USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 1 of 20
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`NTCH, INC.
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`Petitioner,
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`v.
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`18-1243
`Case No. ____________
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`_________________________________________
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`_________________________________________)
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`FEDERAL COMMUNICATIONS
`COMMISSION
`
`Respondent.
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`PETITION FOR REVIEW
`
`Pursuant to 47 U.S.C. § 402(a), 28 U.S.C. §§ 2342(1) and 2344,
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`5 U.S.C. § 701, et seq., Rule 15(a) of the Federal Rules of Appellate Procedure,
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`and Circuit Rule 15, NTCH, Inc. (“NTCH”) hereby petitions this Court for review
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`of the Federal Communications Commission’s (“FCC”) Report and Order and
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`Order of Proposed Modification (“AWS-4 R&O”) in Service Rules for Advanced
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`Wireless Services in the 2000-2020 MHz and 2180-2200 MHz Bands, et al., 27
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`FCC Rcd. 16102 (2012), the FCC’s Wireless Telecommunications Bureau’s
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`(“WTB”) Order of Modification, 28 FCC Rcd. 1276 (WTB 2013) (“AWS-4 Order
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`of Modification”) in the same case, and the Order on Reconsideration, FCC 18-121
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`(adopted Aug. 14, 2018; released Aug. 16, 2018) (“AWS-4 Reconsideration
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`1
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`

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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 2 of 20
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`Order”) in the same case. A copy of AWS-4 Reconsideration Order is attached
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`hereto.
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`The case under review involves the FCC’s decision to assign the Advanced
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`Wireless Services-4 (“AWS-4”) spectrum in the 2 GHz band to the incumbent
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`Mobile Satellite Service (“MSS”) licensees without utilizing proper competitive
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`bidding procedures. In the AWS-4 R&O, the FCC determined that the satellite
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`licenses held by two related companies should be modified to permit terrestrial
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`operations. In a follow-on proceeding (i.e., the AWS-4 Order of Modification), the
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`WTB then modified the subject licenses pursuant to the reasoning outlined in the
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`AWS-4 R&O. In the Order now under review, the FCC addressed two separate
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`petitions for reconsideration filed by NTCH: (1) Petition for Reconsideration of
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`the AWS-4 R&O, filed March 7, 2013 (“NTCH AWS-4 R&O Petition for
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`Reconsideration”) – addressing the modification of MSS licenses and AWS-4
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`service rules prescribed by the FCC in the AWS-4 R&O; and (2) Petition for
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`Reconsideration of the AWS-4 Order of Modification, filed March 13, 2013
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`(“NTCH AWS-4 Order of Modification Petition for Reconsideration”) – addressing
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`in an abundance of caution the actual modification of the 2 GHz licenses held by
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`two subsidiaries of DISH Network Corporation pursuant to the AWS-4 R&O.
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`Because the FCC’s AWS-4 Order of Modification effectively implemented the
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`2
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 3 of 20
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`rulings made in the AWS-4 R&O, this petition is being filed under the provisions of
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`47 U.S.C. § 402(a).
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`Because the AWS-4 Reconsideration Order affirmed the modification of the
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`satellite licenses, however, the application of 47 U.S.C. § 402(b) must be
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`considered. This Court has exclusive jurisdiction over cases where: (1) the FCC
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`denies
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`“an
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`[application]
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`for . . . modification of
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`an[] . . . instrument of
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`authorization . . . . ,” 47 U.S.C. § 402(b)(2); and (2) the appellant “is aggrieved”
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`and its “interests are adversely affected” by grant or denial of such an application.
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`47 U.S.C. § 402(b)(6). Here there was no “application” to modify a license.
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`Rather, the modification was authorized by a show cause proceeding initiated by
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`the FCC – not an applicant. Since no other provision of § 402(b) applies, review
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`of the instant case necessarily falls under § 402(a). However, should the Court
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`determine that the license modification element of the underlying FCC proceeding
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`implicates § 402(b), review under that section is alternatively requested. See
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`Verizon v. FCC, 740 F.3d 623, 634 (D.C. Cir. 2014) (“Because we plainly have
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`jurisdiction by [either § 402(a) or (b)], we need not decide which is the more
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`appropriate vehicle for our review.” (citation and internal quotation marks
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`omitted)).
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`Venue in this Court is founded on 28 U.S.C. § 2343.
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`3
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 4 of 20
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`NTCH seeks relief on the grounds that the AWS-4 Reconsideration Order is:
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`(1) arbitrary and capricious; (2) contrary to the provisions of the Communications
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`Act of 1934, as amended, 47 U.S.C § 151, et seq.; (3) contrary to the FCC’s
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`regulations; (4) contrary to longstanding FCC policy; and (5) otherwise not in
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`accordance with the law. Accordingly, NTCH respectfully requests that this Court
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`reverse the AWS-4 R&O and the associated orders permitting the modification of
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`the DISH satellite licenses without any opportunity for interested parties to acquire
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`the newly licensed spectrum, and provide such additional relief as may be
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`appropriate.
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`
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`Dated:
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`Respectfully submitted,
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`
`
`
`/s/ Donald J. Evans
`Donald J. Evans
`Keenan P. Adamchak
`Fletcher, Heald & Hildreth, PLC
`1300 N. 17th Street – 11th Floor
`Arlington, VA 22209
`(703) 812-0430
`
`Counsel for NTCH, Inc.
`
`September 7, 2018
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`4
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 5 of 20
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`ATTACHMENT
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`AWS-4 Reconsideration Order
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 6 of 20
`Federal Communications Commission
`FCC 18-121
`
`Before the
`Federal Communications Commission
`Washington, D.C. 20554
`
`WT Docket No. 12-70
`
`ET Docket No. 10-142
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`WT Docket No. 04-356
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`)))))))))))))
`
`In the Matter of
`
`Service Rules for Advanced Wireless Services in
`the 2000-2020 MHz and 2180-2200 MHz Bands
`
`Fixed and Mobile Services in the Mobile Satellite
`Service Bands at 1525-1559 MHz and 1626.5-
`1660.5 MHz, 1610-1626.5 MHz and 2483.5-2500
`MHz, and 2000-2020 MHz and 2180-2200 MHz
`
`Service Rules for Advanced Wireless Services in
`the 1915-1920 MHz, 1995-2000 MHz, 2020-2025
`MHz and 2175-2180 MHz Bands
`
`Adopted: August 14, 2018
`
`By the Commission:
`
`ORDER ON RECONSIDERATION
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`Released: August 16, 2018
`
`TABLE OF CONTENTS
`
`Paragraph #
`Heading
`I.
`INTRODUCTION...................................................................................................................................1
`II. BACKGROUND.....................................................................................................................................2
`III. DISCUSSION........................................................................................................................................12
`A. NTCH’s First Petition for Reconsideration ....................................................................................14
`1. Section 316 License Modification............................................................................................14
`2. Service Rules Limiting the AWS-4 Bands to Terrestrial Use..................................................19
`B. NTCH’s Second Petition for Reconsideration................................................................................22
`IV. ORDERING CLAUSE..........................................................................................................................23
`
`I.
`
`INTRODUCTION
`1.
`In this Order, we dismiss, or in the alternative deny, two petitions for reconsideration filed by
`NTCH, Inc. (NTCH).1 The first asks us to reconsider the AWS-4 Report and Order,2 and the second asks
`
`1 NTCH, Inc., Petition for Reconsideration, WT Docket Nos. 12-70, 04-356, ET Docket No. 10-142 (filed Mar. 7,
`2013) (Petition for Reconsideration of the AWS-4 Report and Order); NTCH, Inc., Petition for Reconsideration, WT
`Docket Nos. 12-70, 04-356, ET Docket No. 10-142 (filed Mar. 18, 2013) (Petition for Reconsideration of the AWS-4
`Order of Modification).
`2 Service Rules for Advanced Wireless Services in the 2000-2020 MHz and 2180-2200 MHz Bands et al., WT
`Docket No. 12-70 et al., Report and Order and Order of Proposed Modification, 27 FCC Rcd 16102 (2012) (AWS-4
`Report and Order).
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`

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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 7 of 20
`Federal Communications Commission
`FCC 18-121
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`us to reconsider the AWS-4 Order of Modification.3 Both petitions rely on the same two arguments. First,
`NTCH asserts that the Commission lacks the authority to change the 2 GHz licenses as it has done here
`because the changes were more than modifications and effectuated a “fundamental” change in such
`licenses.4 Second, NTCH argues that in conjunction with its decision to use the Part 27 flexible-use
`framework to license the 2 GHz band (specifically, the 2000-2020 MHz and 2180-2200 MHz bands, also
`known as “AWS-4” or the “AWS-4 band”), the Commission should have eliminated from its service rules
`the authority to use this spectrum band for Mobile Satellite Service (MSS).5 We dismiss NTCH’s
`petitions because NTCH has failed to show that it has met the threshold requirements to justify
`Commission reconsideration. In any event, as a separate and independent ground for rejecting the
`petitions, we deny them on the merits.
`II.
`BACKGROUND
`2.
`In 2011, the Commission added co-primary Fixed and Mobile terrestrial allocations to the 2
`GHz band.6 This action, which built upon a recommendation in the Commission’s National Broadband
`Plan,7 was intended to “lay the groundwork for more flexible use of the band, including for terrestrial
`broadband services, in the future.”8
`3.
`In the March 2012 Notice of Proposed Rulemaking in these dockets, the Commission cited
`three reasons for proposing, as a general matter, that AWS-4 spectrum in the 2 GHz band be assigned to
`the incumbent MSS licensees.9 First, the complexities of coordination between MSS and terrestrial
`uses—which had led the Commission in 2003 to limit terrestrial use of the band to an ancillary terrestrial
`component (ATC) of the licenses held by the MSS incumbents10—suggested that assignment of terrestrial
`
`3 Service Rules for Advanced Wireless Services in the 2000-2020 MHz and 2180-2200 MHz Bands et al., Order of
`Modification, 28 FCC Rcd 1276 (Sat. Div., IB and Broadband Div., WTB 2013) (AWS-4 Order of Modification).
`Pursuant to Section 1.106(a)(1) of the Commission’s rules, 47 CFR § 1.106(a)(1), the Petition for Reconsideration
`of the AWS-4 Order of Modification is being referred to the Commission because it involves implementation of the
`Order of Proposed Modification included in the AWS-4 Report and Order that is the subject of NTCH’s first
`Petition for Reconsideration, which is addressed to the Commission, and as noted below incorporates by reference
`the arguments in that first Petition.
`4 Petition for Reconsideration of the AWS-4 Report and Order at 4-7; Petition for Reconsideration of the AWS-4
`Order of Modification at 2-3.
`5 Petition for Reconsideration of the AWS-4 Report and Order at 7-8; Petition for Reconsideration of the AWS-4
`Order of Modification at 2-3.
`6 Fixed and Mobile Services in the Mobile Satellite Service Bands at 1525-1559 MHz and 1626.5-1660.5 MHz,
`1610-1626.5 MHz and 2483.5-2500 MHz, and 2000-2020 MHz and 2180-2200 MHz, ET Docket No. 10-142,
`Report and Order, 26 FCC Rcd 5710, 5714, para. 8 (2011) (2 GHz Band Co-Allocation Order). MSS is a
`radiocommunications service involving transmission between mobile earth stations and one or more space stations.
`See 47 CFR § 2.1(c).
`7 Connecting America: The National Broadband Plan, Recommendation 5.8.4, p. 87 (2010), cited in 2 GHz Band
`Co-Allocation Order, 26 FCC Rcd at 5710, paras. 1-2.
`8 2 GHz Band Co-Allocation Order, 26 FCC Rcd at 5710, para. 2.
`9 Service Rules for Advanced Wireless Services in the 2000-2020 MHz and 2180-2200 MHz Bands et al., Notice of
`Proposed Rulemaking and Notice of Inquiry, 27 FCC Rcd 3561, 3583-84, paras. 69-71 (2012) (AWS-4 NPRM).
`10 See Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-
`Band, and the 1.6/2.4 GHz Bands et al., Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 1962,
`1965, para. 2 (2003) (ATC Report and Order) (“Specifically, based on the record and our detailed technical
`analyses, we find that granting shared usage of the same MSS frequency band to separate MSS and terrestrial
`operators would likely compromise the effectiveness of both systems . . . .”). As the Commission concluded, “The
`2
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 8 of 20
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`licenses to an entity other than the incumbent MSS licensee remained impractical.11 Second, interference
`problems associated with having separate terrestrial licensees in the same band pointed to assigning the
`AWS-4 licenses to the incumbent MSS licensees.12 Third, this approach would not diminish the MSS
`licensees’ existing ability to provide terrestrial service in the band.13
`4. The Commission cited similar reasons to support its proposal to take the associated, more
`specific step of issuing an Order of Proposed Modification to initiate the Section 316 process for
`modifying the current 2 GHz licenses to grant terrestrial authority pursuant to new AWS-4 service rules.14
`In making this proposal, the Commission noted its earlier conclusion that separately controlled MSS and
`terrestrial operations in the same 2 GHz band would be “impractical and ill-advised” because of the
`technical hurdles to a workable sharing arrangement.15 The Commission also observed that modifying
`the existing 2 GHz licensees’ authority—which already included ATC authority16—would enhance their
`ability to offer high-quality, affordable terrestrial wireless broadband services.17
`In its later AWS-4 Report and Order, the Commission established the AWS-4 service rules
`5.
`and, citing its “broad power” with respect to license modifications under Section 316, adopted the
`foregoing proposals.18 The AWS-4 Report and Order thus included an Order of Proposed Modification,
`proposing to modify the 2 GHz licenses held by two DISH Network Corp. (DISH) subsidiaries, consistent
`with the Commission’s general decision to authorize incumbent 2 GHz licensees to provide AWS-4
`service under their 2 GHz licenses.19 Based on the record, the AWS-4 Report and Order reaffirmed the
`Commission’s earlier technical findings regarding the impracticability of same-band, separate-operator
`sharing, and thus declined to assign AWS-4 terrestrial rights through a system of competitive bidding, as
`proposed by NTCH.20 The Commission also concluded that this 2 GHz license modification approach
`would best serve the public interest, as this appeared to be the best and fastest method for bringing this
`spectrum into full use, in the context of growing demand for wireless broadband services.21
`
`(Continued from previous page)
`record demonstrates that sharing between MSS and terrestrial mobile services is neither advisable, nor practical.”
`Id., 18 FCC Rcd at 1999, para. 65.
`11 AWS-4 NPRM, 27 FCC Rcd at 3584, para. 71.
`12 Id.
`13 Id.
`14 Id. at 3585, para. 75 (proposing that “once the AWS-4 service rules are effective, we would issue an Order of
`Proposed Modification, under Section 316 of the Communications Act, to modify the existing 2 GHz MSS
`licensee’s authority to operate in the 2000-2020 MHz and 2180-2200 MHz bands by adding Part 27 terrestrial
`authority and obligations, which would apply to all the AWS-4 service areas in these bands”); see also 47 U.S.C. §
`316.
`15 AWS-4 NPRM, 27 FCC Rcd at 3583, para. 69 (internal quotation marks omitted).
`16 See ATC Report and Order, 18 FCC Rcd at 1964, para. 1.
`17 AWS-4 NPRM, 27 FCC Rcd at 3586, para. 78.
`18 AWS-4 Report and Order, 27 FCC Rcd at 16167, para. 172 (2012) (quoting Cal. Metro Mobile Commc’ns, Inc. v.
`FCC, 365 F.3d 38, 45-46 (D.C. Cir. 2004)); id. at 16167-73, 16220-22, paras. 169-86, 319-22.
`19 Id. at 16220-22, paras. 319-22.
`20 Id. at 16167-69, 16171-72, paras. 169-71, 180-83.
`21 Id. at 16169-70, paras. 177-78.
`
`3
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 9 of 20
`Federal Communications Commission
`FCC 18-121
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`DISH (through its wholly-owned subsidiaries) is the sole holder of the 2 GHz licenses,22
`6.
`which it acquired in 2012.23 As noted above, in the Order of Proposed Modification, the Commission
`proposed to modify DISH’s 2 GHz licenses to include the AWS-4 authorizations.24 On January 22, 2013,
`DISH accepted the proposed license modifications.25 On February 15, 2013, the Wireless
`Telecommunications Bureau and the International Bureau issued an order to modify DISH’s 2 GHz
`licenses by adding an authorization to provide AWS-4 service.26 On March 7, 2013, the license
`modifications took effect, and the Wireless Telecommunications Bureau issued DISH these modified
`licenses.
`7. On March 7, 2013, NTCH filed a Petition for Reconsideration of the AWS-4 Report and
`Order.27 This petition first argued that the Commission had exceeded its authority under Section 316 of
`the Communications Act because the proposed license modifications constituted a “fundamental change”
`rather than a “moderate change” to the DISH licenses.28 NTCH listed a number of indicia purporting to
`show that DISH’s 2 GHz licenses were radically or fundamentally changed, including: (1) the renaming
`of the service to “AWS-4”; (2) the relocation of the applicable rules from Part 25 to Part 27; (3) the
`differences between the Part 25 and Part 27 technical rules; and (4) the effect that the AWS-4 Report and
`Order had on the value of the AWS-4 licenses.29 Second, the petition argued that the AWS-4 Report and
`Order could have avoided the technical problems posed by satellite and terrestrial operations in the same
`band by “adopt[ing] changes to the underlying service rules” to foreclose satellite use.30 NTCH argued
`that the Commission “cursorily dismissed this proposal in a footnote [by] saying that this suggestion was,
`in effect, an untimely request for reconsideration of the [decision in the] 2 GHz Band Co-Allocation
`Report and Order” to adopt a co-primary allocation of the band for satellite and commercial use.31 NTCH
`concedes that the argument it made in the AWS-4 proceeding before the Commission issued the AWS-4
`Report and Order “was perhaps confusing,” but it sought to “clarify” that it was asking the Commission
`to use the service rules to limit the band to terrestrial service, rather than asking the Commission to alter
`the co-primary allocation previously adopted in the 2 GHz Band Co-Allocation Report and Order.32
`8. On March 18, 2013, NTCH filed a separate Petition for Reconsideration—this one seeking
`reconsideration of the AWS-4 Order of Modification.33 This second petition incorporated by reference the
`
`22 The 2 GHz licenses are held by DISH subsidiaries Gamma Acquisitions L.L.C. (MSS call sign E060430, AWS-4
`call signs T060430001 through T060430176) and New DBSD Satellite Services G.P. (MSS call sign E070272,
`AWS-4 call signs T070272001 through T070272176). For convenience, we refer to these subsidiaries collectively
`as DISH.
`23 New DBSD Satellite Service G.P., Debtor-in-Possession, and TerreStar Licensee Inc., Debtor-in-Possession,
`Request for Rule Waivers and Modified Ancillary Terrestrial Component Authority, Order, 27 FCC Rcd 2250,
`2250-51, 2262, paras. 1, 31 (IB 2012).
`24 AWS-4 Report and Order, 27 FCC Rcd at 16164-73, 16220-22, 16224, paras. 161-86, 319-22, 331-32.
`25 Letter from Jeffrey H. Blum, Senior Vice President & Deputy General Counsel, DISH, to Marlene H. Dortch,
`Sec’y, Federal Communications Commission, WT Docket No. 12-70 et al., at 1 (filed Jan. 22, 2013).
`26 AWS-4 Order of Modification, 28 FCC Rcd at 1278, paras. 6-10.
`27 Petition for Reconsideration of the AWS-4 Report and Order.
`28 Id. at 3, 4-7.
`29 Id. at 6-7.
`30 Id. at 8; accord id. at 3-4, 7-8.
`31 Id. at 7-8.
`32 Id. at 8.
`33 Petition for Reconsideration of the AWS-4 Order of Modification.
`4
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`USCA Case #18-1243 Document #1751016 Filed: 09/07/2018 Page 10 of 20
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`arguments in the first petition.34 “[F]iled in an abundance of caution,” the second petition states that it is
`intended “to ensure that the Commission retains the right to reverse the [license] modifications consistent
`with its resolution of the issues presented in” this docket.35
`9. On March 28, 2013, DISH filed an opposition to NTCH’s second petition for reconsideration
`(from the AWS-4 Order of Modification).36 DISH argued, as a threshold matter, that NTCH lacked
`standing to seek reconsideration of the AWS-4 Order of Modification. Noting that NTCH had admitted
`that it had no standing under Section 316 to protest the proposed modification, DISH asserted that NTCH
`could not then assert standing to seek reconsideration of the order issued pursuant thereto. In addition,
`DISH argued that a stated desire to bid on licenses for a service where no auction has even been proposed
`“appears too remote and speculative to confer standing in this case.”37 DISH responded to NTCH’s
`Section 316 argument by noting the Commission’s repeated exercise of Section 316 authority to eliminate
`harmful interference38 and arguing that its Section 316 modification “is for the same spectrum and the
`same services (MSS and terrestrial wireless) that it has now.”39 It noted that the Commission had
`appropriately rejected NTCH’s argument for eliminating MSS use of the 2 GHz band as amounting to an
`untimely petition for reconsideration of the Commission’s earlier allocation order.40 DISH also argued
`that adopting AWS-4 service rules limiting the use of the spectrum to terrestrial use “would deprive the
`public of benefits of MSS,” including rural services and disaster recovery.41 Finally, DISH argued that
`NTCH’s request for rescission of the license modifications pending final resolution of its petition for
`reconsideration of the AWS-4 Report and Order amounted to a request for stay for which no appropriate
`showing had been made.42
`10. On November 13, 2013, DISH also filed an opposition to NTCH’s first petition for
`reconsideration (from the AWS-4 Report and Order), which incorporated by reference DISH’s previous
`opposition.43 In the context of the petition for reconsideration of the rulemaking order, DISH maintained
`that NTCH’s Section 316 argument failed to satisfy Section 1.429(b) of the Commission’s rules, under
`which a party may not raise new facts or arguments in a petition for reconsideration unless it shows that
`the facts have changed, the issues were unknown to that party, or consideration of the facts or arguments
`is required by the public interest.44
`11. Also on November 27, 2013, NTCH filed a reply to DISH’s November 13, 2013 opposition.
`It asserted, among other things, that Section 1.429(b) of the Commission’s rules applies only to new facts,
`
`34 Id. at 2-3.
`35 Id. at 3.
`36 DISH Network Corp., Opposition to NTCH Petition for Reconsideration [of the AWS-4 Order of Modification]
`(filed Mar. 28, 2013). NTCH’s first petition, with respect to the AWS-4 Report and Order, was placed on public
`notice on September 24, 2013. See Petition for Reconsideration of Action in Rulemaking Proceeding, WT Docket
`No. 12-70 et al., Public Notice, 2013 WL 5348458, at *1 (CGB Sept. 24, 2013). As noted below, DISH also
`thereafter filed a separate opposition to that petition. DISH Network Corp., Opposition to NTCH’s Petition for
`Reconsideration [of the AWS-4 Report and Order] (filed Nov. 13, 2013).
`37 Opposition to NTCH Petition for Reconsideration [of the AWS-4 Order of Modification] at 3.
`38 Id. at 4.
`39 Id. at 5.
`40 Id. at 6-7.
`41 Id. at 7.
`42 Id. at 7-8.
`43 Opposition to NTCH’s Petition for Reconsideration [of the AWS-4 Report and Order] at 1 n.1.
`44 Id. at 3-4 (citing 47 CFR § 1.429(b)).
`
`5
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`not new arguments.45 NTCH also claimed that DISH’s invocation of the limits of Section 316 to oppose
`NTCH’s proposal to remove satellite use of the band made it appropriate to seek reconsideration of the
`determination to add terrestrial use of the band.46 Finally, NTCH noted that its proposal to limit
`operations in this band to terrestrial was conditioned on “DISH’s voluntary agreement with the process,”
`absent which “the DISH licenses should stay exactly as they are, with no conversion to terrestrial use.”47
`On December 11, 2013, DISH submitted an ex parte filing that quoted the current version of Section
`1.429(b) of the Commission’s rules, which states that the limitations in that section apply to new facts and
`new arguments.48
`III.
`DISCUSSION
`12. We resolve NTCH’s petitions for reconsideration pursuant to Sections 1.106 and 1.429 of the
`Commission’s rules.49 The petition for reconsideration of the AWS-4 Report and Order, which involves
`rulemaking, is governed by Section 1.429, while the petition for reconsideration of the AWS-4 Order of
`Modification is governed by Section 1.106.
`13. Both rules bar grant of petitions for reconsideration that rely on facts or arguments not
`previously presented to the Commission, unless: (1) they relate to events that have occurred or
`circumstances that have changed since the last opportunity to present such matters to the Commission;
`(2) they were unknown to petitioner until after the last opportunity to present them to the Commission,
`and petitioner could not, through the exercise of ordinary diligence, have learned of the facts or arguments
`in question before such opportunity; or (3) the Commission determines that consideration of the facts or
`arguments relied on is required in the public interest.50
`A.
`NTCH’s First Petition for Reconsideration
`1.
`Section 316 License Modification
`14. We first address NTCH’s argument that the Commission’s decision to propose a modification
`of the 2 GHz licenses pursuant to Section 316 of the Communications Act constituted a “fundamental”
`rather than a “moderate” change in the licenses and therefore exceeded the scope of our authority.51 We
`reject this claim on two alternative and independent grounds.
`15. First, NTCH’s argument fails to satisfy Section 1.429(b). NTCH does not dispute that it
`failed to raise this argument prior to the AWS-4 Report and Order,52 and it has done nothing to show that
`it satisfies the standard in Section 1.429(b).53 NTCH’s argument that DISH had “raised the issue of the
`
`45 NTCH’s Reply to Opposition at 2 (filed Nov. 27, 2013) (NTCH Reply).
`46 Id. at 3.
`47 Id. at 5.
`48 Letter from Jeffrey H. Blum, Senior Vice President & Deputy General Counsel, DISH, to Marlene H. Dortch,
`Sec’y, Federal Communications Commission, WT Docket No. 12-70 et al., at 1-2 (filed Dec. 11, 2013).
`4947 CFR §§ 1.106, 1.429.
`50 47 CFR §§ 1.106(c), 1.429(b); see Amendment of Certain of the Commission’s Part 1 Rules of Practice and
`Procedure and Part 0 Rules of Commission Organization, Report and Order, 26 FCC Rcd 1594, 1627-28, 1634-35
`(2011).
`51 Petition for Reconsideration of the AWS-4 Report and Order at 4-7.
`52 NTCH Reply at 2-3.
`53 NTCH Reply at 2-3; Petition for Reconsideration of the AWS-4 Report and Order at 4-7. This standard prohibits
`the raising of new facts or arguments unless they relate to changed circumstances or were previously unknown
`6
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`Federal Communications Commission
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`limits on Section 316” during the rulemaking is of no avail because DISH was addressing a very different
`issue than the one NTCH raised on reconsideration, notwithstanding that both involve Section 316.54
`Specifically, DISH had argued that Section 316 did not provide the Commission with authority to
`eliminate a satellite allocation altogether and thereby prohibit the MSS licensees from providing any MSS
`service,55 while NTCH is arguing that the Commission’s supplementation of the MSS licensees’ existing
`ATC authority with rights and obligations under the new AWS-4 service rules is such a substantial
`change of license that it no longer constitutes a mere license modification under Section 316.56 These two
`arguments relate to very different proposals—the first to deprive MSS licensees of a satellite allocation,
`and the second to add to their existing terrestrial rights. We do not consider these two arguments
`sufficiently related to conclude that the presentation of DISH’s argument had given the Commission a
`reasonable opportunity to address the argument NTCH later raised on reconsideration. The purpose of
`Section 1.429’s requirements is to ensure that commenters raise arguments so that the Commission can
`address them during the course of the rulemaking.57 NTCH’s failure to do so clearly frustrates that goal,
`and pursuant to our well-established policy, we have determined that consideration of the issue on
`reconsideration is not in the public interest. Accordingly, this argument is dismissed.58
`16. Second, we reject on the merits NTCH’s claim that the Commission exceeded its Section 316
`authority by adding full terrestrial rights to the existing MSS licenses.59 The Commission has authority to
`change a license under Section 316 so long as it is not undertaking a “fundamental” or “radical” change to
`the license.60 The change to the licenses in this case was neither fundamental nor radical. Both before
`and after the AWS-4 Order of Modification, the terms of DISH’s 2 GHz licenses allowed it to provide
`MSS service in the 2000-2020 MHz and 2180-2200 MHz bands.61 And both before and after the AWS-4
`Order of Modification, the terms of DISH’s 2 GHz licenses allowed it to provide terrestrial service in the
`2000-2020 MHz and 2180-2200 MHz bands. Specifically, before the license modification at issue, the 2
`GHz licenses had already allowed DISH to exercise terrestrial authority under the ATC rules.62 Thus,
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`notwithstanding the exercise of ordinary diligence, or the Commission determines that consideration of the new
`facts or arguments is required in the public interest. 47 CFR § 1.429(b).
`54 NTCH Reply at 3.
`55 DISH Reply Comments at 18-20 (filed June 1, 2012).
`56 Petition for Reconsideration of the AWS-4 Report and Order at 4-7.
`57 47 CFR § 1.429(b). See, e.g., Expanding the Economic and Innovation Opportunities of Spectrum Through
`Incentive Auctions, Order on Reconsideration, 31 FCC Rcd 1367, 1372, para. 10 (2016); Petition of USTelecom for
`Forbearance, Order Denying Petition for Reconsideration, 32 FCC Rcd 3885, 3886-87, paras. 5-8 (WCB 2017).
`58 See, e.g., WLIL, Inc. v. FCC, 352 F.2d 722, 725 (D.C. Cir. 1965) (“[W]e cannot allow the appellant to sit back and
`hope that a decision will be in its favor, and then, when it isn’t, to parry with an offer of more evidence. No judging
`process in any branch of government could operate efficiently or accurately if such a procedure were allowed.”)
`(internal quotation marks omitted); Amendment of Section 73.202(b), FM Table of Allotments, FM Broadcast
`Stations (Banks, Redmond, Sunriver and Corvallis, Oregon), Memorandum Opinion and Order, 19 FCC Rcd 10068,
`10075, para. 20 (2004) (same).
`59 Petition for Reconsideration of the AWS-4 Report and Order at 4-7. See generally AWS-4 Report and Order, 27
`FCC Rcd 16102.
`60 Cellco P’ship v. FCC, 700 F.3d 534, 543-44 (D.C. Cir. 2012); see also Cmty. Television, Inc. v. FCC, 216 F.3d
`1133, 1141 (D.C. Cir. 2000).
`61 AWS-4 Order of Modification, 28 FCC Rcd at 1277-78, paras. 2-5, 7-10.
`62 Id.; see also 47 CFR pt. 25 (satellite communications rules, which contain the ancillary terrestrial component
`rules). The ATC Report and Order adopted specific application, service, and technical rules governing the provision
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`modifying the 2 GHz licenses to allow full-flexible use under the Part 27 AWS rules was merely a
`modification to, and an extension of, the terrestrial authority already granted to DISH as a 2 GHz licensee.
`As in Community Television, MSS licensees “will provide essentially the same services”63—here, the
`services that they were already authorized to provide pursuant to ATC authority. The operating
`parameters applicable to DISH under Part 27 generally align with those to which it was previously subject
`under Part 25.64 Furthermore, the Com