No. 17-1058 In the Supreme Court of the United States SNR WIRELESS LICENSECO, ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION NOEL J. FRANCISCO THOMAS M. JOHNSON, JR. Solicitor General General Counsel Counsel of Record DAVID M. GOSSETT Department of Justice Deputy General Counsel Washington, D.C. 20530-0001 JACOB M. LEWIS SupremeCtBriefs@usdoj.gov Associate General Counsel (202) 514-2217 MAUREEN K. FLOOD Counsel Federal Communications Commission Washington, D.C. 20554 QUESTION PRESENTED Federal Communications Commission (FCC) regula- tions governing a 2014 auction for wireless-spectrum licenses permitted certain  very small business[es] with less than $15 million in annual revenue, 47 C.F.R. 27.1106(a)(2), to obtain bidding credits that gave appli- cants that won a bid a discount in the payment needed to secure a license. In determining an applicant s annual revenues, the regulations attributed to an appli- cant seeking such credits the revenues of certain affili- ates, including other entities that have de facto control over the applicant. Petitioners two newly formed companies each 85% owned by DISH Network Corpo- ration (DISH), a company with $13 billion in annual revenues participated in the auction and provisionally won hundreds of licenses worth billions of dollars. Together they claimed very-small-business credits to discount the amount they owed by more than $3 billion. Applying existing regulations and guidance, and based on a review of numerous agreements entered into between each petitioner and DISH, the FCC determined that DISH had de facto control over petitioners, rendering petitioners ineligible for the very-small-business bidding credits they claimed. The court of appeals upheld that determination. The question presented is as follows: Whether petitioners had fair notice that the FCC would view the circumstances of petitioners agree- ments with DISH as demonstrating that DISH had de facto control of petitioners, rendering petitioners ineligible for very-small-business bidding credits. (I) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 2 Argument ..................................................................................... 20 Conclusion ................................................................................... 32 TABLE OF AUTHORITIES Cases: Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012)........................................................ 23, 24 Comcast Cable Commc ns, LLC v. FCC, 717 F.3d 982 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 1287 (2014) ................................ 11 Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) .............................. 11, 17, 26 Diamond Roofing Co. v. Occupational Safety & Heath Review Comm n, 528 F.2d 645 (5th Cir. 1976) ............................................... 28 Dravo Corp. v. Occupational Safety & Health Review Comm n, 613 F.2d 1227 (3d Cir. 1980) ................ 23 ECM BioFilms, Inc. v. FTC, 851 F.3d 599 (6th Cir. 2017) ............................................... 28 Employer Solutions Staffing Grp. II, LLC v. Office of Chief Admin. Hearing Officer, 833 F.3d 480 (5th Cir. 2016) ............................................... 29 FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012)........................................................ 23, 24 FTC v. Wyndham Worldwide Corp., 799 F.3d 236 (3d Cir. 2015) .......................................... 27, 29 Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965 (D.C. Cir. 1999) ............................................... 2 (III) IV Cases Continued: Page Gates & Fox Co. v. Occupational Safety & Health Review Comm n, 790 F.2d 154 (D.C. Cir. 1986) .............. 28 General Elec. Co. v. U.S. E.P.A., 53 F.3d 1324 (D.C. Cir. 1995) ........................... 18, 22, 27, 28 Georgia Pac. Corp. v. Occupational Safety & Health Review Comm n, 25 F.3d 999 (11th Cir. 1994) ............................................... 28 NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008) ............................................. 31 Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148 (2d Cir. 1999) ................................................ 29 Rollins Envtl. Servs. (NJ) Inc. v. U.S. E.P.A., 937 F.2d 649, 654 (D.C. Cir. 1991) ..................................... 31 SEC v. Chenery Corp., 332 U.S. 194 (1947) ................... 24, 25 St. Joe Minerals Corp. v. Occupational Safety & Health Review Comm n, 647 F.2d 840 (8th Cir. 1981) ............................................... 28 Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618 (D.C. Cir. 2000) ................................. 18, 27, 28 United States v. AMC Entm t, Inc., 549 F.3d 760 (9th Cir. 2008) ............................................... 30 United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976 (9th Cir. 2008) ......................... 28 United States v. Hoechst Celanese Corp., 128 F.3d 216 (4th Cir. 1997), cert. denied, 524 U.S. 952 (1998) ................................. 28, 30 United States v. Lachman, 387 F.3d 42 (1st Cir. 2004) ................................................. 27 Walker Stone Co. v. Secretary of Labor, 156 F.3d 1076 (10th Cir. 1998) ........................................... 29 Wisconsin Res. Prot. Council v. Flambeau Mining Co., 727 F.3d 700 (7th Cir. 2013) ................................. 27, 29 Wisniewski v. United States, 353 U.S. 901 (1957) ............. 31 V Statutes and regulations: Page Americans with Disabilities Act, 42 U.S.C. 12181 et seq. ........................................................ 30 Communications Act of 1934, 47 U.S.C. 151 et seq. .......................................................... 2 47 U.S.C. 307 ...................................................................... 2 47 U.S.C. 309 ...................................................................... 2 47 U.S.C. 309( j)(1) ............................................................. 2 47 U.S.C. 309( j)(3) ....................................................... 2, 12 47 U.S.C. 309( j)(3)(A) ....................................................... 2 47 U.S.C. 309( j)(3)(B) ....................................................... 2 47 U.S.C. 309( j)(3)(D) ....................................................... 2 47 U.S.C. 309( j)(3)(E) ....................................................... 2 47 U.S.C. 309( j)(3)-(4) ....................................................... 2 47 U.S.C. 309( j)(4)(D) ....................................................... 2 47 U.S.C. 309( j)(4)(E) ....................................................... 4 47 C.F.R.: Section 1.2104(g)(2) ......................................................... 12 Section 1.2107(c) ................................................................ 5 Section 1.2109(b) .............................................................. 12 Section 1.2110 .............................................................. 7, 12 Section 1.2110(a) ................................................................ 3 Section 1.2110(b)(1)(i) ....................................................... 3 Section 1.2110(c)(2)(ii)(H) ..................................... 3, 13, 16 Section 1.2110(c)(2)(ii)(H)(1) .................................... 10, 26 Section 1.2110(c)(5) ........................................................... 3 Section 1.2110(f )(1) ........................................................... 3 Section 1.2110(f )(2)(ii) ...................................................... 5 Section 1.2110(f )(2)(iii) ..................................................... 5 Section 1.2110( j) ................................................................ 6 Section 1.2111(d) (2014) .................................................... 4 Section 27.1106 .................................................................. 3 VI Regulation Continued: Page Section 27.1106(a) .............................................................. 5 Miscellaneous: Amendment of Part I of the Commission s Rules Competitive Bidding Procedures, In re, 15 FCC Rcd 15,293, amended, 15 FCC Rcd 21,520 (2000) ............................... 3 Application of Baker Creek Communications, L.P., 13 FCC Rcd 18,709 (1998) .................................................... 6 Application of ClearComm, L.P., In re, 16 FCC Rcd 18,627 (2001) .............................................. 19 Auction of Advanced Wireless Services (AWS-3) Licenses Scheduled for November 13, 2014, 29 FCC Rcd 8386 (2014) ............................................. 5, 6, 12 Implementation of Section 309( j) of the Communi- cations Act Competitive Bidding, In re, 10 FCC Rcd 403 (1994) .......................... 3, 4, 9, 16, 26 Nonbroadcast & General Action Report No. 1142, 12 F.C.C 2d 559 (1963) ............................................... 3, 4, 25 SEC: Form 8-K of DISH Network Corp., SEC File No. 0-26176 (Apr. 4, 2018) ........................ 21 Form 8-K of DISH DBS Corp., SEC File No. 333-31929 (Apr. 4, 2018) .................... 21 In the Supreme Court of the United States No. 17-1058 SNR WIRELESS LICENSECO, ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-50a) is reported at 868 F.3d 1021. The sealed opinion and order of the Federal Communications Commission (Pet. Supp. App. 218a-382a) is unreported; a public, redacted form of that opinion and order (Pet. App. 53a-217a) is reported at 30 FCC Rcd 8887. JURISDICTION The judgment of the court of appeals was entered on August 29, 2017. On November 21, 2017, the Chief Jus- tice extended the time within which to file a petition for a writ of certiorari to and including January 26, 2018, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) 2 STATEMENT 1. a. The Communications Act of 1934, 47 U.S.C. 151 et seq., authorizes the Federal Communications Commis- sion (FCC or Commission) to award licenses to use elec- tromagnetic spectrum to provide communications ser- vices. See 47 U.S.C. 307, 309. Since 1993, the Act has required the FCC to award most spectrum licenses  through a system of competitive bidding, i.e., by auc- tion. 47 U.S.C. 309( j)(1). Congress directed the Commission to adopt regula- tions addressing  eligibility and other characteristics of auctioned licenses as well as auction  methodologies and procedures. 47 U.S.C. 309( j)(3). The Act requires the FCC s rules to  balance a number of potentially conflicting objectives. Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C. Cir. 1999); see 47 U.S.C. 309( j)(3)-(4). The FCC must seek (inter alia) to promote  efficient and inten- sive use of the electromagnetic spectrum and the  devel- opment and rapid deployment of new technologies, prod- ucts, and services. 47 U.S.C. 309( j)(3)(A) and (D). It must also  promot[e] economic opportunity and competition * * * by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minor- ity groups and women, 47 U.S.C. 309( j)(3)(B), and  ensure that such applicants  are given the opportunity to participate in the provision of spectrum-based services, 47 U.S.C. 309( j)(4)(D). To that end, Congress directed the FCC to  consider the use of tax certificates, bidding pref- erences, and other procedures. Ibid. Congress also instructed the Commission to  require such transfer dis- closures and antitrafficking restrictions and payment schedules as may be necessary to prevent unjust enrich- ment through auctions. 47 U.S.C. 309( j)(3)(E). 3 b. To promote participation in spectrum actions by small businesses and other  designated entities listed in the statute, the FCC has adopted regulations making such entities eligible for bidding preferences called  bidding credits. 47 C.F.R. 1.2110(a) and (f )(1); see 47 C.F.R. 27.1106. Bidding credits are  discounts that may be used to cover part of the cost of any licenses that eligible designated entities win. Pet. App. 5a. For exam- ple, if a designated entity s winning bid is $5,000,000, and it qualifies for a 20% bidding credit, it would be required to pay $4,000,000 for the license. To be eligible for a bidding credit as a small business, an applicant must demonstrate that its gross revenues, in combination with those of its  attributable interest hold- ers, fall below auction-specific or service-specific limits. In re Amendment of Part I of the Commission s Rules Competitive Bidding Procedures, 15 FCC Rcd 15,293, 15,323-15,324 (¶¶ 59-60), amended, 15 FCC Rcd 21,520 (2000); see 47 C.F.R. 1.2110(b)(1)(i). The regulations attribute to an applicant the revenues of certain other entities, including (1) any entity that manages the opera- tions of an applicant or licensee pursuant to a  manage- ment agreement that gives the entity authority to  make decisions or  engage in practices that  determine, or sig- nificantly influence, the  nature or type of services offered by such an applicant, 47 C.F.R. 1.2110(c)(2)(ii)(H); and (2) any entity with de facto or de jure control of the appli- cant, which is deemed an  affiliate, 47 C.F.R. 1.2110(c)(5). In 1994, the FCC explained that management agree- ments between designated entities and their investors would be evaluated under the factors for examining con- trol previously articulated in Nonbroadcast & General Action Report No. 1142, 12 F.C.C. 2d 559 (1963) (Inter- mountain Microwave). See In re Implementation of 4 Section 309( j) of the Communications Act Competi- tive Bidding, 10 FCC Rcd 403, 449-450 (¶ 83) (1994) (Fifth MO&O). The Fifth MO&O explained that, under Intermountain Microwave, the potential for one entity to control another is assessed based on six factors: (1) unfettered use of licensed facilities and equip- ment; (2) day-to-day operation and control; (3) deter- mination of and carrying out of policy decisions; (4) employment, supervision, and dismissal of per- sonnel; (5) payment of financial obligations; and (6) receipt of profits from operation of the licensed facilities. Ibid. (discussing Intermountain Microwave, 12 F.C.C. 2d at 560). The Fifth MO&O further explained that  agree- ments between designated entities and strategic investors that involve terms (such as management contracts com- bined with rights of first refusal, loans, puts, etc.) that cumulatively are designed financially to force the desig- nated entity into a sale (or major refinancing) will consti- tute a transfer of control under our rules. Id. at 456 (¶ 96). The FCC emphasized that, in evaluating control, its  concerns are greatly increased when a single entity provides most of the capital and management services and is the beneficiary of the investor protections. Ibid. To  prevent unjust enrichment of non-designated entities, 47 U.S.C. 309( j)(4)(E), the FCC s rules require a designated entity that obtains a license using a bidding credit to retain its license for five years. 47 C.F.R. 1.2111(d) (2014). This is known as the unjust-enrichment period. If a designated entity that utilized a bidding credit transfers or assigns its license to a non-designated entity within that period, it must repay to the FCC all or part of its bidding credits. Ibid. 5 2. a. In May 2014, the FCC announced that it would conduct an auction (Auction 97) to award more than 1600 licenses in a spectrum band allocated to certain advanced wireless services. In July 2014, the Commis- sion s Wireless Telecommunication Bureau announced procedures for the auction. See Auction of Advanced Wireless Services (AWS-3) Licenses Scheduled for November 13, 2014, 29 FCC Rcd 8386 (2014) (Procedures Notice). The Procedures Notice explained that small businesses would be eligible for bidding credits, and that the size of the credits would depend on the amount of the designated entities attributable revenues during the pre- ceding three years. Id. at 8411-8412 (¶¶ 80, 82). Entities with less than $40 million in attributable revenues ( small businesses ) could receive a 15% discount, and those with less than $15 million in attributable revenues ( very small businesses ) could receive a 25% discount. 47 C.F.R. 27.1106(a); see Procedures Notice, 29 FCC Rcd at 8412 (¶ 82); 47 C.F.R. 1.2110(f )(2)(ii) and (iii). The Procedures Notice further explained that, con- sistent with past practice, the FCC would conduct the auction using a two-step process. 29 FCC Rcd at 8407 (¶ 63). First, before bidding began, any entity seeking to participate would submit a  streamlined, short-form application certifying its eligibility. Ibid. Second, at the conclusion of bidding, each winning bidder would be required to submit a  long-form application along with an  ownership disclosure information report and sup- porting materials. Ibid. The long-form application is used to evaluate whether the entity is qualified to hold a spectrum license. 47 C.F.R. 1.2107(c). A provisionally winning bidder that claims a bidding credit must pro- vide information justifying its eligibility for the credit and file with its long-form application a copy of each 6 agreement  affect[ing] its  designated entity status, including  partnership agreements, shareholder agree- ments, and  management agreements. 47 C.F.R. 1.2110( j). The FCC advised applicants to  review care- fully the Commission s decisions regarding the desig- nated entity provisions, specifically directing parties to consult Intermountain Microwave and In re Appli- cation of Baker Creek Communications, L.P., 13 FCC Rcd 18,709 (1998),  [f ]or further guidance on the issue of de facto control. Procedures Notice, 29 FCC Rcd at 8411 (¶ 79), 8412 n.151. b. Auction 97 began on November 13, 2014. The auction ultimately raised more than $40 billion from 31 winning bid- ders, including petitioners SNR Wireless LicenseCo, LLC (SNR) and Northstar Wireless, LLC (Northstar). Pet. App. 8a-9a. SNR submitted provisionally winning bids for 357 licenses totaling approximately $5.48 billion, but it claimed a 25% very-small-business bidding credit of $1.37 billion, reducing its net bids to $4.11 billion. See id. at 9a. Northstar submitted provisionally winning bids for 345 licenses totaling approximately $7.85 billion, but it claimed a very-small-business bidding credit of $1.96 billion, reduc- ing its net bids to $5.88 billion. See ibid. Together petition- ers claimed combined very-small-business discounts of more than $3.33 billion. Petitioners filed their long-form applications for the licenses they had provisionally won. Pet. App. 9a. Those applications reflected that both petitioners had been established less than three months before Auction 97 commenced,  ha[d] no officers or directors, id. at 67a, 69a, and reported  average gross revenues of $399,566 and zero, respectively, over the past three years. Id. at 105a; see id. at 68a-69a. Petitioners stated that they had acquired the capital required to 7 pay their winning bids from DISH Network Corpora- tion (DISH), a  Fortune 250 company, id. at 200a, that had average annual gross revenues of $13 billion in the three years preceding Auction 97. Id. at 56a-57a. In exchange for its investments in petitioners, DISH had acquired a non-controlling 85% equity interest in each company. Id. at 67a, 69a. Each petitioner also had entered into numerous agreements with DISH, includ- ing management-services agreements, credit agree- ments, and joint-bidding agreements. Id. at 72a-73a. In their applications, however,  neither SNR nor Northstar attributed DISH s revenues to itself,  and each Appli- cant certified that it was eligible for a 25 percent very small business bidding credit. Id. at 67a. 3. Several entities petitioned the FCC to deny peti- tioners claimed very-small-business bidding credits because of their relationships with DISH. Pet. App. 83a-84a. Based on a comprehensive review of petition- ers agreements with DISH and the circumstances sur- rounding their participation in Auction 97, the FCC unanimously denied the bidding credits. Id. at 102a-103a; see id. at 103a-178a, 198a-208a; see also id. at 209a-217a (separate statements of Commissioners Clyburn, Pai, and O Rielly). a. The Commission determined that, for  two sepa- rate and independent reasons, DISH was a  control- ling entity of, or affiliated with, petitioners under 47 C.F.R. 1.2110. Pet. App. 102a. i. The FCC found that  DISH ha[d] de facto control of petitioners under the multi-factor analysis explained in the Fifth MO&O and Intermountain Microwave, consid- ering the  totality of the circumstances surrounding their participation in Auction 97 and the plans for operations after grant of the licenses as reflected in their numerous 8 agreements with DISH. Pet. App. 102a-103a; see id. at 111a-178a. The FCC determined that, under petitioners agreements, DISH  dominates the financial aspects of SNR s and Northstar s businesses. Id. at 138a. It noted that DISH had paid 98% of petitioners winning bids in Auction 97 and had  further agreed to provide all future funds for build-out and working capital. Ibid.; id. at 79a-80a. Petitioners also  lack[ed] authority to raise cap- ital from other sources  without DISH s consent. Id. at 138a-139a; id. at 79a-80a. The FCC further found that the agreements afforded DISH  19 wide-ranging investor protections that  go well beyond  typical protections  for a purely financial investor that does not intend to con- trol the day-to-day operations of the company in which it has invested. Id. at 118a-119a; id. at 111a-124a. For example, petitioners  [could] not deviate more than ten percent from any line item in an annual budget  such as  office supplies   without DISH s consent. Id. at 120a-121a. The FCC further determined that  DISH controls SNR s and Northstar s daily operations. Pet. App. 124a. For each petitioner, the relevant agreement des- ignated a DISH subsidiary as the operations manager, with authority over virtually all the  key functions of a wireless network licensee, including:  engineering and construction of the network; billing and collection ser- vices; marketing, sales, advertising, and promotion; and the provision of  essential services, such as 911. Id. at 174a. Petitioners could fire the operations manager only (A) for cause through  a complex, costly, and lengthy process or (B) with 12 months notice subject to substantial financial penalties. Id. at 130a-131a. The FCC also observed that  any profits that [were] generated from the businesses  w[ould] only accrue to 9 DISH. Pet. App. 143a. Under their agreements with DISH,  SNR and Northstar must first repay * * * billions of dollars in loans before  realizing any profits from their business operations. Id. at 141a-142a. Petitioners only income comes from a modest annual management fee, which the FCC concluded was  hardly sufficient to support the number of management, finan- cial, and technical employees * * * required to  con- struct and operate a wireless telecommunications net- work spanning the nation. Id. at 129a; id. at 133a-135a, 143a-144a. The Commission found especially troubling the fact that the agreements were  cumulatively * * * designed to force [SNR and Northstar] into a sale to DISH imme- diately after the unjust-enrichment period expires. Pet. App. 154a-155a (quoting Fifth MO&O, 10 FCC Rcd at 456 (¶ 96)). The agreements precluded petitioners from transferring their interests during the first ten years of operation without DISH s consent. Id. at 150a-151a. They also contained a  put option that allows petition- ers to require DISH to buy out petitioners interests but only during a 30-day window at the end of the fifth year, when the unjust-enrichment period ends. Id. at 151a-155a. If petitioners do not exercise that option, they must repay their multibillion-dollar loans from DISH by the end of the seventh year. Id. at 153a-154a. The FCC concluded that those  repayment terms would  be difficult, if not impossible, to manage unless [petition- ers] exercise their put option. Id. at 154a-155a. The FCC also found that the  bidding conduct of petitioners and DISH in Auction 97, pursuant to joint- bidding agreements entered into in advance,  corrobo- rate[d] [the FCC s] determination of de facto control. 10 Pet. App. 59a; see id. at 157a-164a. While acknowledg- ing that the use of such agreements  is not inherently indicative of de facto control, the Commission found that  the behavior exhibited by the parties during the actual bidding pursuant to those agreements  demon- strate[d] that DISH was in control of all three compa- nies who worked jointly to advance DISH s interests. Id. at 157a, 159a. The FCC observed that, during the auction, petitioners had participated in daily conference calls with a DISH executive who could veto their bid- ding decisions, and that in many instances petitioners had placed identical bids for the same licenses. Id. at 159a, 161a. In addition, the FCC identified at least one instance in which SNR had withdrawn a provisionally winning bid (incurring a penalty of $11 million), causing Northstar to become the provisional winner (with a bid that was $11 million lower). Id. at 160a. That  switch added $11 million to SNR s balance sheet to the detri- ment of its non-DISH owners, but  it was an economic  wash to the combined [petitioners], and therefore their common owner, DISH. Ibid. ii. As  [a] separate and independent legal basis for con- cluding that SNR and Northstar are not eligible for the very small business bidding credits that they s[ought], the Commission found that  DISH ha[d] the  authority to make decisions or otherwise * * * determine, or signifi- cantly influence . . . the nature and types of services [petitioners] offered,  rendering DISH an affiliate un- der 47 C.F.R. 1.2110(c)(2)(ii)(H)(1). Pet. App. 173a (brackets and citation omitted). The FCC found that peti- tioners agreements particularly the management- services agreements, under  which DISH w[ould] manage the build-out and day-to-day operations of  petitioners  operate[d] to limit substantially the ability of [petitioners] 11 to retain personnel to provide such functions and establish a financial dependency upon DISH as the Operations Man- ager. Id. at 173a-174a. The Commission acknowledged that the agreements purported to preserve petitioners right to  determine the nature and type of services offered. Id. at 174a (citation omitted). But it concluded that,  in the context of the economic realities of these transactions, other contractual provisions between the parties negate[d] that provision, and  at a minimum g[ave] DISH the authority to  significantly influence these determinations. Ibid. (citation omitted). b. The Commission rejected petitioners contention that they were entitled to bidding credits because the FCC s Wireless Bureau had previously granted licenses to entities that entered allegedly similar agreements. Pet. App. 170a-172a. The Commission observed that petitioners had not identified  any reported decisions in which the Commission staff [,] much less the Commis- sion, had endorsed the arrangements petitioners had made. Id. at 171a. It explained that none of the decisions petitioners cited  ha[d] articulated any basis to con- strue the FCC s rules  to permit the coupling of  the aspects petitioners agreements had in common with pre- viously approved applications  with the kind of extensive  investor protections and management responsibilities vested in DISH that are present here. Ibid. The Com- mission additionally observed that,  [t]o the extent any prior actions of Commission staff could be read to be inconsistent with [the FCC s] interpretation of the Com- mission s rules in this order, such staff decisions  are not binding on the Commission. Id. at 172a n.354 (citing Comcast Cable Commc ns, LLC v. FCC, 717 F.3d 982, 1002 (D.C. Cir. 2013) (Edwards, J., concurring), cert. denied, 134 S. Ct. 1287 (2014), and Comcast Corp. v. FCC, 12 526 F.3d 763, 769 (D.C. Cir. 2008)). To the extent such decisions existed, the FCC  disavow[ed] them as incon- sistent with 47 U.S.C. 309( j)(3), 47 C.F.R. 1.2110, and Commission precedent including the Fifth MO&O. Pet. App. 172a n.354. The Commission also denied petitioners request for an additional opportunity to amend their agreements to cure the contractual terms that gave DISH de facto con- trol. Pet. App. 198a n.431. The FCC explained that petitioners had already been allowed to amend their ap- plications on numerous occasions, and that,  [i]n any event, granting petitioners request  would likely pro- mote disincentives to the structuring of investments that adhere in the first instance to the limitations of [the agency s control] rules. Ibid. c. The FCC attributed DISH s revenues to petition- ers, rendering them ineligible for the approximately $3.33 billion in very-small-business bidding credits they claimed. Pet. App. 151a. Under the FCC s rules, when an auction participant places a bid, it assumes a binding obligation to pay the full amount of its accepted winning bid, even if it is denied a requested bidding credit. 47 C.F.R. 1.2104(g)(2); Procedures Notice, 29 FCC Rcd at 8445 (¶ 214). A bidder who reneges on that obligation is subject to a default payment. 47 C.F.R. 1.2104(g)(2), 1.2109(b). The Commission accordingly directed peti- tioners to pay the value of the bidding credits, i.e., to pay the full amounts of the gross bids they had won. Pet. App. 205a-206a. Petitioners notified the Commission that they would pay the full bid amounts (i.e., without receiving bidding credits) for some of the licenses they had won in Auction 97 but would default on their bids for the remainder. 13 Pet. App. 11a. The precise amount of the default pay- ments petitioners owed would depend on the winning prices for which those licenses were re-auctioned. Id. at 12a. The Wireless Bureau notified SNR and Northstar that they owed interim default payments of approxi- mately $181 million and $334 million, respectively. 30 FCC Rcd 10,700 (2015) (Northstar); 30 FCC Rcd 10,704 (2015) (SNR). Petitioners made those payments, and on October 27, 2015, the Wireless Bureau granted pe- titioners applications for the retained licenses. 30 FCC Rcd 11,622 (2015). 4. Petitioners filed petitions for review in the United States Court of Appeals for the District of Columbia Circuit. Pet. App. 12a. The court upheld the FCC s determination that petitioners were ineligible for very- small-business bidding credits. Id. at 12a-43a. The court further held, however, that although petitioners had received fair notice that their bidding credits could be denied, petitioners had not received fair notice that, if the credits were denied, petitioners would have no opportunity to renegotiate their agreements with DISH to cure the de facto control problem. Id. at 43a-50a. It remanded the proceedings to the FCC to provide peti- tioners that opportunity. Id. at 50a. a. The court of appeals rejected petitioners conten- tion that the FCC had departed without explanation from agency precedent when it held that petitioners were ineligible for bidding credits. Pet. App. 12a-43a. It observed that  petitioners d[id] not dispute the authori- tative guidance provided by Intermountain Micro- wave, the Fifth MO&O, and Section 1.2110(c)(2)(ii)(H). Id. at 26a. The court held that,  [f ]ar from ignoring Commission decisions, the FCC reasonably interpreted 14 and applied them when it determined that DISH had de facto control over SNR and Northstar. Id. at 13a. i. The court of appeals examined the Commission s consideration of each of the six Intermountain Micro- wave factors and concluded that the Commission s  application of them here  was reasonable and con- sistent with existing law. Pet. App. 22a; id. at 15a-22a. First, the court held that the FCC had reasonably  found that DISH had control over [petitioners ] daily operations, based on the FCC s detailed findings regarding the management-services agreements. Id. at 16a (citing id. at 77a-78a, 126a-129a). Second, the court held that the FCC had reasonably  determined that SNR and Northstar had little control over their employ- ment decisions, noting that the nominal rights petition- ers had to hire employees were  illusory given the severe, built-in budgetary limitations. Id. at 17a-18a (citing id. at 133a-137a). Third, the court deferred to the FCC s finding that petitioners  did not have  unfet- tered access to their facilities and equipment,  noting that the agreements  barred [petitioners] from using their facilities to provide any service that was incompat- ible with DISH s service, even though DISH had not  specified the service it planned to develop. Id. at 18a-19a (quoting id. at 164a). Fourth, the court of appeals held that the FCC had reasonably found that DISH  dominated the financial aspects of SNR s and Northstar s businesses for the reasons the Commission had identified. Pet. App. 20a (brackets and citation omitted). Fifth, the court affirmed the FCC s finding that the  allocation of prof- its from [petitioners ] business  firmly raise[d] the spec- ter of control,  agreeing with the FCC s assessment that the  extensive construction petitioners  would 15 need to undertake before  providing wireless service made it  very unlikely they would  be able to repay th[eir] loans and begin earning profits. Id. at 20a-21a (quoting id. at 142a) (second set of brackets in original). Sixth, the court held that the FCC had reasonably  con- cluded that DISH made every essential policy decision for SNR and Northstar s businesses. Id. at 21a. Those included decisions concerning: (a) the type of wireless technology that SNR and Northstar would use; (b) the number of spectrum licenses that SNR and Northstar would hold; (c) the timetable for SNR and Northstar to build networks and begin offering services to customers; (d) when SNR and Northstar might sell their businesses; (e) whether SNR and Northstar could own real prop- erty; and (f ) SNR and Northstar s bidding strategy. Ibid. (citing id. at 145a-164a). The court of appeals therefore determined that,  [d]espite petitioners claims that DISH  is a purely passive investor, the FCC rea- sonably concluded that DISH effectively controlled SNR and Northstar s businesses. Ibid. (citation omitted). The court of appeals further  conclude[d] that the Fifth MO&O clearly presaged the FCC s de facto con- trol finding, and that the FCC applied the Fifth MO&O in a reasonable manner here. Pet. App. 25a; see id. at 22a-25a. The court explained that, in the Fifth MO&O, the Commission had  specifie[d] that, when an investor  financially . . . forces a small company  into a sale (or major refinancing), the investor s conduct effects  a transfer of control.  Id. at 23a (brackets and citation omitted). The court quoted an illustrative example pro- vided in the Fifth MO&O, in which the Commission had explained that it might find de facto control where an 16  investor makes debt financing available to the appli- cant on very favorable terms, and  the designated entity has a one-time put right that is exercisable at a time and under conditions that are designed to maxim- ize the incentive of the licensee to sell. Id. at 25a (quot- ing 10 FCC Rcd at 455-456 (¶ 95)). The court found that example  materially identical to the facts here. Ibid. The FCC had found that petitioners  would be unlikely to be able to build a wireless network and generate enough revenue to repay their multi-billion dollar loans to DISH in the time required by their agreements and were barred from borrowing more than $25 million from other sources without DISH s consent. Id. at 23a. The agreements thus  left SNR and Northstar only one path to avoiding certain financial failure : to exercise their put options during the 30-day window at the end of the fifth year. Id. at 24a. The court held that this arrange- ment gave petitioners  every interest in selling their businesses to DISH at the first possible moment. Ibid. ii. The court of appeals also upheld the FCC s finding that DISH was an affiliate of petitioners under 47 C.F.R. 1.2110(c)(2)(ii)(H) because it had authority to  determine, or significantly influence[,] . . . the nature or type of ser- vices offered by the small business. Pet. App. 15a (brack- ets and citation omitted). The court observed that  DISH had authority to limit the wireless technology that SNR and Northstar used and  managed the  build-out and day-to-day operations of both companies, and that  DISH could  significantly influence the  type of service  SNR and Northstar provided for their customers. Ibid. (citing id. at 173a) (brackets omitted). The court  f [ound] nothing unreasonable about the Commission s application of its regulations. Ibid. 17 iii. The court of appeals rejected petitioners conten- tion that the Commission had improperly deviated from two past decisions by the Wireless Bureau approving  designated-entity status to Denali Spectrum and Salmon PCS, license applicants in prior auctions. Pet. App. 26a. The court explained that, under settled prec- edent,  a  lower component of a government agency does not bind the agency as a whole. Id. at 28a-29a (quoting Comcast, 526 F.3d at 769). Here,  [t]he FCC [was] not bound to treat the provisions of agreements filed with a pair of long-form applications, which the Wireless Bureau administratively granted without opinion or any public statement of reasons, as if those provisions established a Commission position from which it could not deviate. Ibid. The court observed that both the Denali and Salmon applications had been decided by FCC staff  with a one-word action and no  opinion or explanation, and the court found no indica- tion that the Commission itself agreed with those staff decisions. Id. at 26a, 29a. The court of appeals further held that, in any event, the Denali and Salmon applications were  materially different from petitioners applications in multiple respects and that  the FCC reasonably found that [petitioners ] relationship [with] DISH manifests impermissible control more plainly. Pet. App. 36a, 40a. The court observed that Denali s  chances of establish- ing a network and turning a profit before it had to start paying back its loans were thus substantially greater than SNR or Northstar s, and that Salmon  had signif- icantly more control and realistic opportunity than SNR or Northstar to build a wireless network and begin col- lecting revenues before its loans were due. Id. at 37a-38a. The court further explained that  SNR and 18 Northstar s bidding behavior was suspicious in ways that Denali s and Salmon s were not. Id. at 39a. b. Petitioners also contended that,  even if the FCC reasonably applied its precedents regarding de facto control, those precedents did not give [petitioners] fair notice either (A) that their arrangements  might be found to [] manifest de facto control or (B) that, if de facto control were found, petitioners would have no opportunity to cure that problem. Pet. App. 43a. The court of appeals explained that  an agency cannot sanc- tion an individual for violating the agency s rules unless the individual had  fair notice of those rules, ibid. (quoting General Elec. Co. v. U.S. E.P.A., 53 F.3d 1324, 1328 (D.C. Cir. 1995)), meaning notice that  allows reg- ulated parties to  identify, with ascertainable certainty, the standards with which the agency expects them to con- form,  ibid. (quoting Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000)) (brackets omitted). Applying that principle, the court of appeals held that petitioners had received fair notice about the de facto control standard. Pet. App. 43a-44a. The court explained that petitioners had  sufficiently clear notice about the test the FCC would apply, and that,  [o]n these facts, for all the reasons set forth in the court s analysis of the merits,  petitioners should reasonably have anticipated that the FCC might find them to be under DISH s de facto control. Id. at 44a-45a. In contrast, the court of appeals found, over the FCC s objection, that petitioners  lacked reasonable no- tice that, in the event it found de facto control, the Com- mission would deny them an opportunity to cure that problem by modifying the arrangements with DISH. Pet. App. 45a. The court stated that  [t]he foreseeable 19 adequacy of the legal and factual grounds for the Com- mission s determination that these arrangements mani- fest DISH s de facto control over petitioners did not also make clear that such a control determination and its con- sequent penalties would be non-negotiable. Id. at 44a, 47a. The court cited an earlier Wireless Bureau decision which the court viewed as having been en- dorsed by the Commission because it had been cited in an appendix to a prior FCC rulemaking order in which FCC staff had permitted an opportunity for cure. Id. at 47a-48a (citing In re Application of ClearComm, L.P., 16 FCC Rcd 18,627 (2001)). The court  conclude[d] that an opportunity for petitioner[s] to renegotiate their agreements with DISH provide[d] the appropriate rem- edy, and it remanded to the FCC to provide that oppor- tunity. Id. at 50a. 5. On remand, the Wireless Bureau issued an order  to establish a procedure to afford [petitioners] the opportunity to cure their Auction 97 applications. 33 FCC Rcd 231, 231 (¶ 1) (2018). The order gave peti- tioners 90 days  to renegotiate their respective agree- ments with DISH and  to file the necessary documen- tation with the FCC showing that they qualify for the credits. Id. at 232 (¶ 5). Petitioners deadline has since been extended by 45 days, to June 8, 2018. Once their revised applications are filed, others will have 45 days to file comments, and petitioners will have 45 days to negotiate further with DISH and to file amendments to their applications (on which other parties may also com- ment). Id. at 233-234 (¶¶ 7-8). The FCC then will  determine whether either [petitioner] qualifies for the very small business bidding credit it sought in Auction 97. Id. at 234 (¶ 9). 20 ARGUMENT Petitioners contend that the court of appeals erred in upholding the FCC s determination that they were ineligible for very-small-business bidding credits in Auction 97. Even if petitioners had identified a certwor- thy issue, the Court s review would be premature at this time. The court of appeals remanded the matter to the Commission to permit petitioners to attempt to cure the de facto control problem by renegotiating their agree- ments with DISH, and those proceedings are still ongo- ing. In any event, the court of appeals decision is cor- rect and does not conflict with any decision of this Court or another court of appeals. Further review is not war- ranted. 1. Ongoing proceedings on remand to the FCC commenced at petitioners request may eliminate the practical significance in this case of the legal issue peti- tioners raise. In the initial proceedings before the Com- mission, petitioners urged that, if the FCC ruled that they were ineligible for credits, petitioners should be given an opportunity to amend their agreements with DISH to cure the de facto control problem. Pet. App. 198a n.431; see Pet. C.A. Br. 57-58. Petitioners renewed that request in the court of appeals, arguing that, if the court upheld the FCC s determination that they were ineligible for bidding credits,  the case should be remanded to permit Petitioners to obtain bidding cred- its by conforming their agreements to the applicable standards. Pet. C.A. Br. 63; see id. at 56-63; Pet. C.A. Reply Br. 32; Pet. App. 49a. After affirming the FCC s bidding-credit-eligibility decision, the court granted petitioners alternative request for a remand, returning the case to the Commission for further proceedings to afford petitioners the opportunity they had requested 21 to attempt to renegotiate their agreements with DISH. Pet. App. 49a-50a. Those further proceedings before the FCC are now underway, see p. 19, supra, and the process of renegotiation appears to have begun.1 This Court s review therefore would be premature even if the issue petitioners raise otherwise warranted plenary consideration. If petitioners successfully amend their agreements with DISH to eliminate DISH s de facto control and affiliate status, the dispute in this case will have no continuing practical importance. If instead the Commission adheres to its ineligibility finding at the conclusion of the proceedings on remand, petitioners may seek judicial review of that determination. Although petitioners correctly observe (Pet. 31) that the feasibility of  a mutually advantageous amendment * * * remains to be seen, that uncertainty is not a reason to grant review now. Petitioners also contend (ibid.) that they  were entitled to rely on the rules as they were ap- plied at the time of Auction 97, and they appear to sug- gest that they should not be required to pursue proceed- ings on remand before the FCC. But petitioners affirma- tively requested an opportunity to cure the de facto con- trol problem, and they urged the court of appeals to re- mand for that purpose. See p. 20, supra. 1 In publicly available SEC filings, DISH states that it already has terminated the management-services and trademark agreements with petitioners and has amended other agreements with petition- ers. The amended agreements apparently exchange all but $500 million of the debt each petitioner owed to DISH for shares of non- voting preferred stock, delete the obligation for SNR and Northstar to confer on budgets and business plans, and remove the require- ment that petitioners systems be interoperable with those of DISH. See SEC Form 8-K of DISH Network Corp., SEC File No. 0-26176 (Apr. 4, 2018); SEC Form 8-K of DISH DBS Corp., SEC File No. 333-31929 (Apr. 4, 2018). 22 2. This Court s review would not be warranted even if the court of appeals had finally resolved the dispute in the FCC s favor rather than remanding the matter to the Commission. The court of appeals correctly upheld the FCC s determination that petitioners were ineligible for very-small-business bidding credits available to busi- nesses with less than $15 million in annual revenues because they are affiliates of, and subject to de facto con- trol by, a Fortune 250 company with $13 billion in reve- nue that is attributable to petitioners under FCC rules. In this Court, petitioners do not directly challenge the court of appeals conclusion that the FCC reasonably applied its relevant regulations and precedents, nor do they suggest that this holding conflicts with any deci- sion of this Court or another court of appeals. Instead, they challenge (Pet. 22-29) the court of appeals finding that petitioners had fair notice of how the FCC would apply those regulations and precedents to the circum- stances of this case. That contention lacks merit and does not warrant this Court s review. a. In the court of appeals, petitioners argued that they were entitled to  fair notice of the standard the FCC would apply in determining their eligibility for very- small-business bidding credits. Petitioners described the applicable standard as requiring notice sufficient to ensure that  a regulated party acting in good faith would be able to identify, with ascertainable certainty, the standards with which the agency expects the parties to conform. Pet. C.A. Br. 51 (quoting General Elec. Co. v. U.S. E.P.A., 53 F.3d 1324, 1329 (D.C. Cir. 1995)). The court of appeals recited that test verbatim, Pet. App. 43a, and applied it to the circumstances here, id. at 43a-50a. The court determined that,  [o]n these facts, for all the reasons set forth in its detailed analysis of 23 the Commission s application of its regulations and precedents, petitioners  should reasonably have antici- pated that the FCC might find them to be under DISH s de facto control. Id. at 45a. Petitioners challenges to the court s determination (Pet. 22-29) lack merit. i. Petitioners contend (Pet. 22) that the court of appeals applied the  wrong test for fair notice. That contention should be rejected at the threshold because the court applied the test that petitioners advocated. In any event, petitioners fail to show any error in the test the court applied. Petitioners cite no decision of this Court entitling regulated entities to something more than  ascertaina- ble certainty, Pet. App. 43a (citation omitted), about the legal standard an administrative agency will apply. They cite (Pet. 23-25) both Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012), and FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). As peti- tioners acknowledge (Pet. 26), however,  neither Chris- topher nor Fox presented the opportunity to announce an administrative fair notice standard. In Christopher, the Court rejected the Department of Labor s interpretation of its own regulation. See 567 U.S. at 153-169. The Court addressed fair-notice concerns not as a freestanding basis for rejecting the Department s position, but only in determining whether to give deference to the Department s interpretation. See id. at 155-159. And even in that context, the Court noted with approval the  ascertainable certainty stand- ard followed by lower courts. Id. at 156 n.15 (quoting Dravo Corp. v. Occupational Safety & Health Review Comm n, 613 F.2d 1227, 1232-1233 (3d Cir. 1980)). The Court in Fox addressed a void-for-vagueness challenge to indecency standards adopted by the FCC. See id. at 24 253-259. Petitioners do not contend that the FCC regula- tions or precedents implicated in this case were unconsti- tutionally vague. In Christopher and Fox, moreover, the Court addressed challenges to liability imposed on private parties. See Christopher, 567 U.S. at 152-153; Fox, 567 U.S. at 247-252. Here, in contrast, the FCC s decision that peti- tioners were ineligible for bidding credits merely de- prived them of a public benefit, i.e., a discount in bidding on spectrum licenses. Although the FCC s decision ini- tially resulted in imposition of default-payment obliga- tions, the court of appeals decision gave petitioners an opportunity to avoid even those obligations by renegoti- ating their agreements with DISH. Even if Christopher and Fox required a heightened degree of notice in the contexts they addressed, it would not follow that the same notice is required in this setting, where petitioners were not penalized for prior conduct but were simply found to be ineligible for a special public benefit. Petitioners appear to suggest (Pet. 26-29) that agen- cies should be required to adopt detailed regulatory standards and should be precluded from resolving open interstitial questions in case-by-case adjudications as the FCC did here in applying its  totality of the circum- stances analysis. Pet. App. 102a. That suggestion con- tradicts the longstanding administrative-law principle that  the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administra- tive agency. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). An agency s decision not to  promulgate a gen- eral rule does not  withdr[aw] all power from that agency to perform its statutory duty  an approach that would  stultify the administrative process. Id. at 25 201-202. For a variety of reasons,  [n]ot every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule, and  the agency must retain power to deal with the problems on a case-to-case basis. Id. at 202-203. ii. Petitioners are also incorrect in suggesting that the court of appeals applied a  lax and  lenient fair- notice standard here. Pet. 18, 22 (capitalization and emphasis omitted). Indeed, although the court held that petitioners had fair notice that their arrangements with DISH could render them ineligible for the bidding credits, it further held that petitioners lacked sufficient notice that, if they were found ineligible for the credits, they would not be given an opportunity to cure that ineligibility by amending those arrangements. Pet. App. 43a-50a. That determination contradicts petition- ers contention that the court failed to apply a  mean- ingful notice standard. Pet. 22; see Pet. 18-19. Petitioners emphasize the court of appeals statement that petitioners  should reasonably have anticipated that the FCC might find them to be under DISH s de facto con- trol. Pet. 2, 13 (quoting Pet. App. 45a). Contrary to petitioners suggestion (Pet. 2), the court did not hold or imply that parties are categorically on notice of anything an agency   might do. Rather, the court found it  suffi- ciently clear and  foreseeable to petitioners that their arrangements with DISH placed them at risk of being found ineligible for bidding credits based on the FCC s existing regulations and precedents. Pet. App. 44a. As the court had already explained, the Commission s deci- sion here was supported by  three different sources of law : the multi-factor analysis of Nonbroadcast & Gen- eral Action Report No. 1142, 12 F.C.C. 2d 559 (1963) 26 (Intermountain Microwave); the FCC s guidance adopt- ing and elucidating that standard in In re Implementa- tion of Section 309( j) of the Communications Act Com- petitive Bidding, 10 FCC Rcd 403, 455-456 (¶ 95) (1994) (Fifth MO&O); and 47 C.F.R. 1.2110(c)(2)(ii)(H)(1). Pet. App. 14a; see id. at 14a-43a. Indeed, the court explained that the Fifth MO&O, which was adopted 20 years before Auction 97 and which included an illustrative example that was  materially identical to the facts here, had  clearly presaged the FCC s de facto control finding in this case. Id. at 25a. Even if isolated language in the court s opinion might be read to suggest a less demanding fair-notice standard, the court s overall analysis and conclusion demonstrate that it did not apply the test petitioners impute to it. iii. Petitioners also argue (Pet. 25-26) that, in deter- mining whether the Commission s decision departed from settled understandings, the court of appeals gave insuffi- cient weight to prior staff-level decisions by the Wireless Bureau. That argument lacks merit. Actions by subordi- nate components of the agency do not bind the agency itself. Pet. App. 29a-35a (citing, inter alia, Comcast Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008)). Petitioners assert (Pet. 25-26) that, regardless of whether staff deci- sions are binding, they inform regulated entities expecta- tions about how the agency will treat similar problems. But regulated entities cannot reasonably assume that the agency will adhere in future cases to prior staff decisions that were unaccompanied by written opinions or analysis. As between extensive, longstanding guidance from the agency and unexplained, non-precedential staff decisions, the former are the far more reliable guide. In any event, the staff-level actions petitioners cited  were different enough that petitioners were on notice that they might be 27 disqualified even where the prior designated-entity appli- cants on which they had sought to model themselves had been approved. Pet. App. 35a-36a; see id. at 35a-41a. b. Petitioners contend (Pet. 13-22) that the courts of appeals have issued conflicting decisions regarding the standard of fair notice that applies to administrative agencies. In fact, the lower courts have applied a sub- stantially uniform standard, and petitioners identify no sound reason to believe that any other circuit would have decided this case differently. i. The court below explained that, in the context of administrative-agency regulation,  [n]otice is fair if it allows regulated parties to  identify, with ascertainable certainty, the standards with which the agency expects [them] to conform.  Pet. App. 43a (citation omitted; second set of brackets in original). The D.C. Circuit has long applied that standard. See, e.g., Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000); General Elec., 53 F.3d at 1329. Every other circuit has adopted either the same test or a close variant. The First, Third, and Seventh Cir- cuits employ the same  ascertainable certainty formu- lation, often citing D.C. Circuit cases.2 And the Sixth 2 See United States v. Lachman, 387 F.3d 42, 57 (1st Cir. 2004); FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 251 (3d Cir. 2015); Wisconsin Res. Prot. Council v. Flambeau Mining Co., 727 F.3d 700, 708 (7th Cir. 2013). 28 and Ninth Circuits standards for fair notice are simi- larly based on D.C. Circuit precedent.3 Four other circuits apply an equivalent standard on which the D.C. Circuit s own test is based. The D.C. Cir- cuit s  ascertainable certainty formulation derives from the Fifth Circuit s seminal decision in Diamond Roofing Co. v. Occupational Safety & Heath Review Commis- sion, 528 F.2d 645, 649 (1976), which referred to an administrative agency s  responsibility to state with ascertainable certainty what is meant by the standards [a regulator] has promulgated. 4 The Fourth, Eighth, and Eleventh Circuits also apply the Diamond Roofing standard.5 Finally, although the Second and Tenth Cir- cuits use slightly different phrasing referring to  ade- quate notice and  fair warning  they apply standards 3 See ECM BioFilms, Inc. v. FTC, 851 F.3d 599, 618 (6th Cir. 2017) (observing that  [t]he D.C. Circuit s  fair notice doctrine * * * restricts the penalties agencies may impose when their regulatory interpretations have not been announced with sufficient clarity (citing General Elec., supra, and Gates & Fox Co. v. Occupational Safety & Health Review Comm n, 790 F.2d 154, 156-157 (D.C. Cir. 1986))); United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir. 2008) ( As the D.C. Circuit has explained,  in the absence of notice for example, where the regula- tion is not sufficiently clear to warn a party about what is expected of it an agency may not deprive a party of property by imposing civil or criminal liability.  (quoting Trinity Broad., 211 F.3d at 628) (brackets omitted)). 4 See, e.g., General Elec., 53 F.3d at 1329 (deriving test from Dia- mond Roofing, supra); Gates & Fox, 790 F.2d at 156 (same). 5 See United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997), cert. denied, 524 U.S. 952 (1998); St. Joe Minerals Corp. v. Occupational Safety & Health Review Comm n, 647 F.2d 840, 846 n.13 (8th Cir. 1981); Georgia Pac. Corp. v. Occupational Safety & Health Review Comm n, 25 F.3d 999, 1005 (11th Cir. 1994) (per curiam). 29 that are essentially the same as, and certainly no more stringent than, the D.C. Circuit s ascertainable-certainty standard.6 Petitioners contend (Pet. 14-18) that decisions of the Third, Fourth, Fifth, Seventh, and Ninth Circuits reflect a more  rigorous fair notice standard[ ]. That is incorrect. In the Fifth and Seventh Circuit decisions petitioners cite, the courts applied the ascertainable- certainty test. See Employer Solutions Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, 833 F.3d 480, 489-490 (5th Cir. 2016); Wisconsin Res. Prot. Council v. Flambeau Mining Co., 727 F.3d 700, 708 (7th Cir. 2013). Petitioners point (Pet. 15) to the Third Circuit s statement that,  where an agency interprets the mean- ing of its own regulation, a  higher standard of fair notice applies. FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 251 (2015). The court there had no occa- sion to apply that standard, which turned on the FTC s interpretation of a federal statute. Id. at 252. Moreo- ver, the  higher standard to which it referred was the same  ascertainable certainty standard that the D.C. Circuit applied here. Ibid; cf. Pet. App. 43a. 6 See Walker Stone Co. v. Secretary of Labor, 156 F.3d 1076, 1083-1084 (10th Cir. 1998) ( In order to satisfy constitutional due process requirements, regulations must be sufficiently specific to give regulated parties adequate notice of the conduct they require or prohibit. (citation omitted)); Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 156 (2d Cir. 1999) ( [R]egulations satisfy due process as long as a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, has fair warning of what the regulations require. ). 30 Petitioners also cite (Pet. 16-17) United States v. Hoechst Celanese Corp., 128 F.3d 216 (1997), cert. denied, 542 U.S. 952 (1998), where the Fourth Circuit relied on Diamond Roofing in holding that the Environ- mental Protection Agency (EPA) had failed to give the owner of a chemical plant fair notice that it was not enti- tled to an exemption from the agency s benzene-emission regulations. The Fourth Circuit explained that it was the court s  [e]xamination of the particular facts of th[at] case that  convince[d it] that * * * [the petitioner] did not have fair notice of the EPA s broad interpretation of the term  use  in the exemption. Id. at 224-225. Finally, petitioners cite (Pet. 15-16) United States v. AMC Entertainment, Inc., 549 F.3d 760 (2008), in which the Ninth Circuit addressed whether a movie- theater chain had adequate notice of its obligation under the Americans with Disabilities Act, 42 U.S.C. 12181 et seq., to provide customers in wheelchairs the same  line of sight as customers without wheelchairs. 549 F.3d at 762. At the time, the courts of appeals had mandated three different viewing angles, and the gov- ernment had not clearly articulated its own interpreta- tion of the line-of-sight obligation. Id. at 768. It was  [a]mid this morass of litigation that the Ninth Circuit  decline[d] to hold that a person of ordinary intelligence should have known * * * that [the regulation] was sus- ceptible only to the interpretation the government now champions. Ibid. That decision does not suggest that the court imposed a fair-notice standard more demand- ing than the ascertainable-certainty test. Indeed, petitioners also observe that other D.C. Cir- cuit decisions have applied a  standard that  accords with those applied by the Third, Fourth, Fifth, Sev- enth, and Ninth Circuits in decisions that petitioners 31 argue are correct. Pet. 19 (citing NetworkIP, LLC v. FCC, 548 F.3d 116, 123 (D.C. Cir. 2008), and Rollins Envtl. Servs. (NJ) Inc. v. U.S. E.P.A., 937 F.2d 649, 654 (D.C. Cir. 1991)). Petitioners assert (Pet. 18-19) that the court below in substance departed from its own precedent by failing to apply a  meaningful test here. Even if that claim of intracircuit conflict had merit, but see pp. 25-27, supra, it would not warrant this Court s review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). ii. In any event, any inconsistency among the courts of appeals articulations of the governing fair-notice stand- ard is not implicated in this case. The court below held that  three different sources of law put petitioners on notice that their agreements with DISH placed them at risk of being found ineligible for very-small-business bid- ding credits. Pet. App. 14a. The court explained in par- ticular that the Fifth MO&O  clearly presaged the Com- mission s determination, providing an example  materi- ally identical to the facts here. Id. at 25a. And the extent of DISH s control far surpassed that in applications for licenses petitioners cited that had previously been approved. Id. at 35a-36a. Petitioners identify no reason to believe that any other court of appeals would have held in these circumstances that petitioners lacked adequate notice of the FCC s requirements for very-small-business bidding credits. 32 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. NOEL J. FRANCISCO THOMAS M. JOHNSON, JR. Solicitor General General Counsel DAVID M. GOSSETT Deputy General Counsel JACOB M. LEWIS Associate General Counsel MAUREEN K. FLOOD Counsel Federal Communications Commission MAY 2018