United States Court of Appeals 
For the First Circuit 
_____________________ 
No. 15-1584 
 
BARRY P. LUNDERVILLE, 
 
Petitioner, 
 
v. 
 
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES, 
 
Respondents. 
 
__________________ 
 
Before 
 
Torruella, Lynch and Barron, 
Circuit Judges. 
__________________   
  JUDGMENT 
 
Entered: March 16, 2017  
 
 Barry P. Lunderville was one of a number of parties who participated in an auction of radio 
licenses held under the auspices of the Wireless Telecommunications Bureau (WTB) of the Federal 
Communications Commission (FCC) in 2004.  Lunderville and several other bidders withdrew 
their bids while the auction was ongoing.  These withdrawals subjected each of them to liability 
for the difference between their bid on a license and the price for which that license would 
ultimately sell.  One of these bid-withdrawing parties, Advance Acquisition, Inc., succeeded in 
obtaining from the WTB a waiver of nearly all of its overbid liability.  In the Matter of Advance 
Acquisition, Inc., DA 07-34367 (Oct. 22, 2007).  Lunderville and some other parties who had 
withdrawn bids then requested the same consideration from the WTB, but the WTB denied their 
requests because their overbids were not as extreme as Advance Acquisition's.  In the Matter of 
Barry P. Lunderville, et al, DA 08-1581 (July 2, 2008). 
 
 Lunderville was among those who requested reconsideration by the WTB.  Rather than 
being decided by the WTB, the reconsideration request was taken up by the Commissioners of the 
FCC.  The Commissioners decided that the WTB's decision in DA 07-34367 had been in error, 
and that waiver of overbid liability for withdrawn bids should not have been made available to 
Advance Acquisition or any of the other parties.  In the Matter of Barry P. Lunderville, et al, FCC 
13-7 (January 14, 2013).  Lunderville made a lone request for "reconsideration" by the FCC.  He 
Case: 15-1584     Document: 00117130201     Page: 1      Date Filed: 03/16/2017      Entry ID: 6076733
  
argued that, as a matter of legal fairness and constitutional right, he should not be barred from 
obtaining the same relief that Advance Acquisition had already been afforded.  The FCC rejected 
his arguments and denied reconsideration.  In the Matter of Barry P. Lunderville, FCC 15-48 (April 
17, 2015).  This petition for judicial review followed. 
 
 The parties contest jurisdiction over this appeal because it is taken from an order by the 
FCC denominated as a denial of "reconsideration."  See I.C.C. v. Brotherhood of Locomotive 
Engineers, 482 U.S. 270, 279 (1987)(holding against jurisdiction over agency's denial of motion 
for reconsideration based on claim of "material error").  Because Lunderville's request for 
"reconsideration" was his initial response to the Commissioners taking up, sua sponte, his request 
before the WTB and holding that the WTB's decision in Advance Acquisition was overruled as 
erroneous, there is reason to question whether this case is controlled by Locomotive Engineers. 
 
 Assuming without deciding that the matter is properly before the court, the merits of 
Lunderville's claim are still unavailing.  Lunderville did not suffer invidious discrimination in 
comparison to Advance Acquisition.  Lunderville did not make or withdraw his bid in reliance on 
the type of relief Advance Acquisition obtained, which was only afforded by the WTB after the 
auction was over.  Lunderville can do no more than cite Advance Acquisition as having received 
a kind of windfall because the WTB waived most of its overbid liability in DA 07-4367, and 
because the FCC Commissioners did not have occasion to claw back this windfall before 
identifying it as error in their holding in FCC 13-7.  Lunderville has not identified precedent 
suggesting that these are grounds for a viable claim on the basis of constitutional Equal Protection 
or any other provision of law. 
 
 The petition for judicial review is denied 
      
By the Court: 
 
       /s/ Margaret Carter, Clerk 
 
 
 
 
cc: Barry P. Lunderville 
Jacob Matthew Lewis 
David M. Gossett 
Scott M. Noveck 
Robert B. Nicholson 
Steven J. Mintz 
 
 
Case: 15-1584     Document: 00117130201     Page: 2      Date Filed: 03/16/2017      Entry ID: 6076733