First, Congress amended the Communications Act to create two categories of mobile service: "commercial" and "private" mobile radio services (respectively, "CMRS" and "PMRS"). See Chadmoore Communications, Inc. v. FCC, 113 F.3d 235, 237 (D.C. Cir. 1997). Congress directed the FCC to implement these categories in its regulations and provide for comparable regulation of substantially similar CMRS systems.
Motion to Alter or Amend Judgment at 3. As support for the proposition that the futility should create finality and subject matter jurisdiction in the instant matter, plaintiffs rely primarily upon the District of Columbia Circuit's recent decision in Chadmoore Communications, Inc. v. FCC, 113 F.3d 235, 239-40 (D.C.Cir.1997). The difficulty with plaintiffs' citation to Chadmoore, as well as Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C.Cir.1996) and Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 680-84 (D.C.Cir.1983) ( " WATCH " ), is that such a comparison conflates the doctrines of finality and exhaustion, an often-blurred distinction which this circuit has been especially diligent in demarcating.
It explained that its reluctance was particularly significant given the breadth of the requested exemption. See id. ("Industry-wide exemptions are not the norm and FMCSA grants them only on a very limited basis[.]"); Chadmoore Commc'ns, Inc. v. FCC, 113 F.3d 235, 242 (D.C. Cir. 1997) (applicants were not "similarly situated" because petitioner's "application covered 2,312 stations in twenty-six states while the others' were limited, respectively, to eleven stations in four states and four stations in two states"). The FMCSA adequately explained that it treated Intellistop's application differently because Intellistop was the only exemption applicant that altered the vehicle's brake light system to function in a way that would not maintain steady-burning brake lights.
Accordingly, the Court has no basis to reject the agency's determination that the regulation's requirement that "detailed description[s] of the activities in each state" be provided was not satisfied by the listing of plaintiff's services without also specifying in which states the services were provided. See, e.g., Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that Secretary's decision to apply a regulation to public employees was not unreasonable. The Court reasoned that "[b]ecause the salary-basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless `plainly erroneous or inconsistent with the regulation.'") (citations omitted); Chadmore Comm., Inc. v. FCC, 113 F.3d 235, 289 (D.C. Cir. 1997) (holding that the FCC's denial of the plaintiff's application for an extension of time in which to construct a "`wide area specialized mobile radio' [`SMR'] system" was not arbitrary and capricious where the plaintiff "should have been aware that the FCC was embarking on a fundamental restructuring of wide-area SMR licensing procedures that made it imprudent to assume that the agency would continue to grant extensions . . ." and where "the grant of [plaintiff]'s application would have significantly frustrated the interests that were to be advanced by the new rule . . ."); cf. Nat'l Center on Missing Exploited Children v. Horner, 699 F. Supp. 333, 336-37 (D.D.C. 1988) (granting charitable organization's motion for a preliminary injunction, which permitted the organization to participate in the CFC, based on the conclusion that the regulation at issue was ambiguous and the requirements that the agency sought to have the organization comply with "ha[d] been remitted in its current regul
And Cox's filing of her application for SSI benefits itself did not vest her with any legal right to have her claim decided under the 2014 Listings, as opposed to the 2017 Listings. See Chadmoore Commc'ns, Inc. v. FCC, 113 F.3d 235, 241 (D.C. Cir. 1997) (no rights vested on filing for application for extension for implementing license); Hispanic Info. & Telecomms. Network, Inc. v. FCC, 865 F.2d 1289, 1294-1295 (D.C. Cir. 1989) ("The filing of an application creates no vested right to a hearing; if the substantive standards change so that the applicant is no longer qualified, the application may be dismissed.").
We therefore hold Vastar is arbitrary and capricious with regard to this four-year period. In a footnote, Jicarilla further suggests the APA forecloses retroactive application of the 1988 Regulations to royalties on gas produced from January 1984 through February 1988. Jicarilla Br. at 22 n. 16 (citing Chadmoore Commc'ns, Inc. v. FCC, 113 F.3d 235, 240 (D.C. Cir. 1997)). Even if Jicarilla properly preserved this argument below, which is doubtful, we do not find it necessary to reach the issue.
the amended § 656.30(b). See Labojewski v. Gonzales, 407 F.3d 814, 822 (7th Cir. 2005) (holding that an application for a visa petition, which was a prerequisite to the filing of an application for adjustment of status, could not be considered a "`completed transaction' that gives rise to vested rights or settled expectations for purposes of the presumption against retro-activity"); see also BellSouth Telecomms., Inc. v. Se. Tel, Inc., 462 F.3d 650, 660-61 (6th Cir. 2006) (stating that "filing an application with an agency does not generally confer upon the applicant an inviolable right to have the agency rule on the application pursuant to the regulations in effect at the time of filing"); Pine Tree Med. Assocs. v. Sec'y of Health Human Servs., 127 F.3d 118, 121 (1st Cir. 1997) (holding that "the mere filing of an application is not the kind of completed transaction in which a party could fairly expect stability of the relevant laws as of the transaction date"); Chadmoore Commc'ns, Inc. v. FCC, 113 F.3d 235, 241 (D.C. Cir. 1997) (finding that no right vested upon the filing of plaintiffs application for an extended implementation period to construct a mobile radio system). The thirteen aliens whose labor certifications were approved prior to July 16, 2007, argue that their labor certifications were valid permanently and thus gave them a vested right to file employment-based visa petitions supported by such certifications at any time. They contend the amended § 656.30(b) is impermissibly retroactive because it impaired such a right.
The final issue presented concerns the Commission's decision to apply its rule to existing contracts. According to petitioners, this amounts to "directly retroactive" action barred by the APA's requirement that "legislative rules . . . be given future effect only," Chadmoore Comm'ns, Inc. v. FCC, 113 F.3d 235, 240 (D.C. Cir. 1997) (internal quotation marks omitted), or, alternatively, to agency action with harmful, secondarily retroactive effects that the Commission failed to consider, see, e.g., Yakima Valley Cablevision, Inc. v. FCC, 794 F.2d 737, 745 (D.C. Cir. 1986) ("[R]etroactive modification or rescission of [a] regulation can cause great mischief. An agency must balance this mischief against the salutary effects, if any, of retroactivity.").
Star's position that it would have been futile to challenge the Commission's definition "[g]iven the [Commission's] 40-year history of applying the same interpretation," Petitioner's Reply Br. at 18, is unconvincing because Star points to nothing concrete to support its claim of futility, see Action for Children's Television v. FCC, 564 F.2d 458, 469 (D.C. Cir. 1977), such as a plain desire by the Commission to "rapidly expedit[e]" a review process, Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C. Cir. 1996). See also Chadmoore Commc'ns, Inc. v. FCC, 113 F.3d 235, 239-40 (D.C. Cir. 1997). Accordingly, we deny the petition for review.
Northpoint's use of Ashbacker Radio here is creative, but stretches a bit too far. The NGSO-FSS and MVDDS licenses are two different kinds of licenses, for reasons to be explained momentarily, and need not be considered together. Perhaps what Northpoint was getting at was a more general principle-that an agency must provide adequate explanation before treating similarly situated parties differently, or else be in violation of the APA. See, e.g., Burlington Northern Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 776-77 (D.C. Cir. 2005); Chadmoore Communications v. FCC, 113 F.3d 235, 242 (D.C. Cir. 1997). But Northpoint's application for an MVDDS license is differently situated from that of the NGSO-FSS applicants, as the Commission adequately explained in the Orders under review.