United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2008 Decided May 2, 2008

No. 07-1416

SPRINT NEXTEL CORPORATION,

APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLEE

Consolidated with

07-1458

On Appeal and Petition for Review of Orders of the

Federal Communications Commission

Christopher J. Wright argued the cause for appellant. With

him on the briefs were Timothy J. Simeone, Stephanie Weiner,

Leonard J. Kennedy, General Counsel, and Robert S. Foosaner,

Senior Vice President, Government Affairs, Sprint Nextel

Corporation.

Charles W. Logan, Jr. was on the brief for amicus curiae

Fraternal Order of Police in support of appellant.

Joel Marcus, Counsel, Federal Communications Commis-
2

sion, argued the cause for appellee. With him on the brief were

Thomas O. Barnett, Assistant Attorney General, Robert B.

Nicholson and James J. Fredricks, Attorneys, U.S. Department

of Justice, Matthew B. Berry, Acting General Counsel, Joseph

R. Palmore, Deputy General Counsel, and Daniel M. Armstrong,

Associate General Counsel, Federal Communications Commission.

Robert M. Gurss was on the brief for amicus curiae

Association of Public-Safety Communications

Officials-International in support of appellee.

Before: SENTELLE, Chief Judge, and GINSBURG and

BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Mobile communications devices are

now an integral part of the daily activities of consumers,

businesses, and public safety agencies alike. And when such a

device is needed—whether to track down an errant teen or

request backup while in hot-pursuit of a suspect—we expect it

to work. That requires the 800 MHz electromagnetic spectrum,

on which many of these devices operate, to be in order. This

case arises out of the Federal Communications Commission’s

efforts to ensure that it is.

The Commission set out to restructure the 800 MHz

spectrum. Sprint Nextel Corporation now appeals a Commission order implementing this restructuring. 47 U.S.C. § 405(a)

bars most of Nextel’s arguments because the Commission did

not have an “opportunity to pass” on them and Nextel failed to

petition for reconsideration. On the merits, we reject Nextel’s

argument that the Commission acted arbitrarily and capriciously.

We therefore affirm.
3

1 “ESMR” denotes Enhanced Specialized Mobile Radio.

I

The Commission licenses commercial entities and public

safety agencies to use the 800 MHz band. But this band is

plagued by an “interference problem” that stems from an

“incompatible mix” of “two types of communications systems”:

(1) “cellular-architecture” systems and (2) “high-site

non-cellular systems” frequently used by public safety agencies.

Improving Public Safety Communications in the 800 MHz Band,

19 F.C.C.R. 14,969, 14,972 (Aug. 6, 2004) (“Initial Order”).

The closer these incompatible systems are to one another on the

spectrum, the more interference they cause. Mobile Relay

Assocs. v. FCC, 457 F.3d 1, 5 (D.C. Cir. 2006). Nextel holds

licenses for a large share of the 800 MHz spectrum, and it uses

ESMR1

 cellular-architecture technology.

In 2002, the Commission “initiated a rulemaking and

solicited proposals to remedy the interference problem.” Id. It

sought to “abate[]” interference experienced by public safety

agencies and quickly provide them with “additional 800 MHz

spectrum”—all through an “equitable” process that minimizes

disruption to 800 MHz licensees. Initial Order, 19 F.C.C.R. at

14,972–73. Nextel and other licensees submitted a Consensus

Plan “propos[ing] that the Commission segregate high-site and

ESMR systems into a separate block of the 800 MHz band.”

Mobile Relay, 457 F.3d at 5. In 2004, the Commission’s Initial

Order “largely adopted the Consensus Plan’s structural

solution,” segregating incompatible systems by placing them in

separate “blocks” of spectrum. Id. at 5–6.

The Initial Order gave Nextel a central role in the

rebanding process. Nextel would (1) relinquish its 700 MHz

spectrum, (2) vacate certain 800 MHz spectrum in the “General
4

2 “NPSPAC” refers to the National Public Safety Planning

Advisory Committee.

3The Initial Order required Nextel’s approval, 19 F.C.C.R. at

15,128, but Nextel didn’t agree with all of its terms. The Commission

therefore issued a Supplemental Order modifying or clarifying certain

terms. See Improving Public Safety Communications in the 800 MHz

Band, 19 F.C.C.R. 25,120 (Dec. 22, 2004).

Category” and “Interleaved” areas of the band, and (3) fund the

relocation of other licensees. See Initial Order, 19 F.C.C.R. at

15,080–81. For its part, the Commission would (1) allow Nextel

to operate on other 800 MHz spectrum vacated by public safety

licensees, (2) authorize commercial mobile service operations in

the 900 MHz band, and (3) favorably modify Nextel’s 1.9 GHz

spectrum licenses. Id.

Under the Initial Order, licensees would relocate to

different blocks of the 800 MHz band. “NPSPAC”2 public

safety licensees would move from the current NPSPAC channels

to General Category channels; Nextel would be responsible for

moving itself and other General Category licensees from the

General Category to other parts of the band; and Nextel would

eventually move into channels vacated by the NPSPAC

licensees. Id. at 14,984–85. In addition, Nextel would vacate its

Interleaved channels. Id.3 The Commission ordered Nextel to

complete band reconfiguration within 36 months of the starting

date announced in a public notice. Id. at 14,986–87. We now

know the 36-month deadline is June 26, 2008. Improving Public

Safety Communications in the 800 MHz Band, 22 F.C.C.R.

17,209, 17,217 (Sept. 12, 2007) (“Third MO&O”).

The facts outlined above are undisputed, but the timing of

the rebanding process is quite controversial. The Initial Order

described the timing of the spectrum exchange as follows:
5

Although Nextel will ultimately relocate from the current

General Category and interleaved channels to the old

NPSPAC block, it will not do so directly. Instead, it will

need to relocate many of its operations to temporary

channels in the 800 MHz band or to spectrum in the 900

MHz band while it is clearing the General Category block

. . . . Only after the new NPSPAC block is cleared of

incumbents and NPSPAC operations can be relocated there

will Nextel be able to move its operations back from the

900 MHz band to the old NPSPAC block.

19 F.C.C.R. at 15,113 n.712; see also id. at 15,073–74.

However, the Supplemental Order assured Nextel it could retain

its General Category channels until the “last step in the process.”

19 F.C.C.R. at 25,143.

As implementation began, so did delays. By fall 2007, only

a small fraction of public agencies had relocated to their new

800 MHz spectrum. Here’s the rub: many NPSPAC licensees

will not be ready to vacate their spectrum by June 2008, and

many will need until 2009 or 2010.

In September 2007, the Commission issued the Third

MO&O. It ordered Nextel to vacate its General Category and

non-border Interleaved channels by June 26, 2008, “regardless

of whether all NPSPAC licensees in a given region are prepared

to relocate within that time frame.” Third MO&O, 22 F.C.C.R.

at 17,216–18. In other words, the Commission told Nextel to

timely vacate its channels—even if the former NPSPAC

channels to which Nextel will eventually move are currently

unavailable.

Three other aspects of the Third MO&O bear mention.

First, as of January 1, 2008, Nextel must vacate any of its

General Category channels upon 60 days’ notice from a
6

4Nextel filed two separate actions under two distinct

jurisdictional provisions. It filed No. 07-1458 under 47 U.S.C.

§ 402(a) and No. 07-1416 under § 402(b). These provisions are

mutually exclusive. See N. Am. Catholic Educ. Programming Found.,

Inc. v. FCC, 437 F.3d 1206, 1208 (D.C. Cir. 2006). We have

jurisdiction under § 402(b)(5), which permits “the holder of any ...

license which has been modified or revoked by the Commission” to

appeal an adverse decision. Accordingly, we dismiss the case filed

under § 402(a).

NPSPAC licensee. Id. at 17,216. Second, if the Commission

grants a waiver of the June 2008 deadline to a NPSPAC

licensee, Nextel may petition for a waiver to temporarily remain

on the General Category channels the NPSPAC licensee will

eventually occupy. Id. at 17,217. Such a petition must meet

certain criteria, and no such waiver process exists for the

Interleaved channels. See id. at 17,217–18. Third, the

Commission concluded Nextel had not fully met an interim

18-month benchmark, but the Commission didn’t formally fault

Nextel for non-compliance and it deferred consideration of any

potential enforcement action. See id. at 17,213–15.

The Commission issued a Public Notice along with the

Third MO&O. See Public Notice, 22 F.C.C.R. 17,227 (Sept. 12,

2007). The Public Notice established new interim deadlines for

NPSPAC licensees. Id. at 17,227–28. However, it cautioned

them not to request extensions past June 26, 2008, and it

indicated the Commission may hold such requests in abeyance.

Id. at 17,231. Nextel then appealed the Third MO&O and the

Public Notice.

4
7

II

A

We must determine which arguments, if any, Nextel

adequately raised before the Commission. 47 U.S.C. § 405(a)

provides that filing a reconsideration petition before the

Commission is “a condition precedent to judicial review ...

where the party seeking such review ... relies on questions of

fact or law upon which the Commission ... has been afforded no

opportunity to pass.” Nextel did not petition for reconsideration,

so we must ask whether the Commission “has been afforded” an

“opportunity to pass” on the arguments. The pith of the test is

this: “the argument made to the Commission” must “necessarily

implicate[]” the argument made to us. Time Warner Entm’t Co.

v. FCC, 144 F.3d 75, 80 (D.C. Cir. 1998). We may, however,

consider “the same basic argument in a more polished and

imaginative form.” Sw. Bell Tel. Co. v. FCC, 100 F.3d 1004,

1007–08 (D.C. Cir. 1996).

Nextel insists it orally presented its arguments to the

Commission during meetings. But appellate briefs recounting

oral statements purportedly made to the Commission cannot

satisfy § 405. Far from it. Statutes expressly limit our review

to “the record.” 47 U.S.C. § 402(g) (citing 5 U.S.C. § 706).

Besides, expanding the § 405 inquiry to non-record material

would draw us into a messy game of fact-finding and credibility

determinations—neither of which is our forte.

Nextel also relies on ex parte notices it filed with the

Commission. Ex parte notices can satisfy § 405. See MCI

WorldCom, Inc. v. FCC, 209 F.3d 760, 765 (D.C. Cir. 2000).

We will therefore review Nextel’s ex parte notices under § 405,

but future litigants should note that relying on such notices to

satisfy § 405 is a risky strategy. After all, “the Commission
8

need not sift pleadings and documents to identify arguments that

are not stated with clarity by a petitioner.” New Eng. Pub.

Commc’ns Council, Inc. v. FCC, 334 F.3d 69, 79 (D.C. Cir.

2003) (quotation marks and brackets omitted).

Nextel insists it raised all of its arguments in the ex parte

notices. We think not. Nextel’s ex parte notice only argued—in

quite general terms—that the Commission unreasonably

changed the rebanding process from a synchronized spectrum

swap to an asynchronous exchange. Consequently, that is the

only argument Nextel preserved for our review.

B

We now proceed to the merits. “Under the arbitrary and

capricious standard, this court does not substitute its judgment

for that of the administrative agency.” U.S. Airwaves, Inc. v.

FCC, 232 F.3d 227, 234 (D.C. Cir. 2000). “A regulatory

decision in which the Commission must balance competing

goals is ... valid if the agency can show that its resolution

‘reasonably advances at least one of those objectives and that its

decisionmaking process was regular.’” Id.

The crux of the dispute is this: Nextel claims the Initial

Order contemplated a simultaneous spectrum swap between

Nextel and NPSPAC licensees, but the Commission argues the

June 2008 deadline applies to Nextel regardless of whether

NPSPAC licensees are ready to swap. The words of a great

playwright aptly describe the Commission’s position: “There is

a time for departure even when there’s no certain place to go!”

TENNESSEE WILLIAMS, CAMINO REAL 78 (New Directions 1970)

(1953). But Nextel claims that this position is arbitrary and

capricious, and that it will cripple Nextel’s network, “‘squander

scarce spectrum,’” and “‘harm public safety.’” See Third
9

5This four-part response was sufficiently detailed, especially

since the ex parte notices barely even raised a legal argument. As we

have repeatedly stressed, the “‘Commission cannot be asked to make

silk purse responses to sow’s ear arguments.’” See, e.g., Competitive

Telecomms. Ass’n v. FCC, 309 F.3d 8, 17 (D.C. Cir. 2002).

MO&O, 22 F.C.C.R. at 17,217. Nextel also complains that the

Commission insufficiently responded to its concerns.

We disagree. In the Third MO&O, the Commission

delineated four reasons why its position would advance the

public interest. First, it would eliminate the risk of interference

between Nextel and NPSPAC licensees that could otherwise

occur if NPSPAC licensees were to relocate to an area of the

band in which Nextel still operates. Id. Second, it would

“simplify and expedite the transition process” because NPSPAC

licensees would no longer “need to coordinate their relocation

with [Nextel] to avoid ... interference.” Id. Third, it would

make spectrum “available to new public safety facilities.” Id.

Fourth, it would give Nextel quicker access to certain 800 MHz

spectrum “being vacated by NPSPAC licensees.” Id.5

We hold the Commission did not act arbitrarily or

capriciously. One “paramount” reason for rebanding was to

abate interference experienced by public agencies. Initial

Order, 19 F.C.C.R. at 14,972. Nextel’s technology causes

substantial interference when operated in close proximity to

public agencies on the band. Thus, the Initial Order required

Nextel to vacate certain channels by June 26, 2008. That

deadline—which was never premised on a synchronized

spectrum swap—has not changed. What has changed are the

implications of the deadline: it now appears Nextel might have

insufficient spectrum come June because numerous NPSPAC

licensees won’t be ready to relocate.
10

6This case does not raise the issue whether the Commission may

revoke Nextel’s licenses if it fails to meet the June 26, 2008 deadline.

See generally Initial Order, 19 F.C.C.R. at 14,987 (“If Nextel fails to

meet” the June 26, 2008 deadline “for reasons that Nextel could

reasonably have avoided,” the Commission may decide “whether

forfeitures should be imposed and/or whether Nextel licenses ...

should be revoked.” (emphasis added)).

Nonetheless, the Commission’s decision to hold Nextel to

the June 26, 2008 deadline is reasonable. If Nextel completely

vacates its General Category channels on June 26, there is

reason to believe it will immediately reduce interference

experienced by public safety licensees already operating in that

portion of the band. This rationale applies with at least as much

force in the Interleaved spectrum, where incompatible

technologies now operate in close proximity. Moreover, if

Nextel vacates non-border Interleaved spectrum by June 26, it

will probably allow the Commission to quickly achieve another

one of the Initial Order’s objectives: making additional

Interleaved spectrum available for public agencies.

Furthermore, although Nextel maintains that public agencies

using its network will be harmed, the Commission’s decision

that “NPSPAC licensees take precedence” over Nextel’s

network is a rational policy judgment. See Third MO&O, 22

F.C.C.R. at 17,216. Even if the Commission’s choice will cause

disruption to Nextel’s network, the Commission “balance[d]

competing goals” in a way that “‘reasonably advances’” some

of the Initial Order’s objectives. See U.S. Airwaves, 232 F.3d

at 234.6

III

For the foregoing reasons, the challenged orders are

Affirmed.