202 F.3d 311 (D.C. Cir. 2000)
Entravision Holdings, LLC, Petitionerv.Federal Communications Commission and United States of America, RespondentsDavis Television Fairmont, LLC, Intervenor
No. 99-1025
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 1999Decided February 11, 2000

On Petition for Review of an Order of the Federal Communications Commission
Barry A. Friedman argued the cause for petitioner.  With  him on the briefs was Michael L. Martinez.
K. Michele Walters, Counsel, Federal Communications  Commission, argued the cause for respondent. With her on the brief were Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, Joel I. Klein,  Assistant Attorney General, and Robert B. Nicholson and  Chris Sprigman, Attorneys, U.S. Department of Justice.
Before:  Ginsburg, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
Entravision Holdings, LLC, petitions for review of an order of the Federal Communications  Commission denying reconsideration of a prior order.  Because the Commission order denying reconsideration is unreviewable under ICC v. Brotherhood of Locomotive Engineers,  482 U.S. 270, 280 (1987), and we cannot fairly infer from  Entravision's filings an intent to seek review of the prior  order, we dismiss the petition for lack of jurisdiction.

I. Background

2
In 1997 the Federal Communications Commission proposed  to reallocate channels 60-69 from broadcast television service  to other commercial and public safety uses.  Latin Communications Group (LCG), Entravision's predecessor in interest in  the licenses for two low power television (LPTV) stations  operating on channels 61 and 63, submitted comments to the  Commission suggesting certain protections be granted to  LPTV stations that would be displaced by the proposed  reallocation.  The Commission adopted the reallocation proposal but declined to adopt the protections suggested by  LCG.  In re Reallocation of Television Channels 60-69,  Report & Order, 12 F.C.C.R. 22953 (Jan. 6, 1998).  LCG filed  a petition for partial reconsideration, asking the Commission  to reconsider the Report & Order and to adopt the protections LCG had suggested.  The Commission denied reconsideration.  In re Reallocation of Television Channels 60-69,  Memorandum Opinion & Order, 13 F.C.C.R. 21578 (Oct. 9,  1998).


3
Entravision and LCG then timely filed a joint petition for  review.  Subsequently, LCG completed assignment of the two LPTV broadcast licenses to Entravision and withdrew from  this action, leaving Entravision as the sole petitioner.

II. Analysis

4
Under Fed. R. App. P. 15(a), a petition for review of an  agency order must "specify the order or part thereof to be  reviewed."*  Failure to specify the correct order can result in  dismissal of the petition.  See City of Benton v. NRC, 136  F.3d 824,826 (D.C. Cir. 1998);  John D. Copanos & Sons, Inc.  v. FDA, 854 F.2d 510, 527 (D.C. Cir. 1988).  A mistaken or  inexact specification of the order to be reviewed will not be  fatal to the petition, however, if the petitioner's intent to seek  review of a specific order can be fairly inferred from the  petition for review or from other contemporaneous filings,  and the respondent is not misled by the mistake.  See Martin  v. FERC, 199 F.3d 1370, 1371-73(D.C. Cir.  2000) (reviewing order underlying rehearing order  specified in petition because intent to seek review fairly  inferred from contemporaneous motion for stay and respondent not prejudiced);  Damsky v. FCC, F.3d 527, 532-34 (D.C. Cir. 2000) (reviewing order  underlying rehearing order specified in notice of appeal because intent to seek review fairly inferred from filings attached to notice and repondent not prejudiced);  Southwestern Bell Telephone Co. v. FCC, 180 F.3d 307, 313 (D.C. Cir.  1999) (declining to review order underlying rehearing order  specified in petition because intent to seek review not fairly  inferable from petition, docketing statement, or preliminary  statement of issues);  cf. Nichols v. Board of Trustees of  Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 889  (D.C. Cir. 1987) (reviewing judgment inexactly designated in  notice of appeal because contemporaneously-filed Rule 10(b)  certification adequate to infer intent to appeal from judgment,  and appellee not prejudiced);  Brookens v. White, 795 F.2d  178, 180 (D.C. Cir. 1986) (declining to review unspecified judgment because intent to appeal from that judgment not  fairly inferable from appellant's notice of appeal or subsequent filings).


5
Here Entravision specified for review the Memorandum  Opinion & Order.  Under ICC v. Brotherhood of Locomotive  Engineers, 482 U.S. 270, 280 (1987), however, that order, in  which the Commission merely denied reconsideration of the  prior Report & Order, is unreviewable except insofar as the  request for reconsideration was based upon new evidence or  changed circumstances.  See Southwestern Bell, 180 F.3d at  311.  Because Entravision gave neither as a ground for  reconsideration of the Report & Order, the Memorandum  Opinion & Order is unreviewable.  Therefore we must dismiss Entravision's petition for lack of jurisdiction** unless we  can fairly infer that Entravision intended to seek review of  the order not specified in the petition for review.


6
Entravision's claim that we may infer it intended to seek  review of the Report & Order appears to be foreclosed by  Southwestern Bell, 180 F.3d at 313-14.  In that case the  agency had issued an Investigation Order prescribing certain  actions that local exchange carriers (LECs) were to take. See id. at 310.  Two LECs filed petitions for rehearing, which  the Commission denied in a Reconsideration Order.  Southwestern Bell then petitioned for review of the Reconsideration Order.  We denied the petition for review because the  Reconsideration Order was unreviewable and we could not  fairly infer from the petition for review or nearly contemporaneous filings an intent to seek review of the Investigation  Order:  the petition itself designated for review only the  Reconsideration Order, and only that order was appended to  the petition;  the docketing statement likewise named and had  appended only the Reconsideration Order;  and the preliminary statement of issues discussed only matters raised in the  LECs' petitions for rehearing.  See id. at 313;  see also City  of Benton, 136 F.3d at 825-26 (dismissing petition that specified only an unreviewable order).


7
Entravision points to one difference between its filings and  those in Southwestern Bell and City of Benton:  Entravision  expressly mentioned not just the order denying reconsideration but the underlying Report & Order--the one it wants the  court to review--in the petition for review.  In context,  however, the mere mention of the Report & Order does not  make fairly inferable Entravision's intent to seek review of  that order.  On the contrary, Entravision mentions the Report & Order in its petition for review only in the course of  stating the history of the proceeding prior to the order of  which review is being sought.  Consider:


8
[Entravision and LCG] petition this Court for review ofthe [FCC's] Memorandum Opinion & Order ("MO&O"),FCC 98-261 (released October 9, 1998;  published inFederal Register November 17, 1998), in which the FCCdenied LCG's Petition for Partial Reconsideration of theFCC's earlier Report and Order ("RO&O") [sic] in whichit decided not to protect low power television ("LPTV")stations operating on Channels 60-69....  A copy of theMO&O is attached hereto as Exhibit A....  The MO&Oconstitutes final FCC action rejecting LCG's request for protection...


9
The clear import is that only the Memorandum Opinion &  Order is under review;  this is reinforced by Entravision  having attached only the Memorandum Opinion & Order to  the petition.  See 28 U.S.C. § 2344 ("The petitioner shall  attach to the petition as exhibits copies of the order, report,  or decision [for review]").


10
Entravision's contemporaneous filings even more clearly  demonstrate that it intended to put before the court only the  order denying reconsideration.  Entravision's docketing  statement, filed within a month of its petition, specifies only  the Memorandum Opinion & Order for review:  In the space  for denoting the "date(s) of order(s) [under review]," Entravision entered the date of the Memorandum Opinion & Order  and only that date.  Entravision's preliminary statement of  issues, filed the same day, likewise points only to the Memorandum Opinion & Order;  there Entravision identifies two  issues, both of which relate exclusively to the Commission's  denial of reconsideration in the Memorandum Opinion &  Order:


11
1. Whether the FCC's denial of the Petition for Partial Reconsideration was contrary to law ...;


12
2. Whether the FCC's denial of the Petition for Partial Reconsideration adequately addresses how the FCC may weigh the public interest benefits of continued LPTV services....


13
Based upon Entravision's petition for review and these nearly  contemporaneous filings, we cannot fairly infer that it intended to seek review of the Report & Order.  Because Entravision fails to satisfy this first requirement for review of an  unspecified order, we need not consider the second requirement--that the Commission not have been prejudiced by  Entravision's mistake.  See Southwestern Bell, 180 F.3d at  314.  We conclude that Entravision has not brought the  Report & Order before this court for review.


14
In a last ditch effort to avoid this conclusion, Entravision  claims that, because the Commission's argument based upon  Brotherhood of Locomotive Engineers and Southwestern Bell  would dispose entirely of the case, the Commission was  required by Interim D.C. Circuit Rule 27(g)(1) to raise it in a  timely-filed motion, and the Commission cannot now raise it  on brief.  Rule 27(g)(1) provides:


15
Any motion which, if granted, would dispose of the appeal or petition for review in its entirety, or transfer the case to another court, must be filed within 45 days of the docketing of the case in this court, unless, for good cause shown, the court grants leave for a later filing.


16
If Entravision's interpretation of our Rule were correct, then  we suppose briefswould contain only non-dispositive arguments and there would be no point in counsel writing them or  in our reading them.  But of course, Entravision is not  correct:  the Rule governs motions, not arguments, and is therefore no bar to the disposition of this case on the basis of  the arguments in the briefs.

III. Conclusion

17
Entravision petitioned for review only of the Memorandum  Opinion & Order.  Under Brotherhood of Locomotive Engineers, 482 U.S. at 280, that order is unreviewable.  Entravision's petition is therefore


18
Dismissed.



Notes:


*
 Effective December 1, 1998, Fed. R. App. P. 15(a) was amended  (in style but not in substance) to require that a petitioner "specify"  rather than "designate" the order or part thereof to be reviewed. Because Entravision and LCG filed their petition after the amendment, we refer to the amended version of the Rule in this opinion.


**
 To the extent that Southwestern Bell Telephone Co. v. FCC, 180  F.3d 307 (D.C. Cir. 1999), and Beehive Telephone Co. v. FCC, 180  F.3d 314 (D.C. Cir. 1999), treat nonreviewability under Brotherhood  of Locomotive Engineers as nonjurisdictional, those holdings are  disapproved.  See 482 U.S. at 287.  Our resolution of this issue has  been circulated to and approved by the entire court and thus  constitutes the law of the circuit.  See Irons v. Diamond, 670 F.2d  265, 268 n. 11 (D.C. Cir. 1981).


