249 F.3d 1005 (D.C. Cir. 2001)
Coalition for Noncommercial Media, Petitionerv.Federal Communications Commission and United States of America, RespondentsWestern New York Public Broadcasting Association, Intervenor
No. 00-1253
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2001Decided June 1, 2001

On Petition for Review of an Order of the Federal Communications Commission
Jared S. Sher argued the cause for petitioner.  On the  briefs were David E. Honig, John C. Quale and Mark C. Del  Bianco.
James M. Carr, Counsel, Federal Communications Commission, argued the cause for respondents.  With him on the  brief were Christopher J. Wright, General Counsel, Daniel  M. Armstrong, Associate General Counsel, A. Douglas Melamed, Acting Assistant Attorney General, U.S. Department  of Justice, Robert B. Nicholson and Adam D. Hirsh, Attorneys.  Catherine G. O'Sullivan, Attorney, entered an appearance.
Robert A. Woods and Malcolm G. Stevenson were on the  brief for intervenor Western New York Public Broadcasting  Association.  Lawrence M. Miller entered an appearance.
Before:  Edwards, Chief Judge, Williams and Henderson,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge:


1
The Coalition for Noncommercial  Media, a nonprofit organization, challenges a Federal Communications Commission order swapping the status of two  television channels licensed to the Western New York Public  Broadcasting Association ("the Association").  As a result of  the swap, Channel 17, previously unreserved, became reserved for non-commercial use and Channel 23, previously  reserved, ceased to be.  (The Commission allots a digital  channel to accompany each analog channel,1 and its order  effected similar switches for the Association's digital channels.)  Pinning standing to the status of its members as  viewers of these channels, the Coalition raises a host of  claims.  We find the appeal timely:  The Coalition's appeal  properly falls under 47 U.S.C.  402(a) and its 60-day limit  (see 28 U.S.C.  2344), rather than under  402(b) and its 30day limit (see  402(c)), as the Commission urges.  But  because the issues that the Coalition preserved for review  lack merit, we affirm.


2
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3
The Commission began assigning television channels to  geographic regions almost fifty years ago.  To encourage the  development of educational programming, the Commission  reserved some channels for noncommercial use, identifying  such channels with an asterisk in what is now called the Table  of Allotments.  See In re Amendment of Section 3.606 of the  Commission's Rules and Regulations, 41 F.C.C. Reports 148,  158-64, 228 & n.60 p p 33-49, 253(a) (1952);  see also 47 CFR   73.606.


4
To modify a channel assignment, a broadcast licensee must  apply to the Commission, normally thereby exposing itself to  competing license applications.  In the case of some relatively simple exchanges, however, the Commission has taken the  view that the application of this general precept might unjustifiably discourage beneficial exchanges.  To address this  concern, it adopted in 1986 a rule expressly permitting a  commercial and a noncommercial broadcaster to petition to  exchange channels without facing competing applications for  the licenses.  See In re Amendments to the Television Table  of Assignments to Change Noncommercial Educational Reservations, 59 Rad. Reg. 2d (P & F) 1455 (1986);  see also 47  CFR  1.420(h).


5
The Association operates two noncommercial television stations in Buffalo, New York--WNEQ-TV on Channel 23,  which was reserved for noncommercial educational use, and  WNED-TV on Channel 17, which was unreserved.  In May  1998, the Association petitioned for a rulemaking to amend  the Table of Allotments to switch the two channels' status. See Petition for Rule Making, Joint Appendix ("J.A.") at 1. The Association stated that it would provide "a significantly  enhanced programming operation at Station WNED-TV",  which it claimed was "the more powerful of the two stations",  and would "derive substantial new and necessary financial  support for an endowment fund for its Station WNED-TV  operations through assignment of its facility on unreserved  Channel 23 to a commercial entrepreneur."  Id. at 3-4.  The Commission's Mass Media Bureau issued a Notice of Proposed Rule Making on the Association's proposal and received  comments from the Coalition, among others.  Finding that  the proposed change in reservation status would improve  noncommercial service in Buffalo and would not eliminate any  noncommercial channel reservations, the Bureau granted the  petition and modified the television licenses under  316(a) of  the 1934 Communications Act to reflect the change in July  1999.  See In re Amendment of Section 73.606(b), Table of  Allotments, Television Broadcast Stations and Section  73.622(b), Table of Allotments, Digital Television Broadcast  Stations (Buffalo, New York), 14 F.C.C.R. 11,856, 11,859,  11,861-62, 11,863 p p 9, 15, 19 (Mass Media Bur. 1999) ("Bureau Order").  The Commission denied the Coalition's application for review.  See In re Amendment of Section  73.606(b), Table of Allotments, Television Broadcast Stations  and Section 73.622(b), Table of Allotments, Digital Television  Broadcast Stations (Buffalo, New York), FCC 00-130 (Memorandum Opinion and Order April 19, 2000), J.A. at 188  ("Order").  The Coalition now seeks judicial review.


6
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7
The Commission published its order on May 4, 2000.  See  65 Fed. Reg. 25,865 (2000).  The Coalition filed its petition for  review on June 15, 2000.  Thus the Coalition's petition was  timely if it belongs under  402(a)'s 60-day deadline but not  if it belongs under  402(b)'s 30-day limit.  The Coalition's  opening brief oddly asserted that our jurisdiction depended  on  402(b)(6), a point on which the Commission pounced. But we decide for ourselves how the petition should be  characterized.  See Freeman Engineering Associates, Inc. v.  FCC, 103 F.3d 169, 177 (D.C. Cir. 1997).


8
For  402(b)(6) to apply, the Coalition must show that it "is  aggrieved or [its] interests are adversely affected by any  order of the Commission granting or denying any application  described in paragraphs (1) to (4) and (9) of this subsection." 47 U.S.C.  402(b)(6) (emphasis added);  see also Waterway  Communications Systems, Inc. v. FCC, 851 F.2d 401, 403 (D.C. Cir. 1988).  The Commission's order, however, neither  grants nor denies any application because the Association did  not submit one;  the Association petitioned for a rulemaking  to modify the relevant tables reflecting channel assignments. It did not seek a modification of its licenses.


9
The matter is complicated by the fact that, even without a  request, the Commission did modify the licenses.  Had the  Association sought the modification, the case would presumably fall under  402(b)(6), because that subsection crossreferences  402(b)(2), involving applications to modify an  "authorization" specified in subsection (1), which includes  "station license[s]."  This would be true even if the Association did not identify its request as an "application."  In fact it  made no such request in any form.


10
But we are still not out of the woods.  In Tomah-Mauston  Broadcasting Co. v. FCC, 306 F.2d 811 (D.C. Cir. 1962), we  held that a Commission order denying a petition to stay and  revoke a party's construction permit to build a radio broadcast station before it went on the air was reviewable under 47  U.S.C.  402(b)(6) as an order "ancillary" to the grant of the  construction permit.  Id. at 812.  In effect the petitioner was  directly seeking to reverse the grant.  See also id. (observing  that Commission order was "in substance a re-affirmation of  its earlier grant").  But we have never extended TomahMauston.  In Freeman Engineering Associates, Inc. v. FCC,  103 F.3d 169 (D.C. Cir. 1997), because grant of a "pioneer's  preference" came close to assuring the grantee a license, the  Commission claimed that appeal from such a grant belonged  under  402(b).  Distinguishing Tomah-Mauston, we held  "that the Commission's denial of a pioneer's preference is  neither a denial of a license nor is it ancillary to such,"  stressing that to actually receive the grant the pioneer must  also be "otherwise qualified."  Id. at 177-78.  Thus even an  application that strongly foreshadows the grant of a  402(b)  application is not enough.  But see WHDH, Inc. v. United  States, 457 F.2d 559, 561 (1st Cir. 1972) (finding  402(b)  applicable under Tomah-Mauston to appeal attacking grant  of "program test authority," which "is a step short of the  granting of a station license").  That the Commission leapt forward and on its own hook eliminated the need for such an  application does not create an application where none was  made.  We thus find the Coalition's appeal proper under   402(a) and timely under the 60-day limit.


11
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12
The Coalition makes several arguments before us that it  did not raise with the Commission.  See 47 U.S.C.  405. Section 405(a) generally dispenses with any need for a petition for reconsideration with the Commission, but not where  the party seeking review raises a claim "upon which the  Commission ... has been afforded no opportunity to pass." Although this exhaustion provision does not require that the  "opportunity be afforded in any particular manner, or by any  particular party," Office of Communication of the United  Church of Christ v. FCC, 465 F.2d 519, 523 (D.C. Cir. 1972),  the argument does have to have been meaningfully raised by  someone.  See Washington Ass'n for Television & Children  v. FCC, 712 F.2d 677, 681 (D.C. Cir. 1983);  Alianza Federal  de Mercedes v. FCC, 539 F.2d 732, 739 (D.C. Cir. 1976).


13
We find that three of the Coalition's claims have been  waived under 47 U.S.C.  405.  First, the Coalition argues  that when the Commission swapped the channel reservations  in the relevant Tables of Allotments and modified the Association's licenses in the same proceeding, it deviated without  explanation from past practice.  See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852-53 (D.C. Cir. 1970). In  the Coalition's view this past practice required applicants to  file first for an amendment to the Tables of Allotments and  then separately to modify their licenses to reflect the change. To support its claim that it made this argument the Coalition  cites a number of pages in its application for Commission  review, see Reply Br. at 11 n.20, but nothing cited reasonably  raises or even suggests this issue.  See Time Warner Entertainment Co. v. FCC, 144 F.3d 75, 81 (D.C. Cir. 1998) ("[W]e  ask whether a reasonable Commission necessarily would have  seen the question raised before us as part of the case  presented to it.").


14
Grant Television, Inc., a licensee of station WNYO-TV in  Buffalo, New York, did raise this issue--but only before the  Mass Media Bureau.  See J.A. at 35-38.  Grant Television  was not a party to the Commission's review.  As  405  requires that the Commission itself--and not merely a Commission bureau--have had an opportunity to pass on the  issue, see Bartholdi Cable Co. v. FCC, 114 F.3d 274, 279  (1997), Grant's comments are not enough.


15
To be sure a few sentences of the Commission order made  reference, in its background section, to the Mass Media  Bureau's disposition of the issue that the Coalition is now  raising.  Order at p 5, J.A. at 189.  But the "mere fact that  the Commission discusses an issue does not mean that it was  provided a meaningful 'opportunity to pass' on the issue." Bartholdi, 114 F.3d at 280;  see also Time Warner, 144 F.3d  at 79-80.  Only a discussion offered in response to someone's  argument--such as petitioner's, another party's, or a Commissioner's--qualifies.  See Bartholdi, 114 F.3d at 280.  Our  reference in Petroleum Communications, Inc. v. FCC, 22  F.3d 1164 (D.C. Cir. 1994), to instances where the Commission "considered the issue ... on its own motion," id. at 1170,  appears to be confined to cases where a dissenting commissioner posed the challenge.


16
The obstacles for the two remaining barred claims are  more straightforward.  The Coalition itself concedes, Reply  Br. at 21 n.42, that it never raised its claim that the Commission's failure to alert interested parties that it might modify  the Association's licenses when it changed the relevant Tables  of Allotments was a violation of the Administrative Procedure  Act's notice requirements.  See 5 U.S.C.  553(b).  And the  Coalition identifies no place where it objected that the Association's proposal reduced the number of reserved digital channels in Buffalo, New York because the original table placed  asterisks next to both Channel 32 and Channel 43 (a superficially valid proposition that the Association, rightly or wrongly, explained as having resulted from a pre-existing typographical error in the original digital Table of Allotments, see  Petition for Rule Making, J.A. at 2 n.1).  No party made this  argument below and the Coalition cannot raise it now.


17
None of the exceptions to  405's exhaustion requirement  is available for these three claims.  See Washington Ass'n for  Television & Children, 712 F.2d at 681-83.  The Commission  is not obliged to guess what arguments might be before it; thus we move on without reaching the merits of these claims.


18
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19
Surviving are the Coalition's objections to the Commission's  rejection of two counterproposals that the Coalition had made  to the Notice of Proposed Rule Making on the Association's  channel-swapping proposal.  The first asked the Commission  to reserve both of the Association's channels for noncommercial use.  The second asked the Commission to reserve all  unreserved stations in the nation that were being used for  noncommercial use.  See J.A. at 59.


20
The Commission acknowledged that the Mass Media Bureau did not specifically address the first proposal but said  that any error was harmless for several reasons.  See Order  at p 11, J.A. at 191.  On appeal, the Coalition's opening brief  challenges only the Commission's point that "a third party  may not petition for a change in another station's authorization, particularly if the licensee has disavowed an interest in  the particular proposed change."  Id.  But the Coalition cites  no case or Commission rule that would suggest otherwise-except in cases, see Reply Brief at 16-17 n.31, where a  licensee or potential licensee of a nearby channel claimed that  an existing license would, in the absence of modification,  create interference, and thus mutual exclusivity within the  meaning of Ashbacker Radio Corp. v. FCC, 326 U.S. 327  (1945).  Yet the Coalition did not contest the Commission's  reading of Ashbacker as inapplicable to its proposal until its  Reply Brief, and that, as we have said many times, is too late  for a new argument.  See United States v. Wilson, 240 F.3d  39, 45 (D.C. Cir. 2001).


21
The Bureau dismissed the second proposal--to impose  reserved status on all stations that are in noncommercial  use--stating that it "is not mutually exclusive with the Buffalo proposal and is therefore not appropriately filed in this proceeding."  Bureau Order, 14 F.C.C.R. at 11,856 n.2.  The  Commission observed that the issue should be "raised as a  general rulemaking, not as an issue to be resolved in an  adjudicatory proceeding such as this."  Order at p 12, J.A. at  191.


22
The Commission's dismissal of these two counterproposals  was reasonable and adequately explained.  See Motor Vehicle  Manufacturers Ass'n of the United States v. State Farm  Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983).  There is no  sense at all in the claim that the Commission's action here is  inconsistent with its decision in In re Deletion of Noncommercial Reservation of Channel *16, 482-488 MHz, Pittsburgh, Pennsylvania, 11 F.C.C.R. 11,700 (1996).  The proposal there involved a deletion of one of two reserved channels,  effecting a net reduction;  here there was no such reduction.

The Coalition's petition is

23
Denied.



Notes:


1
  See In re Advanced Television Systems and Their Impact  upon the Existing Television Broadcasting Service, 13 F.C.C.R.  7418, 7517-18 p p 291-92 (1998), aff'd, Community Television, Inc.  v. FCC, 216 F.3d 1133 (D.C. Cir. 2000);  see also 47 CFR   73.622(a).


