 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 16, 2017                   Decided August 1, 2017

                        No. 16-1100

   FREE ACCESS & BROADCAST TELEMEDIA, LLC, ET AL.,
                    PETITIONERS

                              v.

   FEDERAL COMMUNICATIONS COMMISSION AND UNITED
               STATES OF AMERICA,
                  RESPONDENTS


             On Petition for Review of Orders of
          the Federal Communications Commission


    Glenn B. Manishin argued the cause for petitioners. With
him on the briefs were A. Wray Fitch III, George R. Grange II,
and Robert Olender. Adam J. White entered an appearance.

     William J. Scher, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on
the brief were Robert B. Nicholson and Robert J. Wiggers,
Attorneys, U.S. Department of Justice, Howard J. Symons,
General Counsel at the time the brief was filed, David M.
Gossett, Deputy General Counsel, and Jacob M. Lewis,
Associate General Counsel. Richard K. Welch, Deputy
Associate General Counsel, and Thaila Sundaresan, Counsel,
Federal Communications Commission, entered appearances.
                              2
    Before: HENDERSON, GRIFFITH, and SRINIVASAN, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge GRIFFITH.

     GRIFFITH, Circuit Judge: In 2014, the Federal
Communications Commission adopted procedures for an
auction designed to make more room on the electromagnetic
spectrum for mobile broadband (wireless network) providers.
In an earlier decision, we upheld the 2014 order creating these
procedures. Petitioners now attack two related but more recent
orders, but their challenges are barred to the extent that they
target decisions that were made in the 2014 order and never
since revisited. We may consider only petitioners’ claim that
one of the two later orders was irrational or devoid of
substantial supporting evidence—a challenge we must reject.

                               I

     The Spectrum Act of 2012 authorizes the FCC to conduct
an auction to give mobile broadband services access to parts of
the electromagnetic spectrum currently occupied by broadcast
television stations. 47 U.S.C. § 309(j)(8)(G)(i); see Mako
Commc’ns, LLC v. FCC, 835 F.3d 146, 147 (D.C. Cir. 2016).
In particular, the Spectrum Act allows the Commission to
crowd television broadcasters into “a smaller band of
spectrum” (or “repack” them, in the Commission’s argot),
Mako, 835 F.3d at 147; see 47 U.S.C. § 1452, and then to let
mobile broadband services make bids for the freed-up
bandwidth. The Spectrum Act empowers the Commission to
use repacking for a second and closely related purpose as well:
to curb interference between licensed users by separating their
allotments of spectrum with “guard bands”—which are
portions of the bandwidth kept free of any licensed use. 47
U.S.C. § 1454(a), (b).
                               3

     This case is about the rights in the repacking process of
low-power television (LPTV) stations, which tend to “serve
areas not reached by full-power broadcast stations” and offer
“niche programming catered to particular communities.”
Mako, 835 F.3d at 148. The Spectrum Act protects LPTV
stations by guaranteeing that “nothing” in its provisions
authorizing the FCC to conduct repacking “shall be construed
to alter” their “spectrum usage rights.” 47 U.S.C. § 1452(b)(5).
That is, the Commission may not use a spectrum auction to
deprive LPTV stations of rights they had before the auction and
repacking. But those rights were limited to begin with. In light
of their smaller coverage, these stations have generally been
assigned “secondary status relative to primary services such as
full-power stations,” meaning that under Commission
regulations, “if an LPTV station’s transmissions interfere with
a primary service, the LPTV station must either eliminate the
interference or cease operations.” Mako, 835 F.3d at 147-48.

     Here several LPTV stations contend that the Commission
has nonetheless shrunk their usage rights, and acted arbitrarily
and even unconstitutionally, in two recent orders specifying
various details of the repacking process: what are known as the
Commencing Operations Order, 30 FCC Rcd. 12,025 (Oct. 22,
2015), and the Channel-Sharing Order, 30 FCC Rcd. 14,927
(Dec. 17, 2015). In attacking these orders, petitioners challenge
the legality of three policy choices in particular:

      the Commission’s decision to force LPTV stations to
       reduce or cease operations upon receiving notice from
       a new licensed user that it is about to “commence
       operations” where “there is a likelihood of receiving
       harmful interference from” the LPTV stations in
       question, 29 FCC Rcd. 6567, 6840, ¶ 668 (May 15,
       2014) (Auction Order);
                                4
      the Commission’s decision to allow unlicensed entities
       to make use of the guard bands it has created, id. at
       6685-86, ¶¶ 271-73, even though these bands remain
       (by definition) off-limits to licensed users like LPTV
       stations, id. at 6684, ¶ 270; and
      the Commission’s refusal to guarantee that LPTV
       stations licensed to use portions of bandwidth (i.e.,
       channels) before a spectrum auction would have
       somewhere to land—some channel they could use—
       after the repacking, see id. at 6673-74, ¶¶ 237-41.

     Yet these three decisions were not adopted in the orders on
review here. As the citations above make clear, they were
adopted instead in the Commission’s 2014 Auction Order,
which established general procedures for the auction and
repacking process. By contrast, the Commencing Operations
Order and Channel-Sharing Order were issued the following
year, and neither revisited any of the Auction Order’s
decisions: the first simply defined when a new licensee would
be viewed as “commencing operations” under the Auction
Order, and the second sought only to soften the Auction
Order’s blow to LPTV stations by allowing them to share
channels left available after the auction. In other words, neither
of these more recent rulemakings put the Auction Order’s
earlier decisions back on the table. Each simply added to the
Auction Order’s settled framework while expressly refusing to
reopen consideration of that framework. See Commencing
Operations Order ¶ 21 & n.75 (“We reject as untimely requests
for reconsideration of several commenters that we modify the
transition procedures established in the [Auction Order].”);
Channel-Sharing Order ¶ 64 & n.194 (“A number of
commenters ask that we revisit matters that were resolved in
the [Auction Order] . . . . We deny these requests . . . .”).
                                   5
     So petitioners’ real objection is to the Auction Order,
which we already sustained against their similar challenges in
Mako. 835 F.3d at 152. Fresh challenges to the Auction Order
would now be time-barred. See 28 U.S.C. § 2344 (requiring
parties aggrieved by an FCC order to petition for review
“within 60 days after [the order’s] entry”). 1 That is why
petitioners now ask us to vacate instead the Commencing
Operations and Channel-Sharing Orders. But petitioners’
challenge to these two orders is also barred since (again) both
merely declined to reconsider the Auction Order’s allegedly
objectionable decisions, and we will not review refusals to
reconsider matters settled in an earlier order to which direct
challenges would now be time-barred. See, e.g., Kennecott
Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191,
1213 (D.C. Cir. 1996). Thus, insofar as petitioners challenge
rules for the repacking process that originated with the Auction
Order, their challenges are barred.2




     1
        Though we have previously described this deadline as
jurisdictional, see, e.g., United Transp. Union-Ill. Legislative Bd. v.
Surface Transp. Bd., 132 F.3d 71, 75 (D.C. Cir. 1998), the relevant
statute does not—and the Supreme Court has told us to treat such
statutory limits as non-jurisdictional unless Congress clearly says
otherwise, Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824
(2013). Indeed, the Court has held that “filing deadlines” in
particular “ordinarily are not jurisdictional.” Id. at 825. This suggests
that the 60-day filing deadline on challenges to FCC orders is not
jurisdictional after all. But here we needn’t resolve this apparent
tension between our earlier cases and later Supreme Court precedent.
     2
       We needn’t and therefore don’t address the FCC’s separate
argument that these challenges are barred because petitioners are not
“parties aggrieved” by the Commencing Operations Order, as
required by the Hobbs Act. See 28 U.S.C. § 2344; Simmons v. ICC,
716 F.2d 40, 42-43 (D.C. Cir. 1983).
                              6
                              II

     We now turn to two challenges specific to the Channel-
Sharing Order. The first contends that this order was arbitrary
and capricious or devoid of substantial supporting evidence. As
a general matter, agencies must “examine the relevant data and
articulate a satisfactory explanation for” their actions. Motor
Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). Here petitioners say there is no
support for the Commission’s view that letting LPTV stations
share channels after the auction would meet the Order’s stated
goal of “mitigat[ing] the impact of the auction and repacking
process” on LPTV stations. Channel-Sharing Order, 30 FCC
Rcd. at 14,929.

     But the Order is neither arbitrary nor unfounded. It sets
only modest goals and adopts means that common sense tells
us will advance those goals. After all, the Commission has been
clear all along that its auction and repacking procedures may
force some LPTV stations off the air entirely; indeed, we held
in Mako that this result was legally permissible. 835 F.3d at
152. Likewise, the Channel-Sharing Order itself admits that
“channel-sharing may not be right for all [LPTV] stations”;
what nonetheless “justifies” the order, the FCC goes on to say,
is the mere “possibility” of helping some such stations avoid
extinction. Channel-Sharing Order, 30 FCC Rcd. at 14,939.

    Petitioners ultimately concede that the Channel-Sharing
Order has a more modest goal than that of rescuing every
LPTV stations from displacement, but they still fault the
Commission for not quantifying the Order’s projected benefits
based on empirical evidence. This objection misfires. The
Commission did not need to rely on data to prove that giving
LPTV stations something is better than giving them nothing. It
was enough for the Commission to observe that channel-
                               7
sharing would help some LPTV stations by enabling them to
survive the repacking process and save money by sharing costs.
Id. at 14,938-39. The Commission was surely right that letting
some LPTV stations share channels after the auction would be
better than offering them no assistance at all. In short, the
Channel-Sharing Order’s goals are not so divorced from its
means as to make the order irrational.

       We lack jurisdiction over petitioners’ final claim against
the Channel-Sharing Order: that it flouts the Regulatory
Flexibility Act, which tells agencies issuing certain rules to
“prepare a final regulatory flexibility analysis” measuring the
impact of the new rules on small businesses. 5 U.S.C. § 604(a).
When a party seeking judicial review of a Commission order
“relies on questions of fact or law upon which the Commission
. . . has been afforded no opportunity to pass,” the challenging
party must first ask the Commission to reconsider the order at
issue. 47 U.S.C. § 405(a); see U. S. Telecom Ass’n v. FCC, 825
F.3d 674, 701 (D.C. Cir. 2016) (finding no jurisdiction to
review regulatory flexibility analysis where petitioner failed to
challenge that analysis in a petition for reconsideration). Here
petitioners never asked the FCC to reconsider the Channel-
Sharing Order, so we have no authority to review its regulatory
flexibility analysis.

                               III

     In 2014, the Commission made decisions that threatened
to drive petitioners off the air—decisions that petitioners
understandably tried to challenge. But the law does not leave
them free to keep trying. The window for challenging the
Auction Order shut 60 days after that order was entered, and it
will stay shut unless cracked open again by the Commission
itself. This petition for review flies beak-first into that hard
limit insofar as it aims to re-litigate the Auction Order’s
                              8
procedures. And we lack jurisdiction over petitioners’
challenge to the Channel-Sharing Order’s regulatory flexibility
analysis, while the one challenge specific to the Channel-
Sharing Order that we can consider today is meritless.

     This petition for review of the Commencing Operations
and Channel-Sharing Orders is dismissed in part and denied in
part.

                                                   So ordered.
