United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2017 Decided August 1, 2017

No. 16-1100

FREE ACCESS & BROADCAST TELEMEDIA, LLC, ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 

STATES OF AMERICA,

RESPONDENTS

On Petition for Review of Orders of 

the Federal Communications Commission

Glenn B. Manishin argued the cause for petitioners. With 

him on the briefs were A. Wray Fitch III, George R. Grange II, 

and Robert Olender. Adam J. White entered an appearance.

William J. Scher, Counsel, Federal Communications 

Commission, argued the cause for respondents. With him on 

the brief were Robert B. Nicholson and Robert J. Wiggers, 

Attorneys, U.S. Department of Justice, Howard J. Symons, 

General Counsel at the time the brief was filed, David M. 

Gossett, Deputy General Counsel, and Jacob M. Lewis, 

Associate General Counsel. Richard K. Welch, Deputy 

Associate General Counsel, and Thaila Sundaresan, Counsel, 

Federal Communications Commission, entered appearances.
2

Before: HENDERSON, GRIFFITH, and SRINIVASAN, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: In 2014, the Federal 

Communications Commission adopted procedures for an 

auction designed to make more room on the electromagnetic 

spectrum for mobile broadband (wireless network) providers. 

In an earlier decision, we upheld the 2014 order creating these 

procedures. Petitioners now attack two related but more recent 

orders, but their challenges are barred to the extent that they 

target decisions that were made in the 2014 order and never 

since revisited. We may consider only petitioners’ claim that 

one of the two later orders was irrational or devoid of 

substantial supporting evidence—a challenge we must reject. 

 

I

The Spectrum Act of 2012 authorizes the FCC to conduct

an auction to give mobile broadband services access to parts of 

the electromagnetic spectrum currently occupied by broadcast 

television stations. 47 U.S.C. § 309(j)(8)(G)(i); see Mako 

Commc’ns, LLC v. FCC, 835 F.3d 146, 147 (D.C. Cir. 2016). 

In particular, the Spectrum Act allows the Commission to 

crowd television broadcasters into “a smaller band of 

spectrum” (or “repack” them, in the Commission’s argot),

Mako, 835 F.3d at 147; see 47 U.S.C. § 1452, and then to let

mobile broadband services make bids for the freed-up 

bandwidth. The Spectrum Act empowers the Commission to

use repacking for a second and closely related purpose as well: 

to curb interference between licensed users by separating their 

allotments of spectrum with “guard bands”—which are 

portions of the bandwidth kept free of any licensed use. 47 

U.S.C. § 1454(a), (b). 
3

This case is about the rights in the repacking process of 

low-power television (LPTV) stations, which tend to “serve 

areas not reached by full-power broadcast stations” and offer 

“niche programming catered to particular communities.” 

Mako, 835 F.3d at 148. The Spectrum Act protects LPTV 

stations by guaranteeing that “nothing” in its provisions 

authorizing the FCC to conduct repacking “shall be construed 

to alter” their “spectrum usage rights.” 47 U.S.C. § 1452(b)(5). 

That is, the Commission may not use a spectrum auction to

deprive LPTV stations of rights they had before the auction and 

repacking. But those rights were limited to begin with. In light 

of their smaller coverage, these stations have generally been 

assigned “secondary status relative to primary services such as 

full-power stations,” meaning that under Commission

regulations, “if an LPTV station’s transmissions interfere with 

a primary service, the LPTV station must either eliminate the 

interference or cease operations.” Mako, 835 F.3d at 147-48. 

Here several LPTV stations contend that the Commission 

has nonetheless shrunk their usage rights, and acted arbitrarily 

and even unconstitutionally, in two recent orders specifying 

various details of the repacking process: what are known as the 

Commencing Operations Order, 30 FCC Rcd. 12,025 (Oct. 22, 

2015), and the Channel-Sharing Order, 30 FCC Rcd. 14,927 

(Dec. 17, 2015). In attacking these orders, petitioners challenge 

the legality of three policy choices in particular: 

 the Commission’s decision to force LPTV stations to 

reduce or cease operations upon receiving notice from 

a new licensed user that it is about to “commence 

operations” where “there is a likelihood of receiving 

harmful interference from” the LPTV stations in 

question, 29 FCC Rcd. 6567, 6840, ¶ 668 (May 15, 

2014) (Auction Order);
4

 the Commission’s decision to allow unlicensed entities 

to make use of the guard bands it has created, id. at 

6685-86, ¶¶ 271-73, even though these bands remain 

(by definition) off-limits to licensed users like LPTV 

stations, id. at 6684, ¶ 270; and

 the Commission’s refusal to guarantee that LPTV 

stations licensed to use portions of bandwidth (i.e., 

channels) before a spectrum auction would have 

somewhere to land—some channel they could use—

after the repacking, see id. at 6673-74, ¶¶ 237-41. 

Yet these three decisions were not adopted in the orders on 

review here. As the citations above make clear, they were 

adopted instead in the Commission’s 2014 Auction Order, 

which established general procedures for the auction and 

repacking process. By contrast, the Commencing Operations 

Order and Channel-Sharing Order were issued the following 

year, and neither revisited any of the Auction Order’s 

decisions: the first simply defined when a new licensee would

be viewed as “commencing operations” under the Auction 

Order, and the second sought only to soften the Auction 

Order’s blow to LPTV stations by allowing them to share 

channels left available after the auction. In other words, neither 

of these more recent rulemakings put the Auction Order’s 

earlier decisions back on the table. Each simply added to the 

Auction Order’s settled framework while expressly refusing to 

reopen consideration of that framework. See Commencing 

Operations Order ¶ 21 & n.75 (“We reject as untimely requests 

for reconsideration of several commenters that we modify the 

transition procedures established in the [Auction Order].”); 

Channel-Sharing Order ¶ 64 & n.194 (“A number of 

commenters ask that we revisit matters that were resolved in 

the [Auction Order] . . . . We deny these requests . . . .”). 
5

So petitioners’ real objection is to the Auction Order, 

which we already sustained against their similar challenges in 

Mako. 835 F.3d at 152. Fresh challenges to the Auction Order

would now be time-barred. See 28 U.S.C. § 2344 (requiring 

parties aggrieved by an FCC order to petition for review 

“within 60 days after [the order’s] entry”).

1 That is why 

petitioners now ask us to vacate instead the Commencing 

Operations and Channel-Sharing Orders. But petitioners’

challenge to these two orders is also barred since (again) both 

merely declined to reconsider the Auction Order’s allegedly 

objectionable decisions, and we will not review refusals to 

reconsider matters settled in an earlier order to which direct 

challenges would now be time-barred. See, e.g., Kennecott 

Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191, 

1213 (D.C. Cir. 1996). Thus, insofar as petitioners challenge 

rules for the repacking process that originated with the Auction 

Order, their challenges are barred.

2

 

1 Though we have previously described this deadline as 

jurisdictional, see, e.g., United Transp. Union-Ill. Legislative Bd. v. 

Surface Transp. Bd., 132 F.3d 71, 75 (D.C. Cir. 1998), the relevant 

statute does not—and the Supreme Court has told us to treat such 

statutory limits as non-jurisdictional unless Congress clearly says 

otherwise, Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 

(2013). Indeed, the Court has held that “filing deadlines” in 

particular “ordinarily are not jurisdictional.” Id. at 825. This suggests 

that the 60-day filing deadline on challenges to FCC orders is not

jurisdictional after all. But here we needn’t resolve this apparent 

tension between our earlier cases and later Supreme Court precedent. 

2 We needn’t and therefore don’t address the FCC’s separate 

argument that these challenges are barred because petitioners are not 

“parties aggrieved” by the Commencing Operations Order, as 

required by the Hobbs Act. See 28 U.S.C. § 2344; Simmons v. ICC, 

716 F.2d 40, 42-43 (D.C. Cir. 1983).
6

II

We now turn to two challenges specific to the ChannelSharing Order. The first contends that this order was arbitrary 

and capricious or devoid of substantial supporting evidence. As 

a general matter, agencies must “examine the relevant data and 

articulate a satisfactory explanation for” their actions. Motor 

Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983). Here petitioners say there is no 

support for the Commission’s view that letting LPTV stations 

share channels after the auction would meet the Order’s stated 

goal of “mitigat[ing] the impact of the auction and repacking 

process” on LPTV stations. Channel-Sharing Order, 30 FCC 

Rcd. at 14,929. 

But the Order is neither arbitrary nor unfounded. It sets 

only modest goals and adopts means that common sense tells 

us will advance those goals. After all, the Commission has been 

clear all along that its auction and repacking procedures may 

force some LPTV stations off the air entirely; indeed, we held

in Mako that this result was legally permissible. 835 F.3d at 

152. Likewise, the Channel-Sharing Order itself admits that 

“channel-sharing may not be right for all [LPTV] stations”; 

what nonetheless “justifies” the order, the FCC goes on to say, 

is the mere “possibility” of helping some such stations avoid 

extinction. Channel-Sharing Order, 30 FCC Rcd. at 14,939.

Petitioners ultimately concede that the Channel-Sharing 

Order has a more modest goal than that of rescuing every

LPTV stations from displacement, but they still fault the 

Commission for not quantifying the Order’s projected benefits 

based on empirical evidence. This objection misfires. The 

Commission did not need to rely on data to prove that giving 

LPTV stations something is better than giving them nothing. It 

was enough for the Commission to observe that channel-
7

sharing would help some LPTV stations by enabling them to 

survive the repacking process and save money by sharing costs. 

Id. at 14,938-39. The Commission was surely right that letting 

some LPTV stations share channels after the auction would be

better than offering them no assistance at all. In short, the 

Channel-Sharing Order’s goals are not so divorced from its

means as to make the order irrational.

We lack jurisdiction over petitioners’ final claim against

the Channel-Sharing Order: that it flouts the Regulatory 

Flexibility Act, which tells agencies issuing certain rules to 

“prepare a final regulatory flexibility analysis” measuring the 

impact of the new rules on small businesses. 5 U.S.C. § 604(a). 

When a party seeking judicial review of a Commission order 

“relies on questions of fact or law upon which the Commission

. . . has been afforded no opportunity to pass,” the challenging 

party must first ask the Commission to reconsider the order at 

issue. 47 U.S.C. § 405(a); see U. S. Telecom Ass’n v. FCC, 825 

F.3d 674, 701 (D.C. Cir. 2016) (finding no jurisdiction to 

review regulatory flexibility analysis where petitioner failed to

challenge that analysis in a petition for reconsideration). Here 

petitioners never asked the FCC to reconsider the ChannelSharing Order, so we have no authority to review its regulatory 

flexibility analysis. 

III

In 2014, the Commission made decisions that threatened 

to drive petitioners off the air—decisions that petitioners 

understandably tried to challenge. But the law does not leave 

them free to keep trying. The window for challenging the 

Auction Order shut 60 days after that order was entered, and it 

will stay shut unless cracked open again by the Commission 

itself. This petition for review flies beak-first into that hard

limit insofar as it aims to re-litigate the Auction Order’s 
8

procedures. And we lack jurisdiction over petitioners’

challenge to the Channel-Sharing Order’s regulatory flexibility 

analysis, while the one challenge specific to the ChannelSharing Order that we can consider today is meritless. 

This petition for review of the Commencing Operations 

and Channel-Sharing Orders is dismissed in part and denied in 

part. 

So ordered.