FILED
                                              United States Court of Appeals
                                                      Tenth Circuit

                               PUBLISH               January 3, 2014
                                                 Elisabeth A. Shumaker
                    UNITED STATES COURT OF APPEALS   Clerk of Court

                            TENTH CIRCUIT


COUNCIL TREE INVESTORS, INC.
and BETHEL NATIVE
CORPORATION,

     Petitioners,
v.                                          No. 12-9543

FEDERAL COMMUNICATIONS
COMMISSION and THE UNITED
STATES OF AMERICA,

     Respondents.


CELLCO PARTNERSHIP, d/b/a
Verizon Wireless,

     Intervenor.


ASIAN AMERICAN JUSTICE
CENTER, a member of the Asian
American Center for Advancing
Justice; STEVEN R. BRADLEY;
MEDIA ALLIANCE; NATIONAL
ASSOCIATION OF
MULTICULTURAL DIGITAL
ENTREPRENEURS; NATIONAL
HISPANIC MEDIA COALITION;
PUBLIC KNOWLEDGE; RAINBOW
PUSH COALITION; GILBERT H.
SCOTT, SR.; WOMEN'S INSTITUTE
FOR FREEDOM OF THE PRESS;
ARIZONA HISPANIC NEWSWIRE
LLC; BUSINESS INTELLIGENCE
 SOLUTIONS, LLC; BRIAN
 O'REILLY; DEMPSTER GROUP,
 LLC; KINEX NETWORKING
 SOLUTIONS, INC.; NATIONAL
 ASSOCIATION FOR THE
 ADVANCEMENT OF COLORED
 PEOPLE; NATIONAL INDIAN
 TELECOMMUNICATIONS
 INSTITUTE; NATIONAL
 ORGANIZATION FOR WOMEN
 FOUNDATION; OFFICE OF
 COMMUNICATION OF THE
 UNITED CHURCH OF CHRIST,
 INC.; CTIA - THE WIRELESS
 ASSOCIATION; THE
 TELECOMMUNICATIONS
 INDUSTRY ASSOCIATION;
 MOBILE FUTURE,

          Amici Curiae.


           Appeal from the Federal Communications Commission
                         (FCC 07-197, FCC 12-12)


Dennis P. Corbett (S. Jenell Trigg with him on the briefs), Lerman Senter PLLC,
Washington, D.C., for Petitioners.

Richard Welch (Sean A. Lev, Peter Karanjia, Jacob M. Lewis, and Laurence N.
Bourne, Federal Communications Commission, Office of General Counsel; and
Joseph F. Wayland, Robert B. Nicholson, and Robert J. Wiggers, United States
Department of Justice, Antitrust Division, Appellate Section, with him on the
brief), Federal Communications Commission, Office of General Counsel, for
Respondents.

Thomas R. McCarthy (Andrew G. McBride, Brett A. Shumate, Wiley Rein LLP,
Washington, D.C.; Michael E. Glover, Verizon Communications, Inc., Arlington,
VA; and John T. Scott, III, and Catherine M. Hilke, Verizon Communications,
Inc., Washington, D.C., with him on the brief), Wiley Rein LLP, Washington,


                                       2
D.C., for Intervenor.

Jeneba Jalloh Ghatt, The Ghatt Law Group LLC, College Park, Maryland, filed an
amicus curiae brief for Arizona Hispanic Newswire LLC, Business Intelligence
Solutions, LLC, Brian O’Reilly, Dempster Group, LLC, Gilbert H. Scott, Sr.,
Kinex Networking Solutions, Inc., Steven R. Bradley, Asian American Justice
Center, Media Alliance, National Association for the Advancement of Colored
People, National Association of Multicultural Digital Entrepreneurs, National
Hispanic Media Coalition, National Indian Telecommunications Institute,
National Organization for Women Foundation, Office of Communication of the
United Church of Christ, Inc., Public Knowledge, Rainbow PUSH Coalition, and
Women’s Institute for Freedom of the Press, in support of Petitioners.

Michael Altschul, Senior Vice President and General Counsel, CTIA - The
Wireless Association, Washington, D.C., David H. Solomon, Bryan N. Tramont,
and Russell P. Hanser, Wilkinson Barker Knauer, LLP, Washington, D.C., and
Danielle Coffey, Vice President Government Affairs, Telecommunications
Industry Association, Washington, D.C., filed an amicus brief for CTIA - The
Wireless Association, The Telecommunications Industry Association, and Mobile
Future, in support of Respondents.


Before KELLY, McKAY, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.


      Petitioners Council Tree Investors, Inc., a communications investment firm,

and Bethel Native Corporation, a small wireless carrier based in Alaska

(collectively, “Council Tree”), seek our review of two orders issued by the

Federal Communications Commission (“FCC” or “the Commission”)—the D

Block Waiver Order (the “Waiver Order”) issued in 2007 and the Waiver

Reconsideration Order issued in 2012. In so doing, Council Tree specifically

requests nullification of Auction 73, the FCC’s auction of the 700-MHz wireless

                                        3
spectrum conducted in early 2008 pursuant to the Waiver Order. Council Tree

filed a Petition for Reconsideration of the Waiver Order (the “Waiver

Reconsideration Petition”) with the FCC in 2007, as well as a Supplement to the

Waiver Reconsideration Petition (the “Supplement”) in 2011. In its Waiver

Reconsideration Order, the FCC dismissed the Waiver Reconsideration Petition as

moot and dismissed the Supplement as untimely. For the reasons set forth below,

we dismiss Council Tree’s petition, as it pertains to the Waiver Order, and deny

its petition, as it relates to the Waiver Reconsideration Order.

                                          I

      The Communications Act of 1934 authorizes the FCC to award licenses to

use the electromagnetic spectrum in order to provide communications services.

See 47 U.S.C. §§ 307, 309. In 1993, Congress enacted section 309(j), which

directs the Commission to award spectrum licenses “through a system of

competitive bidding,” e.g., by auction. 

Pursuant to section

309(j), the Commission must design systems of competitive bidding that, among

other objectives, “promot[e] economic opportunity and competition . . . by

avoiding excessive concentration of licenses and by disseminating licenses among

a wide variety of applicants, including small businesses, rural telephone

companies, and businesses owned by members of minority groups and women.”




                                          4


These statutorily-prescribed groups are commonly referred to

as “designated entities,” or “DEs.” 1

      To promote the participation of DEs in spectrum-license auctions, the

Commission awards “bidding credits” that reduce by a specified percentage the

amounts that DEs would otherwise pay for licenses won at auction. 47 C.F.R.

§ 1.2110(f). To prevent abuse of the bidding-credits system, the Commission is

required to seek the “avoidance of unjust enrichment through the methods

employed to award” spectrum licenses, 47 U.S.C. § 309(j)(3)(C), and to establish

“such . . . antitrafficking restrictions and payment schedules as may be necessary

to prevent unjust enrichment as a result of the methods employed to issue licenses

and permits,” 

      Accordingly, the Commission took steps to ensure that “only legitimate

small businesses reap the benefits of the Commission’s designated entity

program.” Implementation of the Commercial Spectrum Enhancement Act &

Modernization of the Comm’n’s Competitive Bidding Rules & Procedures,

      1
             Although FCC rules define “designated entities” to include
“businesses owned by members of minority groups and/or women,” 47 C.F.R.
§ 1.2110(a), the FCC has eliminated DE benefits based on the race or gender of
an applicant’s owners after the Supreme Court ruled in Adarand Constructors,
Inc. v. Pena, 

(1995), that certain federal affirmative-action
programs were unconstitutional. See Omnipoint Corp. v. FCC, 

, 633
(D.C. Cir. 1996) (upholding an FCC rule change that eliminated race- and gender-
based provisions in its competitive-bidding rules). Since Adarand, bidding
credits have been available only to eligible small businesses, based on specific
size standards. See, e.g., Sioux Valley Rural Television, Inc. v. FCC, 

, 669–73 (D.C. Cir. 2003).

                                         5
Further Notice of Proposed Rule Making, 21 FCC Rcd. 1753, 1757 ¶ 6 (2006).

Under the Commission’s unjust-enrichment rules, a DE that has used bidding

credits to acquire a license must return some or all of those credits if, during the

first five years of the license term, it loses its eligibility for bidding credits or

subsequently transfers its license to an entity that is not eligible for DE status.

See 

¶ 20; see also 47 C.F.R. § 1.2111(d).

         In April 2006, the Commission issued the Implementation of the

Commercial Spectrum Enhancement Act and Modernization of the Commission’s

Competitive Bidding Rules and Procedures, Second Report and Order, 21 FCC

Rcd. 4753 (2006) (“DE Second Report & Order”). That document made two

primary revisions to the auction rules for DEs (collectively, the “2006 Rules”).

First, it increased the repayment period for the unjust-enrichment rules from five

years to ten years, such that if a DE transferred its license to a non-DE or

otherwise lost eligibility for DE benefits during the first ten years of its license, it

would have to repay some or all of its bidding credits (the “Ten-Year Rule”). 47

C.F.R. § 1.2111(d)(2)(i) (2006) (vacated 2010). And, second, it disqualified

license applicants or licensees from eligibility for DE benefits if they leased or

resold (including at wholesale) more than 50% of their aggregate spectrum

capacity (the “Fifty-Percent Rule”). 

(2006) (vacated

2010).




                                             6
      In May 2006, three petitioners—Council Tree Communications, Inc.,

Bethel Native Corporation, and the Minority Media and Telecommunications

Council—jointly filed a petition for expedited reconsideration of the DE Second

Report & Order. See Implementation of the Commercial Spectrum Enhancement

Act & Modernization of the Comm’n’s Competitive Bidding Rules & Procedures,

Order on Recons. of Second Report & Order, 21 FCC Rcd. 6703, 6703–04,

6721 n.2 (2006) (“Order on Reconsideration”). Before the FCC published its

order addressing that petition, in June 2006, the three petitioners filed for review

in the Third Circuit of the DE Second Report & Order. The Third Circuit

dismissed the petition as premature. 2 See Council Tree Commc’ns, Inc. v. FCC

(Council Tree I), 

, 287 (3d Cir. 2007) (“We have no jurisdiction to

consider an incurably premature petition for review. A petition to review a non-

final agency order is incurably premature.” (citation omitted)).

      Several months before the Third Circuit issued this decision, the

Commission had stated on April 27, 2007 that it would apply the 2006 Rules

promulgated in the DE Second Report & Order to Auction 73, in which the FCC

would auction several 700-MHz blocks of the spectrum. See Serv. Rules for the

698–746, 747–762 & 777–792 MHz Bands, Report & Order, 22 FCC Rcd. 8064,

8067 ¶ 6 (2007) (“700 MHz First Report & Order”) (“With regard to auctions-

      2
              Although the Minority Media and Telecommunications Council
participated in the Third Circuit litigation regarding the DE Second Report &
Order, it is not a petitioner before us in this case.

                                          7
related issues, we find that our existing competitive bidding rules do not require

modification for purposes of an auction of commercial 700 MHz Band licenses.”).

Council Tree did not seek judicial review of this order.

      However, in August 2007, the Commission issued another order in the same

proceeding. See Serv. Rules for the 698–746, 747–762 & 777–792 MHz Bands,

Second Report & Order, 22 FCC Rcd. 15289 (2007) (“700 MHz Second Report &

Order”). There, the focus was not on DEs and the application of the 2006 Rules

to Auction 73; rather, the Commission (among other things) addressed a topic, as

to which it had previously sought comment, relating to “establishing a

public/private partnership between a commercial licensee and a single public

safety licensee with respect to developing a nationwide, shared interoperable

broadband network for use by public safety users.” 

¶ 2; see Council

Tree Commc’ns, Inc. v. FCC (Council Tree II), 324 F. App’x 3, 5 (D.C. Cir.

2009) (per curiam).

      Nonetheless, using this order as the predicate, proceeding alone, Council

Tree (without Bethel Native Corporation) sought review in the D.C. Circuit of its

“claims that the decision of the Federal Communications Commission (‘FCC’) to

use its existing bidding rules [i.e., the 2006 Rules, which related to DEs] for a

particular auction was arbitrary and capricious or otherwise not in accordance

with law.” Council Tree II, 324 F. App’x at 4. The D.C. Circuit rejected—based

on a lack of jurisdiction—Council Tree’s effort to obtain review of such claims,

                                          8
concluding that the FCC’s 700 MHz Second Report & Order did not conclusively

reopen the subject matter of its 700 MHz First Report & Order, from which

Council Tree’s claims (in substance) actually stemmed. See 

      In November 2007, the Commission issued the Waiver Order on its own

motion, waiving the application of the Fifty-Percent Rule—also referred to as the

“impermissible material relationship rule”—“for purposes of determining

designated entity eligibility solely with respect to arrangements for lease or resale

(including wholesale) of the spectrum capacity of the Upper 700 MHz Band D

Block (‘D Block’) license.” J.A. at 6 (FCC Order, released Nov. 15, 2007). In

other words, the Waiver Order excepted D Block licenses from the Fifty-Percent

Rule. The Commission found that “the unique regulations governing the D Block

license . . . together with the application of the Commission’s other designated

entity eligibility requirements—eliminate[d] for the D Block license the risks that

led the Commission to adopt the impermissible material relationship rule.” 

The Waiver Order “stress[ed] that this waiver applie[d] only

to arrangements for spectrum capacity on the D Block,” and that it was “not

waiving operation of the [Fifty-Percent Rule] as applied to arrangements that a D

Block applicant or licensee may have for use of licenses other than the D Block

license.” 

      Council Tree filed a Waiver Reconsideration Petition with the Commission

on December 7, 2007. In the petition, Council Tree requested rescission of the

                                          9
Waiver Order. 

(Pet. for Recons., filed Dec. 7, 2007) (concluding that

“the [Waiver Order] should be reconsidered and rescinded”). At a few points in

its petition, Council Tree argued that the rationale underlying the waiver of the

Fifty-Percent Rule for the D Block actually could justify granting a waiver across

the entire spectrum—that is, relieving all of the spectrum from application of the

Fifty-Percent Rule. See, e.g., 

(“[T]here is no rational basis for limiting

the scope of the relief granted by the [Waiver Order] exclusively to the D Block.

The relief must logically extend to all DE bidding on all spectrum available in the

auction.”). By advancing this seemingly discordant argument, however, Council

Tree was actually trying to achieve the same objective articulated throughout the

rest of its petition—rescission of the Waiver Order. Specifically, Council Tree

reasoned that the justification for waiving application of the Fifty-Percent Rule to

the D Block could just as well be applied to all of the spectrum; therefore, the fact

that the Commission only extended the waiver to the D Block (and not the other

blocks of the spectrum) demonstrated that the Commission was acting arbitrarily

and capriciously and that the Waiver Order—a product of such deficient decision-

making—should be rescinded. See 

Order] is . . . arbitrary and

capricious and it must be overturned.”); cf. 

(“The [Waiver Order] was

adopted in violation of statute and precedent, and is arbitrary and capricious. It

cannot survive.”).




                                          10
      In early 2008, while the Waiver Reconsideration Petition was pending, the

Commission proceeded to conduct Auction 73 pursuant to the 2006 Rules and the

Waiver Order. Around the time this auction concluded, in March 2008, see

Auction of the D Block License in the 758–763 & 788–793 MHz Bands, 23 FCC

Rcd. 5421, 5422 (2008), the FCC issued an order formally denying the May 2006

petition filed by the three petitioners (including Council Tree). See

Implementation of the Commercial Spectrum Enhancement Act & Modernization

of the Comm’n’s Competitive Bidding Rules & Procedures, Second Order on

Recons. of Second Report & Order, 23 FCC Rcd. 5425, 5426 ¶ 4 (2008) (“Second

Order on Reconsideration”). 3 The three petitioners then filed a timely petition for

review before the Third Circuit. Council Tree Commc’ns, Inc. v. FCC (Council

Tree III), 

, 248 (3d Cir. 2010). Among other things, the Third

Circuit held that the Fifty-Percent Rule and the Ten-Year Rule were invalid for

failure to comply with notice-and-comment requirements. See 

      Nevertheless, on May 18, 2011, Council Tree filed a supplement to the

still-pending Waiver Reconsideration Petition, J.A. at 100–09 (Supp. to Pet. for

Recons., filed May 18, 2011), along with a Motion for Leave to File the

      3
             Although the FCC had issued an earlier (first) Order on
Reconsideration to clarify certain aspects of the new DE rules, it did not formally
deny the petition for expedited reconsideration until its second reconsideration
order. Cf. Council Tree 

(“The Reconsideration Order did not
expressly grant or deny the petition, but essentially rejected all of the arguments
contained therein.”).


                                         11
Supplement, 

(Mot. for Leave to File Supp., filed May 18, 2011).

The Commission released its Waiver Reconsideration Order on February 1, 2012,

which was published in the Federal Register on March 21, 2012. 

(FCC Order, released Feb. 1, 2012); see Implementation of the Commercial

Spectrum Enhancement Act & Modernization of the Comm’n’s Competitive

Bidding Rules & Procedures, 77 Fed. Reg. 16470-01 (Mar. 21, 2012) (to be

codified at 47 C.F.R. pt. 1). The Waiver Reconsideration Order formally

rescinded the 2006 Rules in light of the Third Circuit’s decision in Council Tree

III, dismissed the Waiver Reconsideration Petition as moot, denied the Motion for

Leave to File the Supplement, and dismissed the accompanying Supplement as

untimely. J.A. at 12–13.

      Council Tree filed a petition for review of the Waiver Order and the Waiver

Reconsideration Order in our court on March 29, 2012.

                                         II

      We begin by considering whether Council Tree’s petition for review of the

Waiver Order—that is, the order that waived the application of the Fifty-Percent

Rule to D Block spectrum licenses—gives us jurisdiction over Council Tree’s

argument regarding the application of the 2006 Rules to Auction 73. We

conclude that it does not. We then assess the propriety of the FCC’s dismissals of

Council Tree’s Waiver Reconsideration Petition and its Supplement, and

determine that the FCC’s dismissals should be upheld.

                                        12
                                          A

      Council Tree seeks invalidation of Auction 73 based on the fact that “the

FCC conducted Auction 73 pursuant to . . . the [2006] Rules.” Pet’rs’ Opening

Br. at 44. Before we may reach the merits of Council Tree’s claim that Auction

73 was itself an unlawful agency action, we must first determine whether we have

jurisdiction over this challenge.

      Courts of appeals have exclusive jurisdiction over final orders issued by the

FCC. 28 U.S.C. § 2342(1); see, e.g., Minority Television Project, Inc. v. FCC,

, 1211 (9th Cir. 2013) (en banc) (“Jurisdiction over challenges to

FCC orders lies exclusively in the court of appeals; as such, federal district courts

lack jurisdiction over appeals of FCC orders.”). Our “[j]urisdiction is invoked by

filing a petition as provided by section 2344.” 28 U.S.C. § 2342. That section, in

turn, requires that petitions for review be filed within sixty days of entry of a

final order. 

Thus, our jurisdiction over an FCC order is contingent

upon the timely filing of a petition for review. Cf. Cellular Telecomms. &

Internet Ass’n v. FCC, 

, 508 (D.C. Cir. 2003) (“The 60-day statutory

deadline is jurisdictional.”); NRDC v. Nuclear Regulatory Comm’n, 

,

602 (D.C. Cir. 1981) (“The 60 day period for seeking judicial review set forth in

the Hobbs Act[, 28 U.S.C. § 2344,] is jurisdictional in nature, and may not be

enlarged or altered by the courts.”).




                                          13
      The FCC announced on April 27, 2007, by way of the 700 MHz First

Report & Order, that it would apply the then-existing DE auction

rules—including the 2006 Rules—to Auction 73. See 22 FCC Rcd. at 8067.

Council Tree acknowledges that the FCC’s decision to apply the 2006 Rules to

Auction 73 was announced on April 27, 2007 in the 700 MHz First Report &

Order. Pet’rs’ Opening Br. at 28 (“On April 27, 2007 . . . the FCC made clear

that it was applying to Auction 73, without exception, [the Fifty-Percent Rule and

Ten-Year Rule] it had adopted in 2006 . . . .”). But Council Tree did not file a

petition for review of the 700 MHz First Report & Order within sixty days of that

date. Instead, in December 2007, Council Tree petitioned for reconsideration of

the November 2007 Waiver Order, which excepted D Block licenses from the

Fifty-Percent Rule. Council Tree’s failure to challenge the 700 MHz First Report

& Order on the grounds that it inappropriately applied the 2006 Rules to Auction

73 constitutes a high jurisdictional hurdle—and ultimately an insurmountable

one—to our consideration of essentially the same challenge which Council Tree

presents in the context of its petition for review of the Waiver Order. 4


      4
             Of course, Council Tree had seemingly tried a similar approach in
2007: in the context of a purported challenge to the 700 MHz Second Report &
Order, Council Tree attempted to eviscerate the FCC’s “decision . . . to use its
existing bidding rules for a particular auction” on the grounds that it was
“arbitrary and capricious or otherwise not in accordance with law.” Council Tree
II, 324 F. App’x at 4. As we do here, the D.C. Circuit concluded that it did not
have jurisdiction over such an attempt. 

Tree attempts to circumvent this jurisdictional deficiency by

casting the Waiver Order as having effectively reopened the Commission’s April

2007 700 MHz First Report & Order. In other words, Council Tree urges that we

have jurisdiction to review the FCC’s execution of Auction 73 pursuant to the

2006 Rules because the FCC “voluntarily elect[ed] in the [Waiver Order] to

revisit the issue of how it would apply [those rules] to Auction 73.” 

      The Supreme Court, in the context of considering the reviewability of the

Interstate Commerce Commission’s decision not to reopen a proceeding under its

reconsideration authority pursuant to 49 U.S.C. § 10327(g), held that “[w]hen [an

agency] reopens a proceeding for any reason and, after reconsideration, issues a

new and final order setting forth the rights and obligations of the parties, that

order—even if it merely reaffirms the rights and obligations set forth in the

original order—is reviewable on its merits.” ICC v. Bhd. of Locomotive Eng’rs,

, 278 (1987) (emphasis added). On the other hand, when an agency

decision is formally characterized as one denying reconsideration, reviewing

courts should not look beyond that formal characterization to determine whether

reconsideration in fact occurred. See 

(concluding that “an order which

merely denies rehearing of . . . [the prior] order is not itself reviewable”

(alteration in original) (quoting Microwave Commc’ns, Inc. v. FCC, 

,

387 n.7 (D.C. Cir. 1974)) (internal quotation marks omitted)).

      However, not all agency decisions have a formal characterization; the

                                          15
Waiver Order does not regarding the topic of the general applicability of the 2006

Rules to Auction 73. Where agency decisions “lack[] such a formal

designation—reconsideration or denial of reconsideration—we must look to the

substance of [the agency’s] action to determine whether it represents a new

decision or merely a reaffirmance of previous action.” HRI, Inc. v. EPA (HRI I),

, 1238 (10th Cir. 2000). If an agency “simply reassert[s] its

original position,” the agency has not reopened its decision—viz., the agency’s

decision must “reflect a sufficient degree of separateness, novelty, and finality, to

trigger the limitations period for judicial review.” 

asserts that the Waiver Order “fits easily within the contours

of HRI I’s ‘separateness, novelty, and finality’ test.” Pet’rs’ Opening Br. at 31.

The Waiver Order is separate, Council Tree argues, because it was issued outside

of the context of an existing FCC proceeding; it is novel because it extended

limited relief from the Fifty-Percent Rule to the D Block licenses on the basis of

an “entirely new” rationale regarding the uniqueness of the D Block; 5 and it is a

      5
              At oral argument, Council Tree pointed to paragraph nine of the
Waiver Order as demonstrating the FCC’s allegedly new rationale regarding the D
Block. In that paragraph, the FCC explained that “the D Block license is
conditioned upon its commercial licensee constructing and operating a
nationwide, interoperable broadband network across both the D Block and the 700
MHz public safety broadband spectrum”; it “must be used to provide both a
commercial service and a broadband network service to public safety entities.”
J.A. at 10 (internal quotation marks omitted). Because a D Block licensee would
necessarily “be required to participate in the provision of facilities-based services
for the benefit of the public,” the FCC concluded that a waiver of the Fifty-
                                                                        (continued...)

                                          16
final agency action because Auction 73 was conducted pursuant to the Waiver

Order’s “renewed adherence” to the 2006 Rules. 

      However, none of Council Tree’s arguments demonstrate that the FCC, by

means of its Waiver Order, made a “new and final” decision, as defined by the

Supreme Court, relating to the general applicability of the 2006 Rules to all

blocks of spectrum covered by Auction 73. See Bhd. of Locomotive 

. More specifically, Council Tree has not demonstrated that the

Waiver Order decided anything new beyond waiving the Fifty-Percent Rule for D

Block licenses. See HRI 

. As set forth above, the FCC

stressed, “[T]his [Waiver Order] applies only to arrangements for spectrum

capacity on the D Block. We are not waiving operation of the [Fifty-Percent

Rule] as applied to arrangements that a D Block applicant or licensee may have

for use of licenses other than the D Block license.” J.A. at 9. This language

relates only to the Fifty-Percent Rule—not the 2006 Rules as a whole—and only

to the scope of the waiver for a D Block license. 6

      5
       (...continued)
Percent Rule would be in the public interest. 

quoted language is from paragraph 7 of the order. We
underscore the limited and targeted concerns of the Commission—namely, the
Fifty-Percent Rule and the D Block—by setting forth its text in full:

             We find that the unique circumstances and obligations of the D
             Block license justify a waiver of the impermissible material
             relationship rule under both prongs of the waiver standard.
                                                                    (continued...)

                                          17
      Indeed, the whole of the Waiver Order does not examine the merits of the

general application of the 2006 Rules to the portion of the spectrum covered by

Auction 73, much less offer something novel about this subject. It states only

that D Block licensees would continue to be governed by the then-existing

rules—with the exception of the Fifty-Percent Rule—and that even then, a D

Block licensee’s purchases of other licenses would continue to be governed by the

Fifty-Percent Rule. The Waiver Order does not indicate that the FCC


      6
          (...continued)
                Specifically, we conclude that a D Block applicant or licensee
                with lease or resale (including wholesale) arrangements with
                other entities involving more than 50 percent of the spectrum
                capacity of the D Block license will not be ineligible for
                designated entity benefits solely on the basis of such
                arrangements given the unique circumstances and obligations
                relating to the license. We stress that this waiver applies only to
                arrangements for spectrum capacity on the D Block. We are not
                waiving operation of the rule as applied to arrangements that a D
                Block applicant or licensee may have for use of licenses other
                than the D Block license. Thus, under the terms of this waiver,
                the existence of arrangements regarding the spectrum capacity of
                the D Block license that would constitute an impermissible
                material relationship absent the waiver will not alone make the
                D Block licensee ineligible for the award of designated entity
                benefits with respect to other spectrum licenses. Also, because
                we are not waiving the rule with respect to arrangements for use
                of the spectrum capacity of licenses other than the D Block
                license, if an applicant or licensee has an impermissible material
                relationship with respect to the spectrum capacity of any other
                license(s), the normal operation of the current rules will continue
                to render it ineligible for designated entity benefits for the D
                Block license. The waiver we grant herein does not change that.

J.A. ¶ 7, at 9 (footnote omitted).

                                            18
reconsidered the general applicability of the 2006 Rules to all the spectrum

covered by Auction 73—as opposed to the applicability of the Fifty-Percent Rule

to the discrete area of the spectrum covered by the D block. Accordingly, we are

hard-pressed to conclude that, through the vehicle of the Waiver Order, the FCC

reconsidered the general applicability of the 2006 Rules regarding the blocks of

spectrum covered by Auction 73. 7

      At oral argument, Council Tree made much of footnote thirteen of the

Waiver Order, which cites pleadings filed with the Commission by Frontline

Wireless, LLC (“Frontline”), a company advocating for relief from the Fifty-

Percent Rule for the D Block. See 

n.13 (citing Frontline’s petition for

reconsideration and oppositions to petitions for reconsideration). Council Tree

pointed to footnote thirteen as evidence that the Commission, in the Waiver

Order, reconsidered the Fifty-Percent Rule as applied to all blocks of spectrum

covered by Auction 73, as opposed to solely the D Block. The Waiver Order cites

Frontline’s pleadings, however, only in the context of addressing Frontline’s

      7
             The parties raise the issue of the D.C. Circuit’s “reopener doctrine,”
which renews the statutory time limit for judicial review in cases “where an
agency has—either explicitly or implicitly—undertaken to ‘reexamine its former
choice.’” Nat’l Mining Ass’n v. U.S. Dep’t of Interior, 

, 1351 (D.C.
Cir. 1995) (quoting Pub. Citizen v. Nuclear Regulatory Comm’n, 

,
151 (D.C. Cir. 1990)). As in HRI I, we decline here to address the application of
the reopener doctrine. 

n.8. Because HRI I gives us grounds
to conclude that the FCC’s Waiver Order does not represent a new decision
involving reconsideration of the application of the 2006 Rules to all blocks of
spectrum covered by Auction 73, we need not decide in this case whether or not
to adopt the reopener doctrine.

                                         19
suggestion that “wholesaling one hundred percent of the D Block spectrum is

consistent with the purpose of the Commission’s designated entity rules.” 

(internal quotation marks omitted).

      Furthermore, even if Frontline had argued for reconsideration of the 2006

Rules, as a whole, as applied to all blocks of spectrum covered by Auction 73, a

party cannot reopen an issue simply by arguing it. Contrary to Council Tree’s

assertion, the unadorned citations in footnote thirteen of the Waiver Order do not,

without more, indicate that the FCC itself—subsequent to its 700 MHz First

Report & Order—reconsidered how the 2006 Rules would be applied to Auction

73.

      In sum, the Waiver Order did not reopen the issue of how the 2006 Rules

would apply, as a general matter, to Auction 73. Because Council Tree did not

file a petition for review of the 700 MHz First Report & Order—in which the

FCC did decide to apply the 2006 Rules to Auction 73—within sixty days of entry

of that order, see 28 U.S.C. § 2344, we do not have jurisdiction to review the

lawfulness of the FCC’s execution of Auction 73 under the 2006 Rules.

Accordingly, we dismiss this portion of Council Tree’s petition for review. 8

      8
              The Commission argues in the alternative that even if Council Tree’s
challenge to the conduct of Auction 73 pursuant to the 2006 Rules was timely, it
nonetheless would be barred by principles of claim preclusion. The Commission
asserts that Council Tree is barred from re-litigating its challenge to the
application of the 2006 Rules to Auction 73 because the Third Circuit, in Council
Tree III, considered and rejected on the merits that same claim brought by the
                                                                        (continued...)

                                         20
                                         B

      Council Tree next argues that the FCC’s dismissals of its Waiver

Reconsideration Petition and its Supplement to that petition were arbitrary and

capricious and should be set aside. Council Tree undisputedly timely filed its

petition for review of the FCC’s action. We address the Waiver Reconsideration

Petition and the Supplement in turn and uphold the FCC’s dismissals of them.

                                         1

      The Administrative Procedure Act (“APA”) provides that on a petition for

review of an agency action,

            the reviewing court shall decide all relevant questions of law,
            interpret constitutional and statutory provisions, and determine
            the meaning or applicability of the terms of an agency action.
            The reviewing court shall . . . hold unlawful and set aside agency
            action, findings, and conclusions found to be . . . arbitrary,
            capricious, an abuse of discretion, or otherwise not in accordance
            with law.

5 U.S.C. § 706(2)(A).

      The APA “sets forth the full extent of judicial authority to review executive

agency action for procedural correctness.” FCC v. Fox Television Stations, Inc.,

, 513 (2009). Under the APA, “we review the underlying agency

decision to determine whether it was ‘arbitrary, capricious, an abuse of discretion,


      8
       (...continued)
same parties. Because we conclude that we lack jurisdiction over Council Tree’s
challenge to Auction 73, we do not reach the merits of the Commission’s claim-
preclusion argument.

                                        21
or otherwise not in accordance with law.’” Hillsdale Envtl. Loss Prevention, Inc.

v. U.S. Army Corps of Eng’rs, 

, 1164–65 (10th Cir. 2012) (quoting

5 U.S.C. § 706(2)(A)); see also Fox 

; Qwest Corp. v.

FCC, 

, 1224 (10th Cir. 2012). Although we review matters of law

de novo, see, e.g., Wyo. Farm Bureau Fed’n v. Babbitt, 

, 1231

(10th Cir. 2000); Trimmer v. U.S. Dep’t of Labor, 

, 1102 (10th Cir.

1999), ultimately, the scope of our review under section 706(2)(A) “is ‘narrow’;

as [the Supreme Court] ha[s] often recognized, ‘a court is not to substitute its

judgment for that of the agency.’” Judulang v. Holder, --- U.S. ----, 

, 483 (2011) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 

, 43 (1983)).

      An agency’s action is thus arbitrary and capricious if

             the agency has relied on factors which Congress has not intended
             it to consider, entirely failed to consider an important aspect of
             the problem, offered an explanation for its decision that runs
             counter to the evidence before the agency, or is so implausible
             that it could not be ascribed to a difference in view or the product
             of agency expertise.

State 

; accord 

.

      “Our inquiry under the APA must be thorough, but the standard of review

is very deferential to the agency. . . . A presumption of validity attaches to the

agency action and the burden of proof rests with the parties who challenge such

action.” 

(citations omitted) (internal quotation marks


                                          22
omitted); accord Sorenson Commc’ns, Inc. v. FCC (Sorenson II), 

,

1046 (10th Cir. 2011); Sorenson Commc’ns, Inc. v. FCC (Sorenson I), 

, 1221 (10th Cir. 2009).

                                         2

      The FCC dismissed Council Tree’s Waiver Reconsideration Petition as

moot in light of the Third Circuit’s vacatur of the 2006 Rules. J.A. at 13; see

Council Tree 

. Council Tree objects that the Third Circuit’s

vacatur of the 2006 Rules “in no way mooted [its] timely claim in 2007 [by means

of its Waiver Reconsideration Petition] that Auction 73 could not lawfully be

conducted with the [2006] Rules in place.” Pet’rs’ Opening Br. at 45. We

disagree.

      The goal that Council Tree clearly sought to accomplish through that

petition was the rescission of the Waiver Order—which would have resulted in

the Fifty-Percent Rule applying with full force to D Block licenses, but only to

the D Block. To be sure, in seemingly discordant fashion in a few sentences,

Council Tree argued that, under the FCC’s rationale, there was no logical basis

for not extending the Waiver Order to all of the spectrum—that is, lifting the

restriction of the Fifty-Percent Rule from the entire spectrum. But, by this

argument, Council Tree sought to demonstrate that the FCC’s reasoning in

adopting the Waiver Order was arbitrary and capricious. And the consequence

that ineluctably followed, as Council Tree envisioned it, was not the extension of

                                        23
the Waiver Order to all spectrum, but rather, the rescission of the Waiver Order as

to the D Block. In sum, Council Tree argued that the Waiver Order arbitrarily

and capriciously distinguished between licensees and therefore “must be

overturned.” J.A. at 43 (emphasis added).

      Given that Council Tree sought, in its Waiver Reconsideration Petition, the

rescission of the Waiver Order and the re-application of the Fifty-Percent Rule to

the D Block, we conclude that the FCC’s dismissal of that petition as moot, in

light of Council Tree III, was not arbitrary and capricious. Once the Third Circuit

vacated the Fifty-Percent Rule in Council Tree III, the FCC was powerless to

grant Council Tree the relief it sought—viz., it could not un-waive and reapply the

vacated rule. This is the very situation encompassed by the doctrine of mootness.

Cf. Jordan v. Sosa, 

, 1023 (10th Cir. 2011) (“The mootness doctrine

provides that although there may be an actual and justiciable controversy at the

time the litigation is commenced, once that controversy ceases to exist, the

[action] must [be] dismiss[ed] . . . for want of jurisdiction.” (internal quotation

marks omitted)); Rio Grande Silvery Minnow v. Bureau of Reclamation, 

, 1110 (10th Cir. 2010) (“The crucial question is whether granting a present

determination of the issues offered will have some effect in the real world.”

(quoting Wyoming v. U.S. Dep’t of Agric., 

, 1212 (10th Cir. 2005))

(internal quotation marks omitted)); 13C Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 3533.3.1, at 56, 59–60 (3d

                                          24
ed. 2008) (“Mootness is found when events outside the litigation make relief

impossible . . . . Events may supersede the occasion for relief, particularly when

the requested relief is limited.” (footnotes omitted)). Because the FCC was

unable to grant the relief that Council Tree sought in its Waiver Reconsideration

Petition, its dismissal of the petition as moot was not arbitrary, capricious, or an

abuse of discretion.

                                           3

       The FCC dismissed Council Tree’s Supplement to its Waiver

Reconsideration Petition as untimely. J.A. at 13. Council Tree argues that the

FCC’s dismissal was arbitrary and capricious, given that Council Tree

demonstrated “adequate grounds for the Supplement’s filing.” Pet’rs’ Opening

Br. at 46. It maintains that “[t]here was nothing untimely about the Supplement.”

       FCC regulations provide that a “petition for reconsideration and any

supplement thereto shall be filed within 30 days from the date of public notice of

the final Commission action.” 47 C.F.R. § 1.106(f). When the Commission has

not acted on a pending petition for reconsideration, supplements to it that are filed

after the expiration of the thirty-day period are not considered “except upon leave

granted” by the Commission. 

words, there is in fact a thirty-day

deadline for filing supplements to petitions, but the FCC has discretion to waive

that deadline. Here, notwithstanding Council Tree’s protestations to the contrary,

                                          25
its Supplement was clearly untimely. Council Tree filed the Supplement in May

2011, forty-two months after entry of the Waiver Order in November 2007. And

we conclude that the Commission’s decision not to entertain the Supplement was

not arbitrary or capricious.

      In resisting such an outcome, Council Tree explains that it could not have

asked the Commission to overturn the results of Auction 73 within thirty days of

the Waiver Order because the auction had not yet occurred. 9 Pet’rs’ Opening Br.

at 47 n.100. Citing other instances in which the Commission allowed

supplemental filings, 

n.99, 47–48, Council Tree asserts that it “must be

allowed the ‘breathing room’ to supplement reconsideration petitions with facts

and developments which could not have been cited or raised during the initial 30-

day window for the filing of such petitions,” 

The Commission

“reject[ed] Council Tree[’s] argument that [its] untimely supplement seeking to

challenge the Commission’s application of [the 2006 Rules] to Auction 73 . . .

could not have been raised earlier. The Commission decided to apply [the 2006

Rules] to Auction 73 in an earlier order [(the 700 MHz First Report & Order)].”

J.A. at 14 n.12. The Commission’s reasoning is patently reasonable.

      Furthermore, contrary to Council Tree’s characterization of it, the

Supplement does more than expand the facts raised in the Waiver Reconsideration

      9
            Council Tree nonetheless waited three years after Auction 73 was
conducted, and nine months after the Third Circuit’s vacatur of the 2006 Rules, to
challenge Auction 73 and the 2006 Rules under which it was conducted.

                                         26
Petition. Rather, Council Tree used the Supplement to seek entirely different

relief than what it sought in the Waiver Reconsideration Petition. Specifically,

Council Tree’s request for relief changed from a request to rescind the Waiver

Order—a step that would effectively apply the Fifty-Percent Rule with full force

to the D Block—to a request to rescind Auction 73’s results because the Fifty-

Percent Rule, among other rules, should not have been applied at all. 10 Compare

(alleging in the Waiver Reconsideration Petition that the FCC

promulgated the Waiver Order without requisite notice and comment, and

concluding that “the [Waiver Order] should be reconsidered and rescinded”), with

(attempting in the Supplement to frame the Waiver Reconsideration

Petition as having “made clear that, rather than suspend just the [Fifty-Percent]

Rule for just one block of spectrum, the FCC needed to suspend all of the harmful

and unlawful DE rules adopted in 2006 for all spectrum offered in Auction 73”),

and 

(alleging in the Supplement that “even setting aside [Council

Tree’s] objections to the special treatment afforded some DEs in the [Waiver


      10
               As Council Tree emphasized in the Waiver Reconsideration Petition,
it “ha[d] been challenging the [Ten-Year] Rule and [the Fifty-Percent Rule] since
their . . . adoption by the Commission.” J.A. at 45. The Waiver Reconsideration
Petition also mentions Council Tree’s position that these rules, like the Waiver
Order, could not survive notice-and-comment violations. 

fact
remains that Council Tree challenged the 2006 Rules in a separate petition for
review of the Commission’s DE Second Report & Order, which ultimately
resulted in invalidation of those rules by the Third Circuit. The Waiver
Reconsideration Petition at issue in this case only sought rescission of the Waiver
Order. 

.

                                         27
Order, it is] independently entitled to relief based on [its] claim that the [Waiver

Order] unlawfully refused to exempt all DEs from the [2006] Rules” and that

therefore, “the FCC must vacate the results of Auction 73”).

      As the Commission explained, while it does sometimes exercise its

discretion to consider untimely-filed supplements to timely-filed reconsideration

petitions, it disfavors those that seek to substantially expand the scope of relief

sought in the reconsideration petition. 

n.12; see, e.g., In re Alpine PCS,

Inc., 25 FCC Rcd. 469, 479–80 ¶ 16 (2010) (dismissing untimely-filed

supplements that sought to raise new questions of law not previously presented);

cf. 21st Century Telesis Joint Venture v. FCC, 

, 199–200 (D.C. Cir.

2003) (“Th[is] court has discouraged the [FCC] from accepting late petitions in

the absence of extremely unusual circumstances.”). The Commission’s action

here in dismissing the Supplement, in our view, is a reasonable application of this

regulatory preference.

      In sum, we have considered the Commission’s stated reasons for rejecting

Council Tree’s contentions that it could not have filed the Supplement earlier and

that the Supplement was merely an extension of the original Waiver

Reconsideration Petition. We conclude that the Commission did not abuse its

discretion by dismissing the Supplement and that its dismissal was not arbitrary

or capricious.




                                          28
                                         III

      For the foregoing reasons, we DISMISS Council Tree’s petition for review,

as it pertains to the Waiver Order, and DENY its petition, as it relates to the

Waiver Reconsideration Order.




                                         29