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. O’Sullivan,

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.
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 Commission’s

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

AAPC’s 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

AAPC’s 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 AAPC’s

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 AAPC’s petition.
3

1

 “Private” in this context refers not to the licensee’s 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
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,
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). 
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 AAPC’s 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 Resp’s 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 FCC’s 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
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, RM9966 (filed Sept. 11, 2000). The FCC largely adopted the Council’s

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 Commission’s 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
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

AAPC’s 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
9

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 AAPC’s 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

AAPC’s 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,
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. Pet’r’s Reply Br. 7 n.13. Cf. Schoenbohm v. FCC,

204 F.3d 243, 245-46 (D.C. Cir. 2000) (holding petitioner’s 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 agency’s

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) (agency’s denial of request for consideration

committed by law to agency discretion and therefore generally

unreviewable); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,

279 (1987) (BLE) (agency’s denial of petition for

reconsideration not subject to judicial review if petition alleges

only material error in agency’s 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 AAPC’s OBRA claim in the Denial Order, see,

e.g., Sendra, 111 F.3d at 167; or (2) AAPC’s 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)
11

11 AAPC’s reliance on Graceba Total Communications v. FCC,

115 F.3d 1038 (D.C. Cir. 1997), is misplaced. Graceba’s 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 agency’s

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 agency’s 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 
12

AAPC’s 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); Petr’s 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 Jost’s petition

was not to challenge the Board’s 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 Order’s 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 petitioner’s first filings at each level of

the agency.” Pet’r’s Reply Br. 8 (citing TransIntel, 336 F.3d at

1062). But not every first filing before an agency is a first filing
13

for TransIntel purposes. TransIntel contested the FCC’s Office

for Engineering Technology’s 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

FCC’s denial reviewable because, under the Commission’s

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”). TransIntel’s

“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 party’s 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, AAPC’s 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 AAPC’s members could have

individually participated in the rulemaking before AAPC’s

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,
14

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 AAPC’s

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

agency’s denial of petition for new rulemaking to revisit original

rule where subsequent events affected continuing validity of

rule). 

For the foregoing reasons, AAPC’s petition for review of the

FCC’s denial of reconsideration is dismissed. 

So ordered.