PSSI Global Services, L.L.C. v. FCC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 28, 2020 Decided December 18, 2020
No. 20-1142
PSSI GLOBAL SERVICES, L.L.C., A STATE OF NEVADA LIMITED
LIABILITY COMPANY,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION ,
APPELLEE
AT&T SERVICES, INC., ET AL.,
INTERVENORS
Consolidated with 20-1143, 20-1146, 20-1147, 20-1165,
20-1166, 20-1349
On Appeals from and Petitions for Review of Orders of
the Federal Communications Commission
Stephen Diaz Gavin and Christopher J. Wright argued the
causes for appellants. With them on the joint briefs were Scott
Blake Harris, V. Shiva Goel, and Daniel Tingley.
Ashley S. Boizelle, Acting General Counsel, Federal
Communications Commission, argued the cause for appellee.
2
With her on the brief were Michael F. Murray, Deputy
Assistant Attorney General, U.S. Department of Justice, Daniel
E. Haar and Robert J. Wiggers, Attorneys, Jacob M. Lewis,
Associate General Counsel, Federal Communications
Commission, and Scott M. Noveck, Counsel. Richard K.
Welch, Deputy Associate General Counsel, entered an
appearance.
Peter Karanjia argued the cause for Wireless intervenors.
With him on the brief were James P. Young, Christopher T.
Shenk, Scott H. Angstreich, and Joseph L. Wenner. William H.
Johnson entered an appearance.
Paul A. Werner argued the cause for intervenor SES
Americom, Inc. With him on the brief were Helgi C. Walker,
Russell B. Balikian, Max E. Schulman, and Brian D. Weimer.
Joshua S. Turner, Scott D. Delacourt, and Sara M.
Baxenberg were on the brief for amicus curiae the Alliance for
Automotive Innovation.
Before: WILKINS, KATSAS and WALKER, Circuit Judges.
Opinion of the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: To make room for the emerging
fifth generation of mobile cellular technology, the Federal
Communications Commission significantly narrowed a
frequency band dedicated to fixed satellite transmissions. We
consider whether this change permissibly modified the existing
station licenses of three satellite operators and one company
that broadcasts live events through satellites.
3
I
To reduce interference among different kinds of
telecommunication signals, the FCC may “[a]ssign bands of
frequencies” within the electromagnetic spectrum to specific
uses, and then license companies to operate within each band.
47 U.S.C. § 303(c). An FCC station license permits the “use”
of specific frequency channels for a limited time, “but not the
ownership thereof.” Id. § 301. The FCC may modify station
licenses as necessary to “promote the public interest,
convenience, and necessity.” Id. § 316(a)(1).
Until recently, the frequency band between 3.7 and 4.2
gigahertz (GHz)—referred to as the “C-band” or “C-band
downlink”—was assigned to “fixed satellite service.” 47
C.F.R. § 2.106 (2019). Bases on the ground called “earth
stations” transmit signals to satellites at frequencies between
5.925 GHz and 6.425 GHz, a frequency band referred to as the
“C-band uplink.” Satellites, also called “space stations,”
receive these signals, apply a fixed frequency shift of –2.225
GHz, and transmit the signals back to different earth stations at
frequencies within the C-band downlink.
In March 2018, Congress passed the MOBILE NOW Act,
which sought to make spectrum available for the emerging fifth
generation of mobile cellular technology (5G). Pub. L. No.
115-141, § 603(a)(1), 132 Stat. 1097, 1098 (2018). The Act
identified the C-band as a promising candidate, and it
instructed the FCC to provide notice and an opportunity for
comment on “the feasibility of allowing commercial wireless
services, licensed or unlicensed, to use or share use of the
frequencies between 3700 megahertz and 4200 megahertz.” Id.§ 605(b).
Four months later, the FCC solicited public comment on
proposals to convert all or part of the C-band to 5G terrestrial
4
wireless use. Expanding Flexible Use of the 3.7 to 4.2 GHz
Band, 83 Fed. Reg. 44,128 (proposed July 12, 2018) (NPRM).
At that time, eight companies operated satellites authorized to
transmit signals within the United States over the C-band.
Seven of them told the FCC that they could, through data
compression and other technological upgrades, provide all their
services within 200 megahertz (MHz) of the C-band. The
eighth declined to participate in the rulemaking.
On March 3, 2020, the FCC released a final rule that
reallocated the lower 280 MHz of the C-band (3.7–3.98 GHz)
to 5G terrestrial wireless use, maintained the upper 200 MHz
(4.0–4.2 GHz) for fixed satellite service, and designated the
intervening 20 MHz (3.98–4.0 GHz) as an unusable “guard
band” to minimize cross-interference. Expanding Flexible Use
of the 3.7 to 4.2 GHz Band, 85 Fed. Reg. 22,804, 22,804–05
(April 23, 2020) (Order). The FCC found that the lower
portion of the C-band is ideal for 5G use “due to its favorable
propagation and capacity characteristics,” id. at 22,811, and its
adjacence to spectrum already dedicated to terrestrial wireless
use, id. at 22,806. The Commission concluded that this
spectrum reallocation would lead to “substantial economic
gains,” yet would leave satellite operators “able to maintain the
same services in the upper 200 megahertz as they [were]
providing across the full 500 megahertz.” Id. at 22,807.
To implement the transition, the FCC will auction off
licenses to provide 5G services within the lower portion of the
C-band. Order at 22,807. The auction winners, in addition to
paying the auction price, will be required to reimburse existing
satellite operators for all reasonable costs of transitioning their
services to the upper 200 MHz of the C-band. Id. at 22,826.
The Commission estimated these transition costs will be about
$3.3 billion to $5.2 billion. Id. at 22,830.
5
The FCC required satellite operators to relocate their
transmissions by December 2025. Order at 22,823. But it also
incentivized satellite operators to complete the transition more
quickly, based on a finding that a faster transition would
increase consumer welfare by about $15 billion per year. Id. at
22,827. If satellite operators fully transition by December
2023, the new 5G licensees must pay them an “accelerated
relocation payment” of $9.7 billion, id. at 22,825, 22,831, to be
divided among eligible operators under a set schedule, id. at
22,833–34. The five satellite operators eligible to receive these
payments have chosen to transition by the accelerated deadline
and have begun to relocate their services.
II
Three self-described small satellite operators (SSOs) seek
review of the Order. Each SSO operates one fixed, foreign-
licensed satellite authorized to transmit into the United States
by an FCC market access grant. See 47 C.F.R. § 25.137(c).
The SSOs provide “little to no service” in the United States.
Order at 22,820. Hispasat S.A. contracted all its capacity to
foreign service through the end of 2019. ABS Global Ltd.
provides no United States service, and its satellite can reach
only the Nation’s eastern edge. Empresa Argentina de
Soluciones Satelitales S.A. (ARSAT) did not participate in the
rulemaking and provides no United States service. The FCC
concluded that these SSOs provided no services requiring
relocation and thus were ineligible to receive compensation for
relocation expenses. Id. at 22,829.
PSSI Global Services, LLC also challenges the Order.
PSSI operates mobile earth stations that broadcast live events
by satellite. By modifying the C-band downlink, the FCC has
arguably modified PSSI’s license to transmit over the C-band
uplink: Given the fixed frequency shift, PSSI may no longer
6
transmit signals to satellites at frequencies between 5.925 GHz
and 6.225 GHz, because the satellites would retransmit the
signals at frequencies between 3.7 GHz and 4.0 GHz.
The SSOs and PSSI each filed an appeal under 47 U.S.C.
§ 402(b) and a petition for review under 47 U.S.C. § 402(a).
These provisions are “mutually exclusive channels for the
review of FCC decisions.” Vernal Enters., Inc. v. FCC, 355
F.3d 650, 655 (D.C. Cir. 2004). Section 402(b) permits appeals
to this Court from ten categories of FCC orders, including
appeals by “the holder of any … station license which has been
modified or revoked.” 47 U.S.C. § 402(b)(5). Section 402(a)
authorizes petitions for review of FCC orders “except those
appealable under subsection (b) of this section.” We need not
decide which of these is the proper vehicle for our review if we
have jurisdiction “by the one procedural route or the other.”
Cellco P’ship v. FCC, 700 F.3d 534, 541 (D.C. Cir. 2012).
There is no dispute that either § 402(b)(5) or § 402(a) permits
us to hear the SSOs’ claims.
The FCC contends that we lack jurisdiction over PSSI’s
claims. Although PSSI timely filed its petition for review
within 60 days of the Order’s “entry,” see 28 U.S.C. § 2344,
the Commission argues that PSSI must proceed through a
§ 402(b)(5) appeal, which the agency says is untimely. Under
47 U.S.C. § 402(c), such an appeal must be filed within 30 days
of “public notice” of the decision at issue. The Order was
released on March 3, 2020 and published in the Federal
Register on April 23. PSSI filed its appeal on April 28. The
appeal is thus timely if the § 402(c) deadline runs from the date
of publication in the Federal Register, but not if it runs from
the release date.
An FCC regulation addresses what constitutes “public
notice” under § 402(c). It equates such notice to “publication
7
in the Federal Register” for “documents in notice and comment
and non-notice and comment rulemaking proceedings required
by the Administrative Procedure Act.” 47 C.F.R. § 1.4(b)(1).
In contrast, it equates public notice to the “release date” for
“non-rulemaking documents.” Id. § 1.4(b)(2). The action at
issue here—a final rule—plainly falls within the first category.
The FCC invokes a note in § 1.4(b)(1), which keys public
notice to the release date for “[l]icensing and other adjudicatory
decisions with respect to specific parties that may be associated
with or contained in rulemaking documents.” Yet the Order,
which modified thousands of earth station licenses at once,
cannot reasonably be described as a decision “with respect to
specific parties.” PSSI’s claims thus were timely regardless of
whether they were properly brought as an appeal under
§ 402(b)(5) or as a petition for review under § 402(a).1
After filing their appeals and petitions for review, the
SSOs and PSSI unsuccessfully asked the FCC to stay its Order.
The SSOs then sought a stay from this Court, which we denied.
We nevertheless expedited oral argument to permit review
before the FCC’s auction of 5G spectrum, which began on
December 8, 2020. On that date, we issued our judgment.
On review, we consider whether the Order is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2). The FCC therefore
must articulate a “rational connection between the facts found
and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Ins. Co., 463 U.S. 29, 43 (1983). We review the FCC’s
legal determinations under Chevron U.S.A. Inc. v. NRDC, 467
1
The satellite operator SES Americom, Inc. also protectively
filed an appeal and a petition for review. But since SES does not
challenge any provision of the Order, it is properly before us only as
an intervenor supporting the FCC. See Deposit Guar. Nat’l Bank v.
Roper, 445 U.S. 326, 333 (1980).
8
U.S. 837, 842–43 (1984), and we “accept the Commission’s
findings of fact so long as they are supported by substantial
evidence on the record as a whole,” Neustar, Inc. v. FCC, 857
F.3d 886, 896 (D.C. Cir. 2017) (cleaned up).
III
The principal argument advanced by the SSOs and PSSI is
that the Order exceeds the FCC’s statutory authority to modify
existing station licenses. Although the governing statutes by
their terms speak only of licenses, the FCC gives market access
grants the same protection that it gives to full Commission
licenses. Order at 22,820.
A
Section 316(a)(1) of the Communications Act of 1934
gives the FCC authority to modify station licenses. It provides:
“Any station license … may be modified by the Commission
… if in the judgment of the Commission such action will
promote the public interest, convenience, and necessity.” 47
U.S.C. § 316(a)(1). This provision enables the FCC to
“maintain the control of the United States over all the channels
of radio transmission,” id. § 301, and to manage spectrum
assignments “as public convenience, interest, or necessity
requires,” id. § 303. Although broad, the modification power
has limits. The word modify connotes “moderate” but not
“fundamental” changes. MCI Telecomms. Corp v. AT&T, 512
U.S. 218, 227–29 (1994). In MCI, the Supreme Court applied
that understanding to limit the scope of § 203(b)(2) of the
Communications Act, which authorizes the FCC to “modify”
any statutory requirement to file rate schedules. See id. We
have applied the same understanding to address the scope of
9
the FCC’s power to modify station licenses. See Cellco, 700
F.3d at 543.
One example of a permissible modification is instructive
here. In Community Television, Inc. v. FCC, 216 F.3d 1133(D.C. Cir. 2000), the FCC ordered all television broadcasters
to migrate their services from analog to digital technology. To
ease this transition, it allowed broadcasters to use a digital
channel free of charge for ten years and to retain access to their
analog channels over that same period. Id. at 1136. We held
that this order, which required broadcasters to entirely
transform their operations, permissibly modified their station
licenses. We reasoned that the licenses were not fundamentally
changed because broadcasters would “begin and end the
transition … under very similar terms” and would “provide
essentially the same services” before, during, and after the
transition. Id. at 1141.
B
The FCC concluded that reallocating spectrum from
satellite to 5G use would promote the public interest by
creating billions of dollars of economic growth. Order at
22,807. The SSOs do not dispute that determination. Instead,
they contend that the change to their market access grants was
too fundamental to qualify as a modification under § 316(a)(1).
Further, they argue that the FCC arbitrarily restricted their
future business opportunities and excluded them from
receiving compensation from the future 5G providers. Finally,
they claim that the FCC impermissibly sanctioned them
without prior notice. We disagree with all of this.
The SSOs argue that reducing their available spectrum by
sixty percent works a fundamental change in their grants of
market access. But the FCC found that the remaining spectrum
“exceeds any reasonable estimate of [the SSOs’] needs,” Order
10
at 22,820, so “any opportunities [the SSOs] might be losing as
a result of the Commission’s actions are, on a practical level,
de minimis,” id. at 22,821. The SSOs object that the FCC
considered only how much spectrum satellite operators would
need to continue servicing existing customers. In fact, the FCC
determined that the remaining spectrum would allow all
operators—including the SSOs—to serve their likely future
customers as well. See id. at 22,820–21, 22,829, 22,836.
Substantial evidence supports this critical finding. In a
declining market for satellite transmission, Order at 22,821, the
SSOs currently provide “little to no service” in the C-band
within the United States, id. at 22,820. Moreover, they have
made few efforts to develop such services, id. at 22,836, and
they have failed to show an “ability to lure existing customers
away from their contracts with other providers or to explain
how they had planned to obtain new customers,” id. at 22,821.
During the rulemaking, two SSOs affirmatively supported the
reallocation. They commented that “300 megahertz of C-band
spectrum could be made available for 5G … through the use of
non-proprietary, readily available compression technology”
without impairing the SSOs’ operations. Id. at 22,824.
The SSOs cite no persuasive contrary evidence. Hispasat,
which sold all its transmission capacity to foreign customers
through the end of 2019, Order at 22,835, offers only a bare
assertion that it plans to develop future business in the United
States. ABS, whose satellite can reach only the eastern edge of
the United States, asserts that it has made reasonable efforts to
provide service in the United States. But it waited a year and a
half after launching its satellite to apply for a grant of market
access, then waited another year to apply for an earth station
construction permit. Id. at 22,836. And ARSAT, which neither
responded to the FCC’s request for information nor otherwise
participated in the rulemaking, can point to no evidence
11
undermining the FCC’s evaluation of its needs. The SSOs
claim a unique ability to transmit content into the United States
from abroad, which they say gives them a competitive
advantage over domestic satellite providers. But the SSOs
have not shown that any market for such services exists, much
less that such a market would be large enough to require 500
MHz of spectrum.
The FCC’s finding that 200 MHz will support the SSOs’
present and likely future transmission needs forecloses any
claim that the agency exceeded its authority to modify existing
station licenses. This finding establishes that the SSOs will be
able to provide essentially the same services after the transition
as before. They will just be required to do so through different
means—by utilizing the upper 200 MHz of the C-band rather
than the entire 500 MHz. In this respect, the SSOs are like the
broadcasters in Community Television, who could continue
providing the same service to viewers, but only through new
digital technology. Unless it harms the services ultimately
provided, the need to make such technological adjustments
does not impose any impermissibly fundamental change. See
Community Television, 216 F.3d at 1141.
The SSOs briefly invoke three other provisions of the
Communications Act, but none helps their case. Section 312(a)
restricts the FCC’s ability to revoke licenses, but a reduction in
spectrum that leaves licensees with enough capacity to meet
current and future needs does not remotely constitute a
revocation. Section 303(y)(2)(C) requires the FCC to ensure
that its spectrum allocation does not “result in harmful
interference among users.” But nothing in that provision bars
the FCC from reducing harmful interference by reconfiguring
the frequency band assigned to incumbent licensees. Section
309(j)(8)(G) permits the FCC to hold a reverse auction and
share a portion of its proceeds with licensees to “encourage a
12
licensee to relinquish voluntarily some or all of its licensed
spectrum usage rights.” The SSOs contend that this provision,
by its negative implication, requires the FCC to provide
compensation if it takes away any spectrum from existing
licensees. But § 309(j)(6)(C) forecloses that inference, by
stating that nothing in § 309(j) shall “diminish the authority of
the Commission under the other provisions of this chapter to
regulate or reclaim spectrum licenses.” As explained above,
§ 316(a)(1) permits the license modifications at issue.
Our analysis above all but forecloses the SSOs’ related
contentions that the FCC arbitrarily modified their market
access grants and denied them compensation. The SSOs
contend that the FCC unreasonably limited their potential for
future growth in the United States. But the SSOs hold “no
vested right to any specific terms” of their market access
grants. Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585, 589
(D.C. Cir. 2001). And in any event, the FCC took account of
their likely future needs as well as their (minimal) current
domestic business. In sum, it was entirely reasonable for the
FCC to conclude that C-band spectrum would better serve the
public interest if actively used by state-of-the-art 5G
technology than if held in reserve by satellite operators unlikely
to need it. And the FCC reasonably declined to require
successful 5G bidders to compensate the SSOs for a reduction
in spectrum that imposed on them at most “speculative claims
of future loss.” Order at 22,829.
Finally, the SSOs object that the FCC declined to provide
adequate advance notice for adopting what they describe as the
“sanction” of assessing their spectrum needs by reference to
existing customers. But as we have shown, the FCC considered
all satellite operators’ future as well as current needs, which
was more than enough to protect the SSOs’ interests under
these circumstances.
13
C
PSSI claims that its licenses to transmit within the C-band
uplink have been fundamentally changed. But the FCC
concluded that earth stations—including PSSI’s mobile ones—
will be able to “provide the same services” to their customers
after the license modification. Order at 22,823. That finding
was supported by substantial evidence.
PSSI contends that the reduction in spectrum prevents it
from transmitting from certain major event venues. For
example, PSSI claims that its stations, when positioned at Hard
Rock Stadium in Miami, have sufficient “line of sight” to
transmit only to satellites operating in the lower 300 MHz of
the C-band. But PSSI did not raise this argument before the
FCC. There, PSSI argued that the proposed reallocation would
leave insufficient overall capacity to meet its transmission
needs. The FCC addressed that concern at length, explaining
why data compression and other technology—which PSSI may
install and be reimbursed for—would ensure that the remaining
spectrum is adequate for satellite operators and their customers.
PSSI’s line-of-sight concern is distinct; it concerns the
elimination of specific frequencies, not the reduction of overall
capacity. Because PSSI gave the FCC no “opportunity to pass”
on its line-of-sight concern, we may not address it. 47 U.S.C.
§ 405(a); see FiberTower Spectrum Holdings, LLC v. FCC,
782 F.3d 692, 697 (D.C. Cir. 2015).
PSSI further claims that the Order will allow 5G base
stations to operate at high power levels, which will increase
interference with its own return reception from the satellites to
which it is transmitting. But it is unclear whether PSSI’s return
reception will indeed suffer. PSSI relies primarily on its recent
experience at an Iowa State football game, where it lost return
reception because a nearby cell phone tower was operating
14
within the C-band under an experimental license. But after that
incident, the FCC adopted many new protections against
interference. Among other things, it created a 20 MHz guard
band between satellite and 5G transmissions, Order at 22,811;
limited the allowable level of spillover transmissions extending
beyond the edge of the frequency band assigned for 5G use, id.
at 22,848; and required satellite operators to provide earth
stations with passband filters, id. at 22,825. Moreover, any
incidental interference with PSSI’s return reception would not
cause the kind of fundamental change that might exceed the
FCC’s modification power. At the Iowa State game, PSSI
admits that its outgoing transmissions were not affected.
Although its return reception was disrupted, PSSI fails to
explain why it must monitor the return signal on-site rather than
remotely. Finally, PSSI acknowledged before the FCC that
simply being able to coordinate with nearby 5G base stations
would substantially reduce any potential disruption. And it
seems likely that PSSI will be able to locate base station
operators with help from the hosts of its events or a third-party
service. Because the potential for new interference reflects at
most a minor disruption to PSSI’s business, the FCC did not
impermissibly modify its licenses.
IV
The parties’ other challenges to the Order lack merit.
A
The SSOs contend that the relocation payments to be made
to the large satellite operators (LSOs) are arbitrarily high and
inflict a competitive injury on the SSOs. The FCC did not
contest the SSOs’ constitutional standing to challenge these
payments to third parties, but we have an independent duty to
15
consider the issue. See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998).
We have held that parties may establish standing by
showing that the challenged agency action “allow[s] increased
competition against them.” Sherley v. Sebelius, 610 F.3d 69,
72 (D.C. Cir. 2010) (cleaned up). Examples include orders
permitting a new entrant into a fixed market, see, e.g., FCC v.
Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940), or
allowing a rival to sell a fungible good at a lower price, see,
e.g., La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367
(D.C. Cir. 1998). These orders increase competition—and thus
harm competitors—as a matter of “economic logic.” Sherley,
610 F.3d at 72 (cleaned up). But a party cannot establish
competitor standing merely by claiming that a rival’s favorable
tax treatment has created an “unfair competitive atmosphere.”
Am. Soc. of Travel Agents, Inc. v. Blumenthal, 566 F.2d 145,
149 (D.C. Cir. 1977). Nor is it enough to claim that a rival’s
favorable regulatory treatment has created a “skewed playing
field.” See Mobile Relay Assocs. v. FCC, 457 F.3d 1, 13 (D.C.
Cir. 2006). Rather, a party asserting competitor standing must
“make a concrete showing that it is in fact likely to suffer
financial injury as a result of the challenged action.” KERM,
Inc. v. FCC, 353 F.3d 57, 60–61 (D.C. Cir. 2004).
To make such a showing, the party claiming standing must
be a “direct and current competitor whose bottom line may be
adversely affected by the challenged government action.” New
World Radio, Inc. v. FCC, 294 F.3d 164, 170 (D.C. Cir. 2002).
If the competitors serve distinct geographic markets, the risk of
harm is too speculative. Id. at 170–71; see also DEK Energy
Co. v. FERC, 248 F.3d 1192, 1196 (D.C. Cir. 2001).
Here, the SSOs do not directly and currently compete with
the LSOs. As detailed above, the SSOs provide services almost
16
exclusively abroad and have taken few steps to develop any
United States markets. We recognize that it may take time to
develop new business, but competitor standing requires actual
participation in the relevant market. See New World Radio, 294
F.3d at 170. Hispasat’s bare assertion that it plans to compete
in the United States in the future, and ABS’s single application
for an earth station construction permit over three years, both
fall well short. 2
Moreover, even if the SSOs did directly compete with the
LSOs, they made no concrete showing that the Order is likely
to cause them a financial injury. In support of standing, the
SSOs declare that payments to the LSOs will “make the already
strongest competitors even stronger,” give them “much more
flexibility when competing,” and allow them to “corner niche
markets.” J.A. 759, 773–74. These statements are akin to
claims that the favorable regulatory treatment of a competitor
has caused a skewed playing field, which we have rejected as
insufficient. They do not, as our cases require, identify any
specific harm to the SSOs that will result as a matter of
economic logic. To be sure, the SSOs have alleged that they
will be less attractive investments if the LSOs become more
profitable. But if that sufficed to establish competitor standing,
the doctrine would have no limit on the ability of one
competitor to challenge the good fortunes of another.
2
After repeatedly telling the FCC that all its current capacity
had been contracted for foreign service, Hispasat belatedly claimed
to provide service to nine unregistered earth stations in the United
States. The FCC rejected what it described as “Hispasat’s revisions
to history,” Order at 22,835–36, and we find no reversible error in
its treatment of this factual dispute.
17
B
PSSI’s further claims also lack merit.
First, PSSI contends that the 5G auction violates the
ORBIT Act, which prohibits the FCC from using competitive
bidding to assign “spectrum used for the provision of
international or global satellite communications services.” 47
U.S.C. § 765f. PSSI asserts that this provision governs
auctions for spectrum currently used for international satellite
communications, rather than auctions for spectrum that will be
so used after the auction. We have rejected this precise
argument, in upholding the FCC’s interpretation of § 765f to
cover only spectrum that “is to be used for the provision” of
international satellite services. Northpoint Tech., Ltd. v. FCC,
414 F.3d 61, 73 (D.C. Cir. 2005) (emphasis added) (cleaned
up). That holding binds us here.
Second, PSSI argues that the Order was not a logical
outgrowth of the NPRM. As PSSI notes, the NPRM stated that
the FCC would evaluate only whether the C-band downlink
was suitable for 5G use, but might later “address other mid-
band spectrum bands” such as the C-band uplink. NPRM at
44,129–30. PSSI frames this statement as a commitment to
leave the C-band uplink entirely unaffected. In fact, the FCC
simply announced that the rulemaking would address whether
the C-band downlink should be reallocated to 5G use, which is
precisely what the Order did. Nor did it commit to leaving the
C-band uplink unaltered. To the contrary, the NPRM noted
that reallocating spectrum within the C-band downlink would
necessarily impact the C-band uplink. Id. at 44,154. PSSI
itself understood this point, as confirmed by its active
participation in the rulemaking. The logical outgrowth
doctrine—which applies only where a final rule substantially
18
“differs from a proposed rule,” Allina Health Servs. v. Sebelius,
746 F.3d 1102, 1107 (D.C. Cir. 2014)—does not apply.
Finally, PSSI argues that the FCC did not consider the
potential for 5G base stations to interfere with its nearby mobile
stations. But as explained above, the FCC did reasonably
respond to the concern about interference by establishing
several significant protections against it. PSSI objects that the
Commission failed to separately address its proposal to order a
national registry listing the identity, location, and power levels
of all 5G base stations. But doing so would impose significant
administrative burdens and would save PSSI only the
comparably minimal cost of locating nearby base stations on
its own. The FCC did not act arbitrarily by failing to address a
proposal that was neither “significant” nor “viable.” City of
Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1169 (D.C.
Cir. 1987).
V
For these reasons, we uphold the Order under review, and
we dismiss the appeal and petition for review of SES.
So ordered.