[00:00:07] Speaker 01:
Good morning.

[00:00:26] Speaker 01:
It may please the court.

[00:00:28] Speaker 01:
Judges Griffith and Taylor, it's nice to see you again.

[00:00:30] Speaker 01:
We've got to start meeting like this.

[00:00:33] Speaker 01:
I've asked the court to reserve one minute of time for rebuttal.

[00:00:37] Speaker 01:
I understand that the FCC has attacked our case here on the basis of standing, but I want to just quickly address the merits of the case before turning to standing.

[00:00:51] Speaker 01:
The situation is that we claim that the FCC did not have a substantial basis for awarding Dishnet with what is essentially a sole source contract or a

[00:01:02] Speaker 01:
being the only eligible party to receive an extremely valuable license.

[00:01:09] Speaker 01:
The reasons that the FCC gave for doing that were basically threefold.

[00:01:14] Speaker 01:
One, it said it would be speedy.

[00:01:16] Speaker 01:
They emphasized that it was going to be speedier to get the role out of this spectrum if they skipped all the rigmarole of having to go through an auction process and having other people apply for the licenses and so forth.

[00:01:29] Speaker 01:
So they gave it to 1D without having to go through all that.

[00:01:34] Speaker 01:
Now, the record at the time should have shown that DISH had absolutely no experience, no expertise, and no particular qualifications for building out a terrestrial cellular network.

[00:01:45] Speaker 01:
So there was really no reason to think that they could undertake such a huge national project in the course of seven years.

[00:01:51] Speaker 01:
Especially when you think that AT&T and Verizon, who have been at this for like 35 years, have not been able to accomplish what they would have to accomplish in 7 years.

[00:02:00] Speaker 01:
And of course, we have seen in the interim time that DISH has not done anything to actually roll out this network.

[00:02:06] Speaker 04:
And Mr. Olson, could you, would you focus your argument on the standard review we apply in a case like this?

[00:02:14] Speaker 04:
I know you think the Commission's technical judgment about two licensees in the two gigahertz band was not right.

[00:02:21] Speaker 04:
But the Commission made detailed findings about that.

[00:02:24] Speaker 04:
And we have an extremely deferential standard review about that.

[00:02:28] Speaker 04:
We don't second-guess the Commission's technical judgments.

[00:02:33] Speaker 04:
The Commission pointed out in its brief that it says, this is a quote from our case, the Commission makes a technical judgment that is supported with even a modicum of reasoned analysis

[00:02:46] Speaker 04:
We won't reverse absent, highly persuasive evidence to the conference.

[00:02:51] Speaker 04:
They cite that in their brief.

[00:02:53] Speaker 04:
You didn't say a word about it in your reply.

[00:02:54] Speaker 04:
So I think for you to get anywhere here, you have to point to highly persuasive evidence that the commission's technical judgment is wrong.

[00:03:05] Speaker 01:
What is that?

[00:03:06] Speaker 01:
Well, I think what I have to say is we are not questioning the commission's technical judgment.

[00:03:10] Speaker 01:
They made the judgment that you couldn't have

[00:03:13] Speaker 01:
two different licensees using the same spectrum without technical problems.

[00:03:17] Speaker 01:
And I agree that you basically have to defer to that judgment.

[00:03:21] Speaker 01:
Our position is that the Commission had other alternatives that were presented to it by us and other commenters in the NPRM, such as T-Mobile, Metromobile, PCS, AT&T, who all suggested that there was a way around that technical difficulty, which could be accomplished by

[00:03:40] Speaker 04:
The commission rejected those views on technical grounds.

[00:03:45] Speaker 01:
It actually didn't address those issues.

[00:03:47] Speaker 01:
That's the bizarre thing.

[00:03:48] Speaker 01:
Those alternatives were presented to the commission, one of which was giving 20 megahertz to new people to apply for and have an option and keeping 20 megahertz for a dish to keep for itself.

[00:03:59] Speaker 01:
And that would have taken care of the technical difficulty.

[00:04:02] Speaker 01:
The commission never addressed that alternative.

[00:04:04] Speaker 01:
It just didn't say anything about it, although it mentioned that these people had suggested that as an alternative.

[00:04:10] Speaker 04:
By the way, I apologize for calling you Mr. Evans.

[00:04:16] Speaker 01:
I'm sorry.

[00:04:17] Speaker 01:
Yes, you are.

[00:04:19] Speaker 01:
So that, I think, is the answer to your question.

[00:04:22] Speaker 01:
We are not asking you to second guess the commission's technical judgment at all.

[00:04:25] Speaker 01:
We're asking you to second guess the fact that they didn't consider alternatives which were presented to them.

[00:04:30] Speaker 01:
And it's a basic rule of administrative law that when an agency has various alternatives, it has to justify why it adopted one path rather than the other.

[00:04:39] Speaker 01:
And it didn't do that here.

[00:04:41] Speaker 01:
But to get back to the reasons why it decided to give this valuable license to DISH, the other reason... Let me just ask you one thing.

[00:04:49] Speaker 04:
One of your arguments that you say the commission didn't attend, didn't address is that what the commission should have done instead of what it did was simply roll back that NSS services, right, in the two gigahertz band?

[00:05:05] Speaker 01:
Yes.

[00:05:05] Speaker 04:
Right?

[00:05:06] Speaker 01:
just fall back and leave it the way it was.

[00:05:08] Speaker 04:
Right.

[00:05:08] Speaker 04:
And the Commission responds in its brief that this was, that argument here is beyond the scope of these proceedings.

[00:05:18] Speaker 04:
That it's procedurally barred.

[00:05:22] Speaker 01:
I'm not sure that that particular argument is procedurally barred.

[00:05:24] Speaker 04:
I'm just, that's the argument the Commission makes.

[00:05:27] Speaker 04:
Okay, well, I mean, okay, well, I mean, we said... They said they made that decision in the 2011 rulemaking.

[00:05:34] Speaker 04:
That's where they made that decision.

[00:05:37] Speaker 01:
the 2011 rulemaking, well, I'm sorry, we present, in our comments, we suggest, I mean, one of the things that was up for consideration in the 2012 rulemaking was should this license be given to DISH alone.

[00:05:55] Speaker 01:
That was a specific thing that the commission requested comment on, and we specifically commented on that.

[00:06:00] Speaker 01:
And we said one alternative is for the Commission to do nothing, to not change anything and just leave the licenses in Dish's hands.

[00:06:07] Speaker 01:
That didn't really seem to be the best alternative and we suggested other alternatives to the Commission in a timely way in the NPRM.

[00:06:16] Speaker 01:
So the Commission, I mean the other reason that the Commission gave for preferring Dish or giving the license to Dish was interference, just as you discussed Judge Table.

[00:06:26] Speaker 01:
And as I've said, there was, we're not saying that there wouldn't

[00:06:30] Speaker 01:
potentially have been interference, I don't necessarily agree with them, but they made their judgment and were not challenging that.

[00:06:35] Speaker 01:
But what they could have done is gotten around that interference issue and actually accomplished the congressional objectives better by making the licenses available to diverse owners and improving competition and so forth, but they didn't do that.

[00:06:52] Speaker 01:
So the interference justification for giving the license the dish really doesn't hold water.

[00:06:58] Speaker 01:
And the third thing, and the most baffling thing, is they made a big deal about how they wanted to preserve the ability of the satellite licensee to deliver service to rural areas and provide disaster relief and the like, as they approximately put it.

[00:07:12] Speaker 01:
Well, what's bizarre about that is these MSS licensees never provided any service to rural areas.

[00:07:17] Speaker 01:
It never provided disaster relief or anything like that.

[00:07:20] Speaker 01:
They had zero subscribers.

[00:07:22] Speaker 01:
They were doing nothing.

[00:07:23] Speaker 01:
and yet the Commission is bending over backwards to preserve a service which actually did not exist.

[00:07:28] Speaker 01:
So none of those justifications hold water.

[00:07:32] Speaker 01:
Now, as to why we are aggrieved by this, the Commission tries to argue here that they had a very narrow focus in the NPRM.

[00:07:43] Speaker 01:
They said we are only considering DISH being made the licensee here unless you can overcome the technical difficulties.

[00:07:51] Speaker 01:
I think that that's wrong.

[00:07:53] Speaker 01:
I think the Commission can't foreclose people from presenting alternative answers to the questions it has raised.

[00:08:02] Speaker 01:
In other words, it said, tell us whether you think that we should give DISH this license.

[00:08:07] Speaker 01:
So that implies that you can say, no, we don't think you should give them this license, and this is why.

[00:08:12] Speaker 01:
One answer would be that DISH isn't qualified to do it.

[00:08:15] Speaker 01:
And one party actually said, there's no way DISH has the credentials to be able to accomplish what you're wanting them to accomplish.

[00:08:22] Speaker 01:
And the second thing you could say is, no, you shouldn't give it to them because there are much better alternatives available.

[00:08:28] Speaker 01:
We presented an alternative.

[00:08:30] Speaker 01:
AT&T and the others presented separate alternatives.

[00:08:33] Speaker 01:
And as I said, I think the commission was obligated to consider those alternatives, which it did not do.

[00:08:38] Speaker 02:
Could you, could this argument about failure to consider alternatives

[00:08:44] Speaker 02:
course, is a classic administrative law argument.

[00:08:46] Speaker 02:
Can you tell me where in your brief it's made?

[00:08:48] Speaker 02:
I don't think it's in the brief, Your Honor.

[00:08:51] Speaker 02:
That explains my inability to find it and my inability to remember it.

[00:08:57] Speaker 02:
It makes me feel a lot better.

[00:08:59] Speaker 02:
I don't understand.

[00:09:00] Speaker 02:
You're making an argument that you did not make in your brief.

[00:09:03] Speaker 01:
No, I mean, in our brief we said that the commission was obligated to consider alternatives.

[00:09:07] Speaker 01:
We didn't cite specifically to the, to the fundamental law, you know.

[00:09:12] Speaker 02:
Where did you make the argument they're required to consider alternatives?

[00:09:17] Speaker 02:
In the brief, where did, where?

[00:09:21] Speaker 02:
Let me ask my associate to find it out.

[00:09:24] Speaker 02:
Is this the argument that they should have only authorized terrestrial or used the MSS band?

[00:09:28] Speaker 02:
Is that the argument?

[00:09:30] Speaker 01:
Yes, and made it available to other people to apply for.

[00:09:34] Speaker 02:
That is the only alternative I see even raised in the brief.

[00:09:40] Speaker 01:
That was our alternative.

[00:09:41] Speaker 01:
We did mention that other people had suggested other alternatives.

[00:09:44] Speaker 02:
No.

[00:09:46] Speaker 02:
I'm looking at the arguments that you made in the brief.

[00:09:48] Speaker 02:
That's the only one that comes close that I can find this kind of analysis, to which the FCC said it was forfeited because it would be on the scope of the notice.

[00:09:59] Speaker 02:
Is that right?

[00:10:00] Speaker 01:
Well, yes.

[00:10:01] Speaker 01:
They said it was beyond.

[00:10:03] Speaker 01:
If it was beyond the scope of the notice, that tells you that we made the argument.

[00:10:06] Speaker 01:
What I'm saying is it was not beyond the scope of the notice.

[00:10:09] Speaker 02:
I'm saying that you're having difficulty that you're making, what argument you're making before us.

[00:10:15] Speaker 01:
I'm making the argument that the scope of the notice, the commission tried to keep it very narrow, but by implication, if you're asking people should we give it only to DISH or should we consider other alternatives, then you're

[00:10:29] Speaker 01:
You can say, no, you shouldn't give it to DISH because they're unqualified, or no, you shouldn't give it to DISH because there are other alternatives.

[00:10:35] Speaker 03:
But as I understand it, the scope of the notice did not include the possibility of eliminating satellite altogether.

[00:10:41] Speaker 03:
And that's the alternative that you're offering.

[00:10:44] Speaker 03:
That's right.

[00:10:45] Speaker 03:
So why isn't that met?

[00:10:47] Speaker 03:
Why isn't your argument met by them saying, no, that's not something we're considering right now?

[00:10:52] Speaker 03:
You're asking for something beyond the scope of what we're looking at.

[00:10:56] Speaker 03:
Why isn't that a perfectly legitimate response by the Commission?

[00:10:59] Speaker 01:
It's not a legitimate response because the Commission or any administrative agency can't just close its ears and shut its eyes and say, we're not going to listen to anybody suggesting an alternative to what we are proposing.

[00:11:12] Speaker 01:
I mean, that's a reason why they shouldn't.

[00:11:13] Speaker 03:
Well, I don't know about that.

[00:11:14] Speaker 03:
I mean, your argument would suggest that someone can come in and make an argument that's totally extraneous to what the Commission is looking for.

[00:11:23] Speaker 01:
They could, and the principle of administrative law is the agency has to consider any, I forget, any serious alternatives.

[00:11:32] Speaker 03:
It doesn't have to consider anything that's frivolous or anything like that, but certainly this was... So the commission says, notice proposed rulemaking does not include eliminating satellite.

[00:11:43] Speaker 03:
You come in and say, let's eliminate satellite.

[00:11:46] Speaker 03:
I think their response is,

[00:11:47] Speaker 03:
Let's talk about that some other time, but that's not what the issue is before us.

[00:11:51] Speaker 01:
But what we were saying was they shouldn't award the license only to DISH for that reason.

[00:11:56] Speaker 01:
I mean, clearly, the award to DISH was going to preclude anything else.

[00:12:00] Speaker 01:
So we said, no, you shouldn't give it to DISH.

[00:12:02] Speaker 01:
You should do something else.

[00:12:04] Speaker 02:
Can I ask about your Roman numeral two and your argument that the modification was so substantial that it required initial license treatment?

[00:12:12] Speaker 02:
The FCC said this wasn't raised until the petition for reconsideration.

[00:12:18] Speaker 01:
Well, it's accurate that we didn't raise it.

[00:12:22] Speaker 01:
DISH Network itself had raised the issue of to what extent can its licenses be modified under Section 316.

[00:12:30] Speaker 02:
They obviously didn't argue that it required an initial license.

[00:12:36] Speaker 01:
No, they did not.

[00:12:37] Speaker 02:
Because that would be against their interests.

[00:12:38] Speaker 02:
So I'm asking, is the first time you argued that in your petition for reconsideration, that's the reason that the FCC held in their opinion below that it was forfeit, that the argument was forfeit, because you waited until the petition for reconsideration.

[00:12:52] Speaker 01:
Well, that is the reason, but the Commission ignored, there is an exception to the rule that you have to raise something

[00:12:57] Speaker 01:
that you can raise something in a petition for reconsideration that you didn't raise before.

[00:13:01] Speaker 01:
We argued that because of the dish discussion of what is an acceptable modification of the license, that that particular point was an issue.

[00:13:09] Speaker 01:
But also, one of the exceptions to the petition for reconsideration rule is that if the matter is of public interest, then the FCC can go ahead and consider it.

[00:13:21] Speaker 01:
And our argument is that before you give a $6 billion asset to somebody without considering whether that violates Section 316 of the Act, there is a public interest in considering the issue.

[00:13:31] Speaker 02:
Well, the question is why didn't you raise it before?

[00:13:33] Speaker 02:
If it was so fundamental, why didn't you raise it timely?

[00:13:37] Speaker 01:
Well, we actually focused in our comments on the fact that this was an initial license and therefore it, and a lot of the same considerations go into that analysis.

[00:13:45] Speaker 01:
How different is it from what the original license was?

[00:13:48] Speaker 01:
because we were urging the commission basically to hold an auction rather than just give it away.

[00:13:53] Speaker 01:
When DISH raised the matter of, well, wait a minute, you know, our license can only be modified to a certain extent.

[00:14:00] Speaker 01:
We can't go too far.

[00:14:01] Speaker 01:
Frankly, that's when I realized there actually was a 316 issue, so we raised it at the first available opportunity.

[00:14:08] Speaker 02:
Okay.

[00:14:08] Speaker 01:
Any further questions?

[00:14:10] Speaker 01:
No.

[00:14:10] Speaker 01:
Thank you.

[00:14:10] Speaker 01:
Thank you.

[00:14:20] Speaker 00:
Good morning and may it please the court, I'm Sarah Citron for the FCC.

[00:14:25] Speaker 00:
As Judge Tatel recognized, this case involves a spectrum management decision of the kind that is in the heartland of the agency's expertise and discretion.

[00:14:35] Speaker 00:
The Commission considered how to

[00:14:39] Speaker 00:
Increased terrestrial use of the mobile satellite S-band given two constraints.

[00:14:43] Speaker 00:
First, that this spectrum was already licensed to DISH.

[00:14:47] Speaker 00:
And second, that granting new licenses to independent operators would expose DISH to harmful radio interference.

[00:14:54] Speaker 00:
Given those constraints, the commission reasonably concluded that modifying DISH's licenses to include expanded terrestrial rights was the best and fastest way to optimize use of the spectrum.

[00:15:08] Speaker 03:
I'd like to address... Why isn't this a major departure instead of just a mere modification?

[00:15:14] Speaker 03:
You're going from ancillary terrestrial component regime to one where it's pretty much exclusively.

[00:15:22] Speaker 03:
That seems like a pretty significant change.

[00:15:27] Speaker 00:
Could be reasonable to view it that way, Your Honor.

[00:15:29] Speaker 00:
I wanted to say first, as I think the Court recognizes, the merits of that issue is not properly before the Court.

[00:15:36] Speaker 00:
And that's because, as counsel conceded, no one raised the argument before the Commission at the time of the main order that expanding the rights in the way the Commission proposed exceeded, you know, was too fundamental a change to fall within the Commission's very broad

[00:15:56] Speaker 00:
modification authority, and what this court has said is that so long as there is a public interest in the modification, the Commission may make a change by, may exercise its modification authority.

[00:16:09] Speaker 00:
And here, the Commission reasonably viewed the change as not of a fundamental kind because the services that DISH could provide under its old licenses and its modified licenses

[00:16:21] Speaker 00:
were essentially the same services.

[00:16:24] Speaker 00:
It's true that the ability to provide terrestrial service was no longer tied to the provision of satellite service, but under either set of licenses, the commission could provide very similar terrestrial service.

[00:16:40] Speaker 00:
But again, our position is that the court shouldn't reach the merits of that argument since it was never raised at the time of the main order.

[00:16:50] Speaker 00:
Judge Garland, in candor, I want to say that we didn't make that argument as to the initial license.

[00:17:00] Speaker 00:
We believe that the challenge to our 316 authority was not properly presented in time.

[00:17:07] Speaker 00:
But the initial license question really doesn't come into play for a different reason, which is that under 309J, there's never an option obligation unless there's first an acceptance of mutually exclusive obligations.

[00:17:22] Speaker 02:
It's the difference between the two arguments.

[00:17:23] Speaker 02:
That is, if it's so fundamental that it can't be done by license modification, then

[00:17:31] Speaker 02:
it has to go to something else and then it goes to the section about competitive bidding.

[00:17:39] Speaker 00:
I think as to why we distinguish between them legally, one is invoking our

[00:17:45] Speaker 00:
claiming a statutory obligation to conduct an auction under the specific statute.

[00:17:50] Speaker 00:
But I agree that as to the kinds of arguments they're now raising to say that something was a fundamental change that exceeded the modification authority, it is not so different.

[00:18:07] Speaker 00:
But nonetheless, arguing that there was an initial license couldn't have alerted the commission to the notion that

[00:18:15] Speaker 00:
this was a challenge to our modification authority.

[00:18:18] Speaker 00:
And in fact, that was a question that the commission teed up in the notice of proposed rulemaking.

[00:18:23] Speaker 00:
Did this exceed the, were these proposed changes within the commission's modification authority under 316?

[00:18:32] Speaker 00:
And there was no challenge to that at the time of the order.

[00:18:35] Speaker 00:
As to the merits, our challenge to the reasonableness of the commission's decision, it had alternatives

[00:18:42] Speaker 02:
Just so I understand that, so the Commission's position is that the fundamental change argument came too late, but the exceeding the authority under 316 did not come too late.

[00:18:55] Speaker 00:
No, the fundamental change argument is the argument that we exceeded our 316 authority, and that came too late.

[00:19:03] Speaker 00:
They've made a separate argument that under Section 309 of the Act, we were required to conduct an auction, and their reason why is that this was an initial license, and if there's an initial license, there should be an auction.

[00:19:15] Speaker 00:
But that statute only...

[00:19:17] Speaker 00:
If there are no mutually exclusive applications on file and there's no dispute here that there were not, then that statutory consideration just doesn't come into play.

[00:19:29] Speaker 00:
I think the court has recognized quite rightly also that the petitioner's argument has shifted over the course of this proceeding as to what alternative the commission should have pursued.

[00:19:41] Speaker 00:
And I don't think this argument raised today that

[00:19:46] Speaker 00:
The decision here was unreasonable because the Commission didn't split the spectrum into 20 megahertz, 20 megahertz.

[00:19:53] Speaker 00:
That's not what they've been arguing in their opening brief.

[00:19:55] Speaker 00:
I would consider that position waived.

[00:19:58] Speaker 00:
As to the argument that the Commission should have removed the satellite allocation, the Commission

[00:20:05] Speaker 00:
correctly recognize in the 2012 order that that was an untimely petition for reconsideration of the 2011 coallocation order, where the commission had made terrestrial services co-primary.

[00:20:20] Speaker 00:
And what co-primary means is it doesn't, the mobile satellite service maintains its protection.

[00:20:29] Speaker 00:
Those services have no priority over the satellite service.

[00:20:34] Speaker 00:
And in addition, not only would that have been an untimely challenge to that order, but in the opening briefs here, Petitioner didn't challenge the Commission's determination on that point, so we would view it as doubly waived.

[00:20:49] Speaker 00:
On the question of somehow changing the service rules, which was how NTCH recast that argument in the petition for reconsideration, that wasn't within the scope of the notice.

[00:21:02] Speaker 00:
Because the commission, it's very clear reading the notice of proposed rulemaking, we've identified many paragraphs, but I would point the court in particular paragraph 80.

[00:21:12] Speaker 00:
The commission was interested in alternatives

[00:21:16] Speaker 00:
How should it proceed if there was a finding that, unlike in 2003, it was newly technically feasible for independent operators to share the spectrum?

[00:21:26] Speaker 00:
But there was never any question that the existing licensees' rights were going to be.

[00:21:32] Speaker 00:
And really that's what the Commission, you know, there may have been many alternatives available to the Commission.

[00:21:38] Speaker 00:
But it's within the Commission's discretion to choose among those options.

[00:21:42] Speaker 00:
They all have benefits.

[00:21:44] Speaker 00:
They all have disadvantages.

[00:21:45] Speaker 00:
What the Commission did here was make a predictive judgment that in light of this technical finding of interference and the infeasibility of spectrum sharing,

[00:21:55] Speaker 00:
The best and fastest way forward was to honor the rights of the existing licensee, and in awarding these rights, the commission obtained for the public the existing licensee's agreement to meet aggressive build-out deadlines and corresponding penalties if those deadlines aren't met.

[00:22:15] Speaker 00:
And those penalties would then remove the technical hurdle.

[00:22:20] Speaker 00:
If this doesn't build out, then it loses

[00:22:23] Speaker 00:
If it doesn't build out its terrestrial network, then it loses the interference protection for satellite service that the commission understood as an obstacle to competitive bidding for these terrestrial rights.

[00:22:37] Speaker 04:
Could you, you haven't said a word about standing.

[00:22:41] Speaker 04:
You argue in your brief.

[00:22:43] Speaker 04:
Do you want to say anything, or have you almost concluded that you have stated it?

[00:22:47] Speaker 00:
No.

[00:22:47] Speaker 00:
The standing art, we do think, notwithstanding that the merits are strong, that the petitioner doesn't have standing.

[00:22:53] Speaker 04:
This isn't a case where... What about, let me just focus on the specific question.

[00:22:58] Speaker 04:
Why isn't this just a classic case of competitor standing?

[00:23:02] Speaker 00:
Because there was no auction.

[00:23:03] Speaker 00:
That's because there was no auction underway here.

[00:23:06] Speaker 04:
Under their theory, if they're right, there might be an auction.

[00:23:09] Speaker 00:
there might be an auction.

[00:23:10] Speaker 00:
I think what they have to show is a substantial likelihood of an auction, and there's no reason to presume here unless, and this is why we haven't challenged standing as to their, what I understood until today to be their challenge to the technical finding of the impossibility of sharing, but we recognize that under the terms of the notice,

[00:23:29] Speaker 00:
If the court disagreed on that point, then it's substantially likely the commission would conduct an auction.

[00:23:36] Speaker 00:
But otherwise, they're not saying that you would have to direct the agency in a remand here to conduct an auction, and the agency might well pursue additional alternatives, seek to bolster the satellite service or

[00:23:49] Speaker 02:
But isn't this a classic procedural standing issue?

[00:23:53] Speaker 02:
In the classic cases, the agency fails to do notice and comment, and the agency argues that the petitioner has no standing because even if they did notice and comment, they would come out the same way.

[00:24:11] Speaker 02:
And the rule is plainly that anything that upsets the procedures that were originally done and that could lead

[00:24:18] Speaker 02:
to an alternative that might benefit is sufficient.

[00:24:22] Speaker 02:
The standing, particularly the issue about redressability, I think in Justice Scalia's word, is relaxed for procedural standing issues.

[00:24:31] Speaker 00:
That's right, Your Honor.

[00:24:32] Speaker 00:
I don't understand.

[00:24:33] Speaker 00:
The arguments as to which we've challenged their standing, I understand them to be substantive challenges to the reasonableness of the Commission's decision-making, not

[00:24:43] Speaker 00:
we missed, we didn't properly give notice and comment, or we were conducting an auction and we didn't apply the proper procedure.

[00:24:51] Speaker 00:
In that case, I understand that the standard of adjustability would be relaxed, but here they are saying that it didn't make sense, that the position we took didn't make sense, we didn't reasonably find that this could be the fastest way forward, that that prediction was unreasonable, that we didn't reasonably justify increasing the value of these

[00:25:10] Speaker 00:
of these licenses or that we somehow invited spectrum warehousing.

[00:25:16] Speaker 00:
Now, we think those are wrong on the merits, but I also view those as substantive claims for which they have to meet the ordinary showing of addressability.

[00:25:24] Speaker 00:
If there are no further questions, I ask that the petition to review be denied.

[00:25:37] Speaker 02:
Yes, could you spend another moment on standing, responding to the standing?

[00:25:41] Speaker 01:
Yes, on standing, our argument there is that the alternatives that we proposed and that the other commenters proposed all envisioned that the commission would take away some of the license authority that was then in Dish's hands and make it available to other people.

[00:26:00] Speaker 01:
Our assumption was that if that spectrum was made available for other people to apply for,

[00:26:06] Speaker 01:
Probably more than one person.

[00:26:07] Speaker 01:
I mean, we said if we were the only applicant, then we would just get it, but that's extremely unlikely.

[00:26:13] Speaker 01:
If the commission had looked at the other alternatives that we proposed, there would have been multiple applicants for that spectrum, and then the commission would have had to hold an auction.

[00:26:22] Speaker 01:
And our standing is based on that.

[00:26:23] Speaker 01:
The reason we're here is because we, from the very beginning, just wanted an opportunity to be able to bid on this newly valuable spectrum that the commission made available to DISH, but to no one else.

[00:26:36] Speaker 01:
Can I just clarify one other thing?

[00:26:38] Speaker 01:
Council talked about the argument we made being late that we wanted the spectrum to be reallocated, and we had pointed out in our petition for reconsideration that that was actually a misspeak.

[00:26:52] Speaker 01:
We said that the spectrum should be reallocated.

[00:26:55] Speaker 01:
What we really meant was you could keep the co-primary allocation between satellite and mobile, but in your service rules you could just say only terrestrial

[00:27:05] Speaker 01:
use is going to be authorized.

[00:27:07] Speaker 01:
So that's why it came up in a petition for reconsideration.

[00:27:11] Speaker 01:
We were clarifying what we had actually intended in our original comments.

[00:27:20] Speaker 02:
Thank you.