United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2022 Decided March 3, 2023

No. 22-1016

LEVINE/SCHWAB PARTNERSHIP,

D/B/A SCHWAB MULTIMEDIA LLC,

APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLEE

On Appeal from an Order of the 

Federal Communications Commission

Keenan P. Adamchak argued the cause for appellant. With 

him on the briefs was Davina S. Sashkin. 

Rachel Proctor May, Counsel, Federal Communications 

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

brief was Sarah E. Citrin, Deputy Associate General Counsel. 

Jacob M. Lewis, Associate General Counsel, entered an appearance. 

Before: MILLETT, WILKINS, and WALKER, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALKER.
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WALKER, Circuit Judge: To build a radio station, a broadcaster must obtain a construction permit from the Federal Communications Commission. Those permits have time limits. 

Absent an extension from the FCC, a broadcaster must build 

the station within three years. 

Here, Schwab Multimedia received a construction permit

from the FCC. But Schwab never built its station. Though the 

FCC granted Schwab’s first three requests for more time, it denied Schwab’s fourth. 

Schwab appealed the FCC’s decision, claiming that it was

arbitrary and capricious. Because the agency’s decision was 

reasonable and reasonably explained, we affirm. 

I

In 2016, Schwab obtained an FCC permit to build a radio

station in Culver City, California. An FCC rule gave Schwab 

three years to complete construction. 47 C.F.R. § 73.3598(a). 

But the FCC does not apply that rule inflexibly. When certain 

events “not under the control of the permittee” prevent construction, the FCC will toll (pause) the three-year clock, giving 

the permittee more time. Id. § 73.3598(b). 

Schwab requested, and the FCC’s Media Bureau granted, 

three such tolling requests. But it denied Schwab’s fourth.

Schwab asked the Bureau to reconsider. It claimed that the 

landlord of its original site had withdrawn permission to build. 

It also submitted an application to modify its construction permit so it could build at a new site at the Culver City Mall. The

Media Bureau denied Schwab’s petition for reconsideration. 
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Schwab then filed an Application for Review before the full 

FCC. The FCC affirmed the Bureau. It found that site loss was 

the “cause of Schwab’s inability to construct.” JA 288. And 

site loss is not a reason for tolling recognized in FCC regulations. It also dismissed as moot Schwab’s application to modify its construction permit because, without tolling, the permit

had expired.

Schwab appealed.

II

Before we consider the merits, we briefly explain why we 

reject the FCC’s argument that Schwab lacks standing.

To have standing, Schwab must show that it was injured by 

the FCC’s order and that “a favorable decision” from this court 

would redress that injury. See Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992) (cleaned up).

Schwab meets that test. It suffered an injury caused by the 

FCC: The agency’s refusal to give Schwab more time meant 

that it lost its chance to build a radio station. And an order from 

this court could redress that injury: Reversing the FCC’s decision would reinstate Schwab’s construction permit and give it 

more time to build. 

True, Schwab told the FCC that it cannot build at its original site. But when it submitted its tolling request, it also asked 

the FCC to modify its permit to let it build at a new site, the 

Culver City Mall. And it has a lease for that site ready to be 

executed. So if it won on tolling here — giving it six months 

and twenty-two days to build — and the FCC approved 

Schwab’s modification request, Schwab could still complete 

construction of its radio station. 
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To be clear, even if Schwab won here, we aren’t certain

that it could build its radio station. Perhaps the new site 

wouldn’t pan out. But a showing of certainty is not required; a 

“mere likelihood will do.” National Wildlife Federation v. Hodel, 839 F.2d 694, 705 (D.C. Cir. 1988).

III

We now turn to the merits. 

The FCC denied Schwab’s Application for Review because

site loss is not a legitimate reason for tolling under the FCC’s 

rules. It also refused to grant Schwab a waiver of the FCC’s 

three-year deadline on construction permits. 

Those decisions were not arbitrary and capricious. 

5 U.S.C. § 706(2)(A). They were “reasonable and reasonably 

explained,” and the FCC’s factual findings are supported by 

substantial evidence. FCC v. Prometheus Radio Project, 141 

S. Ct. 1150, 1158 (2021). 

A

The FCC based its denial of Schwab’s tolling request on 

three underlying determinations. All three were reasonable. 

First, the FCC reasonably found that Schwab had no construction site. Indeed, Schwab admitted as much. It told the 

Media Bureau that the landlord of the original site had “rescinded [its] verbal agreement . . . to use the site.” JA 131. 

And it offered no evidence to suggest that it had since secured 

the landlord’s permission. See PSSI Global Services, LLC v. 

FCC, 983 F.3d 1, 7 (D.C. Cir. 2020) (we “accept the [FCC’s]
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findings of fact so long as they are supported by substantial evidence on the record as a whole” (cleaned up)).

True, Schwab claimed that it had found a “new home” at 

the Culver City Mall. JA 131. But when the FCC considered 

Schwab’s tolling request, Schwab had not secured the FCC’s 

permission to build at that new site. 

Second, it was reasonable for the FCC to conclude that site 

loss was the real reason Schwab could not build. Pointing to 

wildfires and COVID-19, Schwab claimed that “act[s] of God” 

prevented construction. 47 C.F.R. § 73.3598(b)(1). But even 

absent those obstacles, construction was impossible. You can’t 

build a radio station without a place to put it. See BDPCS, Inc. 

v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) (“When an 

agency offers multiple grounds for a decision, we will affirm 

the agency so long as any one of the grounds is valid.”).

Third, the FCC reasonably held that site loss is not a legitimate basis for tolling. See 47 C.F.R. § 73.3598(b). FCC rules 

say: “The period of construction for an original construction 

permit shall toll when construction is prevented by the following causes not under the control of the permittee.” Id. The 

provision goes on to specify five causes. They are: (1) acts of 

God; (2) administrative or judicial review; (3-4) certain unanswered requests to Canada or Mexico for international coordination; and (5) failure of a condition imposed by the FCC. Id.; 

see also In re JNE Investments, Inc., 23 FCC Rcd. 623, 631 

(2008) (“tolling is inapplicable outside of the circumstances 

identified in Section 73.3598(b)”). 

Those causes do not include site loss. Rather, the FCC 

views site selection as an “independent business decision 

within a permittee’s control.” In re Royce International Broadcasting Co., 23 FCC Rcd. 9010, 9016 (2008). So it has 
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declined to add “site-related difficulties” to its list of criteria 

for tolling. Id.; see also In re Birach Broadcasting Corp., 18 

FCC Rcd. 1414, 1415 (2003) (affirming a finding that site loss 

and high land prices, which slowed the process of securing a 

new site, do not qualify for tolling).

B

Finally, Schwab claims the FCC erred because it did not 

waive its three-year deadline on construction permits. See 47 

C.F.R. § l.3. 

The FCC may waive its rules “where particular facts would 

make strict compliance [with a rule] inconsistent with the public interest.” Northeast Cellular Telephone Co. v. FCC, 897 

F.2d 1164, 1166 (D.C. Cir. 1990) (cleaned up); see also 47 

C.F.R. § 1.3 (FCC may “waive[]” its rules for “good cause 

shown”). 

But Schwab never urged the FCC to hold that site loss justified a waiver of the three-year construction deadline. That 

failure prevents us from considering waiver now. The FCC 

must be “ ‘afforded [an] opportunity to pass’ on all arguments 

made to a court.” NTCH, Inc. v. FCC, 841 F.3d 497, 508 (D.C. 

Cir. 2016) (quoting 47 U.S.C. § 405(a)). So parties must first 

“reasonably flag[]” their arguments “for the agency’s consideration.” Id. (cleaned up). Schwab did not.1

1 Because the exhaustion requirement is not jurisdictional, we may 

overlook a failure to exhaust. NTCH, 841 F.3d at 508. But here, 

“none of the traditional exceptions” apply. Action for Children’s 

Television v. FCC, 906 F.2d 752, 755 (D.C. Cir. 1990) (cleaned up) 

(listing exceptions).
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And even if the issue was before us, Schwab produced no 

evidence to show that good cause would support a waiver. See 

In re Birach Broadcasting Corp., 18 FCC Rcd. at 1415 (“The 

Commission will not waive its rules absent good cause.”).

* * *

We affirm the FCC’s order.

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So ordered.

2 The FCC dismissed as moot Schwab’s application to modify its permit to let it build at a new site. The FCC reasoned that Schwab’s 

permit had expired and that the agency could not modify an expired 

permit. See In re JNE Investments Inc., 23 FCC Rcd. at 632. That 

may have been a mistake. Schwab filed its modification application 

“four days before the end of the . . . construction period,” while the 

permit was still valid. JA 286. And at oral argument, the FCC said 

it would pause the construction clock while it reviewed Schwab’s 

modification application. If that is true, then the clock could not have 

expired, as the FCC claimed, mooting Schwab’s modification application. But even if the FCC erred, Schwab did not mention that error 

in its appellate briefing. So it forfeited any objection. See United 

States v. All Assets Held at Credit Suisse (Guernsey) Ltd., 45 F.4th 

426, 434 (D.C. Cir. 2022) (arguments not raised in an “opening 

brief” are “forfeited”).