Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
California Metro Mobile Communications, Inc. (CMMC) appeals the Federal Communications Commission's (Commission's) order denying review of the decision of its Public Safety and Private Wireless Division to modify CMMC's trunked radio station by removing one frequency. CMMC first contends that the Commission lacks authority under the Communications Act of 1934 (Communications Act or Act), 47 U.S.C. §§ 151 et seq., and the implementing regulations to modify CMMC's license. Second, CMMC maintains that, even if the Commission has authority to modify its license, the decision to do so violates the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). We reject CMMC's claims as explained below and, accordingly, affirm the Commission's order.
CMMC, a provider of mobile radio equipment and two-way radio service, applied to the Commission for a license to operate a trunked
On September 19, 2000 Pacific Gas & Electric (PG&E) petitioned
Responding to PG&E's petition, the Branch sent a letter to the PCIA on February 15, 2001 asking it to demonstrate that the frequency coordination it performed for CMMC's application complied with Commission rules and, if it in fact failed to do so, to submit a proposal to remedy the defect. On March 12, 2001 the PCIA responded, stating that the frequency coordination it did for CMMC's application had in fact failed to take into account licenses held by PG&E and proposing that the Commission "correct" CMMC's license "by removing frequency 153.6125." JA 9.
On August 14, 2001 the Division denied PG&E's petition but, on its own motion, initiated a proceeding to modify CMMC's license by deleting frequency 153.6125 MHz. Pacific Gas & Elec. Co., Petition to Revoke Grant of License for California Metro Mobile Communications for Industrial/Business Private Land Mobile Radio Station, WPOY920, Twin Creeks, California & California Metro Mobile Communications, Licensee of Trunked Industrial/Business Pool Station WPOY920, Twin Creeks, California, Memorandum Opinion & Order, 16 FCC Rcd 15419 (released Aug. 17, 2001). The Division first addressed CMMC's contention that the Commission lacked authority to entertain PG&E's petition because it was in effect an untimely petition for reconsideration under section 405 of the Communications Act, 47 U.S.C. § 405.
On December 27, 2001 the Division denied CMMC's petition for reconsideration and modified CMMC's license by deleting frequency 153.6125 MHz. California Metro Mobile Communications, Inc., Modification of Industrial/Business Pool Trunked Station WPOY920 Frequency 153.1625 MHz, Memorandum Opinion & Order & Order of Modification, 17 FCC Rcd 112, 2001 WL 1661868 (released Dec. 31, 2001). In its petition CMMC had again challenged the Commission's authority to modify its license. CMMC claimed that PG&E's request constituted an untimely petition for reconsideration under 47 C.F.R. § 1.106
Finding CMMC's procedural arguments to be "without merit," the Division rejected them. 17 FCC Rcd at 113-14. The Division first reasserted that, in proposing to modify CMMC's license, it did not purport to act under the authority of 47 C.F.R. § 1.113 but instead pursuant to section 316 of the Act and 47 C.F.R. § 1.87(a). Id. at 114. The Division further explained that, while CMMC correctly noted that section 405 of the Act requires petitions for reconsideration to be filed within 30 days following public notice of the action the Commission is asked to reconsider, the Division proposed to modify CMMC's license on its own motion. Id. Turning to the proposed modification itself, the Division explained that CMMC had waived its right to protest the modification by failing to object to it on the merits within the prescribed 30-day period. Id. Finding that the modification
On October 29, 2002 the Commission denied CMMC's application for review. License of California Metro Mobile Communications, Inc., Modification of Industrial/Business Pool Trunked Station WPOY920; Frequency 153.6125, Memorandum Opinion & Order, 17 FCC Rcd 22974, 2002 WL 31507182 (released Nov. 13, 2002) [hereinafter California Metro Mobile Order]. The Commission rejected CMMC's contention that section 316 did not authorize the license modification, concluding that section 316 authorizes it to modify a license if, in its judgment, the modification will serve the public interest, convenience and necessity with "no limitation on the time frame within which the Commission may act to modify a license." Id. at 22975. The Commission went on to explain that "[a]lthough [s]ection 405 of the Act explicitly requires that petitions for reconsideration be filed within thirty days after public notice of the action is given, Commission action under section 316 of the Act is not subject to the limitations on revocation, modification or reconsideration imposed by [s]ection 405 of the Act and implemented by" Commission rules. Id. (footnote omitted). Indeed, according to the Commission, CMMC's reading of section 316 "would vitiate the Commission's authority under [s]ection 316." Id. at 22976.
The Commission also distinguished an earlier FCC order CMMC relied on. Id. The Commission explained that its San Mateo
In addition, the Commission rejected CMMC's claim that the Commission lacked authority to modify its license because the sole basis for the modification was PG&E's petition for revocation. Id. The Commission explained that the Division denied PG&E's petition for revocation and acted on its own motion to modify CMMC's license under section 316. Id. The Commission further noted that deleting a single frequency from CMMC's trunked station "was not tantamount to a revocation of [its] license." Id.
Finally, the Commission addressed CMMC's protest (which the Division deemed waived because it never received the protest). Id. at 22976-78. The Commission rejected CMMC's argument that the public interest would not be served by modifying a license based on potential interference only, observing that, under its rules, "`objectionable interference will be considered to exist' when the interference contour of a proposed trunked station would intersect the service contour of an
CMMC now appeals the Commission's order pursuant to 47 U.S.C. § 402(b)(5) and 28 U.S.C. § 2342(1).
Our review of the Commission's action is guided by familiar administrative law standards. We defer to the Commission's interpretation of the Communications Act so long as the Congress has not unambiguously forbidden it and it is otherwise permissible. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); see also Barnhart v. Walton, 535 U.S. 212, 218, 122 S.Ct. 1265, 1269-70, 152 L.Ed.2d 330 (2002). Under Chevron's classic formulation, if the Congress "has directly spoken to the precise question at issue," we "give effect to [its] unambiguously expressed intent"; "if the statute is silent or ambiguous," we defer to the Commission's interpretation so long as it is "based on a permissible construction of the statute." 467 U.S. at 842-43, 104 S.Ct. at 2781-82. We will affirm the Commission's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." 5 U.S.C. § 706(2)(A); see City of Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1164 (D.C.Cir.1987). We do not prefer our judgment to that of the Commission and require only that it "examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.' "Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). The Commission's modification of CMMC's license easily survives the application of these standards of review.
CMMC initially claims, as it did below, that neither section 405 nor section 316 authorized the Commission to modify its license. We need not be detained long by CMMC's argument that PG&E's petition for revocation was an untimely petition for reconsideration under section 405 of the Act (and sections 1.106 and 1.113 of the rules). PG&E's petition was filed approximately one year after the time for
CMMC argues, however, that the Commission's decision in San Mateo I, 16 FCC Rcd at 4291-94, prevented the Commission from proceeding as it did. It contends that San Mateo I holds that a license issued pursuant to delegated authority may not be modified for any reason more than 30 days after its grant. But the holding in San Mateo I is not so broad. Id. at 4294. At issue in San Mateo I was the Branch's decision to rescind, more than five months after its grant of San Mateo's applications to add certain frequencies to its license, upon learning that it had granted San Mateo's applications ahead of an earlier-filed application for the frequencies. Id. at 4292-94. The Commission reinstated the grant of San Mateo's applications, concluding that the Branch was not authorized to set aside an action on its own motion once section 1.113(a)'s 30-day period expired. Id. at 4294. The Commission also observed that the earlier applicant had failed to file a timely petition for reconsideration challenging the grant of San Mateo's applications.
CMMC's more substantial claim is that the Commission lacked authority to modify its license under section 316 of the Act and section 1.87 of its rules. The gravamen of CMMC's claim is that the Commission cannot bypass the time limit established in section 405 by relying on section 316 because, in its view, the latter section permits the Commission to modify a license based only on changed circumstances following grant of the license. According to CMMC, because a licensee is entitled to "administrative finality," section 316 authorizes the Commission simply to address "changed circumstances following the initial license grant" — not to "revisit initial grants of licenses after the statutory [s]ection 405 period has elapsed." Appellant's Br. at 13. The Commission rejected this contention and so do we.
Under step one of Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82, we use the customary statutory interpretation tools of "text, structure, purpose, and legislative history" to determine whether the Congress has spoken directly "to the precise
In its order the Commission asserted that section 316 "contains no limitation on the time frame within which [it] may act to modify a license" and that its action under the section "is not subject to the limitations on revocation, modification or reconsideration imposed by [s]ection 405." California Metro Mobile Order, 17 FCC Rcd at 22975. This interpretation reasonably comports with section 316's language. See 47 U.S.C. § 316(a)(1). Section 316 grants the Commission broad power to modify licenses; the Commission need only find that the proposed modification serves the public interest, convenience and necessity. See id. No doubt licensees have a strong and legitimate interest in administrative repose, see, e.g., 47 U.S.C. § 405(a), but the Congress gave the Commission the authority in section 316 to override that interest if doing so serves the public interest, convenience and necessity. See id. at § 316(a)(1); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 287 (D.C.Cir.1971) ("administrative finality is subject to certain powers conferred in the FCC by the Act for appropriate cases" such as license modification power conferred by section 316), cert. denied sub nom. WHDH, Inc. v. FCC, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). CMMC's interpretation would, as the Commission pointed out, see California Metro Mobile Order, 17 FCC Rcd at 22976, significantly limit the Commission's ability to modify a license in the public interest, convenience and necessity because it would confine the Commission to furthering those interests based only on
In addition, CMMC maintains that, even if the Commission is authorized to modify its license under section 316, the Commission acted arbitrarily and capriciously in doing so. CMMC contends that the Commission modified its license in the absence of actual interference. Moreover, CMMC contends, the Commission failed to consider a less "draconian" remedy, its good faith reliance on the PCIA's frequency coordination, its interest in "administrative finality" and the costs resulting from the modification, including lost customers, disruption of service and the station's diminished capacity. Appellant's Br. at 15-18.
We think that the Commission's modification of CMMC's license serves the public interest. The Commission expressly rejected CMMC's claim that modification required actual interference with PG&E's operations, explaining that the modification was needed to cure an ongoing violation. California Metro Mobile Order, 17 FCC Rcd at 22977. The Commission also rejected as unsubstantiated CMMC's claim that the modification would hamper its service. Id. at 22977-78. The Commission noted, moreover, that the modification would leave CMMC's other frequencies intact and that, to the extent it caused a "minor" disruption in CMMC's operations, it was "nonetheless in the public interest, as required by [s]ection 316." Id. at 22978. Accordingly, the Commission acted neither arbitrarily nor capriciously in modifying CMMC's license. See Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2866-67.
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For the foregoing reasons, we affirm the Commission's order modifying CMMC's license by deleting frequency 153.6125 MHz therefrom.