 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 8, 2019            Decided February 21, 2020

                         No. 18-1241

                         NTCH, INC.,
                         APPELLANT

                             v.

         FEDERAL COMMUNICATIONS COMMISSION,
                     APPELLEE

              DISH NETWORK CORPORATION,
                     INTERVENOR


                 Consolidated with 18-1242


      On Petition for Review and Notice of Appeal of
     Orders of the Federal Communications Commission


     Donald J. Evans argued the cause for appellant. With him
on the briefs was Keenan Adamchak.

     Maureen K. Flood, Counsel, Federal Communications
Commission, argued the cause for appellee. With her on the
brief were Michael F. Murray, Deputy Assistant Attorney
General, U.S. Department of Justice, Robert B. Nicholson and
Frances E. Marshall, Attorneys, Thomas M. Johnson Jr.,
General Counsel, Federal Communications Commission,
                              2
David M. Gossett, Deputy General Counsel, and Richard K.
Welch, Deputy Associate General Counsel. Jacob M. Lewis,
Associate General Counsel, Federal Communications
Commission, entered an appearance.

     Bryan N. Tramont and J. Wade Lindsay were on the brief
for intervenor. Jennifer B. Tatel entered an appearance.




                        No. 18-1243

                        NTCH, INC.,
                        PETITIONER

                              v.

   FEDERAL COMMUNICATIONS COMMISSION AND UNITED
               STATES OF AMERICA,
                  RESPONDENTS

               DISH NETWORK CORPORATION,
                      INTERVENOR


           On Petition for Review of Orders of the
           Federal Communications Commission


     Donald J. Evans argued the cause for petitioner. With him
on the briefs was Keenan Adamchak.

   Sarah E. Citrin, Counsel, Federal Communications
Commission, argued the cause for respondents. With her on the
                               3
brief were Michael F. Murray, Deputy Assistant Attorney
General, U.S. Department of Justice, Robert B. Nicholson and
Frances E. Marshall, Attorneys, Thomas M. Johnson Jr.,
General Counsel, Federal Communications Commission,
David M. Gossett, Deputy General Counsel, and Richard K.
Welch, Deputy Associate General Counsel. Jacob M. Lewis,
Associate General Counsel, and Maureen K. Flood and Thaila
Sundaresan, Counsel, Federal Communications Commission,
entered appearances.

     Bryan N. Tramont and J. Wade Lindsay were on the brief
for intervenor. Jennifer B. Tatel entered an appearance.

    Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

    Opinion for the court filed PER CURIAM.

     PER CURIAM: Title III of the Communications Act of 1934
charges the Federal Communications Commission with the
regulation of the “channels of radio transmission.” 47 U.S.C.
§ 301. These cases arise out of three Commission spectrum-
management decisions. First, the Commission “modified” Dish
Network Corporation’s licenses in the “Advanced Wireless
Services-4 Band” (the “AWS-4 Band”) to authorize the
company to develop a stand-alone terrestrial network that could
support wireless broadband services. Then, a year later, the
Commission “waived” certain technical restrictions on these
modified licenses, though it conditioned the waivers on Dish’s
commitment to bid a certain sum of money in a public auction
for adjacent spectrum in the so-called “H Block.” And finally,
the Commission designed and conducted “Auction 96,” in
which Dish bid as promised and won the H Block licenses.

    NTCH, Inc., a competitor to Dish, challenges all three
decisions. For the reasons set forth below, we deny its petitions
                               4
for review of the orders modifying Dish’s AWS-4 licenses and
establishing Auction 96’s procedures. But because the
Commission wrongly dismissed NTCH’s challenges to the
waiver orders for lack of administrative standing, we remand
to the Commission to consider those claims on the merits.

                               I.

                              A.

     The AWS-4 Band’s history begins, for present purposes,
with the disappointing commercial deployment of “mobile
satellite service” (MSS)— “a satellite-powered technology that
provides email and cellular-like phone services,” particularly
in hard-to-reach areas and during natural disasters. Globalstar,
Inc. v. FCC, 564 F.3d 476, 480 (D.C. Cir. 2009). Back in 1997,
bullish on MSS, the Commission allocated spectrum for MSS
and soon granted licenses to eight operators.

     By 2003, however, satellite’s prospects seemed bleak
compared to terrestrial technologies—i.e., those that route
radio communications through cell towers. To put MSS
spectrum to better use, the Commission authorized MSS
licensees to offer “ancillary” terrestrial services. See In re
Service Rules for Advanced Wireless Services in the 2000-2020
MHz and 2180-2200 MHz Bands, 27 FCC Rcd. 3561, 3564–
65, ¶¶ 5–6 (2012) (“AWS-4 NPRM”). The Commission thus
allowed “MSS operators to augment their satellite services with
terrestrial facilities” by “re-using frequencies assigned to MSS
operations.” Id. at 3564, ¶ 5. But the Commission imposed a
condition on this new flexibility: before an MSS licensee could
offer terrestrial services, it would first need to provide
“substantial satellite service.” Id.
                              5
     This condition thwarted the development of terrestrial
networks. Unable to make “substantial” satellite service
commercially viable, licensees could not avail themselves of
the terrestrial option. Id. at 3565, ¶ 8. By 2011, six of eight
MSS licensees had surrendered their licenses. When the last
two licensees filed for bankruptcy, Dish swooped in, acquiring
the licenses from the bankrupt companies.

     As the MSS spectrum fell into desuetude, the market for
“wireless broadband” (which sends information to data-hungry
devices like iPhones and iPads) was booming. Indeed, the
Commission worried that, soon enough, “mobile data demand
[would] exhaust spectrum resources.” Id. at 3567, ¶ 10. In
response, Congress enacted legislation instructing the
Commission to develop a “national broadband plan” to “ensure
that all people of the United States have access to broadband
capability.” American Recovery and Reinvestment Act of
2009, Pub. L. No. 111-5, § 6001(k)(2)(D), 123 Stat. 115, 516.
The Commission’s resulting National Broadband Plan
acknowledged that its insistence on “substantial satellite
service” in the AWS-4 Band made it “difficult for MSS
providers to deploy ancillary terrestrial networks.” See
FEDERAL COMMUNICATIONS COMMISSION, CONNECTING
AMERICA: THE NATIONAL BROADBAND PLAN 87-88 (2010).
The plan thus recommended a subtle but critical shift in the
AWS-4 Band: authorize “stand-alone terrestrial services”
without the requirement that licensees first offer satellite
service. Id. And in 2011, the Commission took a first step
towards implementing this recommendation, setting aside “co-
primary” terrestrial allocations in the satellite ranges. AWS-4
NPRM, 27 FCC Rcd. at 3568, ¶ 14.

     NTCH’s first challenge—to the modification of Dish’s
licenses, see infra Part II—arises out of the Commission’s
efforts to further implement the National Broadband Plan’s
                               6
recommendation. In March 2012, the Commission sought
comments on a proposal to “increase the Nation’s supply of
spectrum for mobile broadband” by creating service rules and
assigning licenses for “terrestrial services” in the AWS-4 Band.
AWS-4 NPRM, 27 FCC Rcd. at 3563, ¶ 1. But the Commission
also sought to preserve the possibility of satellite service.
Noting that its 2011 decision allocated the AWS-4 Band “on a
co-primary basis,” the Commission insisted that its new
policies should protect satellite systems from “harmful
interference caused by [terrestrial] systems.” Id. at 3569–70,
¶ 17; 3587, ¶ 80.

     Given its continued commitment to satellite, the
Commission proposed to use its authority under § 316 of the
Communications Act to “modify” Dish’s licenses to allow it to
offer terrestrial services. Id. at 3585–86, ¶¶ 74–78; see 47
U.S.C. § 316(a). The Commission reasoned that allowing
“same-band, separate-operator” sharing of the spectrum—i.e.,
dividing the terrestrial and satellite rights between two
licensees—could hinder coordination between the two
operators, and thus cause interference between the two
services. Id. at 3586–87, ¶¶ 79–80. Back in 2003, when the
Commission first opened the AWS-4 Band for ancillary
terrestrial use, the Commission found that same-band,
separate-operator sharing was unworkable, and the
Commission expected that operators would face the same
issues in 2012. Seeking more information, however, the
Commission asked commenters whether “technological
advances” since 2003 should “reinforce or alter” the
Commission’s expectations. Id. at 3584, ¶ 72. If commenters
established the feasibility of separate licensees, the
Commission explained, it would consider changing course to
“seek comment on other approaches,” including “the
assignment of new initial licenses” to the terrestrial rights
through “competitive bidding.” Id. at 3587, ¶ 80.
                               7

     Nobody changed the Commission’s mind. And so, in
December 2012, the Commission’s AWS-4 Order adopted the
AWS-4 NPRM’s proposed approach. See In re Service Rules for
Advanced Wireless Services in the 2000-2020 MHz and 2180–
2200 MHz Bands, 27 FCC Rcd. 16,102, 16,110–12 (2012)
(“AWS-4 Order”). As the Commission explained, it “received
numerous comments” confirming that “technical hurdles [to
operator sharing] remain” and that granting a terrestrial license
to “an entity other than the MSS incumbent remains
impractical.” Id. at 16,165, ¶ 166. Although one commenter
suggested that “known technologies” would allow spectrum
sharing, id. at 16,172, ¶ 182; see 18-1243 J.A. 142–54
(comments of MetroPCS), the Commission disagreed,
claiming that these technologies were not “market-proven” and
could only work if one operator controlled both uses of the
spectrum. Id. at 16,172, ¶ 182. The Commission also noted that
“no commenter,” MetroPCS included, submitted technical
evidence that disputed its 2003 finding. Id. at ¶ 183.

     The Commission announced that it would use its § 316
modification authority to “allow [Dish] to operate terrestrial
services, rather than make the band available . . . under a
sharing regime.” Id. at 16,171, ¶ 181. Acknowledging that
Dish’s licenses would “increase in value,” the Commission
reasoned that modifying these licenses was the “best and fastest
method for bringing this spectrum to market.” Id. at 16,170,
¶ 178.

    The AWS-4 Order also imposed two relevant restrictions
on Dish’s licenses. First, the Commission protected the
remaining satellite services from interference by designating
the AWS-4 Band’s lower portion (i.e., 2000–2020 MHz) for
“uplink” operations and the upper portion (i.e., 2180–2200
MHz) for “downlink” operations. Id. at 16,117, ¶ 39. The
                                8
“downlink” channel sends information from cell towers to
mobile devices, and the “uplink” channel goes the other way.
18-1241 FCC Br. 9 n.2. Although mobile data networks use far
more downlink than uplink data, the Commission concluded
that this limitation was necessary to ensure functioning satellite
service in the AWS-4 Band. AWS-4 Order, 27 FCC Rcd. at
16,117, ¶ 39. Second, to ensure the “timely deployment” of
Dish’s new terrestrial rights, the Commission imposed
“performance requirements” on Dish’s use of the AWS-4
Band. Id. at 16,176, ¶ 193; 16,173–74, ¶¶ 187–88. Relevant
here, failure to offer reliable terrestrial services within seven
years of the order would trigger the automatic termination of
Dish’s licenses. Id.

     In February 2013, the Wireless Telecommunications
Bureau (the “Bureau”)—a sub-delegee within the Commission,
see 47 C.F.R. § 0.131—modified Dish’s licenses according to
the terms of the AWS-4 Order. The following month, NTCH
filed identical petitions for reconsideration with the
Commission, challenging the AWS-4 Order and the
modification of Dish’s license. In August 2018, the
Commission dismissed and alternatively denied the petitions.
NTCH timely filed a petition for review, and we have
jurisdiction under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342.
We address the merits of this petition in Part II.

                               B.

     In 2012, as the Commission took steps to modify Dish’s
AWS-4 licenses, Congress also sought to address the “growing
need for spectrum” for wireless networks. National Ass’n of
Broadcasters v. FCC, 789 F.3d 165, 168–69 (D.C. Cir. 2015).
Congress thus passed the Spectrum Act, which directed the
Commission to use a “system of competitive bidding” to
“allocate” a spectrum band dubbed the “H Block.” Middle
                               9
Class Tax Relief and Job Creation Act of 2012 (the “Spectrum
Act”), Pub. L. No. 112-96, § 6401(a)-(b), 126 Stat. 156, 222-
23 (codified at 47 U.S.C. § 1451(b)).

     In response, the Bureau announced that it would hold
Auction 96 to allocate 176 licenses in the H Block, segregated
based on geographic area. See Auction of H Block Licenses in
the 1915-1920 MHz and the 1995-2000 MHz Bands, 28 FCC
Rcd. 10,013, 10,045-46 (2013) (“Auction Proposal”). The
Bureau sought comment on whether it should “establish a
reserve price” for the auction, below which the spectrum would
not be sold. Id. at 10,026, ¶ 52. The Bureau further proposed to
set that reserve price based “on the aggregate of the gross bids
for the H Block licenses, rather than license-by-license.” Id.
Commenters generally agreed with the Bureau’s proposal,
though none suggested a specific aggregate reserve price.

     On September 9, 2013, after the comment period closed,
Dish filed a two-page letter suggesting an aggregate reserve
price of at least “$0.50 per megahertz of bandwidth per
population (‘MHz-POP’).” 18-1241 J.A. 50. MHz-POP is a
unit equal to the number of megahertz multiplied by the
population of a region; for example, if ten megahertz of
spectrum reaches 750,000 people, then MHz-POP equals
7,500,000. See 18-1241 FCC Br. 12 n.3. Dish derived its
estimate from private sales and Commission auctions of similar
spectrum, and referenced reports from financial institutions
valuing the H Block between $0.62 and $1 per MHz-POP.

    That same day, Dish also filed a petition asking the Bureau
to “waive” some of the restrictions on its AWS-4 licenses. 18-
1241 J.A. 54. Specifically, Dish sought to use the lower AWS-
4 Band for downlink operations (rather than just uplink
operations, as the AWS-4 Order required). See 47 C.F.R.
§§ 27.5(j), 27.53(h)(2)(ii). Dish also requested a one-year
                              10
extension to the seven-year deadline to offer substantial
terrestrial service in the AWS-4 Band. Dish claimed that the
waivers would allow it to “harmonize[]” its uses of the H Block
and the AWS-4 Band, and Dish committed to bid the
“aggregate nationwide reserve price . . . in the upcoming H
Block auction (not to exceed $0.50 per MHz/POP)” if the
Bureau granted the waivers. 18-1241 J.A. 68.

     Four days later, on September 13, the Bureau took two key
actions: it sought public comment on Dish’s waiver petition
and announced the procedures for the H Block auction. In its
announcement, the Bureau credited Dish’s valuation of $0.50
per MHz-POP and thus set the aggregate reserve price at
$1.564 billion.

     NTCH quickly registered its opposition to both proposed
actions. First, on September 30, it filed a public comment
objecting to Dish’s waiver petition, claiming that Dish and the
Commission made a “backroom deal” amounting to a “cash-
for-waiver quid pro quo.” 18-1241 J.A. 194–95. NTCH further
objected that granting Dish’s waivers would bring no “public
interest benefits.” Id. Second, on October 18, NTCH filed a
petition for reconsideration of the auction procedures. Id. at
215. NTCH asked the Bureau to revisit Auction 96’s aggregate
reserve price, claiming that a “deal brokered by the
Commission” generated this “astronomical” sum. Id. at 218–
220. Meanwhile, as Dish’s waiver petition and NTCH’s
petition for reconsideration were pending, NTCH chose not to
sign up for Auction 96 by the deadline. NTCH thus never bid
on the H Block licenses.

     The Bureau denied NTCH’s petition for reconsideration,
explaining that NTCH offered no reason to lower the reserve
price, and that any “arrangement” was already disclosed
because Dish’s waiver petition was filed in a public docket
                              11
where interested parties could submit comments. See In re
NTCH, Inc., 28 FCC Rcd. 16,108, 16,112–13, ¶¶ 13–17
(Wireless Bureau 2013). Moreover, to the extent NTCH took
issue with Dish’s commitment to pay the reserve price in the
waiver request, the Bureau concluded that NTCH’s objection
was misplaced. Id. at 16,113–14, ¶¶ 17–19. Because Dish’s
petition would be “resolved in a separate proceeding,” NTCH’s
petition for reconsideration of the auction procedures was not
an “appropriate vehicle for a premature attack on . . . the
waiver request.” Id.

     The Bureau then granted Dish’s waiver petition on
December 20. See In re Dish Network Corp., 28 FCC Rcd.
16,787 (Wireless Bureau 2013). Responding to NTCH’s
objections, the Bureau denied any inappropriate backroom deal
with Dish and stated that it had made its decision “based on the
public record.” Id. at 16,808, ¶ 53. Given Dish’s “unique”
status as an AWS-4 and MSS licensee, the Bureau concluded
that applying the rules to Dish “would be both unduly
burdensome and contrary to the public interest.” Id. at 16,794,
¶ 18. The Bureau further concluded that it could consider
Dish’s “commitment to ensure that the H Block auction
satisfies the aggregate reserve price” as an “additional public
interest benefit.” Id. at 16,808–09, ¶ 53. The Bureau therefore
granted Dish’s waiver, allowing Dish to “elect” whether to
switch to downlink operations. Id. at 16,802–03, ¶ 38. The
Bureau also granted the one-year extension for Dish’s
performance requirements in the AWS-4 Band. Id. at 16,804–
05, ¶¶ 41–43.

    The Bureau then conducted Auction 96 as proposed. Dish
bid a total of $1.564 billion on the licenses—exactly the
aggregate reserve price—and won them all.
                               12
     In December 2013 and January 2014, NTCH timely filed
two applications for review of the Bureau’s orders—one
challenging Auction 96’s procedures, the other challenging the
Bureau’s grant of Dish’s waivers for its AWS-4 licenses. The
Commission sat on these applications until 2018, then rejected
both. Regarding NTCH’s objections to the auction procedures,
the Commission dismissed NTCH’s application because it
failed to “specify with particularity” the Bureau’s errors, as the
Commission’s rules required. In re NTCH, Inc., 33 FCC Rcd.
8446, 8450–51, ¶ 11 (2018); see 47 C.F.R. § 1.115(b).
Alternatively, the Commission rejected NTCH’s various
arguments on the merits. Id. at 8451–54, ¶¶ 12–18. Regarding
NTCH’s objections to the Bureau’s grant of Dish’s waivers, the
Commission dismissed NTCH’s application for lack of
administrative standing, concluding that NTCH’s failure to
register for the auction—not the Commission’s grant of the
waivers—caused NTCH to lose its opportunity to bid on the
licenses. In re Dish Network Corp., 33 FCC Rcd. 8456, 8459
¶ 9 (2018).

    NTCH timely petitioned for review of the auction orders,
and we have jurisdiction under 47 U.S.C. § 402(a) and 28
U.S.C. § 2342. NTCH also timely appealed the Commission’s
denial of its application for review of the waiver order, and we
have jurisdiction under 47 U.S.C. § 402(b). We address the
merits of both petitions in Part III.

                               II.

     We begin with NTCH’s petition for review of the
Commission’s decision to modify Dish’s licenses in the AWS-
4 Band. NTCH advances three reasons that we should set aside
these modifications: (1) the Commission’s decision was
arbitrary and capricious because the Commission failed to
consider reasonable alternatives and because the decision
                              13
lacked support in the record; (2) § 309(j) of the
Communications Act compelled the Commission to auction off
the terrestrial rights as “initial licenses”; and (3) the
Commission’s changes to Dish’s licenses were so substantial
that they exceeded its authority to modify licenses under § 316.
Because we find the first and second arguments meritless and
the third forfeited, we deny NTCH’s petition for review.

                              A.

     Before tackling NTCH’s arguments, we must confirm our
jurisdiction to consider them. See American Rivers v. FERC,
895 F.3d 32, 40 (D.C. Cir. 2018). To have Article III standing,
NTCH must show that it suffered an “injury in fact,” that the
“conduct under challenge” caused such injury, and that a
“favorable decision” will likely “redress the injury.”
DIRECTV, Inc. v. FCC, 110 F.3d 816, 829 (D.C. Cir. 1997).
NTCH argues that it has done so because the Commission’s
modification of Dish’s licenses “deprived [it] of an opportunity
[to] obtain an AWS-4 license by a fair and open process.” 18-
1243 NTCH Br. 15.

    This suffices to show standing. An “unsuccessful bidder”
in a Commission auction suffers a cognizable injury if the
Commission deprives the bidder of the right to a “legally valid
procurement process.” DIRECTV, 110 F.3d at 829; see also
Alvin Lou Media, Inc. v. FCC, 571 F.3d 1, 6-7 (D.C. Cir. 2009).
An unfair auction places a bidder at a “substantial competitive
disadvantage” that constitutes Article III harm. DIRECTV, 110
F.3d at 830. It makes no difference whether that disadvantage
flows from unfair procedures or the Commission’s failure to
conduct any auction at all. NTCH contends that the
modification decision was flawed and that the Commission
should have auctioned off the terrestrial rights instead, and we
must assume—at this stage—NTCH’s success on the merits.
                               14
See City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003). Assuming as much, NTCH’s loss of a chance to bid on
the spectrum constitutes an Article III harm caused by the
Commission’s decision to modify Dish’s licenses.

     The Commission contends, however, that NTCH cannot
satisfy Article III’s “redressability” element. According to the
Commission, it has no obligation to conduct a public auction,
so a favorable decision is not likely to redress NTCH’s injury.
18-1243 FCC Br. 33-35. As the Commission explains, its duty
to auction off licenses only kicks in once it receives “mutually
exclusive applications” for “initial licenses,” 47 U.S.C.
§ 309(j)(1), and the Communications Act preserves the
Commission’s discretion to “avoid mutual exclusivity in
application and licensing proceedings”—thus averting the need
to auction the licenses. 47 U.S.C. § 309(j)(6); see also M2Z
Networks, Inc. v. FCC, 558 F.3d 554, 563 (D.C. Cir. 2009).
More still, the Commission points out, it could decline to
allocate the terrestrial rights in the AWS-4 Band altogether.

     All this is true, but the Commission may not use its
discretion to defeat NTCH’s standing. As the Supreme Court
stated in FEC v. Akins, a challenger’s injury is redressable even
if an agency “might reach the same result exercising its
discretionary powers lawfully.” 524 U.S. 11, 25 (1998).
Indeed, the Commission’s argument proves too much, for it
would allow agencies to shield their actions from judicial
review by invoking their policymaking discretion. In any event,
the administrative record suggests that the Commission would
likely conduct an auction on remand. The AWS-4 NPRM stated
that, if commenters changed the Commission’s mind about the
modification approach, the Commission would “seek comment
on other approaches”—including the “assignment of new
initial licenses via competitive bidding.” AWS-4 NPRM, 27
FCC Rcd. at 3,587, ¶ 80. Therefore, NTCH has standing.
                               15
                               B.

     Now to the merits. NTCH’s core argument is that we
should vacate the AWS-4 Order because the Commission failed
to consider reasonable alternatives and because its decision
lacked support in the record. We will set aside the
Commission’s decision if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). But when the Commission acts to foster
“innovative methods of exploiting the spectrum,” it “functions
as a policymaker” to which we afford “the greatest deference.”
Mobile Relay Associates v. FCC, 457 F.3d 1, 8 (D.C. Cir.
2006). We will accept the Commission’s “technical
judgment[s]” when supported “with even a modicum of
reasoned analysis, absent highly persuasive evidence to the
contrary.” Id. (internal quotation marks omitted). And the
Commission’s “predictive judgments” “within [its] field of
discretion and expertise are entitled to particularly deferential
review, as long as they are reasonable.” See Earthlink, Inc. v.
FCC, 462 F.3d 1, 12 (D.C. Cir. 2006) (internal quotation marks
omitted).

     This deferential standard of review makes NTCH’s task a
daunting one. The Commission’s decision to authorize stand-
alone terrestrial services in the AWS-4 Band sought to
encourage “innovative methods of exploiting the spectrum,”
Mobile Relay Associates., 457 F.3d at 8, to address the “urgent
need” for wireless broadband, AWS-4 NPRM, 27 FCC Rcd. at
3567, ¶ 10. And the Commission chose to modify Dish’s
licenses largely because of the “technical judgment,” Mobile
Relay Associates, 457 F.3d at 8, that same-band, separate-
operator sharing of the spectrum would be impractical. Indeed,
NTCH conceded at oral argument that it does not challenge this
finding. Oral Arg. Tr. (No. 18-1243) 5:4–9.
                               16
     Accepting this technical judgment, however, the
Commission’s decision to modify Dish’s licenses follows quite
logically. As the Commission explained, Dish could easily
minimize interference between its satellite and terrestrial uses
of the spectrum, AWS-4 Order, 27 FCC Rcd. at 16,171, ¶ 181,
and Dish already had some authority to offer ancillary
terrestrial services, id. at 16,169–70, ¶ 177. Besides resolving
this core technical issue, modifying Dish’s licenses would also,
the Commission anticipated, ensure quicker use of the
spectrum. To encourage Dish’s development of a terrestrial
network, the Commission compelled Dish to develop “reliable
terrestrial signal coverage”—or else forfeit its licenses in the
AWS-4 Band. Id. at 16,173–74, ¶¶ 187–88.

     NTCH responds that the Commission failed to consider
alternative policies—specifically, that it should have
reallocated the entire AWS-4 Band to terrestrial use alone. 18-
1243 NTCH Br. 21-29. The technical concern about splitting
up satellite and terrestrial licenses dissolves if the Commission
eliminates satellite service. And because the Commission
agrees with NTCH that commercial satellite service remains
“virtually non-existent,” 18-1243 Reply Br. 18 (quoting AWS-
4 Order, 27 FCC Rcd. at 16,171, ¶ 177), NTCH reasons that
nothing would be lost by eliminating satellite rights. Indeed,
NTCH is not alone in this contention; before the Commission,
commenters offered similar suggestions. AT&T claimed, for
instance, that the Commission could reduce satellite service to
twenty megahertz of the AWS-4 Band, then auction off the
remaining twenty megahertz as pure terrestrial service. 18-
1243 J.A. 116-18; see also id. at 148–49 (similar, comments of
MetroPCS); id. at 190–91 (similar, comments of T-Mobile).

   But this alternative was beyond the scope of the
Commission’s rulemaking. As the Commission points out, the
AWS-4 NPRM never suggested that it was considering
                              17
eliminating Dish’s satellite rights in the AWS-4 Band. 18-1243
FCC Br. 34. Instead, the Commission sought to enable
terrestrial services in a way that “protect[ed] the incumbent
[satellite] licensee from harmful interference.” AWS-4 NPRM,
27 FCC Rcd. at 3583, ¶ 68. Accordingly, when NTCH
suggested eliminating satellite service, the Commission
dismissed its comment as an “untimely” petition to reconsider
its earlier order “co-allocating” the AWS-4 Band for terrestrial
and satellite uses. AWS-4 Order, 27 FCC Rcd. 16,171, ¶ 180
n.532. Likewise, when NTCH filed its petition for
reconsideration, the Commission determined that NTCH’s
argument was “beyond the scope of the matters that [could] be
addressed in this proceeding.” 18-1243 J.A. 408, ¶ 20 (citing
47 C.F.R. § 1.429(l)(5)).

     In these circumstances, we cannot say that the
Commission’s failure to consider stripping Dish of its satellite
rights was unreasonable. Boiled down, NTCH claims that the
Commission should have expanded the rulemaking’s scope to
consider NTCH’s preferred resolution of the problem. But the
Commission need not “resolve massive problems in one fell
regulatory swoop;” instead, it may “whittle away at them over
time.” Massachusetts v. EPA, 549 U.S. 497, 524 (2007). Here,
the Commission reasonably limited the rulemaking proceeding
to proposals to expand terrestrial uses of the AWS-4 Band. See
National Mining Ass’n v. Mine Safety & Health
Administration, 116 F.3d 520, 549 (D.C. Cir. 1997) (noting that
the agency’s explanation that a comment was “beyond the
scope of the rulemaking” was an “adequate” explanation of its
decision).

     NTCH also argues that the Commission wrongly assumed
that modifying Dish’s licenses would be the “most efficient and
quickest path to enabling flexible terrestrial use” of the AWS-
4 Band. 18-1243 NTCH Br. 29-32; AWS-4 Order, 27 FCC Rcd.
                               18
at 16,164, ¶ 162. As evidence of the Commission’s alleged
misjudgment, NTCH references events that occurred after the
AWS-4 Order. 18-1243 NTCH Br. 30. Specifically, NTCH
claims that Dish failed to meet its interim deadlines and that the
Commission granted Dish’s request for a one-year extension of
the final deadline. Id. But NTCH’s claim that the agency
“turn[ed] out to be mistaken ex post is of limited significance,”
as we must “judge the reasonableness of an agency’s decision
on the basis of the record before the agency at the time it made
its decision.” Rural Cellular Ass’n v. FCC, 588 F.3d 1095,
1107 (D.C. Cir. 2009). And though NTCH claims that the
Commission’s “blunder” was “actually quite apparent back in
2013,” 18-1243 NTCH Br. 31, it musters as evidence a single
comment that questions Dish’s qualifications, 18-1243 J.A.
147 (comment of MetroPCS). Because the Commission’s
“predictive judgments” on this matter “are entitled to
particularly deferential review,” a single contrary comment
does not render the agency’s conclusion unreasonable. See
Earthlink, 462 F.3d at 12 (internal quotation marks and
alteration omitted).

     Finally, NTCH claims that the Commission’s failure to
conduct an auction gave Dish an undeserved “windfall” and
neglected to “recover[] for the public” a “portion of the value
of the public spectrum resource.” 18-1243 NTCH Br. 33–35
(citing 47 U.S.C. § 309(j)(3)). But the Commission retains the
authority “to forgo an auction,” so long as it acts “in the public
interest.” M2Z Networks, 558 F.3d at 563; see also 47 U.S.C.
§ 309(j)(6)(E). The Commission conceded the modifications
would “result in an increase in value” for Dish, but nonetheless
concluded that license modification was the “best and fastest
method for bringing this spectrum to market.” AWS-4 Order,
27 FCC Rcd. at 282, ¶ 178. These sorts of “judgments on the
public interest are entitled to substantial judicial deference,”
M2Z Networks, 558 F.3d at 558 (internal quotation marks
                               19
omitted), and we see no reason to second-guess the
Commission’s decision to choose a functioning wireless
broadband network over a possible influx of cash. We therefore
decline NTCH’s invitation to set aside the AWS-4 Order.

                               C.

     NTCH next argues that § 309(j) of the Communications
Act required the Commission to auction off the terrestrial rights
in the AWS-4 Band as “initial licenses.” 18-1243 NTCH Br.
35–41; 47 U.S.C. § 309(j)(1). Specifically, it claims that an
initial license is one “first awarded for a particular frequency
under a new licensing scheme, that is, one involving a different
set of rights and obligations for the licensee.” 18-1243 NTCH
Br. 37–38 (quoting Fresno Mobile Radio, Inc. v. FCC, 165
F.3d 965, 970 (D.C. Cir. 1999) (emphasis added)). NTCH
believes that, because the AWS-4 rights give Dish a “different
set of rights and obligations,” § 309(j) compels the
Commission to allocate them through a public auction. 18-
1243 NTCH Br. 37–38.

     NTCH misunderstands             the structure of the
Communications Act. The Commission must conduct an
auction only if it accepts “mutually exclusive applications” for
initial licenses, 47 U.S.C. § 309(j)(1), but the Communications
Act also states that nothing in § 309(j) shall “be construed to
relieve the Commission of the obligation in the public interest
to continue to use engineering solutions, negotiation, threshold
qualifications, service regulations, and other means in order to
avoid mutual exclusivity in application and licensing
proceedings,” id. § 308(j)(6)(E) (emphasis added); see also
M2Z Networks, 558 F.3d at 562–63. In this case, because the
Commission         never    accepted      “mutually    exclusive
applications,” it wasn’t obligated to conduct an auction. NTCH
nevertheless claims that our decision in Fresno Mobile Radio
                                 20
requires the Commission to treat the AWS-4 rights as “initial
licenses.” 18-1243 NTCH Br. 37–40. But Fresno Mobile Radio
compels no such thing. There, we held that the Commission
reasonably chose to treat certain spectrum rights as initial
licenses, rather than to allocate them to the incumbent
licensees, because the licenses included “a different set of
rights and obligations.” 165 F.3d at 970–71. But a holding that
the Commission may treat a “different set of rights and
obligations” as initial licenses provides no support for NTCH’s
contention that the Commission must do so.

                                 D.

     Finally, NTCH argues that the Commission’s decision to
modify Dish’s licenses exceeded its authority under § 316 of
the Communications Act. 47 U.S.C. § 316(a). Under that
provision, the Commission enjoys “broad power to modify
licenses” if those modifications “serve the public interest,
convenience and necessity.” California Metro Mobile
Communications, Inc. v. FCC, 365 F.3d 38, 45 (D.C. Cir.
2004). But the Commission’s “power to modify existing
licenses does not enable it to fundamentally change those
licenses.” Cellco Partnership v. FCC, 700 F.3d 534, 543-44
(D.C. Cir. 2012) (internal quotation marks omitted and
emphasis added); see also Community Television, Inc. v. FCC,
216 F.3d 1133, 1140-41 (D.C. Cir. 2000) (same).

     NTCH insists that the Commission’s changes to Dish’s
licenses were so “fundamental” that they go beyond its
modification authority under § 316. 18-1243 NTCH Br. 41-44.
We need not address this argument, however, because NTCH
failed to raise it until its petition for reconsideration. Generally,
a challenger “forfeit[s] an opportunity to challenge an agency
rulemaking on a ground that was not first presented to the
agency for its initial consideration.” Advocates for Highway &
                             21
Auto Safety v. Federal Motor Carrier Safety Administration,
429 F.3d 1136, 1150 (D.C. Cir. 2005); see also Washington
Ass’n for Television & Children v. FCC, 712 F.2d 677, 681
(D.C. Cir. 1983) (noting that the provision authorizing review
of Commission decisions “codif[ies] the judicially-created
doctrine of exhaustion of administrative remedies”). As NTCH
concedes, nowhere in its comments on the AWS-4 NPRM did it
challenge the Commission’s authority under § 316 to modify
Dish’s licenses. 18-1243 J.A. 404, ¶ 15. In denying NTCH’s
petition for reconsideration, the Commission dismissed
NTCH’s argument because its belated objection “frustrate[d]”
the Commission’s ability to “address [it] during the course of
the rulemaking.” Id. at 405, ¶ 15.

    NTCH offers two rejoinders, but neither has merit. First,
NTCH claims that Dish’s comments regarding § 316 preserved
NTCH’s argument for our review. Dish argued that the
Commission lacked § 316 authority to force Dish “to relinquish
MSS or terrestrial rights to its spectrum,” 18-1243 J.A. 206–
207—in other words, to do exactly as NTCH suggested. But
Dish’s objection that the Commission could not unilaterally
abolish its satellite or terrestrial rights hardly preserves
NTCH’s contention that the Commission lacked authority to
authorize stand-alone terrestrial services. 18-1243 NTCH Br.
41–44.

     Second, NTCH claims that the Commission did consider
its argument, so NTCH may address the issue here without
“sandbagging” the Commission. 18-1243 Reply Br. 10. True
enough, the Commission alternatively rejected NTCH’s § 316
argument on the merits. 18-1243 J.A. 404–06. But the
Commission’s thoroughness does not salvage NTCH’s
forfeited claim. We will not grant “relief on the merits” when
the Commission has “properly dismissed the pleading on
procedural grounds.” BDPCS, Inc. v. FCC, 351 F.3d 1177,
                               22
1183 (D.C. Cir. 2003). Because the Commission correctly
treated NTCH’s claim as procedurally barred, “we have no
occasion to reach the merits.” Id. at 1184.

                              ***

    Because none of NTCH’s challenges to the AWS-4 Order
has merit, we deny its petition for review.

                               III.

    This brings us, finally, to NTCH’s challenges to the order
granting Dish’s request for a waiver of certain AWS-4 rules
and to the Auction 96 procedures. We consider each in turn.

                                A.

    We begin with the Commission’s dismissal of NTCH’s
application for review of the Bureau’s order granting Dish’s
waivers. In re Dish Network Corp., 33 FCC Rcd. 8456 (2018).

     Under § 5(c)(4) of the Communications Act, NTCH may
only seek review of the waiver if it was “aggrieved” by the
Commission’s action. The Commission interprets “aggrieved”
in § 5(c)(4) to impose the “Supreme Court’s test for
constitutional standing.” Id. at 8460 n.42. In this case, the
Commission concluded that NTCH lacked administrative
standing because it failed “to demonstrate any direct causal
link” between the waiver and “any actual or concrete injury to
NTCH.” Id. at 8461, ¶ 13. NTCH claimed that the Bureau’s
grant of the waivers “thwarted” its plans to participate in the
H Block auction by skewing the auction in Dish’s favor, but
the Commission determined that NTCH “made a voluntary,
business decision not to participate in the auction . . . prior to
the” Bureau’s order. Id. As the Commission concisely says on
                              23
appeal, NTCH “proximate[ly] cause[d]” its own injury by
choosing not to bid. 18-1241 FCC Br. 59.

     The Commission misunderstood NTCH’s alleged injury.
NTCH claims that the Commission deprived it not of a license
itself, but rather of a fair and valid auction process. As
discussed, such a claim “asserts a cognizable injury.” U.S.
AirWaves, Inc. v. FCC, 232 F.3d 227, 232 (D.C. Cir. 2000);
see also DIRECTV, 110 F.3d at 830, even if the prospective
bidder “voluntarily withdr[aws]” from the unfair auction.
Alvin Lou Media, 571 F.3d at 7.

      The Commission responds, correctly, that NTCH
withdrew from the auction before Dish received the
challenged waivers. But under our caselaw, the Commission
still caused NTCH’s harm. In Airwaves, we held that a
disappointed bidder had standing to seek reconsideration of an
auction, despite “challeng[ing] only the way in which the
Commission treated licensees after the auction was
completed.” 232 F.3d at 232. The Commission’s actions still
caused that injury because the bidder “would have bid more
had it known that financial terms more favorable than those
announced at the time of the auction would later be offered to
winning bidders.” Id. Much like the challenger in Airwaves,
NTCH has standing because it “would have” participated in
Auction 96 if it had not anticipated that the Commission’s
grant of the waivers would skew the auction in Dish’s favor.

     We therefore vacate the Commission’s order dismissing
NTCH’s application for review. But because the Commission
never reached the merits of NTCH’s challenge to the waiver,
neither shall we. Having concluded that the Commission erred
in its threshold analysis, we “remand to the agency for
additional investigation or explanation.” Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
                              24
                              B.

     NTCH also sought Commission review of the Bureau’s
Auction 96 procedures. The Commission denied NTCH’s
application for review both on procedural grounds and on the
merits. In re NTCH, Inc., 33 FCC Rcd. 8446 (2018). Because
NTCH has failed to show that the Commission’s decision was
arbitrary or capricious, we deny the petition for review.

     As a threshold issue, the Commission again challenges
NTCH’s standing. The Commission argues that NTCH cannot
assert an Article III injury because the reserve price “did not
hinder NTCH’s ability to compete for licenses.” 18-1241 FCC
Br. 34. Specifically, the Commission claims that the aggregate
reserve price presented no bar to NTCH competing for specific
licenses within the H Block. Id. at 34–35. Once again, the
Commission betrays a cramped view of NTCH’s asserted
injury. As discussed, the deprivation of a “valid procurement
process,” Airwaves, 232 F.3d at 232, constitutes an
independent Article III injury, distinct from NTCH’s ultimate
failure to obtain a license. And because NTCH traces that
deprivation to the Commission’s adoption of Dish’s proposed
reserve price—a price that, in NTCH’s view, skewed the
auction mechanics—NTCH has standing to challenge the
auction procedures.

     Turning now to the merits, the Commission dismissed
NTCH’s application for review of the Bureau’s order because
NTCH failed to comply with the Commission’s procedural
rules. Under such rules, an application for review must
“specify with particularity” why—selecting from five
factors—the Bureau’s order warrants the full Commission’s
review. 47 C.F.R. § 1.115(b)(2). The Commission concluded
that NTCH failed to do so. In re NTCH, Inc., 33 FCC Rcd.
8446, 8450, ¶ 11 (2018). We review this “dismissal of
                               25
pleadings on procedural grounds under the familiar standards
of the Administrative Procedure Act,” BDPCS, 351 F.3d at
1183, and we find the Commission’s decision reasonable.

     Under a header entitled “Factors Warranting Commission
Consideration,” NTCH cited three errors: (1) the reserve price
was set “contrary to precedent” and was “unsupported by the
facts of record,” (2) “adopting a reserve price based on a deal
with a potential auction bidder [wa]s unprecedented,” and (3)
the Bureau’s action “constitute[d] a prejudicial procedural
error.” 18-1241 J.A. 269. NTCH’s asserted errors parrot the
factors in the Commission’s rules, but the agency found that
NTCH identified no “statute, regulation, case, precedent, or
established Commission policy (or any evidence of record)”
undermining the Bureau’s decision. In re NTCH, Inc., 33 FCC
Rcd. 8,446, 8,450–51, ¶ 11 (2018). Likewise, NTCH
identified no “concrete harm or prejudice it may have
suffered” from the alleged procedural error. Id. In other words,
NTCH alleged “unprecedented” action and “prejudicial” error
without citing precedent or showing prejudice.

     NTCH responds that the Commission’s rules require it
only “to identify briefly” which factors from the “menu of five
possible choices” justify review. 18-1241 Reply Br. 14. NTCH
thinks it cleared this “minor hurdle” because it “carefully and
explicitly laid out” specific factors. Id. But again, NTCH cites
no authority supporting its assertion, and we’ve said in a
similar context that the Commission “need not sift pleadings
and documents to identify arguments that are not stated with
clarity.” Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274, 279
(D.C. Cir. 1997) (internal quotation marks omitted). Given the
“highly deferential standard” we apply under arbitrary and
capricious review, Cellco Partnership, 357 F.3d at 93, NTCH
has given us no basis to conclude that the agency’s dismissal
was improper. Because the Commission acted lawfully, “we
                               26
have no occasion to reach the merits.” BDPCS, 351 F.3d at
1184.

     Finally, in its briefs before this court, NTCH argued that
we should set aside Auction 96 because it resulted in Dish
bidding on not just the H Block licenses, but on the value of
spectrum licenses plus the waivers. NTCH compares the
bidding to an auction where “the auctioneer has a side deal with
one bidder that if she is the winning bidder on ten cars, she will
be given a brand new Cadillac,” and, “[u]nder textbook
economic theory,” that arrangement skews the auction. 18-
1241 NTCH Br. 44–45. Though NTCH’s example is evocative,
we cannot consider it. As NTCH conceded at oral argument, it
failed to raise this argument before the Commission. Oral Arg.
Tr. (No. 18-1241) 37:10–14. Accordingly, it is forfeited. See
Advocates for Highway & Auto Safety, 429 F.3d at 1150. We
therefore deny NTCH’s petition for review.

                               IV.

     For the reasons given above, we deny NTCH’s petitions
for review of both the initial order modifying Dish’s AWS-4
licenses and the order setting the Auction 96 procedures.
Because the Commission wrongly dismissed NTCH’s
application for review of the Bureau’s grant of the waivers,
however, we vacate the Commission’s order and remand to the
Commission to consider those claims in the first instance.

                                                     So ordered.
