UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) NORTH AMERICAN CATHOLIC ) EDUCATIONAL PROGRAMMING ) FOUNDATION, INC., ) ) Plaintiff, ) ) v. ) 09-cv-1167 (RCL) ) WOMBLE CARLYLE SANDRIDGE ) & RICE, PLLC, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

I. INTRODUCTION

This case’s roots can be traced to a Federal Communications Commission (“FCC”) action

that was initiated nearly twenty years ago. In 1992, plaintiff North American Catholic Education

Programming Foundation, Inc. (“NACEPF”) applied for a license for Instructional Television

Fixed Service (“ITFS”) channels around Las Vegas, Nevada. The licenses were instead given to

Clark County School District (“CCSD”), and after unsuccessfully exhausting its administrative

remedies, plaintiff appealed the Commission’s decision to the United States Court of Appeals for

the District of Columbia Circuit. Unfortunately, defendant Howard J. Barr—then counsel to

plaintiff and an attorney with co-defendant Womble, Carlyle, Sandridge & Rice, PLLC

(“Womble”)—filed the notice of appeal two days late, and the court dismissed the appeal as

untimely filed. N. Am. Catholic Educ. Programming Found., Inc. v. FCC,

(D.C.

Cir. 2006). NACEPF then initiated the current legal malpractice suit, arguing—among other

things—that it was harmed by defendants’ failure to file the notice of appeal in a timely manner. Because the Court has determined that the D.C. Circuit would not have granted plaintiff relief

even had the notice been timely filed, however, plaintiff has not stated a claim upon which relief

can be granted. NACEPF’s motion for partial summary judgment will be denied, and the Court

will grant defendants their motion for partial dismissal.

II. BACKGROUND

On May 13, 1992, NACEPF applied to the FCC for an ITFS license for four channels in

the area of Las Vegas, Nevada. Pl.’s Statement of Material Facts as to Which There Is No

Genuine Issue ¶ 7, ECF No. 17, Sep. 18, 2009 (“Mat. Facts”). On December 30, 1993, CCSD

filed a competing application, along with a request for the FCC to waive the rule that limited the

number of ITFS licenses a single entity could hold in a certain region. Pl.’s Mem. P. & A. Opp.

Def.’s Mot. Partial Summ. J. (“Summ. J. Mem.”) Ex. H at 1, Sep. 18, 2009, ECF No. 17-12

(“Waiver App.”). At the time of CCSD’s waiver application there were nearly 150,000 students

enrolled in the more than 150 schools that constituted the school district, see N. Am. Catholic

Educ. Programming Found., Inc., 12 FCC Rcd. 24449, 24450 (1997), and CCSD was already

authorized to use eight ITFS channels (the maximum allowed is four). See Waiver App. 1.

Plaintiff filed a petition to deny the waiver request, arguing that waiver was not in the public

interest and that CCSD had not met the “exceedingly high burden” required in order for waiver

to be granted. Summ. J. Mem. Ex. I at 7, ECF No. 17-13 (“Pet. Deny”). At that time, NACEPF

was represented by Howard Barr, then an attorney at Pepper & Corazzini, a law firm that would

merge with defendant Womble in March 2002. Mat. Facts ¶ 10. The Video Services Division of

the Commission’s Mass Media Bureau (“MMB”) granted CCSD’s waiver request, and after

following the procedure for deciding between competing applications, determined that CCSD

was the tentative selectee. NACEPF, 12 FCC Rcd. at 24453.

2 Plaintiff—with defendants as counsel—petitioned the MMB to reconsider its decision to

waive the four-channel rule. Summ. J. Mem. Ex. K, ECF No. 17-15 (“MMB Pet. Recons.”).

Plaintiff argued that the Division failed to apply the Commission’s four-channel waiver rule, that

Supreme Court and D.C. Circuit precedent required the Division to apply an “exceedingly high”

standard, that the Division’s decision did not genuinely engage in reasoned decision-making, and

that the decision contravened the Commission’s goal of diversity.

The MMB affirmed,

finding “that there are no errors of law or new facts that would warrant reversing the staff

action.” Clark Cnty. Sch. Dist., 17 FCC Rcd. 5325 (2002). The MMB held that “the Commission

properly found that the requested channels are necessary to be able to provide the wide range

instructional programming proposed,” and stated that “the public interest is best served by

granting CCSD a waiver of the four-channel rule.” Id. at 5327 (emphasis added).

At this point, plaintiff enlisted new counsel and filed an Application for Review (“AFR”)

to the full Commission. Summ. J. Mem. Ex. M at 9, ECF No. 17-17 (“AFR”). Among other

things, plaintiff argued that the MMB had not applied the “exceedingly high burden” test and had

not analyzed CCSD’s need for new channels in terms of the public interest. Plaintiff further

argued that the fact that CCSD aired some duplicate programs meant it did not actually need the

new channels. The Commission denied the AFR, finding that the grant of waiver was “consistent

with the Commission’s Rules and precedent.” Clark Cnty. Sch. Dist., 18 FCC Rcd. 18815, 18819

(2003). The Commission said that NACEPF had cited no authority in support of its argument

based on duplicate programming, and found that in accordance with its precedent, “full

utilization of the currently assigned channels [was] not a prerequisite to an applicant’s request for

additional channels.” Id. at 18820. The Commission also determined that “Clark County’s use of

3 the channels at issue was reasonable and consistent with both precedent and furtherance of the

public interest.” Id. at 18821.

NACEPF then rehired defendants and filed a Petition for Reconsideration (“PFR”) to the

Commission. Summ. J. Mem. Ex. O, ECF No. 17-19 (“PFR”). On October 8, 2004, the

Commission held, in accordance with its precedent, that the PFR would be denied because it did

not “present any new facts or changed circumstances,” and raised new arguments that should

have been raised before the MMB in the first instance. 19 FCC Rcd. 20169, 20173 (2004).

On November 9, 2004, thirty-two days after the Commission’s denial of the PFR,

defendant Howard Barr filed a notice of appeal on behalf of plaintiff with the D.C. Circuit. The

Circuit dismissed the appeal as untimely on January 31, 2006. NACEPF,

. On June

26, 2009, plaintiff filed the instant suit for legal malpractice, breach of contract, breach of

fiduciary duty, and breach of implied covenant of good faith and fair dealing against Howard

Barr and his firm, Womble. The complaint contains several allegations, but because the current

motions pertain only to the Las Vegas application, it suffices to say that the other claims concern

other license applications in which defendant allegedly made errors in its work on behalf of

NACEPF. Defendants moved for partial dismissal on July 28, 2009, and plaintiff filed its motion

for summary judgment and opposition to the motion for partial dismissal on September 19, 2009.

The Court will deal with plaintiff’s arguments in turn, first reaching its argument that the D.C.

Circuit—had it not dismissed plaintiff’s appeal as untimely—would have overturned the FCC’s

decision based on Northeast Cellular Tel. Co. v. FCC,

(D.C. Cir. 1990), and

WAIT Radio v. FCC,

(D.C. Cir. 1969). It will then discuss plaintiff’s argument

that the FCC followed unlawful precedent, and finally deal with any remaining arguments

plaintiff made before the D.C. Circuit and in its motion for partial summary judgment.

4 III. LEGAL STANDARD

Review of a magistrate judge’s report and recommendation for a dispositive motion is de

novo. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C § 636(b)(1); United States v. Wheeler,

(D.D.C. 2010). However, the Court may only review those parts of the report

and recommendation that the parties have properly objected to. See Aikens v. Shalala,

(D.D.C. 1997).

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). To satisfy this test, a complaint must

contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in

order to give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly,

(2007). “[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual allegations contained in the

complaint,” Atherton v. District of Columbia,

(D.C. Cir. 2009), and grant a

plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI

Commc’ns Corp.,

(D.C. Cir. 1994). However, a court may not “accept

inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the

complaint.” Ashcroft v. Iqbal,

(2009). In other words, “only a complaint

that states a plausible claim for relief survives a motion to dismiss.” Id.; see also Atherton,

(holding that a complaint must plead “factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged”).

IV. DISCUSSION

In order for a plaintiff to prevail on a legal malpractice claim, he or she must prove the

applicable standard of care, a breach of that standard, and a causal relationship between the

5 violation and harm alleged. Television Capital Corp. of Mobile v. Paxson Commc’n Corp.,

(D.C. 2006). The present motions only deal with the third requirement: the causal

link between Womble’s late filing of the notice of appeal and any alleged harm that resulted. In

order to establish causation, NACEPF must demonstrate that the D.C. Circuit would have

vacated and remanded the FCC’s decision and that the Commission would have held for them on

remand. The Court must first determine how the appeal would have been decided—which is a

question of law for the judge in a legal malpractice suit. See Hickey v. Scott,

, at *9–*10 (D.D.C. July 11, 2011) (citing Royal Ins. Co. of Am. v. Miles &

Stockbridge P.C.,

(D. Md. 2001)). Plaintiff correctly points out that if

the Court determines that the D.C. Circuit would have vacated and remanded, the determination

of what would have happened on remand is a question of fact for the jury to decide. See Royal

Ins. Co. of Am.,

. However, because the Court finds that plaintiff did not

validly offer any arguments to the D.C. Circuit that would have led the court to vacate and

remand the FCC’s decision, resolution of the first part of the causation analysis is sufficient to

dismiss the legal malpractice claim. If a legal malpractice suit is dismissed, claims based on the

same facts but on other legal theories—such as breach of contract—will be dismissed as well.

Mawalla v. Hoffman,

(D.D.C. 2008). Thus, because plaintiff cannot

succeed on its legal malpractice claim, all of its claims related to NACEPF’s Las Vegas market

application—breach of contract, breach of implied duty of good faith and fair dealing, and

breach of fiduciary duty— will be dismissed.

A. Plaintiff’s arguments based on WAIT Radio and Northeast Cellular In its motion for summary judgment, NACEPF argues that the FCC’s waiver of the four-

channel rule would have been overturned on appeal because the FCC did not comply with WAIT

Radio,

, and Northeast Cellular,

. This argument would not have

6 succeeded in the D.C. Circuit because NACEPF did not raise the argument before the

Commission itself. Even had it been raised, the Court is not persuaded that the D.C. Circuit

would have vacated the FCC decision on those grounds.

The D.C. Circuit “cannot review ‘questions of fact or law upon which the Commission,

or designated authority within the Commission, has been afforded no opportunity to pass.’”

NetworkIP, LLC v. FCC,

(D.C. Cir. 2008) (quoting

(a)). “If a

petitioner could have called a question of law or fact to the agency’s attention but did not, the

issue is waived.”

“[A]n issue need not be raised explicitly; it is sufficient if the issue was

‘necessarily implicated’ in agency proceedings.”

(quoting Time Warner Entm’t Co. v. FCC,

, 79–80 (D.C. Cir. 1998)). But the D.C. Circuit has “‘strictly construed’ § 405(a),

‘holding that [the D.C. Circuit] generally lack[s] jurisdiction to review arguments that have not

first been presented to the Commission.’” Globalstar, Inc. v. FCC,

(D.C. Cir.

2009) (quoting Qwest Corp. v. FCC,

(D.C. Cir. 2007)). NACEPF does not

claim that it could not have raised the argument to the Commission, instead arguing that the

WAIT Radio and Northeast Cellular arguments it raises on summary judgment were necessarily

implicated by its discussion of the public interest in its FCC filings. They were not.

In its Reply in Support of Its Objections to the Report & Recommendation of the

Magistrate Judge, ECF No. 36 (“R&R Reply”), plaintiff insists that the Court “need review only

two bodies of material to verify that [NACEPF advanced arguments based on WAIT Radio and

Northeast Cellular:]” (1) a number of sections of NACEPF’s FCC filings, and (2) the two cases

themselves. R&R Reply 1. The Court has examined those sources and remains unconvinced. At

best, plaintiff’s argument before the FCC amounts to an argument that waiver should not have

been granted because it was not in the public interest. While perhaps persuasive, that argument is

7 quite different from the argument it makes now: that Northeast Cellular requires an agency to

use a comparative test to “explain why its waiver better served the public interest than adhering

to the rule and articulate special circumstances that justify the waiver.” Pl.’s Mem. P. & A. Opp.

Def.’s Mot. Partial Summ. J. 18, Sep. 18, 2009, ECF No. 17.

The issue is not, as plaintiff insists, whether it made “arguments based on the principles

embodied in WAIT Radio and Northeast Cellular,” R&R Reply 5, but whether the issues in those

cases were “necessarily implicated by the argument made to the Commission.” Time Warner,

. Most of plaintiff’s references are to arguments that merely state that waiving the

four-channel rule is not in the public interest, which is a far cry from a requirement that in every

case the Commission explain why waiver better serves the public interest than adherence to a

rule. See Pet. Deny 4–7 (“Because the District’s application . . . would result in monopolization .

. . it is not in the public interest, and should therefore be denied.”); MMB Pet. Recons. 9, 11–12

(describing the “threat to diversity” that waiver creates). Plaintiff also points to portions of its

Petition for Reconsideration to the FCC, although it is not exactly clear why. As best as the

Court can surmise, plaintiff is attempting to equate its argument there that “[t]he Commission’s

decision cannot be sustained absent some rationalization of its apparently inconsistent position

‘by reference to principles consistent with the underlying logic of the four channel rule,” Summ

J. M. Ex. O at 10–11, 12–13 (“FCC Pet. Recons.”), with the WAIT Radio/Northeast Cellular

test—but this is too far-fetched to be maintained.

The closest plaintiff comes to implicating the WAIT Radio/Northeast Cellular argument

is in its Application for Review to the Commission. App. Rev. 5. There, plaintiff argues that

“[n]either in the Bureau Order nor in the Prior Order gives [sic] any hint of analysis of the

gravity of Clark’s need for the additional channels in terms of public policy or the public

8 interest.”

(emphasis in original). Nowhere in the text surrounding this excerpt does plaintiff

mention WAIT Radio or Northeast Cellular. And though this argument makes a gesture towards

public interest analysis, it still does not necessarily implicate the specific, two-part test allegedly

required by Northeast Cellular. Simply saying that “the FCC failed to analyze the waiver in

terms of public interest” is not the same as, nor does it necessarily implicate, what plaintiff

argued on summary judgment, which was that the agency must compare its options and “explain

why its waiver better served the public interest than adhering to the rule.” Summ. J. Mem. 18.

Plaintiff never raised the WAIT Radio/Northeast Cellular argument in front of the FCC, nor did

any of its arguments in front of the Commission necessarily implicate that issue, and so these

arguments are waived. NetworkIP,

. Plaintiff points to several points in its brief

before the D.C. Circuit where it supposedly raised these arguments. This is irrelevant. The

question is not whether NACEPF can raise new arguments before this Court, but whether those

arguments could have been properly raised before the D.C. Circuit. They could not have been,

and any implication that they were raised before the D.C. Circuit—which, in the Court’s opinion,

they were not—has no bearing on the current case.

Even had NACEPF’s WAIT Radio/Northeast Cellular argument not been waived, the

Circuit court would not have held for plaintiff on that ground. Plaintiff characterizes WAIT Radio

and Northeast Cellular as creating a strict requirement that agencies say the magic words “public

interest” and “special circumstances” before granting waiver. This interpretation is at odds with a

proper reading of the cases and their progeny.

WAIT Radio concerned the FCC’s denial of a request for waiver of its clear channel rules.

418 F.2d at 1155. The Court remanded, holding that waiver requests “stated with clarity and

accompanied by supporting data, are not subject to perfunctory treatment, but must be given a

9 ‘hard look.’” Id. at 1157. This is the crux of WAIT Radio—that waiver applications cannot be

summarily dismissed without explanation. The court emphasized a need for appropriate

procedures for waiver to ensure even-handed application, see id. (“a system where regulations

are maintained inflexibly without any procedure for waiver poses legal difficulties”) (emphasis

added), and said that “[s]ound administrative procedure contemplates waivers, or exceptions

granted only pursuant to a relevant standard.” Id. at 1159. The court did not lay down a hard-

and-fast rule requiring a specific explanation from the agency, saying that “the agency is not

required to author an essay for the disposition of each application [for waiver]. It suffices, in the

usual case, that we can discern the why and the wherefore.” Id. at 1157 (internal citations

omitted).

The Circuit went a bit further in Northeast Cellular, establishing a rule that “[t]he agency

must explain why deviation serves the public interest and articulate the nature of the special

circumstances to prevent discriminatory application and to put future parties on notice as to

[waiver’s] operation.”

. But in reversing the FCC’s grant of a waiver, it relied

heavily on the second part of the test, holding that “[t]he FCC’s reasoning wholly ignores the

second requirement of WAIT Radio: it does not articulate any standard by which [the Court] can

determine the policy underlying its waiver.”

(emphasis added). Throughout the

case, the Circuit emphasized not a cut-and-dry rule but the need for a waiver policy “founded

upon an ‘appropriate general standard.’”

. See also

(“the FCC has not simply

deviated from exemption standards; it never stated any standards in the first place.”) (emphasis

added);

(“Under the Commission’s blanket statement, future applicants—and this court—

have no ability to evaluate the applicability and reasonableness of the Commission’s waiver

policy.”) (emphasis added);

(“We hold that the FCC’s decision was arbitrary and capricious

10 because it was not based on any rational waiver policy. . . . this waiver reflects an outrageous,

unpredictable, and unworkable policy that is susceptible to discriminatory application.”)

(emphasis added). Thus, properly understood, WAIT Radio and Northeast Cellular mean that the

Commission must determine that waiver is in the public interest and apply a rational standard to

determine whether or not the circumstances are sufficiently unique to merit circumvention of the

rule.

This reading comports with WAIT Radio’s statement that waivers should be “granted only

pursuant to a relevant standard,” 418 F.2d at 1159,” and that “a commission need not re-study

the entire problem de novo and reconsider policy every time it receives an application for

waiver,” id. at 1157, as well as with NetworkIP,

, the Circuit’s most recent

discussion of the subject. In NetworkIP, the court expressed a concern about the broad discretion

agencies had in determining whether waiver was in the public interest, and suggested that the

special circumstances requirement was an “additional restraint.”

. The court saw that

requirement as a way to ensure that agencies used more than a “we-know-it-when-we-see-it

standard,” a means of reducing “the danger of arbitrariness (or worse)” posed by “opaque”

waiver criteria, and a test that would “prevent discriminatory application and. . . put future

parties on notice as to [the waiver policy’s] operation.”

(internal citations omitted).

The NetworkIP court found the FCC’s waiver unlawful because “procrastination plus the

universal tendency for things to go wrong” did not constitute a “special circumstance” and the

FCC could not explain the grant of waiver in terms of a sound, rational policy.

The FCC’s waiver to CCSD does not suffer from the same deficiencies. In its

Memorandum Opinion & Order, the Video Services Division of the MMB explained the

standard used to determine whether waiver was proper:

11 An applicant seeking waiver of Section 74.902(d) must demonstrate how the additional channels will be used for traditional ITFS purposes and why present channel capacity is insufficient to accommodate the additional needs. In assessing such showings, the Commission has stated that waivers may be granted only where the applicant can overcome a heavy burden of proof. Among the factors we consider in acting on requests for waiver of the four-channel limitation are the amount of ITFS programming that is being proposed on all of the channels involved, the simultaneous use of the channels for a substantial portion of the day, the extent of repetition of the programming and a demonstrated need for the additional channels. 12 FCC Rcd. 24449, 24450 (1997) (internal citations omitted). The Bureau went on to explain

why CCSD’s application met these criteria and warranted waiver—that is, why CCSD’s

circumstances were sufficiently unique to merit waiver of the four-channel rule. In the Full

Commission Memorandum & Order, the Commission explained that:

the Division twice reached the determination that, given all of the circumstances surrounding the request and weighing all of the factors, granting a waiver of the four-channel limitation was fully warranted and in the public interest. Given the specific circumstances of this matter, we believe that Clark County’s use of the channels at issue was reasonable and consistent with both precedent and furtherance of the public interest. Clark Cnty. Sch. Dist., 18 FCC Rcd. at 18821 (emphasis added). In WAIT Radio, the D.C. Circuit

said that in reviewing an agency’s grant of waiver, “[i]t suffices, in the usual case, that [the

Court] can discern the why and the wherefore.” 418 F.2d at 1157. In Northeast Cellular and

NetworkIP, neither of which proposed to overturn WAIT Radio, the Circuit vacated agency

decisions where the Commission offered no substantial explanation for why or how it reached its

decision on waiver. Here, the FCC did offer an explanation, and “public interest” and “special

circumstances” are not talismanic phrases that the FCC is required to religiously utter in every

waiver decision. The Commission said “the public interest is best served by granting CCSD a

waiver of the four-channel rule,” Clark Cnty. Sch. Dist., 17 FCC Rcd. at 5327, and upheld

waiver “[g]iven the specific circumstances of [the] matter.” Clark Cnty. Sch. Dist., 18 FCC Rcd.

at 18821. This is sufficient.

12 The Commission followed its precedent and applied a rational standard to determine

whether waiver was in the public interest and whether CCSD’s circumstances were sufficiently

unique to warrant waiver. Its decision was not arbitrary and capricious, and the Court will not

deem it so merely because it did not use the precise phrasing suggested—but not required—by

the D.C. Circuit. Thus, even had plaintiff not waived its WAIT Radio and Northeast Cellular

arguments by failing to raise them before the FCC, the D.C. Circuit would not have vacated the

FCC’s decision on those grounds.1

B. Plaintiff’s Argument that the FCC Relied on Unlawful Precedent in Granting CCSD’s Waiver Request In the alternative, plaintiff argues that summary judgment is appropriate even though the

FCC followed its precedent in granting waiver because that precedent was unlawful. See Summ.

J. Mem. 26. While this specific argument was never made before the FCC, some of the issues it

raises were, and so the court will not consider it waived entirely. In its summary judgment

memorandum, plaintiff puts forward three arguments for why the waiver decision followed

unlawful precedent. The first argument—that the FCC’s decision was inconsistent with

Northeast Cellular and WAIT Radio—would have been waived in the Circuit, as explained

above. The second argument is that the FCC’s waiver standard “was legally deficient for the

reasons stated in the D.C. Circuit briefs that Womble filed on NACEPF’s behalf (and reiterated

herein).” Id. The third is that “the FCC effected the ‘evisceration by waiver’ of the four-channel

1 The Court is aware that this dual argument puts it in the seemingly contradictory position of arguing both that the FCC was never given the chance to pass on the Northeast Cellular rule, and that the Commission’s ruling complied with those precedents. However, in determining whether 47 § 405(a) applies, the question is “whether a reasonable Commission necessarily would have seen the question raised before [the Circuit] as part of the case presented to it,” Time Warner,

, and for the Circuit to reach an issue “the Commission must have somehow been put on notice of the problem.” Qwest Corp. v. FCC,

(D.C. Cir. 2007). Neither plaintiff, CCSD, nor the FCC cited to Northeast Cellular or WAIT Radio in their filings and orders, and it is unclear whether the FCC was even aware of those cases. But that the FCC inadvertently followed D.C. Circuit precedent does not change the fact that it actually did follow precedent, nor does it undermine the conclusion that that issue was neither raised before the Commission nor necessarily implicated by any of the arguments raised before it.

13 rule, which the D.C. Circuit held is unlawful.”

Neither of the latter two arguments warrants

summary judgment, so plaintiff’s motion must fail.

Plaintiff argues that the FCC followed unlawful precedent “for the reasons stated in [its]

D.C. Circuit briefs” and says that “[b]lind adherence to precedent that is itself unlawful cannot

justify similarly unlawful action.”

Before the Circuit, NACEPF contested the FCC’s decision

on many grounds, arguing that the waiver ruling was inconsistent with the FCC’s anti-

monopolization policy, Summ. J. Mem. Ex. U at 21, ECF No. 17-25 (“Circuit Brief”); that the

ruling was inconsistent with the FCC’s spectrum efficiency goals, id. at 23; that the FCC’s

history of granting waiver constituted impermissible rulemaking, id. at 26; that the ruling was

inconsistent with the exceedingly high burden required to waive the four-channel rule, id. at 28;

that the FCC was required to inquire about possible alternatives to waiver; id. at 29; that the FCC

did not properly address CCSD’s obligation to demonstrate why the current channel capacity

was insufficient, id. at 30; and that granting CCSD permission to amend its waiver request

subsequent to the cut-off date violated the FCC’s rules, id. at 31. The Court will not reach these

last four arguments because their necessary premise is that the FCC did not follow its own

precedent in granting waiver. Indeed, they fall under the section of the Circuit brief entitled “The

Commission’s Grant of a Waiver of the Four Channel Limit in this Case Contradicts

Commission Precedent.” Id. at 27. Here, however, plaintiff is arguing that the FCC did follow

precedent, but that the precedent it followed was unlawful. NACEPF cannot logically argue both

that the FCC broke with precedent and that the FCC unlawfully followed precedent, so those

arguments will be disregarded.

14 Review of plaintiff’s remaining arguments—that waiver was inconsistent with the FCC’s

anti-monopolization and spectrum efficiency policies2 and that the repeated waiver of the four-

channel rule constituted impermissible rulemaking on the part of the FCC—is waived because

plaintiff failed to object to the Magistrate’s Report & Recommendation on those grounds. See

Aikens v. Shalala,

(D.D.C. 1997) (“[O]nly those issues that the parties have

raised in their objections to the Magistrate Judge’s report will be reviewed by [the district

court]”); see also Fed. R. Civ. P. 72(b) (“The district judge must determine de novo any part of

the magistrate judge’s disposition that has been properly objected to.”). Plaintiff mentions anti-

monopolization and efficiency concerns in its objections, but it does so in the context of asserting

that it had brought the Northeast Cellular argument before the Commission. Nowhere does it

suggest that the D.C. Circuit would have granted it relief because the FCC followed unlawful

precedent that ignored anti-monopolization policies and spectrum efficiency goals. Plaintiff’s

impermissible rulemaking argument is doubly moot. Plaintiff failed to object to the Magistrate’s

determination that it had not made that argument before the Commission, which is just as well,

as the record unequivocally supports the Magistrate’s ruling. NACEPF never made the argument

before the Commission, and it could not do so for the first time before the D.C. Circuit. Because

plaintiff did not object to the Magistrate’s denial of these arguments in sustaining plaintiff’s

motion to dismiss, the Court is not permitted to review them.

Plaintiff’s third argument is that the Commission’s consistent waiver of the four-channel

rule constitutes an impermissible “evisceration by waiver” that would have persuaded the D.C.

Circuit to overturn the FCC’s decision. Essentially, plaintiff argues that the FCC’s history of

2 The Court is aware that this argument seems to fit under the first category, as it could be read to mean that the FCC was not following its own precedent. However, plaintiff’s point in making the argument was that the FCC precedent the Commission followed was at odds with its stated policies, and therefore unlawful. For this reason, the Court will not group these two points with the aforementioned arguments.

15 frequently waiving the four-channel rule is unlawful. The Court will not pass judgment on

whether this argument was made before the Commission, as the simple lack of authority plaintiff

provides is sufficient to dispose of it. In fact, the only authority plaintiff (repeatedly) cites is the

phrase “evisceration by waiver” from WAIT Radio. 418 F.2d at 1159.3 But the full context in

which the phrase was used undermines plaintiff’s argument. What the court in WAIT Radio

actually said was that:

[t]he court’s insistence on the agency’s observance of its obligation to give meaningful consideration to waiver applications emphatically does not contemplate that an agency must or should tolerate evisceration of a rule by waivers. On the contrary a rule is more likely to be undercut if it does not in some way take into account considerations of hardship, equity, or more effective implementation of overall policy, considerations that an agency cannot realistically ignore, at least on a continuing basis. Id. A mere warning to agencies that they should not feel that the court’s holding requires them to

blindly grant waivers is not sufficient authority to overturn the FCC’s ruling in this case. The

court’s digression is properly understood as a warning that—though the court was overturning

the FCC’s unexplained denial of waiver—agencies should not let the pendulum swing the other

way by indiscriminately granting waivers. The FCC did not do so in this case, nor—as far as this

Court can tell—had it in the past. It applied a reasonable, clear standard, and granted waivers

where doing so would be consistent with that standard. Plaintiff points to a number of cases

where the FCC has granted waivers and insists that the Commission almost never denies waiver

requests. That may be, but as long as it does not “act out of unbridled discretion or whim,” WAIT

Radio, 418 F.2d at 1159, and grants waivers “pursuant to a relevant standard,” id., the Court will

not consider the its actions arbitrary and capricious.

While plaintiff may have raised arguments in the Circuit Court beyond those it mentions

in its summary judgment memorandum, the Court will not reach them. In opposing defendant’s

3 The exact phrase is actually “evisceration of a rule by waivers,” but plaintiff’s repeated misquoting is immaterial.

16 motion to dismiss (plaintiff’s motion for summary judgment also served as its opposition to

defendants’ motion to dismiss), plaintiff only argued that it would have succeeded in the Circuit

Court because of Northeast Cellular and because the FCC allegedly followed unlawful

precedent. “It is well understood in this Circuit that when a plaintiff files an opposition to a

motion to dismiss addressing only certain arguments . . . a court may treat those arguments that

the plaintiff failed to address as conceded.” FDIC v. Bender,

, 67–68 (D.C. Cir.

1997); see also Peter B. v. CIA,

(D.D.C. 2009). In the same way, in only

arguing that it would have succeeded in the Circuit based on the two aforementioned arguments,

plaintiff barred itself from arguing that the Circuit would have granted relief on any other

grounds. Because the Court has dismissed the only arguments plaintiff brought in opposition to

defendants’ motion to dismiss, the Court will treat as conceded all other arguments. Plaintiff’s

motion for partial summary judgment is denied, and defendants’ motion for partial dismissal is

granted.

V. CONCLUSION

Defendants may have violated their standard of care by filing the notice of appeal two

days late, but a plaintiff seeking to win a legal malpractice case must also demonstrate a causal

relationship between that negligence and a harm that it suffered. NACEPF is unable to satisfy

this second requirement. NACEPF may have been a deserving applicant for the ITFS channels,

but so was CCSD. The Commission followed the precedent it was required to follow, and the

Court will not hold its decision to be arbitrary and capricious merely because it analyzed the

competing interests in a way that displeased plaintiff. NACEPF waived several arguments by

failing to bring them up in front of the Commission, and the Court is nevertheless convinced that

it would not have prevailed in front of the Circuit with the arguments it had at its disposal. After

17 careful consideration of the parties’ filings, the applicable law, and the record herein, the Court

grants defendants’ motion for partial dismissal, and denies plaintiff’s motion for partial summary

judgment. All of plaintiff’s claims arising out of the Las Vegas ITSF application are dismissed,

and plaintiff’s objections to the magistrate’s Report and Recommendation are overruled.

A separate Order consistent with these findings shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on August 5, 2011.

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