.C. 

§ 309(j)(1), and the Communications Act preserves the 

Commission’s discretion to “avoid mutual exclusivity in 

application and licensing proceedings”—thus averting the need 

to auction the licenses. 47 U.S.C. § 309(j)(6); see also M2Z 

Networks, Inc. v. FCC, 558 F.3d 554, 563 (D.C. Cir. 2009). 

More still, the Commission points out, it could decline to 

allocate the terrestrial rights in the AWS-4 Band altogether.

All this is true, but the Commission may not use its 

discretion to defeat NTCH’s standing. As the Supreme Court 

stated in FEC v. Akins, a challenger’s injury is redressable even 

if an agency “might reach the same result exercising its 

discretionary powers lawfully.” 524 U.S. 11, 25 (1998). 

Indeed, the Commission’s argument proves too much, for it 

would allow agencies to shield their actions from judicial 

review by invoking their policymaking discretion. In any event, 

the administrative record suggests that the Commission would 

likely conduct an auction on remand. The AWS-4 NPRM stated

that, if commenters changed the Commission’s mind about the 

modification approach, the Commission would “seek comment 

on other approaches”—including the “assignment of new 

initial licenses via competitive bidding.” AWS-4 NPRM, 27 

FCC Rcd. at 3,587, ¶ 80. Therefore, NTCH has standing.
15

B. 

Now to the merits. NTCH’s core argument is that we 

should vacate the AWS-4 Order because the Commission failed 

to consider reasonable alternatives and because its decision 

lacked support in the record. We will set aside the 

Commission’s decision if it is “arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law.” 5 

U.S.C. § 706(2)(A). But when the Commission acts to foster 

“innovative methods of exploiting the spectrum,” it “functions 

as a policymaker” to which we afford “the greatest deference.”

Mobile Relay Associates v. FCC, 457 F.3d 1, 8 (D.C. Cir. 

2006). We will accept the Commission’s “technical 

judgment[s]” when supported “with even a modicum of 

reasoned analysis, absent highly persuasive evidence to the 

contrary.” Id. (internal quotation marks omitted). And the 

Commission’s “predictive judgments” “within [its] field of 

discretion and expertise are entitled to particularly deferential 

review, as long as they are reasonable.” See Earthlink, Inc. v. 

FCC, 462 F.3d 1, 12 (D.C. Cir. 2006) (internal quotation marks 

omitted).

This deferential standard of review makes NTCH’s task a 

daunting one. The Commission’s decision to authorize standalone terrestrial services in the AWS-4 Band sought to 

encourage “innovative methods of exploiting the spectrum,”

Mobile Relay Associates., 457 F.3d at 8, to address the “urgent 

need” for wireless broadband, AWS-4 NPRM, 27 FCC Rcd. at

3567, ¶ 10. And the Commission chose to modify Dish’s 

licenses largely because of the “technical judgment,” Mobile 

Relay Associates, 457 F.3d at 8, that same-band, separateoperator sharing of the spectrum would be impractical. Indeed,

NTCH conceded at oral argument that it does not challenge this 

finding. Oral Arg. Tr. (No. 18-1243) 5:4–9. 
16

Accepting this technical judgment, however, the 

Commission’s decision to modify Dish’s licenses follows quite 

logically. As the Commission explained, Dish could easily 

minimize interference between its satellite and terrestrial uses 

of the spectrum, AWS-4 Order, 27 FCC Rcd. at 16,171, ¶ 181, 

and Dish already had some authority to offer ancillary 

terrestrial services, id. at 16,169–70, ¶ 177. Besides resolving 

this core technical issue, modifying Dish’s licenses would also, 

the Commission anticipated, ensure quicker use of the 

spectrum. To encourage Dish’s development of a terrestrial 

network, the Commission compelled Dish to develop “reliable 

terrestrial signal coverage”—or else forfeit its licenses in the 

AWS-4 Band. Id. at 16,173–74, ¶¶ 187–88. 

NTCH responds that the Commission failed to consider 

alternative policies—specifically, that it should have 

reallocated the entire AWS-4 Band to terrestrial use alone. 18-

1243 NTCH Br. 21-29. The technical concern about splitting 

up satellite and terrestrial licenses dissolves if the Commission 

eliminates satellite service. And because the Commission 

agrees with NTCH that commercial satellite service remains 

“virtually non-existent,” 18-1243 Reply Br. 18 (quoting AWS4 Order, 27 FCC Rcd. at 16,171, ¶ 177), NTCH reasons that 

nothing would be lost by eliminating satellite rights. Indeed, 

NTCH is not alone in this contention; before the Commission, 

commenters offered similar suggestions. AT&T claimed, for 

instance, that the Commission could reduce satellite service to 

twenty megahertz of the AWS-4 Band, then auction off the 

remaining twenty megahertz as pure terrestrial service. 18-

1243 J.A. 116-18; see also id. at 148–49 (similar, comments of

MetroPCS); id. at 190–91 (similar, comments of T-Mobile).

But this alternative was beyond the scope of the 

Commission’s rulemaking. As the Commission points out, the 

AWS-4 NPRM never suggested that it was considering 
17

eliminating Dish’s satellite rights in the AWS-4 Band. 18-1243 

FCC Br. 34. Instead, the Commission sought to enable 

terrestrial services in a way that “protect[ed] the incumbent 

[satellite] licensee from harmful interference.” AWS-4 NPRM, 

27 FCC Rcd. at 3583, ¶ 68. Accordingly, when NTCH

suggested eliminating satellite service, the Commission 

dismissed its comment as an “untimely” petition to reconsider 

its earlier order “co-allocating” the AWS-4 Band for terrestrial 

and satellite uses. AWS-4 Order, 27 FCC Rcd. 16,171, ¶ 180 

n.532. Likewise, when NTCH filed its petition for 

reconsideration, the Commission determined that NTCH’s 

argument was “beyond the scope of the matters that [could] be 

addressed in this proceeding.” 18-1243 J.A. 408, ¶ 20 (citing

47 C.F.R. § 1.429(l)(5)).

In these circumstances, we cannot say that the 

Commission’s failure to consider stripping Dish of its satellite 

rights was unreasonable. Boiled down, NTCH claims that the 

Commission should have expanded the rulemaking’s scope to 

consider NTCH’s preferred resolution of the problem. But the 

Commission need not “resolve massive problems in one fell 

regulatory swoop;” instead, it may “whittle away at them over 

time.” Massachusetts v. EPA, 549 U.S. 497, 524 (2007). Here,

the Commission reasonably limited the rulemaking proceeding 

to proposals to expand terrestrial uses of the AWS-4 Band. See 

National Mining Ass’n v. Mine Safety & Health 

Administration, 116 F.3d 520, 549 (D.C. Cir. 1997) (noting that 

the agency’s explanation that a comment was “beyond the 

scope of the rulemaking” was an “adequate” explanation of its 

decision). 

NTCH also argues that the Commission wrongly assumed 

that modifying Dish’slicenses would be the “most efficient and 

quickest path to enabling flexible terrestrial use” of the AWS4 Band. 18-1243 NTCH Br. 29-32; AWS-4 Order, 27 FCC Rcd. 
18

at 16,164, ¶ 162. As evidence of the Commission’s alleged

misjudgment, NTCH references events that occurred after the 

AWS-4 Order. 18-1243 NTCH Br. 30. Specifically, NTCH 

claims that Dish failed to meet its interim deadlines and that the 

Commission granted Dish’s request for a one-year extension of 

the final deadline. Id. But NTCH’s claim that the agency 

“turn[ed] out to be mistaken ex post is of limited significance,”

as we must “judge the reasonableness of an agency’s decision 

on the basis of the record before the agency at the time it made 

its decision.” Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 

1107 (D.C. Cir. 2009). And though NTCH claims that the 

Commission’s “blunder” was “actually quite apparent back in 

2013,” 18-1243 NTCH Br. 31, it musters as evidence a single 

comment that questions Dish’s qualifications, 18-1243 J.A. 

147 (comment of MetroPCS). Because the Commission’s 

“predictive judgments” on this matter “are entitled to 

particularly deferential review,” a single contrary comment 

does not render the agency’s conclusion unreasonable. See 

Earthlink, 462 F.3d at 12 (internal quotation marks and 

alteration omitted).

Finally, NTCH claims that the Commission’s failure to 

conduct an auction gave Dish an undeserved “windfall” and 

neglected to “recover[] for the public” a “portion of the value 

of the public spectrum resource.” 18-1243 NTCH Br. 33–35

(citing 47 U.S.C. § 309(j)(3)). But the Commission retains the 

authority “to forgo an auction,” so long as it acts “in the public 

interest.” M2Z Networks, 558 F.3d at 563; see also 47 U.S.C. 

§ 309(j)(6)(E). The Commission conceded the modifications 

would “result in an increase in value” for Dish, but nonetheless 

concluded that license modification was the “best and fastest 

method for bringing this spectrum to market.” AWS-4 Order,

27 FCC Rcd. at 282, ¶ 178. These sorts of “judgments on the 

public interest are entitled to substantial judicial deference,”

M2Z Networks, 558 F.3d at 558 (internal quotation marks 
19

omitted), and we see no reason to second-guess the 

Commission’s decision to choose a functioning wireless 

broadband network over a possible influx of cash. We therefore 

decline NTCH’s invitation to set aside the AWS-4 Order.

C. 

NTCH next argues that § 309(j) of the Communications 

Act required the Commission to auction off the terrestrial rights 

in the AWS-4 Band as “initial licenses.” 18-1243 NTCH Br. 

35–41; 47 U.S.C. § 309(j)(1). Specifically, it claims that an 

initial license is one “first awarded for a particular frequency 

under a new licensing scheme, that is, one involving a different 

set of rights and obligations for the licensee.” 18-1243 NTCH 

Br. 37–38 (quoting Fresno Mobile Radio, Inc. v. FCC, 165 

F.3d 965, 970 (D.C. Cir. 1999) (emphasis added)). NTCH 

believes that, because the AWS-4 rights give Dish a “different 

set of rights and obligations,” § 309(j) compels the 

Commission to allocate them through a public auction. 18-

1243 NTCH Br. 37–38. 

NTCH misunderstands the structure of the 

Communications Act. The Commission must conduct an 

auction only if it accepts “mutually exclusive applications” for 

initial licenses, 47 U.S.C. § 309(j)(1), but the Communications 

Act also states that nothing in § 309(j) 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 application and licensing 

proceedings,” id. § 308(j)(6)(E) (emphasis added); see also 

M2Z Networks, 558 F.3d at 562–63. In this case, because the 

Commission never accepted “mutually exclusive 

applications,” it wasn’t obligated to conduct an auction. NTCH 

nevertheless claims that our decision in Fresno Mobile Radio
20

requires the Commission to treat the AWS-4 rights as “initial 

licenses.” 18-1243 NTCH Br. 37–40. But Fresno Mobile Radio 

compels no such thing. There, we held that the Commission 

reasonably chose to treat certain spectrum rights as initial 

licenses, rather than to allocate them to the incumbent 

licensees, because the licenses included “a different set of 

rights and obligations.” 165 F.3d at 970–71. But a holding that 

the Commission may treat a “different set of rights and 

obligations” as initial licenses provides no support for NTCH’s 

contention that the Commission must do so. 

D. 

Finally, NTCH argues that the Commission’s decision to 

modify Dish’s licenses exceeded its authority under § 316 of 

the Communications Act. 47 U.S.C. § 316(a). Under that 

provision, the Commission enjoys “broad power to modify 

licenses” if those modifications “serve the public interest, 

convenience and necessity.” California Metro Mobile 

Communications, Inc. v. FCC, 365 F.3d 38, 45 (D.C. Cir. 

2004). But the Commission’s “power to modify existing 

licenses does not enable it to fundamentally change those 

licenses.” Cellco Partnership v. FCC, 700 F.3d 534, 543-44 

(D.C. Cir. 2012) (internal quotation marks omitted and 

emphasis added); see also Community Television, Inc. v. FCC, 

216 F.3d 1133, 1140-41 (D.C. Cir. 2000) (same). 

NTCH insists that the Commission’s changes to Dish’s 

licenses were so “fundamental” that they go beyond its 

modification authority under § 316. 18-1243 NTCH Br. 41-44. 

We need not address this argument, however, because NTCH 

failed to raise it until its petition for reconsideration. Generally, 

a challenger “forfeit[s] an opportunity to challenge an agency 

rulemaking on a ground that was not first presented to the 

agency for its initial consideration.” Advocates for Highway &
21

Auto Safety v. Federal Motor Carrier Safety Administration, 

429 F.3d 1136, 1150 (D.C. Cir. 2005); see also Washington 

Ass’n for Television & Children v. FCC, 712 F.2d 677, 681

(D.C. Cir. 1983) (noting that the provision authorizing review 

of Commission decisions “codif[ies] the judicially-created 

doctrine of exhaustion of administrative remedies”). As NTCH 

concedes, nowhere in its comments on the AWS-4 NPRM did it 

challenge the Commission’s authority under § 316 to modify 

Dish’s licenses. 18-1243 J.A. 404, ¶ 15. In denying NTCH’s 

petition for reconsideration, the Commission dismissed 

NTCH’s argument because its belated objection “frustrate[d]”

the Commission’s ability to “address [it] during the course of 

the rulemaking.” Id. at 405, ¶ 15.

NTCH offers two rejoinders, but neither has merit. First, 

NTCH claims that Dish’s comments regarding § 316 preserved 

NTCH’s argument for our review. Dish argued that the 

Commission lacked § 316 authority to force Dish “to relinquish

MSS or terrestrial rights to its spectrum,” 18-1243 J.A. 206–

207—in other words, to do exactly as NTCH suggested. But

Dish’s objection that the Commission could not unilaterally 

abolish its satellite or terrestrial rights hardly preserves 

NTCH’s contention that the Commission lacked authority to 

authorize stand-alone terrestrial services. 18-1243 NTCH Br. 

41–44.

Second, NTCH claims that the Commission did consider 

its argument, so NTCH may address the issue here without 

“sandbagging” the Commission. 18-1243 Reply Br. 10. True 

enough, the Commission alternatively rejected NTCH’s § 316 

argument on the merits. 18-1243 J.A. 404–06. But the 

Commission’s thoroughness does not salvage NTCH’s 

forfeited claim. We will not grant “relief on the merits” when 

the Commission has “properly dismissed the pleading on 

procedural grounds.” BDPCS, Inc. v. FCC, 351 F.3d 1177, 
22

1183 (D.C. Cir. 2003). Because the Commission correctly 

treated NTCH’s claim as procedurally barred, “we have no 

occasion to reach the merits.” Id. at 1184.

* * *

Because none of NTCH’s challenges to the AWS-4 Order 

has merit, we deny its petition for review.

III.

This brings us, finally, to NTCH’s challenges to the order 

granting Dish’s request for a waiver of certain AWS-4 rules

and to the Auction 96 procedures. We consider each in turn. 

A. 

We begin with the Commission’s dismissal of NTCH’s

application for review of the Bureau’s order granting Dish’s

waivers. In re Dish Network Corp., 33 FCC Rcd. 8456 (2018).

Under § 5(c)(4) of the Communications Act, NTCH may

only seek review of the waiver if it was “aggrieved” by the

Commission’s action. The Commission interprets “aggrieved”

in § 5(c)(4) to impose the “Supreme Court’s test for

constitutional standing.” Id. at 8460 n.42. In this case, the

Commission concluded that NTCH lacked administrative

standing because it failed “to demonstrate any direct causal

link” between the waiver and “any actual or concrete injury to

NTCH.” Id. at 8461, ¶ 13. NTCH claimed that the Bureau’s

grant of the waivers “thwarted” its plans to participate in the

H Block auction by skewing the auction in Dish’s favor, but

the Commission determined that NTCH “made a voluntary,

business decision not to participate in the auction . . . prior to

the” Bureau’s order. Id. As the Commission concisely says on
23

appeal, NTCH “proximate[ly] cause[d]” its own injury by

choosing not to bid. 18-1241 FCC Br. 59.

The Commission misunderstood NTCH’s alleged injury.

NTCH claims that the Commission deprived it not of a license

itself, but rather of a fair and valid auction process. As

discussed, such a claim “asserts a cognizable injury.” U.S.

AirWaves, Inc. v. FCC, 232 F.3d 227, 232 (D.C. Cir. 2000);

see also DIRECTV, 110 F.3d at 830, even if the prospective

bidder “voluntarily withdr[aws]” from the unfair auction.

Alvin Lou Media, 571 F.3d at 7.

The Commission responds, correctly, that NTCH

withdrew from the auction before Dish received the

challenged waivers. But under our caselaw, the Commission

still caused NTCH’s harm. In Airwaves, we held that a

disappointed bidder had standing to seek reconsideration of an

auction, despite “challeng[ing] only the way in which the

Commission treated licensees after the auction was

completed.” 232 F.3d at 232. The Commission’s actions still

caused that injury because the bidder “would have bid more

had it known that financial terms more favorable than those

announced at the time of the auction would later be offered to

winning bidders.” Id. Much like the challenger in Airwaves,

NTCH has standing because it “would have” participated in

Auction 96 if it had not anticipated that the Commission’s

grant of the waivers would skew the auction in Dish’s favor.

We therefore vacate the Commission’s order dismissing

NTCH’s application for review. But because the Commission

never reached the merits of NTCH’s challenge to the waiver,

neither shall we. Having concluded that the Commission erred

in its threshold analysis, we “remand to the agency for

additional investigation or explanation.” Florida Power &

Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
24

B.

NTCH also sought Commission review of the Bureau’s 

Auction 96 procedures. The Commission denied NTCH’s

application for review both on procedural grounds and on the 

merits. In re NTCH, Inc., 33 FCC Rcd. 8446 (2018). Because 

NTCH has failed to show that the Commission’s decision was 

arbitrary or capricious, we deny the petition for review.

As a threshold issue, the Commission again challenges 

NTCH’s standing. The Commission argues that NTCH cannot 

assert an Article III injury because the reserve price “did not 

hinder NTCH’s ability to compete for licenses.” 18-1241 FCC

Br. 34. Specifically, the Commission claims that the aggregate 

reserve price presented no bar to NTCH competing for specific 

licenses within the H Block. Id. at 34–35. Once again, the 

Commission betrays a cramped view of NTCH’s asserted 

injury. As discussed, the deprivation of a “valid procurement 

process,” Airwaves, 232 F.3d at 232, constitutes an 

independent Article III injury, distinct from NTCH’s ultimate 

failure to obtain a license. And because NTCH traces that 

deprivation to the Commission’s adoption of Dish’s proposed 

reserve price—a price that, in NTCH’s view, skewed the 

auction mechanics—NTCH has standing to challenge the 

auction procedures. 

Turning now to the merits, the Commission dismissed 

NTCH’s application for review of the Bureau’s order because 

NTCH failed to comply with the Commission’s procedural

rules. Under such rules, an application for review must

“specify with particularity” why—selecting from five 

factors—the Bureau’s order warrants the full Commission’s 

review. 47 C.F.R. § 1.115(b)(2). The Commission concluded 

that NTCH failed to do so. In re NTCH, Inc., 33 FCC Rcd. 

8446, 8450, ¶ 11 (2018). We review this “dismissal of 
25

pleadings on procedural grounds under the familiar standards 

of the Administrative Procedure Act,” BDPCS, 351 F.3d at 

1183, and we find the Commission’s decision reasonable.

Under a header entitled “Factors Warranting Commission

Consideration,” NTCH cited three errors: (1) the reserve price 

was set “contrary to precedent” and was “unsupported by the 

facts of record,” (2) “adopting a reserve price based on a deal 

with a potential auction bidder [wa]s unprecedented,” and (3)

the Bureau’s action “constitute[d] a prejudicial procedural 

error.” 18-1241 J.A. 269. NTCH’s asserted errors parrot the 

factors in the Commission’s rules, but the agency found that

NTCH identified no “statute, regulation, case, precedent, or 

established Commission policy (or any evidence of record)” 

undermining the Bureau’s decision. In re NTCH, Inc., 33 FCC 

Rcd. 8,446, 8,450–51, ¶ 11 (2018). Likewise, NTCH 

identified no “concrete harm or prejudice it may have 

suffered” from the alleged procedural error. Id. In other words, 

NTCH alleged “unprecedented” action and “prejudicial” error 

without citing precedent or showing prejudice. 

NTCH responds that the Commission’s rules require it 

only “to identify briefly” which factors from the “menu of five 

possible choices” justify review. 18-1241 Reply Br. 14. NTCH 

thinks it cleared this “minor hurdle” because it “carefully and 

explicitly laid out” specific factors. Id. But again, NTCH cites 

no authority supporting its assertion, and we’ve said in a 

similar context that the Commission “need not sift pleadings 

and documents to identify arguments that are not stated with 

clarity.” Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274, 279 

(D.C. Cir. 1997) (internal quotation marks omitted). Given the 

“highly deferential standard” we apply under arbitrary and 

capricious review, Cellco Partnership, 357 F.3d at 93, NTCH 

has given us no basis to conclude that the agency’s dismissal

was improper. Because the Commission acted lawfully, “we 
26

have no occasion to reach the merits.” BDPCS, 351 F.3d at 

1184. 

Finally, in its briefs before this court, NTCH argued that 

we should set aside Auction 96 because it resulted in Dish 

bidding on not just the H Block licenses, but on the value of

spectrum licenses plus the waivers. NTCH compares the 

bidding to an auction where “the auctioneer has a side deal with 

one bidder that if she is the winning bidder on ten cars, she will 

be given a brand new Cadillac,” and, “[u]nder textbook 

economic theory,” that arrangement skews the auction. 18-

1241 NTCH Br. 44–45. Though NTCH’s example is evocative,

we cannot consider it. As NTCH conceded at oral argument, it 

failed to raise this argument before the Commission. Oral Arg. 

Tr. (No. 18-1241) 37:10–14. Accordingly, it is forfeited. See 

Advocates for Highway & Auto Safety, 429 F.3d at 1150. We 

therefore deny NTCH’s petition for review.

IV.

For the reasons given above, we deny NTCH’s petitions 

for review of both the initial order modifying Dish’s AWS-4 

licenses and the order setting the Auction 96 procedures. 

Because the Commission wrongly dismissed NTCH’s 

application for review of the Bureau’s grant of the waivers, 

however, we vacate the Commission’s order and remand to the 

Commission to consider those claims in the first instance.

So ordered.