United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 3, 2022 Decided May 17, 2022

No. 21-7039

UNITED STATES OF AMERICA, EX REL. VERMONT NATIONAL 

TELEPHONE COMPANY,

AND

VERMONT NATIONAL TELEPHONE COMPANY,

APPELLANT

v.

NORTHSTAR WIRELESS, LLC, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-00728)

Jeffrey A. Lamken argued the cause for appellant. With 

him on the briefs were Bert W. Rein, Bennett L. Ross, Stephen 

J. Obermeier, Eugene A. Sokoloff, and Mark W. Kelley.

Seth P. Waxman argued the cause for appellees. With him 

on the brief were Catherine E. Stetson, Jonathan L. 

Diesenhaus, Ari Q. Fitzgerald, Howard M. Shapiro, Daniel S. 
2

Volchok, Beth S. Brinkmann, Peter B. Hutt II, and Michael M. 

Maya. Joseph Meyer and Susan Pelletier entered appearances.

Before: ROGERS, TATEL*, and PILLARD, Circuit Judges.

Opinion for the court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this qui tam action, Vermont 

National Telephone Company alleges that several

telecommunications companies defrauded the United States 

Government of $3.3 billion by manipulating Federal 

Communications Commission rules and falsely certifying their 

eligibility for discounts on spectrum licenses. The district court 

dismissed the suit, resting its decision on the False Claims 

Act’s “government-action bar” and its “demanding materiality 

standard.” Because neither basis invoked by the district court 

warrants dismissal, we reverse.

I.

The Communications Act of 1934 authorizes the Federal 

Communications Commission to grant licenses allowing

companies to use portions of the electromagnetic spectrum, 

“the range of electromagnetic radio frequencies used to 

transmit sound, data, and video across the country.” SNR 

Wireless LicenseCo, LLC v. FCC, 868 F.3d 1021, 1025 (D.C. 

Cir. 2017) (internal quotation marks omitted); see 47 U.S.C. 

§§ 307, 309. Once licensed, companies may use their allocated

radio frequenciesto provide television, cell phone, and wireless 

internet service. SNR Wireless, 868 F.3d at 1025.

To apportion spectrum licenses among competing 

companies, the Commission holds auctions that involve a 

* Judge Tatel assumed senior status after this case was argued and 

before the date of this opinion.
3

two-step license application process. See 47 U.S.C. § 309(j)(1);

47 C.F.R. §§ 1.2105, 1.2107. First, applicant companies 

submit “streamlined, short-form application[s]” providing,

under penalty of perjury, information concerning their 

eligibility to bid in the auction. SNR Wireless, 868 F.3d at 1027 

(internal quotation marks omitted); 47 C.F.R. § 1.2105. 

Companies claiming “bidding credits”—discounts used to 

cover part of the cost of licenses won at auction—must certify 

their eligibility for such credits in their short-form applications. 

See 47 C.F.R. §§ 1.2105(a)(2)(iv), 1.2110(f). Companies 

determined by the Commission to be “qualified to bid” based 

on their short-form applications may participate in the auction. 

See id. § 1.2105.

Second, winning bidders “file a more comprehensive longform application” to demonstrate their qualifications to hold 

spectrum licenses and their eligibility for claimed bidding 

credits. SNR Wireless, 868 F.3d at 1027 (internal quotation 

marks omitted); 47 C.F.R. § 1.2107. Once the Commission 

publicly announces its acceptance of a winning bidder’s longform application, any “party in interest” may file a petition to 

deny the application on the grounds that granting it would be 

inconsistent with “the public interest, convenience, and 

necessity.” 47 U.S.C. § 309(a), (d)(1); see 47 C.F.R. § 1.2108. 

The winning bidder may, in turn, “file an opposition to any 

petition to deny, and the petitioner a reply to such opposition.” 

47 C.F.R. § 1.2108(c). After reviewing the application and the 

pleadings filed, the Commission determines whether the 

winning bidder is qualified to hold a license. 47 U.S.C. 

§ 309(d)(2); 47 C.F.R. § 1.2108(d). 

A winning bidder that defaults on its “binding obligation 

to pay its full bid amount upon acceptance of the winning bid 

at the close of an auction” is subject to a “default payment.” 

47 C.F.R. § 1.2104(g)(2). And a bidder that violates the 
4

Commission’s rules in connection with its participation in the 

competitive bidding process may be subject to sanctions, 

including “forfeiture of [its] upfront payment, down payment 

or full bid amount.” Id. § 1.2109(d). Such forfeiture penalties 

are assessed in a separate “forfeiture proceeding,” initiated by 

a notice of apparent liability or a notice of opportunity for 

hearing. Id. § 1.80(f)–(h).

This case arose from Auction 97, in which companies bid

for “exclusive access to 1,614 Advanced Wireless Services 

licenses in [three radio frequency] bands.” Am. Compl. ¶ 2. 

When announcing the auction, the Commission’s Wireless 

Telecommunications Bureau explained that small businesses 

would be eligible to receive bidding credits entitling them to 

either a 15-percent or 25-percent discount on their winning 

bids. Id. ¶ 48; Auction of Advanced Wireless Services (AWS-3) 

Licenses Scheduled for November 13, 2014 (Auction Notice), 

29 FCC Rcd. 8386, 8411–12 (2014). The size of the bidding 

credits would depend on the business’s attributable revenues 

over the preceding three years, which includes the revenues of 

the small business itself as well as those of any entity with “de 

facto control” over the business. Auction Notice, 29 FCC Rcd. 

at 8412–13; Am. Compl. ¶ 48.

Northstar Wireless, LLC (“Northstar”) and SNR Wireless 

LicenseCo, LLC (“SNR”) each submitted short-form 

applications to participate in Auction 97, claiming eligibility 

for the 25-percent bidding credit offered to “very small 

businesses” with less than $15 million in attributable revenues. 

Am. Compl. ¶¶ 3, 48, 82 (internal quotation marks omitted). 

Their applications disclosed that “they had acquired the capital 

that they needed to participate in the auction from DISH 

[Network]—a large, established corporation that was itself 

ineligible for bidding credits.” SNR Wireless, 868 F.3d at 1027. 

The applications also disclosed that DISH, Northstar, and SNR 
5

had adopted “joint bidding protocols and agreements” pursuant 

to which the three companies could coordinate their bidding 

strategies. Id. Based on their short-form applications, the 

Commission found Northstar and SNR “qualified to bid” in 

Auction 97. Auction of Advanced Wireless Services (AWS-3) 

Licenses 70 Bidders Qualified to Participate in Auction 97, 29 

FCC Rcd. 13465, 13465 & n.3, 13477 (2014) (determining that 

applicants’ short-form applications were “complete and 

compl[ied] with the Commission’s competitive bidding rules 

and policies”).

Northstar and SNR were “remarkably successful” in 

Auction 97, collectively winning 43.5 percent of the licenses in 

play. SNR Wireless, 868 F.3d at 1027–28. After the auction, 

Northstar and SNR submitted long-form applications for the 

licenses they won, reiterating that they were “very small 

businesses” entitled to bidding credits. Id. at 1028. The use of 

such credits would discount the price of Northstar’s and SNR’s 

winning bids from $13.3 billion to approximately $10 billion. 

Am. Compl. ¶ 100. Once the long-form applications became 

public, eight companies petitioned the Wireless Bureau to deny 

Northstar’s and SNR’s applications. SNR Wireless, 868 F.3d at 

1028. All eight challengers argued that Northstar and SNR 

were ineligible for very-small-business credits because DISH 

effectively controlled them. Id. One challenger, VTel Wireless, 

Inc., also argued that Northstar and SNR withheld from the 

Commission material information about their relationship with 

DISH. Northstar Wireless, LLC (FCC Opinion), 30 FCC Rcd. 

8887, 8940 (2015).

The Wireless Bureau referred the petitions to the full 

Commission for “consideration of the questions posed by the 

petitions to deny.” SNR Wireless, 868 F.3d at 1028 (internal 

quotation marks omitted). The Commission concluded that 

Northstar and SNR were ineligible for bidding credits because 
6

they were de facto controlled by DISH, such that DISH’s large 

annual revenues were attributable to them. FCC Opinion, 30 

FCC Rcd. at 8889–90. But based on the record before it, the 

Commission found no evidence “that SNR and Northstar

attempted to mislead the Commission about their respective 

relationships with DISH” or “that they did not adequately 

disclose the nature of their relationship and joint bidding 

arrangements with DISH.” Id. at 8890–91, 8941.

After the Commission issued its ineligibility 

determination, Northstar and SNR “notified the Commission 

that they would pay the full bid amount for some of the licenses 

they won [but] would default on their obligation to buy the 

rest.” SNR Wireless, 868 F.3d at 1028. In response, the 

Commission ordered Northstar and SNR to pay a default 

payment consisting of (1) compensation for “the difference 

between their own winning bids in Auction 97 and the amount 

that the FCC receives when it re-auctions the licenses” and 

(2) “an additional payment equal to fifteen percent of 

[Northstar’s and SNR’s] own bids, or fifteen percent of the 

winning bid when their licenses are re-auctioned, whichever is 

less.” Id. at 1029; see 47 C.F.R. § 1.2104(g)(2).

Northstar and SNR petitioned this court for review of the 

Commission’s determination that they were ineligible for 

bidding credits. SNR Wireless, 868 F.3d at 1029. Our court 

upheld the Commission’s ineligibility determination but 

remanded to the Commission “to give [Northstar and SNR] an 

opportunity to seek to negotiate a cure for the de facto control 

the FCC found that DISH exercises over them.” Id. at 1025. On 

remand, the Commission directed Northstar and SNR to 

renegotiate their business arrangements with DISH and then 

submit revised agreements to the Commission. Northstar 

Wireless, LLC, 33 FCC Rcd. 231, 232–34 (2018). Northstar’s
7

and SNR’s petition for review of that FCC decision remains 

pending.

Meanwhile, and setting the stage for this case, Vermont 

National Telephone Company (“Vermont Telephone”) filed a 

qui tam action against Northstar, SNR, DISH, and several 

affiliated companies (collectively, “Defendants”), alleging 

they violated the False Claims Act (FCA) by making false 

certifications and manipulating the Commission’s auction rules 

to secure fraudulent bidding credits on spectrum licenses. Am. 

Compl. ¶¶ 1–7. As relevant here, the FCA imposes civil 

penalties on anyone who “knowingly makes, uses, or causes to 

be made or used, a false record or statement material to an 

obligation to pay . . . money . . . to the Government.” 31 U.S.C. 

§ 3729(a)(1)(G); see also id. §§ 3729(a)(1)(A), (B), (C). The 

Act authorizes private entities like Vermont Telephone to bring 

actions on behalf of the government, sharing in the recovery 

when such actions succeed. Id. § 3730(b), (d). The district 

court, however, dismissed Vermont Telephone’s suit, relying 

on the Act’s government-action bar which forecloses qui tam 

actions “based upon allegations or transactions which are the 

subject of a civil suit or an administrative civil money penalty 

proceeding in which the Government is already a party.” Id.

§ 3730(e)(3); U.S. ex rel. Vermont National Telephone Co. v. 

Northstar Wireless LLC (Vermont Telephone), 531 F. Supp. 3d 

247, 251, 264–67 (D.D.C. 2021). The court also held that 

Vermont Telephone’s allegations failed to satisfy the Act’s 

“demanding materiality standard.” Id. at 251, 268–70.

Vermont Telephone appeals, arguing that neither basis 

invoked by the district court supports dismissal. Defendants 

defend the district court’s decision, and argue that we can 

affirm on the alternative grounds that Vermont Telephone has

failed to plead its FCA claims with the requisite plausibility 

and particularity needed to satisfy Federal Rules of Civil 
8

Procedure 8 and 9(b). Our review is de novo. U.S. ex rel. 

Cimino v. International Business Machines Corp., 3 F.4th 412, 

421 (D.C. Cir. 2021) (reviewing de novo dismissal of 

fraudulent inducement and presentment claims under the 

FCA). 

II.

Originally enacted during the Civil War, the FCA allows 

private individuals to bring qui tam actions in the name of the 

United States in order to “augment[] the government’s limited 

enforcement resources” and “protect[] federal funds from 

fraud.” U.S. ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 

545–46 (D.C. Cir. 2002); see Singletary v. Howard University, 

939 F.3d 287, 292–93 (D.C. Cir. 2019) (“Congress enacted the 

False Claims Act in the 1860s in response to widespread fraud 

perpetrated by Civil War contractors.”). As noted above, 

however, the statute’s government-action bar forecloses qui 

tam suits “which [are] based upon allegations or transactions 

which are the subject of . . . an administrative civil money 

penalty proceeding in which the Government is already a 

party.” 31 U.S.C. § 3730(e)(3).

According to the district court, the Commission’s 

post-auction licensing proceeding, which reviewed Northstar’s 

and SNR’s long-form applications for spectrum licenses and

the petitions to deny them, triggered the government-action 

bar. Vermont Telephone, 531 F. Supp. 3d at 251, 264–68. 

Disagreeing, Vermont Telephone argues that the governmentaction bar is inapplicable because the Commission’s licensing 

proceeding was not an “‘administrative civil money penalty 

proceeding.’” Appellant’s Br. 27 (quoting 31 U.S.C. 

§ 3730(e)(3)). 

The FCA nowhere defines the phrase “administrative civil 

money penalty proceeding.” But to state the obvious, an 
9

“administrative civil money penalty proceeding” is a 

proceeding in which an administrative agency may impose a 

civil money penalty. Defendants contend that the licensing 

proceeding qualifies as an “administrative civil money penalty 

proceeding” because the Commission imposed, or could have 

imposed, several different civil money penalties during that 

proceeding.

First, Defendants argue that the Commission levied civil 

money penalties by subjecting Northstar and SNR to default 

payments after they selectively defaulted on their winning bids 

in Auction 97. But even assuming that these default payments 

are civil money penalties, they have no bearing on whether the 

Commission’s licensing proceeding is a “civil money penalty 

proceeding” for a simple reason: The default payments were 

not assessed during the licensing proceeding. In that

proceeding, the Commission determined only whether 

Northstar and SNR were “qualif[ied]” to hold spectrum 

licenses and “eligible” for bidding credits. FCC Opinion, 30 

FCC Rcd. at 8889, 8891. The question of whether to impose 

default payments arose later, after Northstar and SNR chose to 

selectively default on their obligations to pay for some of their 

winning bids. See Notice of Interim Default Payment 

Obligation for Auction 97 Licenses, Joint Appendix 960, 964

(notifying Northstar and SNR of their default payment 

obligations after they “cho[se] to selectively default”). It would 

make no sense to conclude that the Commission’s ultimate 

imposition of default payments, triggered by an event that had 

not yet occurred at the time of the licensing proceeding, 

retroactively transformed the licensing proceeding into a civil 

money penalty proceeding.

Defendants insist that “[t]he fact that weeks passed 

between the eligibility decision [in the licensing proceeding] 

and the imposition of the penalties does not mean the latter was 
10

not part of the proceeding, any more than the fact that a 

criminal sentence can be imposed weeks or months after a 

guilty verdict means [that] sentencing is not part of the criminal 

proceeding.” Appellees’ Br. 40. This analogy misses the mark. 

Unlike a criminal sentence, the default payments did not 

“flow[] directly,” id., from the Commission’s determination in 

the licensing proceeding that Northstar and SNR were 

ineligible for bidding credits. An intervening event—

Northstar’s and SNR’s decisions to selectively default—

occurred before the Commission assessed default payments 

against these companies.

Second, Defendants point out that the Commission may 

assess “forfeiture penalt[ies]” for willful failure to comply with 

any FCC rule or regulation, 47 C.F.R. § 1.80(a), including the 

rule prohibiting the intentional submission of false or 

misleading statements to the Commission, id. § 1.17(a). 

Commission regulations, however, authorize assessment of 

forfeiture penalties only in “forfeiture proceeding[s],” which 

the Commission initiates by issuing either a “notice of apparent 

liability” or a “notice of opportunity for hearing.” Id. § 1.80(f)–

(h). Because the Commission issued neither, it never initiated

a forfeiture proceeding and so had no authority to impose 

forfeiture penalties. See 47 U.S.C. § 503(b)(3)(a), (4) (“[N]o 

forfeiture penalty shall be imposed under this subsection 

against any person unless and until . . . the Commission issues 

a notice of apparent liability” or provides “notice and an 

opportunity for a hearing before the Commission or an 

administrative law judge.”).

Third, Defendants allude to “other penalt[ies]” that the 

Commission may impose, citing language from the 

Communications Act and Commission regulations stating that 

“[a] forfeiture penalty under this subsection shall be in addition 

to any other penalty” provided for by the statute. Id.
11

§ 503(b)(1) (emphasis added); accord 47 C.F.R. § 1.80 n.1. In 

search of “other penalt[ies]” available to the Commission 

during its licensing proceeding, 47 U.S.C. § 503(b)(1), 

Defendants point to several Commission public notices and 

orders which state that “[s]ubmission of a false certification to 

the Commission may result in penalties, including monetary 

forfeitures, license forfeitures, ineligibility to participate in 

future auctions, and/or criminal prosecution.” Application of 

Winstar Broadcasting Corp., 20 FCC Rcd. 2043, 2051 n.55 

(2005); accord Auction of Broadband PCS Spectrum 

Scheduled for May 16, 2007, 22 FCC Rcd. 433, 448, 454

(2007). But aside from monetary forfeitures, which the 

Commission may assess only in separate forfeiture 

proceedings, none of the penalties listed in these notices and 

orders is monetary. Defendants cite no authority, nor are we 

aware of any, that permits the Commission to issue civil money

penalties without first initiating forfeiture proceedings. 

Because the Commission had no authority to assess civil 

money penalties during its licensing proceeding, which 

evaluated only Northstar’s and SNR’s long-form applications 

and the petitions to deny them, the licensing proceeding was 

not an “administrative civil money penalty proceeding.” The 

government-action bar therefore poses no impediment to 

Vermont Telephone’s suit.

III.

To be actionable under the FCA, “a misrepresentation 

about compliance with a statutory, regulatory, or contractual 

requirement must be material to the Government’s payment 

decision.” Universal Health Services, Inc. v. U.S. ex rel. 

Escobar, 579 U.S. 176, 192 (2016). A misrepresentation is 

“material” under the Act if it has “a natural tendency to 

influence, or be capable of influencing, the payment or receipt 
12

of money or property.” 31 U.S.C. § 3729(b)(4); accord Cimino, 

3 F.4th at 419.

The district court concluded that Vermont Telephone 

failed to plausibly allege any false claims capable of 

influencing Northstar’s and SNR’s eligibility for bidding 

credits in Auction 97. Vermont Telephone, 531 F. Supp. 3d at 

270. We disagree. Vermont Telephone alleged that Northstar 

and SNR “knowingly failed to disclose all of their instruments, 

agreements, and understandings with . . . DISH” and “falsely 

certified” that they had disclosed all instruments, agreements, 

and understandings relevant to their claimed bidding credits in 

Auction 97. Am. Compl. ¶¶ 125, 128. Specifically, Vermont 

Telephone alleged that the two companies failed to disclose

their agreement to transfer or resell their spectrum to DISH 

after a five-year non-transfer period. Id. ¶¶ 125–27, 130.

Because an applicant’s attributable revenues in Auction 97 

included those of any entity to which the applicant had agreed 

to resell “more than 25 percent of the spectrum capacity of any 

individual license,” id. ¶ 56, Northstar’s and SNR’s 

undisclosed spectrum-resale arrangements would have 

increased their attributable revenues beyond the $15-million 

cap for very-small-business credits, id. ¶ 48. Northstar’s and 

SNR’s alleged false certifications and failures to disclose 

agreements central to their eligibility for bidding credits were 

certainly “capable of influencing” the Commission’s biddingcredit-eligibility determination. Cimino, 3 F.4th at 423.

Echoing the district court’s reasoning, Defendants argue 

that the alleged undisclosed agreements would not have 

changed the Commission’s ultimate decision to deny bidding 

credits because the Commission found Northstar and SNR 

ineligible for credits even without the disclosure of any such 

agreements. But, as other circuits have explained, the FCA’s 

materiality inquiry “focuses on the potential effect of the false 
13

statement when it is made.” U.S. ex rel. Loughren v. Unum

Group, 613 F.3d 300, 309 (1st Cir. 2010); U.S. ex rel. Longhi 

v. United States, 575 F.3d 458, 470 (5th Cir. 2009) (focusing 

on “the potential effect of the false statement when it is made

rather than on the false statement’s actual effect after it is 

discovered,” and noting that the Fourth, Sixth, and Ninth 

Circuits have adopted the same interpretation of the FCA’s 

materiality standard (internal quotation marks omitted)). At the 

time Northstar and SNR submitted their short- and long-form 

applications, their eligibility for bidding credits depended on 

their disclosure of all “agreements, arrangements or 

understandings of any kind relating to the licenses being 

auctioned.” 47 C.F.R. § 1.2105(a)(2)(viii) (requiring 

“[c]ertification that the applicant has provided” all agreements, 

arrangements, and understandings); id. § 1.2112 (b)(2)(vii) 

(requiring applicants to “[l]ist and summarize any agreements 

in which the applicant has entered into arrangements for the use 

of any of the spectrum capacity of the license that is the subject 

of the application”). Moreover, if Northstar and SNR had 

disclosed their alleged agreements to “[resell] the spectrum 

purchased during the auction” to DISH, Am. Compl. ¶ 130,

they “could not have qualified as ‘very small businesses,’ and 

thus could not have received the 25 percent [bidding credits],”

id. ¶ 132; see id. ¶ 56. Northstar’s and SNR’s alleged false 

certifications and failures to disclose agreements therefore had 

the potential to affect the Commission’s eligibility 

determinations regarding such bidding credits. 

Defendants cite the Supreme Court’s decision in Escobar

and our decision in McBride, urging us to focus on the 

Commission’s “actual” decision to deny bidding credits rather 

than the potential effect of Northstar’s and SNR’s 

misrepresentations. Appellees’ Br. 45, 48 (internal quotation 

marks omitted) (citing Escobar, 579 U.S. at 193 and U.S. ex 

rel. McBride v. Halliburton Co., 848 F.3d 1027, 1032 (D.C. 
14

Cir. 2017)). But those decisions looked to the government’s 

“actual behavior” only to assess whether the government 

attaches importance to a particular statutory, regulatory, or 

contractual requirement. Escobar, 579 U.S. at 193–94 (internal 

quotation marks omitted); see McBride, 848 F.3d at 1033–34 

(considering the government’s prior cost determinations as 

evidence on summary judgment that a contractor’s voluntary 

disclosure of headcount data had no “connection” or

“relevan[ce]” to such cost determinations). “[I]f the 

Government regularly pays a particular type of claim in full 

despite actual knowledge that certain requirements were 

violated,” for instance, “that is strong evidence that the 

requirements are not material.” Escobar, 579 U.S. at 195; 

accord McBride, 848 F.3d at 1034. Vermont Telephone’s 

complaint contains no allegations suggesting that the 

Commission attached minimal importance to Northstar’s and 

SNR’s alleged misrepresentations. See Cimino, 3 F.4th at 423 

(“The question here . . . is whether [the plaintiff] plausibly 

pleaded materiality.”). Rather, the amended complaint 

suggests just the opposite, emphasizing that an applicant who

fails to certify that it has disclosed all agreements relating to 

auctioned licenses will not be permitted to participate in the 

auction. Am. Compl. ¶¶ 57–61; 47 C.F.R. § 1.2105 (a)(2)(viii), 

(b)(1)(i). 

Seeking to cast doubt on Vermont Telephone’s 

allegations, Defendants assert that any misrepresentations in 

Northstar’s and SNR’s short-form applications could not have 

affected their “initial [discounted] post-auction payments” 

because the Commission “substantially review[s]” eligibility 

for bidding credits only after applicants file their long-form 

applications. Appellees’ Br. 46–47 (internal quotation marks 

omitted). Any disputes regarding whether the Commission 

substantially reviews short-form applications, however, should 

be addressed at a later stage in this litigation. The question 
15

before us at the motion-to-dismiss stage is only “whether 

[Vermont Telephone] plausibly pleaded materiality.” Cimino, 

3 F.4th at 423. For the foregoing reasons, Vermont Telephone 

has done so.

IV.

Because the FCA is an antifraud statute, plaintiffs alleging 

claims thereunder must satisfy the “plausibility” pleading 

standard set forth in Federal Rule of Civil Procedure 8, as well 

as the heightened “particularity” standard set forth in Rule 9(b). 

Cimino, 3 F.4th at 421. Under Rule 8, the complaint must 

“contain sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted). 

Under Rule 9(b), the complaint “must state with particularity 

the circumstances constituting fraud or mistake.” Fed. R. Civ. 

P. 9(b). 

Defendants urge us to affirm on the alternative grounds, 

not reached by the district court, that Vermont Telephone failed 

to adequately plead its claims under Rules 8 and 9(b). We 

decline to do so and conclude that Vermont Telephone has 

adequately pleaded its claims.

Beginning with Rule 8, Vermont Telephone pleaded facts 

“allow[ing] the court to draw the reasonable inference” that 

Northstar and SNR falsely certified their disclosure of all 

agreements related to auctioned licenses when, in fact, they 

failed to disclose agreements to act on DISH’s behalf and 

transfer spectrum rights to DISH. Cimino, 3 F.4th at 421. In 

particular, Vermont Telephone alleged the following: 

(1) Northstar and SNR were formed as shell companies without 

any assets or revenues, at DISH’s direction, shortly before the 

deadline to apply for Auction 97, Am. Compl. ¶¶ 16, 24;

(2) Northstar and SNR bid for spectrum licenses in Auction 97 
16

“with financing provided almost exclusively from entities 

controlled by . . . DISH,” id. ¶ 91; (3) Northstar and SNR bid 

anonymously for the same licenses 744 times during the 

auction, id. ¶¶ 67, 92, 95; (4) Northstar and SNR frequently 

accepted the Commission’s random selection of the winner 

when they submitted identical winning bids, id. ¶ 96;

(5) Northstar and SNR “finished the auction with geographic 

gaps in their spectrum licenses” which afforded complete 

coverage only when combined, id. ¶ 97; (6) Northstar’s and 

SNR’s post-auction selective defaults created “geographic 

holes in [their] individual coverage” while “promoting the 

uniformity of spectrum coverage provided by their combined 

holdings,” id. ¶ 105; (7) Northstar’s and SNR’s dispersed 

spectrum blocks from Auction 97 “made no sense from the 

point of view of providing communications services,” id. 

¶ 117; (8) neither Northstar nor SNR had “taken steps to deploy 

a wireless system” in the four years since Auction 97 

concluded, id. ¶ 120; and (9) DISH guaranteed Northstar’s and 

SNR’s default payment obligations when each entity 

selectively defaulted, id. ¶¶ 106–07.

Defendants offer alternative explanations for Northstar’s 

and SNR’s conduct, asserting that such conduct is “consistent 

with the absence of any undisclosed agreement(s).” Appellees’ 

Br. 55. Perhaps so, but the question before us on a motion to 

dismiss is only whether the alleged undisclosed agreements to 

act on DISH’s behalf or transfer spectrum rights to DISH are

“plausible.” Iqbal, 556 U.S. at 679. They are. As Vermont 

Telephone alleges in its amended complaint, the 

aforementioned conduct makes little sense unless Northstar 

and SNR agreed in advance that DISH would ultimately 

control the licenses won at auction. Am. Compl. ¶¶ 107, 117.

Vermont Telephone also satisfied Rule 9(b) by setting 

forth detailed allegations regarding the “time, place, and 
17

manner” of the fraudulent scheme. U.S. ex rel. Heath v. AT&T, 

Inc., 791 F.3d 112, 123 (D.C. Cir. 2015). According to the 

amended complaint, members of the boards of Northstar’s and 

SNR’s parent companies submitted short-form applications on 

September 12, 2014, via the Commission’s electronic 

submission portal, which contained false certifications that 

Northstar and SNR had disclosed all agreements, 

arrangements, and understandings related to the licenses in 

Auction 97. Am. Compl. ¶¶ 83–84, 124–31. The alleged 

undisclosed agreements, which the parties entered into between 

August and September 2014, involved Northstar’s and SNR’s 

procurement of spectrum licenses on DISH’s behalf. Id. ¶¶ 16, 

24, 108–09, 125–31, 142. On February 13, 2015, Northstar and 

SNR submitted long-form applications confirming and 

recertifying all disclosures and representations made in their 

short-form applications. Id. ¶ 90. These allegations satisfy Rule 

9(b)’s particularity requirement, as they provide “sufficient 

substance to . . . both afford [Defendants] the opportunity to 

prepare a response and to warrant further judicial process.” 

Heath, 791 F.3d at 125.

V.

For the foregoing reasons, we reverse.

So ordered.