Case: 19-60896 Document: 00515905664 Page: 1 Date Filed: 06/18/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED June 18, 2021 No. 19-60896 Lyle W. Cayce Clerk Huawei Technologies USA, Incorporated; Huawei Technologies Company, Limited, Petitioners, versus Federal Communications Commission; United States of America, Respondents. On Petition for Review of an Order of the Federal Communications Commission, No. 19-121 Before Elrod, Duncan, and Wilson, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: An FCC rule bars using government subsidies to buy equipment from companies designated security risks to communications networks. See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, 85 Fed. Reg. 230-01 (Jan. 3, 2020). We consider a challenge to that rule by Huawei Technologies Company and its American affiliate, Huawei Technologies USA. Case: 19-60896 Document: 00515905664 Page: 2 Date Filed: 06/18/2021 No. 19-60896 Introduction The federal government annually distributes billions of dollars to promote telephone and Internet service across our nation. These subsidies, called  universal service funds, are administered by the Federal Communications Commission ( FCC ). Last year, that agency issued a rule barring recipients from using the funds to buy equipment or services from companies designated  national security risks to communications networks and supply chains. Under the rule, the FCC designated Huawei, a Chinese telecom provider, and its American affiliate as national security risks. The companies now level myriad challenges, both statutory and constitutional, to the rule and to their designation. Their most troubling challenge is that the rule illegally arrogates to the FCC the power to make judgments about national security that lie outside the agency s authority and expertise. That claim gives us pause. The FCC deals with national communications, not foreign relations. It is not the Department of Defense, or the National Security Agency, or the President. If we were convinced that the FCC is here acting as  a sort of junior-varsity [State Department], Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting), we would set the rule aside. But no such skullduggery is afoot. Assessing security risks to telecom networks falls in the FCC s wheelhouse. And the agency s judgments about national security receive robust input from other expert agencies and officials. We are therefore persuaded that, in crafting the rule, the agency reasonably acted within the broad authority Congress gave it to regulate communications. Additionally, having carefully considered the companies other challenges under the Administrative Procedure Act and the Constitution, we find those unavailing as well. We therefore deny the petition for review. 2 Case: 19-60896 Document: 00515905664 Page: 3 Date Filed: 06/18/2021 No. 19-60896 Table of Contents Background .................................................................................................. 4 Procedural History ...................................................................................... 11 Standard of Review ..................................................................................... 12 Discussion .................................................................................................. 14 I. Ripeness ................................................................................................ 14 II. Statutory Authority ............................................................................. 17 A. Lack of Express Prohibition in Act ................................................... 17 B. Chevron Analysis ............................................................................... 18 1.  Public Interest Provisions ........................................................... 19 2.  Quality Services Provision ........................................................ 25 C. Additional Arguments ..................................................................... 30 1. Lack of National Security Expertise ............................................... 30 2. Conflict with Presidential Authority ............................................... 31 3. Secure Networks Act ..................................................................... 32 III. Substantive Challenges....................................................................... 37 A. Adequacy of Notice .......................................................................... 37 B. Arbitrary and Capricious Review ...................................................... 41 1. Consideration of Relevant Evidence and Arguments ...................... 41 2. Cost-Benefit Analysis .................................................................... 46 3. Rejection of Risk-Based Approach .................................................. 51 C. Vagueness ........................................................................................ 54 D. Due Process ..................................................................................... 58 IV. Conclusion ......................................................................................... 61 3 Case: 19-60896 Document: 00515905664 Page: 4 Date Filed: 06/18/2021 No. 19-60896 Background Huawei Technologies Company ( Huawei ) is a global provider of telecommunications equipment and services established and headquartered in China. It supplies smart device, cloud, and 5G broadband cellular technology to commercial entities and consumers. Huawei-USA launched in 2001 and maintains its U.S. headquarters in Plano, Texas. As early as 2011, Huawei began attracting the U.S. government s attention as a potential security risk to American telecommunications networks.1 In October 2012, the U.S. House Permanent Select Committee on Intelligence ( HPSCI ) published a report finding,  Huawei . . . cannot be trusted to be free of foreign state influence and thus pose[s] a security threat to the United States and to our systems. HPSCI Report, at vi vii. The HPSCI admonished U.S. government systems operators and contractors to exclude Huawei equipment and encouraged private entities to reconsider Huawei-associated security risks and  seek other vendors. Id. at vi. In late 2017, members of Congress expressed apprehension about  Chinese espionage and  Huawei s role in [it] to then-Chairman of the FCC, Ajit Pai.2 Pai s reply conveyed  share[d] . . . concerns about the security threat that Huawei and other Chinese technology companies pose to our communications networks. 3 He promised  to take proactive steps to 1 Mike Rogers & C.A. Dutch Ruppersberger, HPSCI, Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE iv (2012), https://tinyurl.com/yyp5muou [hereinafter HPSCI Report]. 2 Letter from Tom Cotton et al., Members, U.S. Congr., to Ajit Pai, Chairman & Commiss r, FCC (Dec. 20, 2017), https://tinyurl.com/yx6xp217. 3 Letter from Ajit Pai, Chairman, FCC, to Tom Cotton, Sen., U.S. S. (Mar. 20, 2018), https://tinyurl.com/u2verd9. 4 Case: 19-60896 Document: 00515905664 Page: 5 Date Filed: 06/18/2021 No. 19-60896  ensure the integrity of the communications supply chain . . . in the near future. Id. Around this time, Congress passed, and the President signed into law, the National Defense Authorization Act for Fiscal Year 2018 ( 2018 NDAA ), which barred the Defense Department from procuring telecommunications equipment produced by Huawei.4 The 2019 NDAA went further, prohibiting all executive agencies from obtaining Huawei equipment, contracting with entities that use it, or using loan or grant funds to obtain it.5 Sharing these concerns, then-President Donald Trump issued executive orders addressing the issue in 2019 and 2020.6 Against this backdrop, the FCC issued an April 2018 notice of proposed rulemaking ( NPRM ),  In the Matter of Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs. 7 The notice concerned  universal service funds (or  USF funds ), a pool of money the FCC dispenses to certain providers to promote  universal service. See 47 U.S.C. § 254(e); see also Alenco Commc ns, Inc. v. FCC, 201 F.3d 608, 617 (5th Cir. 2000).8 USF funds foster affordable telephone and internet access in high-cost areas, subsidize rates 4 See Pub. L. No. 115-91, § 1656(b)(1), (c)(3)(A), 131 Stat. 1283, 1762 (2017). 5 See Pub. L. No. 115-232, § 889(a) (b), (f)(3)(A), 132 Stat. 1636, 1917 18 (2018). 6 Exec. Order No. 13,873, 84 Fed. Reg. 22,689 (May 15, 2019); Exec. Order No. 13913, 85 Fed. Reg. 19,643 (Apr. 4, 2020). 7 Notice of Proposed Rulemaking in the Matter of Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs ( Supply Chain Rulemaking ), FCC 18-42, WC Docket No. 18-89, 33 FCC Rcd. 4058 (released Apr. 18, 2018). 8 Universal service is defined as  an evolving level of telecommunications services that the Commission shall establish periodically . . . , taking into account advances in telecommunications and information technologies and services. § 254(c)(1). 5 Case: 19-60896 Document: 00515905664 Page: 6 Date Filed: 06/18/2021 No. 19-60896 for rural health care facilities, and support services for schools and libraries.9 The NPRM sought comment on a proposed rule that would prohibit using USF funds  to purchase equipment or services from any communications equipment or service providers identified as posing a national security risk to communications networks or the communications supply chain. 33 FCC Rcd. at 4058. The NPRM also solicited comment on  how to identify companies that pose such threats and proposed several approaches.10 Id. at 4064. Comment was also sought on other steps the FCC could take, waivers for USF applicants, costs and benefits, and sources of legal authority for the rule. Id. at 4068 70. The NPRM drew extensive comments, including from Huawei.11 9 See 47 U.S.C. § 254; Tex. Off. of Pub. Util. Couns. v. FCC, 183 F.3d 393, 406, 407 08 (5th Cir. 1999) [hereinafter TOPUC I]. The USF fund s annual budget is about $8 billion. Universal Service Administrative Co., 2020 Annual Report 5 (2021), https://www.usac.org/wp-content/uploads/about/documents/annual- reports/2020/USAC_Annual_Report_2020.pdf. In 2020, about $800 million of those funds were allocated to the FCC s Lifeline Program, which  supports telecommunications companies that offer discounted phone and broadband services to eligible consumers, while just over $5 billion were allocated to the High Cost Program, which subsidizes the expansion of broadband networks in rural communities. Id. at 5, 12, 14. 10 For instance, one suggested approach was to define a covered company as one  from which any agency of the Federal Government has been prohibited by Congress from procuring or obtaining any equipment, system, or service that uses telecommunications equipment or services provided by that company . . . . 33 FCC Rcd. at 4064 65; see also id. at 4065 66 (suggesting other approaches). 11 Some commenters argued the proposed prohibition went  too far by including end-user devices like smartphones. Others commented the rule would  cause substantial harm to small rural carriers without  corresponding benefits. Still others advocated the FCC employ  a more targeted approach than a  blanket prohibition on the use of any equipment provided by a blacklisted vendor. Huawei argued the proposed rule would exceed the Commission s statutory authority, would be arbitrary and capricious under the APA, and would violate covered companies due process rights. 6 Case: 19-60896 Document: 00515905664 Page: 7 Date Filed: 06/18/2021 No. 19-60896 Ultimately, the FCC released a final rule (the  USF Rule ) barring use of USF funds to buy equipment or services provided by a company  posing a national security threat to the integrity of communications networks or the communications supply chain. 47 C.F.R. § 54.9(a). The USF Rule also adopted a process for designating covered companies that involves an initial designation by the Public Safety and Homeland Security Bureau ( Bureau ), a comment period, and a final designation. Id. § 54.9(b).12 In the cases of Huawei and ZTE Corporation, another Chinese telecommunications company, the FCC found the rulemaking record, as well as additional classified information, sufficient to initially designate both companies.13 Thus, in the Report and Order ( USF Order ) accompanying the USF Rule, the Commission announced Huawei s and ZTE s initial designations and directed the Bureau to  implement the next [designation] steps. 34 FCC Rcd. at 11440, 11449. The FCC also used the USF Order to explain its legal authority to adopt the rule, describe the designation standard, justify the rule s scope, provide a cost-benefit analysis, and otherwise respond to commenters. 12 The Bureau is  the FCC s primary expert on public safety and homeland security matters. Public Safety and Homeland Security, FCC, https://www.fcc.gov/public- safety-and-homeland-security (last visited June 17, 2021). When the Bureau determines a company poses  a national security threat, it issues a notice of initial designation. § 54.9(b)(1). Interested parties may file comments opposing or otherwise responding to the initial designation. § 54.9(b)(2). If opposed, a final designation takes effect only upon the Bureau s determination the company should be designated. Id. The Bureau may reverse a final designation if it finds the entity no longer poses a threat. § 54.9(b)(3). The Bureau may also revise the designation process or adopt a new one. Id. § 54.9(b)(4). 13 Report & Order in Supply Chain Rulemaking, FCC 19-121, WC Docket No. 18- 89 & PS Docket Nos. 19-351, 19-352, 34 FCC Rcd. 11423, 11439 40 & n.124 (released Nov. 26, 2019). 7 Case: 19-60896 Document: 00515905664 Page: 8 Date Filed: 06/18/2021 No. 19-60896 First, as to its legal authority, the FCC explained that 47 U.S.C. § 254(e) permits it  to specify what a USF recipient may or must do with [universal service] funds. 14 Id. at 11434 (citation omitted). The FCC drew additional authority from various provisions in Title 47 empowering the agency to use USF funds to promote the public s interest in quality services and network security. Id. at 11434 37.15 The FCC also stated it would consider  all available evidence to determine whether an entity poses a national security threat. Id. at 11438. Such evidence might include findings by the Commission, Congress, the President, or other executive agencies that an entity  poses a national security threat or  other available evidence, . . . open source or classified, supporting such an assessment. Ibid. The FCC said it would  seek to harmonize its determinations with those of other Executive Branch agencies and Congress  [w]here appropriate. Id. at 11438 39. Addressing the rule s scope, the FCC explained the rule applies to  any and all equipment or services, including software, produced or provided by a covered company. Id. at 11449. This  blanket prohibition would 14 Specifically, section 254(e) provides that a carrier that receives USF funds  shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. 47 U.S.C. § 254(e). 15 See id. § 254(b)(1) (directing FCC to base universal service policies on six principles including promoting  [q]uality services . . . at just, reasonable, and affordable rates ); id. § 201(b) (Commission  may prescribe such rules and regulations as may be necessary in the public interest to carry out the Communications Act); id. § 254(c)(1)(A), (D) (FCC and Joint Board must  consider the extent to which such telecommunications services are  essential to . . . public safety and  consistent with the public interest, convenience, and necessity ). The agency also cited § 105 of the Communications Assistance for Law Enforcement Act ( CALEA ), 47 U.S.C. § 1004, which permits carriers to authorize  interception of communications or access to call-identifying information effected within its switching premises pursuant to  a court order or other lawful authorization. We discuss these provisions in greater detail, infra. 8 Case: 19-60896 Document: 00515905664 Page: 9 Date Filed: 06/18/2021 No. 19-60896  best promote[] national security, provide[] the most administrable rule, and ease[] compliance for USF recipients. Ibid. While admitting a broad rule would  impose attendant costs on providers and rural consumers, the Commission estimated the rule s benefits, though hard to quantify,16 would  significantly and substantially outweigh its costs. Id. at 11449 53, 11466.17 Finally, the Commission discussed and rejected various constitutional considerations raised during the comment period, some of which Huawei advances here. Id. at 11457 65.18 On January 3, 2020, the FCC published a summary of the USF Order in the Federal Register that provided for a thirty-day comment period on the 16 The agency assumed the rule would prevent economic harm by thwarting attacks on national communications networks. 34 FCC Rcd. at 11465. Given a national GDP of $20.5 trillion in 2018 (and a growth rate of 2.9%), the agency estimated that preventing even a 0.005% disruption to the economy or a 0.162% disruption to annual growth would outweigh estimated costs. Ibid. Similarly, given the digital economy s $1.35 trillion size, benefits would outweigh costs if the rule foiled a disruption of 0.072% of the digital economy. Id. These benefits were realistic, the FCC suggested, because malicious cyberactivity cost somewhere between $57 and $109 billion in 2016. Ibid. The FCC projected similar benefits from reducing identity theft. Id. at 11465 66. Moreover, the rule would produce additional benefits even harder to quantify, such as preventing threats to the national defense, public safety, homeland security, military readiness, and critical infrastructure. Id. at 11466. 17 Costs would  not exceed $960 million and were  likely to be much lower. 34 FCC Rcd. at 11465. The agency took the average cost of replacing Huawei/ZTE equipment (pegged at $40 $45 million based on estimates from seven carriers), multiplied by the number of firms using the equipment that  rely on universal service support, but reduced to account for carriers decisions to use other funding to purchase or maintain the equipment. Id. at 11466 67. Based on a cost-stream estimate over twenty years and product price differential estimates of 10% and 25%, the FCC then estimated the lower and upper cost bounds as $160 million and $960 million, respectively. Id. at 11468 69. We consider the agency s cost-benefit analysis in greater detail infra. 18 In brief, the FCC rejected arguments that the USF Rule and its applications would violate the Fifth Amendment s Due Process Clause, amount to an unconstitutional bill of attainder, and constitute a regulatory taking. 34 FCC Rcd. at 11457 65. 9 Case: 19-60896 Document: 00515905664 Page: 10 Date Filed: 06/18/2021 No. 19-60896 initial designations of Huawei and ZTE.19 Huawei submitted comments arguing the Bureau should reject its initial designation.20 On June 30, 2020, the Bureau issued a  final designation of Huawei as a company covered by the USF Rule, which was  effective immediately upon release. 21 Huawei appealed the Bureau s determination to the full Commission a month later. On December 11, 2020, the FCC affirmed Huawei s final designation.22 Shortly after the USF Rule was published, Congress enacted related legislation, the Secure and Trusted Communications Networks Act of 2019, Pub. L. No. 116-124, 134 Stat. 158 (2020) (codified at 47 U.S.C. § 1601 et seq.) [hereinafter  Secure Networks Act or  SNA ]. Among other things, the SNA directs the Commission to publish a list of  covered communications equipment or services  specifically, those posing national security risks as determined by  any executive branch interagency body with appropriate national security expertise, the Department of Commerce pursuant to Executive Order No. 13873, the 2019 NDAA, and/or  an appropriate national security agency. § 1601(a), (c). The SNA bars using Commission- administered subsidies to obtain or maintain any covered equipment or service. § 1602(a). 19 Final Rule in Supply Chain Rulemaking; Huawei Designation; ZTE Designation, 85 Fed. Reg. 230-01 (Jan. 3, 2020) (to be codified at 47 C.F.R. pt. 54). 20 Comments of Huawei Technologies Co., Ltd., and Huawei Technologies USA, Inc. on Supply Chain Rulemaking  Huawei Designation, PS Docket No. 19-351 (Feb. 3, 2020). 21 Designation Order in Supply Chain Rulemaking  Huawei Designation, PS Docket No. 19-351, 35 FCC Rcd. 6604, 2020 WL 3566005, at *23 (released June 30, 2020) [hereinafter Final Designation Order]. 22 FCC Memorandum Opinion and Order in Supply Chain Rulemaking  Huawei Designation, FCC 20-179, PS Docket No. 19-351, 2020 WL 7351129 (released Dec. 11, 2020) [hereinafter Designation Affirmance]. 10 Case: 19-60896 Document: 00515905664 Page: 11 Date Filed: 06/18/2021 No. 19-60896 A few weeks after Huawei s final designation, the FCC released a declaratory ruling  integrat[ing] provisions of the . . . [SNA] into [the Commission s] existing supply chain rulemaking proceeding. 23 The Declaratory Ruling found the USF Order fulfilled the FCC s duty under SNA § 3 to prohibit using Commission-administered subsidies to obtain covered equipment or services. Id. About six months later, on the same day it affirmed Huawei s final designation, the FCC released a second report and order further integrating the SNA s requirements into the supply chain rulemaking that began with the USF Order.24 Congress later amended the SNA via the Consolidated Appropriations Act of 2021 to incorporate the USF Rule s definition of covered equipment and services for the purpose of reimbursing providers for replacing covered equipment or services.25 Procedural History This case comes before us on Huawei s petitions for review of the USF Order. See 47 U.S.C. § 402(a); 28 U.S.C. § 2342(1); see also Fed. R. App. P. 15(a); Alenco, 201 F.3d at 614.26 Huawei seeks review on the grounds that the Order (1) exceeded the FCC s statutory authority; (2) was arbitrary, capricious, and an abuse of discretion under the APA; (3) was adopted in 23 Declaratory Ruling and Second Further Notice of Proposed Rulemaking in Supply Chain Rulemaking, FCC 20-99, WC Docket No. 18-89, 2020 WL 4046643, at *1 (released July 17, 2020). 24 Second Report and Order in Supply Chain Rulemaking, FCC 20-176, WC Docket No. 18-89, 2020 WL 7351126 (released Dec. 11, 2020). 25 Pub. L. No. 116-260, 134 Stat. 1182, 2120 (Dec. 27, 2020) (to be codified at 47 U.S.C. § 1603). 26 Both of Huawei s petitions state they seek review of the entire document released on November 26, 2019, which included a Further Notice of Proposed Rulemaking and an Information Collection Order. But Huawei s subsequent briefing addresses only the Report and Order (which we refer to collectively as the  USF Order ). 11 Case: 19-60896 Document: 00515905664 Page: 12 Date Filed: 06/18/2021 No. 19-60896 violation of the notice-and-comment requirements of 5 U.S.C. § 553; (4) was void for vagueness and retroactive in violation of the Constitution and the APA; (5) violated the Constitution s Appointments Clause and statutory and constitutional due process protections; and (6) was otherwise contrary to law. The parties briefing and oral arguments clarified that Huawei s appeal presents independent challenges to two parts of the USF Order: the USF Rule and Huawei s initial designation. As noted, the FCC affirmed Huawei s final designation after oral argument in this case. Designation Affirmance, 2020 WL 7351129. Huawei timely petitioned for review of the final designation order. We granted a stay in that case pending disposition of this one. Standard of Review  The court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communication Commission made reviewable by [47 U.S.C. § 402(a)]. 28 U.S.C. § 2342. We review such orders in two ways. See Alenco, 201 F.3d at 614, 619. First, we consider whether the agency s action exceeded its statutory authority under the Chevron framework. Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723, 730 (5th Cir. 2018); see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 44 (1984). At step one, we ask whether  Congress has directly spoken to the precise question at issue, in which case we must  give effect to the unambiguously expressed intent of Congress and reverse an agency s interpretation that fails to conform to the statutory text. Alenco, 201 F.3d at 619 (quoting Chevron, 467 U.S. at 842 43); see also Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1024 (5th Cir. 2019) ( The question for the court [at step one] is whether the agency s construction of the language is within the range of meanings that could be plausibly attributed 12 Case: 19-60896 Document: 00515905664 Page: 13 Date Filed: 06/18/2021 No. 19-60896 to the relevant statutory language. (quoting 1 Richard J. Pierce, Jr., Administrative Law Treatise § 3.6, at 215 (5th ed. 2010))). We rely on  authoritative Supreme Court decisions and  conventional standards of statutory interpretation, looking to  text, structure, and the overall statutory scheme. Chamber of Com. v. U.S. Dep t of Lab., 885 F.3d 360, 369 (5th Cir. 2018). If the statute is silent or ambiguous as to the specific issue, we proceed to step two and ask whether  the agency s answer is based on a permissible construction of the statute. Alenco, 201 F.3d at 619 (quoting Chevron, 467 U.S. at 843). If the agency s construction is  arbitrary, capricious, or manifestly contrary to the statute, we reverse. Id. (quoting Chevron, 467 U.S. at 844). But  [i]f a statute is ambiguous, and if the implementing agency s construction is reasonable, we defer to the agency s construction. Acosta, 909 F.3d at 730 (quoting Elgin Nursing & Rehab. Ctr. v. U.S. Dep t of Health & Hum. Servs., 713 F.3d 488, 492 n.3 (5th Cir. 2013)). Second, we will set aside agency action that is arbitrary and capricious, an abuse of discretion, or otherwise unlawful. 5 U.S.C. § 706(2)(A). Agencies  are required to engage in  reasoned decisionmaking.  Sierra Club v. EPA, 939 F.3d 649, 664 (5th Cir. 2019) (quoting Michigan v. EPA, 576 U.S. 743, 750 (2015)); see also FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021) ( The APA s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. ).  Not only must an agency s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational. Michigan, 576 U.S. at 750 (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)). The agency must  articulate a satisfactory explanation for its action including a  rational connection between the facts found and the choice made.  Sierra Club, 939 F.3d at 664 (quoting Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 13 Case: 19-60896 Document: 00515905664 Page: 14 Date Filed: 06/18/2021 No. 19-60896 However, we cannot  substitute [our] judgment for that of the agency. Id. (quoting 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013)). Our role is to determine whether the agency s decision  was based on a consideration of the relevant factors and whether there has been a clear error of judgment.  Id. (quoting State Farm, 463 U.S. at 43). We review constitutional issues de novo. Tex. Off. of Pub. Util. Couns. v. FCC, 183 F.3d 393, 419 n.34 (5th Cir. 1999) [hereinafter TOPUC I]; see also 5 U.S.C. § 706. Discussion I. Ripeness The FCC contests the ripeness of Huawei s challenges to the USF Rule and to the initial designation.27 The ripeness doctrine  prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies. Abbott Lab ys v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). It also  protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Id. at 148 49. We apply a two-part test, balancing  the fitness of the issues for judicial decision with  the hardship to the parties of withholding court consideration. Id. at 149; see also Texas v. United States, 497 F.3d 491, 498 (5th Cir. 2007). Here, the FCC originally argued that neither Huawei s challenges to the USF Rule nor its challenges to the initial designation were ripe because 27 We assess ripeness claim by claim. See John Corp. v. City of Houston, 214 F.3d 573, 585 86 (5th Cir. 2000). 14 Case: 19-60896 Document: 00515905664 Page: 15 Date Filed: 06/18/2021 No. 19-60896 Huawei s asserted injuries financial and reputational fallout from the  exclusion of its products from the federal USF program   w[ould] not materialize unless the Commission issue[d] a final designation of Huawei. In other words, the FCC never disputed the rule s fitness for review but only Huawei s showing of hardship. Now that Huawei has received a final designation and the full Commission has affirmed it, making the rule conclusively effective against Huawei, the FCC cannot assert its challenges to the USF Rule are unripe.28 By contrast, the initial designation is not ripe for review because it is not a final order and thus fails the fitness prong. See Abbott Lab ys, 387 U.S. at 148 150 (considering finality of agency action in evaluating fitness); Texas, 497 F.3d at 498 99 (same). We have authority to review only  final orders of the FCC under the Hobbs Act, 28 U.S.C. § 2342(1). A Hobbs Act  final order is analytically identical to  final agency action under the APA, 5 U.S.C. § 704. See US West Commc ns, Inc. v. Hamilton, 224 F.3d 1049, 1055 (9th Cir. 2000); Am. Trucking Ass n, Inc. v. United States, 755 F.2d 1292, 1296 (7th Cir. 1985). Agency action is  final under § 704 if two conditions are met: (1)  the action must mark the consummation of the agency s 28  [Ripeness] is  peculiarly a question of timing.  Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 286 (5th Cir. 2012) (quoting Reg l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974)). Thus, we must evaluate it based on  the situation now rather than the situation when the claims were first presented. Reg l Rail Reorganization, 419 U.S. at 142 43; see also DM Arbor Ct., Ltd. v. City of Houston, 988 F.3d 215, 219 20 (5th Cir. 2021). Huawei presented undisputed declaration testimony of  huge financial losses and workforce reductions resulting from the mere threat of designation. The FCC does not dispute that these injuries include permanent loss of business from USF recipients who would have used those funds to purchase Huawei equipment and the loss of future contracts with USF recipients, injuries sufficient to establish hardship. See, e.g., Miss. Valley Gas Co. v. FERC, 659 F.2d 488, 498 99 (5th Cir. 1981) (FERC order ripe where it would have a  direct and immediate impact by denying petitioner right to charge rates at agreed amount). 15 Case: 19-60896 Document: 00515905664 Page: 16 Date Filed: 06/18/2021 No. 19-60896 decisionmaking process ; and (2) it  must be one by which rights or obligations have been determined, or from which legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177 78 (1997) (quotation marks omitted) (citation omitted). Fatally, Huawei fails to show the initial designation is the  consummation of the FCC s decisional process. The rule describes the initial designation as the Bureau s  proposed designation that triggers a comment period. 47 C.F.R. § 54.9(b)(1) (2). An initial designation is, by definition, a tentative step: when opposed, it only takes effect once the Bureau decides to issue a final designation. Id. § 54.9(b)(2).29 That is what happened here: opposed by Huawei, the company s initial designation took effect only upon the Bureau s issuing a final designation. See Final Designation Order, 2020 WL 3566005, at *1. Thus, Huawei s initial designation is not a final order, and we cannot review it. See, e.g., Luminant Generation Co. v. EPA, 757 F.3d 439, 442 (5th Cir. 2014). Huawei contends that the initial designation was not tentative or interlocutory because: the Commission, not the Bureau, initially designated Huawei; it did so based on determinative findings, expressed with confidence; it provided that the initial designation would become final absent objection; and it assumed in its cost-benefit analysis that Huawei would be finally designated. While these assertions suggest the initial designation is a 29 See La. Real Estate Appraisers Bd. v. FTC, 976 F.3d 597, 605 n.7 (5th Cir. 2020) (agency order not final where party s injury contingent on future agency action); Luminant Generation Co. v. EPA, 757 F.3d 439, 442 (5th Cir. 2014) (EPA notice of violation not final action where it  mark[ed] only the beginning of a process designed to test the accuracy of the agency s initial conclusions (quoting Sierra Club v. EPA, 557 F.3d 401, 408 (6th Cir. 2009))). 16 Case: 19-60896 Document: 00515905664 Page: 17 Date Filed: 06/18/2021 No. 19-60896 significant step, one supported by initial findings and analysis, they do not transform a proposed determination into a final one. Thus, Huawei cannot satisfy the first prong of the finality test as to the initial designation, and its challenges to that part of the order are unfit for judicial review.30 Accordingly, we must dismiss its claims related to the initial designation for lack of jurisdiction. II. Statutory Authority We address Huawei s argument that the FCC lacked statutory authority to adopt the USF Rule. A. Lack of Express Prohibition in Act As a threshold matter, the FCC claims we must defer to the agency s construction of § 254 unless the statute explicitly withholds authority to adopt the USF Rule. But our circuit has repeatedly rejected  [t]his nothing- equals-something argument. Gulf Fishermens Ass n v. Nat l Marine Fisheries Serv., 968 F.3d 454, 460 62 (5th Cir. 2020); see also Texas v. United States, 809 F.3d 134, 186 (2015) [hereinafter The DAPA Case]. We do not jump to Chevron step two  any time a statute does not expressly negate the existence of a claimed administrative power. The DAPA Case, 809 F.3d at 186 (quoting Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995)).  [O]nly legislative intent to delegate such authority . . . entitles an agency to advance its own statutory construction for review under Chevron s  deferential second prong. Gulf Fishermens, 968 F.3d at 461 (quoting Ethyl Corp., 51 F.3d at 1060). 30 We need not consider the second finality prong because agency action must satisfy both prongs to be final. See Nat l Pork Producers Council v. EPA, 635 F.3d 738, 756 (5th Cir. 2001). Nor need we consider whether Huawei can satisfy the burden prong of the ripeness test as to the initial designation. Unsuitability for review is determinative. Id. 17 Case: 19-60896 Document: 00515905664 Page: 18 Date Filed: 06/18/2021 No. 19-60896 Relatedly, the FCC argues, citing TOPUC I and Alenco, that  so long as the Commission does not violate an express statutory command, it may use the universal-service mechanism to achieve policy objectives contained elsewhere in the Act. The agency misreads these cases, which teach only that the FCC has  broad discretion to balance the statutory goals of achieving universal service and promoting local competition. Alenco, 201 F.3d at 615; TOPUC I, 183 F.3d at 406.31 Neither case supports the argument that the FCC may deploy the universal-service mechanism to accomplish any non-prohibited purpose in the Act. B. Chevron Analysis We therefore proceed to Chevron. At step one, we ask whether Congress has  directly spoken to the precise question at issue. Alenco, 201 F.3d at 619 (quoting Chevron, 467 U.S. at 842). Here, we want to know whether Congress has plainly granted the authority the FCC wields in the rule authority to designate companies a  national security threat to telecom networks and to prohibit USF funds from being spent on their equipment. See 47 C.F.R. § 54.9. Huawei does not dispute that the FCC may restrict using USF funds for specific purposes; rather, it contests the FCC s power to  make national security determinations in allocating those funds. The FCC responds that the Communications Act provisions it cites 47 31 For example, in TOPUC I, we upheld under Chevron step two the agency s interpretation of the ambiguous term  sufficient in § 254(e), based on its  reasonable determination that support would remain sufficient  during the transition period from one [less competitive] universal service system to another [more competitive system]. 183 F.3d at 437. The FCC found  little chance of competition eroding the previous support system during the transition. Id. at 436 37. In other words, we upheld the FCC s action because it concluded that promoting competition would not undermine its obligation to achieve sufficient service. Similarly, in Alenco, we stated that, although the FCC must promote both universal service and competition in local communications markets, it  cannot . . . sacrifice[ one] in favor of the other. 201 F.3d at 615. 18 Case: 19-60896 Document: 00515905664 Page: 19 Date Filed: 06/18/2021 No. 19-60896 U.S.C. §§ 201(b), 254(c)(1)(D), 254(b)(1), and 254(e) are ambiguous on this point and that we must therefore proceed to Chevron step two.32 By contrast, Huawei contends the USF Rule fails at Chevron step one because the cited provisions unambiguously withhold the FCC s claimed authority. We examine in turn each of the statutory provisions on which the FCC relies, first under Chevron step one and then under step two. 1.  Public Interest Provisions We turn first to 47 U.S.C. §§ 254(c)(1)(D) and 201(b), which we refer to together as the  public interest provisions. Section 254(c)(1)(D) provides that the FCC, in  defin[ing] services supported by universal service funds,  shall consider the extent to which such telecommunications services . . . are consistent with the public interest, convenience, and necessity. Section 201(b) similarly authorizes the Commission to  prescribe such rules and regulations as may be necessary in the public interest to carry out the Act. The FCC argues these are capacious grants of authority, which along with the  quality services provision, see infra reasonably encompass  considering foreign threats to the integrity of domestic communications networks in distributing federal subsidies. As the Supreme Court has noted with respect to other sections of the Act, the term  public interest gives the FCC authority that is  supple and  comprehensive, but not  unlimited. FCC v. Pottsville Broad. Co., 309 U.S. 134, 138 (1940) (§ 319); Nat l Broad. Co. v. United States, 319 U.S. 190, 216, 217 (1943) (§ 303).33 The term is both broad and vague. See FCC v. 32 The agency also argues the USF Rule  directly implements § 105 of the CALEA, but as explained below we need not address this point. 33 The   public convenience, interest, or necessity  was the touchstone for the exercise of the Commission s authority under the 1934 Communications Act. Pottsville Broad. Co., 309 U.S. at 137 38. For instance, in §§ 307 and 319 of the original Act, Congress 19 Case: 19-60896 Document: 00515905664 Page: 20 Date Filed: 06/18/2021 No. 19-60896 WNCN Listeners Guild, 450 U.S. 582, 593 (1981) (noting the Act does not define  public interest in § 303). Consequently, while § 254(c)(1) plainly  authorizes the FCC to define  periodically the types of telecommunications services that are encompassed by  universal service,  In re FCC 11-161, 753 F.3d 1015, 1046 (10th Cir. 2014) (quoting § 254(c)(1)),  consistent with the public interest, § 254(c)(1)(D), how much latitude the agency has in defining the  public interest is less clear. Neither the term nor its context explicitly limits the FCC s authority to constrain USF funds based on a  national security assessment. See 47 C.F.R. § 54.9(a); cf. In re FCC 11-161, 753 F.3d at 1046 (concluding  nothing in [§254(c)(1)] expressly or implicitly deprives the FCC of authority to direct that a USF recipient use USF funding to provide broadband internet access services). Indeed, Congress s use of such an open-textured term suggests  an express delegation of authority to the agency to elucidate [the] . . . provision. Chevron, 467 U.S. at 843 44.34 For purposes of Chevron step one, then, we would be hard-pressed to say these provisions unambiguously exclude the authority exercised in the USF Rule. Huawei counters with several related points. It argues that § 201(b) is not an independent source of authority to regulate in the  public interest, authorized the Commission to grant station licenses and construction permits  if public convenience, interest, or necessity w[ould] be served thereby. Communications Act of 1934, Pub. L. No. 416, §§ 307(a), 319(a), 48 Stat. 1064, 1083, 1089 (codified as amended at 47 U.S.C. §§ 307, 319). The Act also provided that the FCC would exercise certain powers  as public convenience, interest, or necessity requires. § 303, 48 Stat. at 1082 (codified as amended at 47 U.S.C. § 303). 34 See also Anniston Broad. Co. v. FCC, 668 F.2d 829, 832 (5th Cir. Unit B 1982) ( [T]he Commission s judgment regarding how the public interest is best served is entitled to substantial judicial deference. ); Caleb Nelson, Statutory Interpretation 78 (2011) ( Vagueness often reflects a deliberate decision by [Congress] to transfer various important decisions to the courts or agencies . . . . ). 20 Case: 19-60896 Document: 00515905664 Page: 21 Date Filed: 06/18/2021 No. 19-60896 and that § 254(c)(1)(D)  requires Joint Board participation, which did not occur here. 35 It also argues that § 254(c)(1)(D) uses  public interest in reference to the  evolving level of telecommunications service and so does not delegate to the FCC authority to make independent national security judgments. There is force in these arguments. We would be troubled if the FCC were trying to leverage its  public interest authority over networks into the power to make freewheeling national security judgments. But we are persuaded that Huawei overstates the scope of the national security authority the FCC claims in the USF Rule. The FCC does not ask us to read § 201(b) as a stand-alone font of regulatory authority. Instead, the agency reads it alongside its power in § 254(c)(1)(D) to  defin[e] and  establish universal service  consistent with the public interest, as well its duty in § 254(b)(1) to develop universal service policies in accord with certain principles, including promoting  quality services. Moreover, as we explain below, the agency has reasonably defined  quality services to include services that are secure against foreign cyberattack. See infra pp. 25 29. Seen in that light, the FCC does not seek to grasp the expansive and independent national security authority Huawei fears. Instead, the FCC asserts only the authority to consider national security concerns in the narrower sphere of regulating USF  support mechanisms. See § 254(c)(1).36 35 Congress created the Federal-State Joint Board, inter alia, to make recommendations to the FCC  regarding the jurisdictional separation of common carrier property and expenses between interstate and intrastate operations. 47 U.S.C. § 410; see also § 254(a); TOPUC I, 183 F.3d at 406. 36 Huawei cites no authority for its argument that the FCC can exercise its § 254(c)(1)(D) authority only in coordination with the Joint Board. Section 254(c)(1)(D) states,  [t]he Joint Board in recommending, and the Commission in establishing, the definition of [universal service] services . . . shall consider certain factors. It does not state the FCC may only define universal services upon a Joint Board recommendation. Indeed, 21 Case: 19-60896 Document: 00515905664 Page: 22 Date Filed: 06/18/2021 No. 19-60896 In sum, given the breadth of the term  public interest, we find neither § 201(b) nor § 254(c)(1)(D) unambiguously grants or withholds the FCC authority to adopt the USF Rule. Turning to Chevron step two, we consider whether the FCC permissibly construed the public interest provisions. Alenco, 201 F.3d at 619 (citing Chevron, 467 U.S. at 843). The FCC has properly framed the inquiry: we ask whether it reasonably  construed its public interest obligation to encompass considering foreign threats to the integrity of domestic communications networks in distributing federal subsidies. We conclude it did and therefore defer under Chevron. As noted, the Supreme Court has interpreted the public interest provisions of the Communications Act expansively. See Pottsville Broad. Co., 309 U.S. at 138; WNCN Listeners Guild, 450 U.S. at 593; Nat l Broad. Co., 319 U.S. at 217 18. Section 201(b) s similar provision was added just four years after §§ 303 and 319.37 The FCC reasonably presumed the provisions should be interpreted consistently. See Antonin Scalia & Bryan A. Garner, Reading Law 170, 322 24 (2012) (discussing the presumption of consistent usage). Huawei does not argue otherwise. the FCC is required to consult with the Board only under specified circumstances not present here. See id. § 410(c) (stating the Commission  shall refer any proceeding regarding the jurisdictional separation of common carrier property and expenses between interstate and intrastate operations to the Joint Board) (emphasis added); cf. TOPUC I, 183 F.3d at 416 17 (finding agency fulfilled § 410(c) s  consultation requirement as to FCC s adoption of  new jurisdictional separations rules ). The FCC alone is entrusted with  establish[ing the definition of universal service] periodically under § 254. See id. § 254(c)(1); see also USF Order, 34 FCC Rcd. at 11435 (making this argument). 37 Compare § 201(b), 48 Stat. at 1070, with Communications Act of 1934, Amendment, Pub. L. No. 561, § 201(b), 52 Stat. 588, 588 (May 31, 1938) (codified at 47 U.S.C. § 201(b)) (adding  [t]he Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act to § 201(b)). 22 Case: 19-60896 Document: 00515905664 Page: 23 Date Filed: 06/18/2021 No. 19-60896 Additionally, § 254(c)(1)(D) appears to borrow from Communications Act provisions such as § 303, using similar phrasing. Compare § 254(c)(1)(D) ( consistent with the public interest, convenience, and necessity ), with § 303 (the FCC shall undertake its duties  as public convenience, interest, or necessity requires ). We presume Congress was aware of earlier glosses on  public interest, making reasonable a similarly broad reading of § 254(c)(1)(D). See Scalia & Garner, supra, at 323 ( [W]hen a statute uses the very same terminology as an earlier statute especially in the very same field . . .  it is reasonable to believe that the terminology bears a consistent meaning. ); see also Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (similar). Huawei counters that public interest is  not a broad license to promote the general public welfare but must  take meaning from the purposes of the regulatory legislation. See NAACP v. Fed. Power Comm n, 425 U.S. 662, 669 (1976). In other words, the FCC cannot conjure national security authority out of thin air. This is true, but as the FCC argues, the Act s purposes include  mak[ing] [communication] available . . . for the purpose of the national defense and  promoting safety of life and property through the use of wire and radio communications. § 151. The agency reasonably read  public interest in light of these larger goals to encompass secure networks. See NAACP, 452 U.S. at 669; cf. Scalia & Garner, supra, at 218 ( [T]he prologue . . . can shed light on the meaning of the operative provisions that follow. ). Indeed, the FCC s considering national security under the public interest umbrella is not a new phenomenon.38 See, e.g., Hawaiian Tel. Co. v. 38 See Joan M. McGivern, U.S. Int l Telecomm. & Inf. Policy: Congress Considers Reorganizing Policymaking, 15 L. & Pol y Int l Bus. 1297, 1305 (1983) (noting the FCC s authority to regulate foreign commerce in communications and stating that, 23 Case: 19-60896 Document: 00515905664 Page: 24 Date Filed: 06/18/2021 No. 19-60896 FCC, 589 F.2d 647, 657 (D.C. Cir. 1978) (noting FCC review of  considerations of national security under public interest standard in adopting satellite policy).39 For example, in regulating foreign participation in the U.S. telecom market in the late 1990s, the FCC recommitted to considering  national security and  foreign policy concerns when granting licenses under § 310(b)(4) and service certificates under § 214(a), stating it would also continue to  accord deference to expert Executive Branch views on these issues that would inform its  public interest analysis. In the Matter of Rules & Policies on Foreign Participation in the U.S. Telecomm. Mkt., 12 FCC Rcd. 23891, 23919 20 (1997).40 The agency continues to consider national security concerns  in the public interest in applying § 214(a) today. See In the Matter of China Mobile Int l (USA) Inc.,  [a]lthough the FCC is not specifically required to consider foreign policy, trade, and national security concerns, these concerns are deemed to be incorporated within its broad  public interest mandate (citing Nat l Telecomm. & Inf. Agency, Long Range Goals in Int l Telecomm. & Inf.: An Outline for U.S. Pol y, Printed for the Use of the Senate Comm. on Com., Sci. & Transp., 98th Cong., 1st Sess. 83 (1983) (Sen. Print 98-22)). 39 See also U.S. Gen. Acct. Off., The FCC s Int l Telecomm. Activities Rep. to the Chairman, Subcomm. on Gov t Info. & Individual Rts., House Comm. on Gov t Operations, at 10 (1982) (observing that the FCC had  consider[ed] foreign affairs, national security, and U.S. trade policy in several recent proceedings, including in considering whether AT&T should award a contract to a Japanese firm); In the Matter of Amendment of Subpart H, Part 1 of the Commission s Rules and Regulations Concerning Ex Parte Communications and Presentations in Commission Proceedings, 2 FCC Rcd. 3011, 3018 (1987) ( recogniz[ing] . . . the Commission s need to confer with officials from other agencies on communications matters of international import, either because [the agency] share[d] jurisdiction with these other agencies or because consultation with them contribute[d] to the conduct of this country s foreign affairs policies and practices ). 40 See also In the Matter of Mkt. Entry & Regul. of Foreign-Affiliated Entities, 11 F.C.C. Rcd. 3873, 3888 (1995) ( We believe our public interest analysis [of foreign carrier applications] will benefit from . . . the Executive Branch[ s input on foreign policy and national security]. ). 24 Case: 19-60896 Document: 00515905664 Page: 25 Date Filed: 06/18/2021 No. 19-60896 34 FCC Rcd. 3361, 3372, 3376 77, 2019 WL 2098511, at *7 11 (2019) (denying China Mobile § 214 authorization to provide telecom services due to  serious national security and law enforcement risks identified by Executive Branch agencies). Against this backdrop, the USF Rule accords with the FCC s previous consideration of national security concerns in the communications realm. Under the rule, the FCC makes initial and final designations based on  all available evidence, including determinations by Congress, the President, and other executive agencies, as well as classified information, and it  seek[s] to harmonize its determinations with those of other agencies and Congress. 34 FCC Rcd. at 11438 39. Thus, as in granting licenses under § 310(b)(4) and service certificates under § 214(a), the FCC s designation of an entity as a national security risk consistent with the public interest is informed by the views of expert agencies. We therefore conclude that the agency reasonably interpreted the public interest provisions, especially in light of its coincident authority under § 254(b)(1), to allow it to adopt the rule. See infra p. 29.41 2.  Quality Services Provision We turn next to 47 U.S.C. § 254(b)(1), which we refer to as the  quality services provision. It states that  [t]he Joint Board and the Commission shall base policies for the preservation and advancement of universal services on various  principles, including that  [q]uality services should be available at just, reasonable, and affordable rates. 47 U.S.C. § 254(b)(1) (emphasis added). The parties debate the meaning of  quality 41 Although the USF Order also invoked § 254(c)(1)(A) in support of its statutory authority to adopt the rule, 34 FCC Rcd. at 11435, and Huawei addresses that argument in its brief, the FCC does not urge that argument on appeal, so we do not address it. We also find it unnecessary to address the FCC s arguments that § 254(e) or § 105 of the CALEA provide authority to adopt the rule. 25 Case: 19-60896 Document: 00515905664 Page: 26 Date Filed: 06/18/2021 No. 19-60896 services. As Huawei sees it, this is a telecom term of art that refers only to technical specifications such as a service s accuracy, reliability, and speed, thus excluding the USF Rule s concern for network security. The FCC counters that  quality services is not a term of art but an ambiguous phrase that reasonably encompasses network security. It is true, as Huawei points out, that  quality of service is an industry term that refers to  performance specifications like call clarity and bandwidth.42 See also 47 U.S.C. § 641(12) (defining  quality of service, with respect to internet access, as  the download and upload speeds (and, for relevant services, latency) with respect to that service ). So, a telecom insider might say,  Quality of Service is more easy to define in digital circuits, since you can assign specific error conditions and compare them. Newton s at 912. Had Congress used this industry term in § 254(b)(1), a court would correctly read it according to its specialized meaning.43 But Congress knows how to write  quality of service in telecom statutes,44 and it did not do so in § 254(b)(1). Instead, it chose a different 42 See, e.g., Harry Newton, Newton s Telecom Dictionary 912 (25th ed. 2009) [hereinafter Newton s] (explaining  quality of service or  QoS is  a measure of the telecommunications . . . quality provided to a subscriber and includes factors such as call clarity, delay, bandwidth, and latency control); Quality of Service, Alliance for Telecommunications Industry Solutions Telecom Glossary, https://glossary.atis.org/glossary/quality-of-service-qos/ (last visited June 14, 2021) (QoS refers to  [t]he performance specification of a communications channel or system, or to  [a] subjective rating of telephone communications quality in which listeners judge transmissions by qualifiers, such as excellent, good, fair, poor, or unsatisfactory ). 43 See, e.g., La. Pub. Serv. Comm n v. FCC, 476 U.S. 355, 372 (1986) (explaining a term of art  should be interpreted by reference to the trade or industry to which [it] appl[ies] ); Corning Glass Works v. Brennan, 417 U.S. 188, 201 (1974) ( [W]here Congress has used technical words or terms of act, it is proper to explain them by reference to the art or science to which they are appropriate. (cleaned up)). 44 See, e.g., 47 U.S.C. § 643 (making it unlawful to submit inaccurate data concerning  the quality of service with respect to broadband internet access service ); id. 26 Case: 19-60896 Document: 00515905664 Page: 27 Date Filed: 06/18/2021 No. 19-60896 term:  quality services. This makes us doubt that Congress intended the special meaning conveyed by the industry term.45 Moreover, the context of § 254(b)(1) does not compel us to read  quality services that way. To the contrary, it is awkward to read the provision to say that  [Certain performance specifications] should be available at just, reasonable, and affordable rates, which would follow from substituting  quality of service for  quality services. Congress instead chose a phrase,  quality services, whose ordinary meaning is broad. See, e.g., Quality, adj., Oxford English Dictionary ( of high quality; excellent ); see also Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 08 (2011) (relying on the  ordinary meaning of statutory terms). Recall also that the phrase appears not in a narrow, technical part of the Act, but in a section laying out broad  principles guiding formulation of universal service policies.46 This gives § 214 (requiring Commission certificates for construction or extension of new lines, but providing exceptions for certain alterations  which will not impair the adequacy or quality of service provided ); id. § 1442(e)(3)(D)(iii) (requirements for obtaining grant funds and spectrum capacity leasing rights include  that the State has . . . comparable security, coverage, and quality of service to that of the nationwide public safety broadband network (emphases added)). 45 See Scalia & Garner, supra, at 170 ( [W]here [a] document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea. ); cf. Gulf Fishermens Ass n, 968 F.3d at 466 ( [W]here Congress includes particular language in one section of a statute but omits it in another, it is presumed that Congress acts intentionally and purposely. (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (cleaned up)). 46 See, e.g., Deal v. United States, 508 U.S. 129, 132 (noting  fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used ) (citations omitted); see also Scalia & Garner, supra, at 167 ( The text must be construed as a whole. ). 27 Case: 19-60896 Document: 00515905664 Page: 28 Date Filed: 06/18/2021 No. 19-60896 us further reason to give the phrase a flexible reading, as opposed to a specialized, technical one. We therefore disagree with Huawei that the  quality services provision unambiguously excludes the authority exercised in the USF Rule, and so we proceed to Chevron step two. See TOPUC I, 183 F.3d at 412. At step two, we consider whether the FCC s construction of § 254(b)(1) is  reasonable or is instead  arbitrary, capricious, or manifestly contrary to the statute. Acosta, 909 F.3d at 730 (citations omitted). The agency has construed the term  quality services to encompass network security, so that policymaking to promote  quality services includes ensuring  USF funds [are] spent on secure networks and not . . . on equipment and services from companies that threaten national security. 34 FCC Rcd. at 11434. In other words, as the FCC puts it,  providing a secure service is part of providing a quality service. Id. We conclude this is a reasonable construction of the Act to which we therefore defer. As the agency points out, the security of communications technology has been a perennial concern. Industry experts routinely listed security as one of  the most important dimensions of quality [for telecommunications] in the years leading up to the enactment of § 254.47 Thus, the FCC reasonably concluded that Congress intended the agency to promote the availability of 47 See, e.g., Vivian Witkind Davis et al., Telecommunications Service Quality iii, 19 23, 27 (1996) ; see also Eli M. Noam, The Quality of Regulation in Regulating Quality: A Proposal for an Integrated Incentive Approach to Telephone Service Performance, in Price Caps & Incentive Regulation in Telecommunications 168 (Michael Einhorn ed., 1991). 28 Case: 19-60896 Document: 00515905664 Page: 29 Date Filed: 06/18/2021 No. 19-60896 secure services when it directed the Commission to  base [universal service] policies on the principle of advancing the availability of  quality services. 48 This understanding accords with the FCC s previous conclusions that network security is a key component of quality service.49 And we give the Commission considerable deference in applying § 254(b) s  aspirational, generally-worded goals. See TOPUC I, 183 F.3d at 421; see also id. at 411 ( Rather than setting up specific conditions or requirements, § 254(b) reflects a Congressional intent to delegate these difficult policy choices to agency discretion[.] ). Thus, it was reasonable for the agency to conclude that advancing the availability of  quality services under § 254(b)(1) comprehends promoting the availability of secure services.50 We therefore conclude the agency reasonably read the term  quality services in § 254(b)(1) to support its limited exercise of national security judgment in defining universal service. Accordingly, we defer to the agency s construction under Chevron step two. See, e.g., TOPUC I, 183 F.3d at 412.51 48 See Nelson, supra, at 946 (noting  information about the policy preferences that prevailed at the time of enactment may well support reading the statute to establish a directive consistent with that policy); cf. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 ( Policy evaluation is . . . part of the traditional judicial tool-kit at Chevron step one  before deferring to agency judgment . . . . ). 49 See, e.g., 2015 Broadband Progress Report, 30 FCC Rcd. 1375, 1348 (2015) ( [P]rivacy and network security are among the factors that can affect the quality and reliability of broadband services. ); Order in the Matter of Tech. Transitions, 29 FCC Rcd. 1433, 1441, 1448 (2014) (requiring participants in service-based experiments in transitioning to new technologies to  maintain[]  [n]etwork security ). 50 Cf. TOPUC II, 265 F.3d 313, 322 (5th Cir. 2001) (declining to  arrogate to ourselves [the] policy-making function [under § 254(b)], merely because we (or the Petitioners) believe the FCC should balance competing goals differently). 51 Arguing against this construction of  quality services, Huawei points only to another provision, § 254(b)(3), which articulates the general principle that  low-income 29 Case: 19-60896 Document: 00515905664 Page: 30 Date Filed: 06/18/2021 No. 19-60896 C. Additional Arguments Huawei urges several additional reasons to doubt the FCC s authority to adopt the rule. We consider each in turn. 1. Lack of National Security Expertise Huawei asserts we must reject the FCC s reading of the pertinent provisions because the FCC lacks the relevant national security expertise to support a presumption of congressional delegation. It contends Congress would not have delegated  such significant authority through modest, general terms like  quality services, let alone to an inexpert agency. Once again, Huawei levels powerful arguments against a vision of the agency s authority that empowers it to make broad, independent national security judgments. Nonetheless, we are persuaded that the agency s authority under the USF Rule has a narrower scope. As the FCC argues, the rule requires the agency to make a more focused determination based on its  routine[] evaluat[ion of] evidence (including classified intelligence) [related to] foreign access to U.S. Communications networks and its  participat[ion] in inter-agency working groups on this topic.52 That is, the consumers and those in rural, insular, and high cost areas should have access to  telecommunications and information services that are  reasonably comparable to those in  urban areas. But Huawei does not explain, and we do not see, how this access principle in § 254(b)(3) somehow excludes network security from  quality services in § 254(b)(1). 52 See also 47 U.S.C. § 310 (providing the Commission may refuse or revoke certain licenses in the  public interest if a corporation is  directly or indirectly controlled by a foreign government or a foreign corporation); Information and Communications Technology (ICT) Supply Chain Risk Management (SCRM) Task Force, Cybersec. & Infrastructure Sec. Agency, https://www.cisa.gov/ict-scrm-task-force (last visited Mar. 19, 2021) (listing the FCC as a participant in a task force of national security agencies and others to  identify[] and develop[] consensus strategies that enhance ICT supply chain security against  foreign cyberthreats); Exec. Order No. 13913, 85 Fed. Reg. 19643, at § 3(a) (b) 30 Case: 19-60896 Document: 00515905664 Page: 31 Date Filed: 06/18/2021 No. 19-60896 FCC s judgments under the rule are informed by agencies with much more expertise than the FCC on these matters. See 47 C.F.R. § 54.9; USF Order, 34 FCC Rcd. at 11438. Thus, as the agency contends, the authority it exercises under the rule closely resembles the kind of national security authority it has exercised for decades limited, communications-focused judgment informed by expert agencies and deferential to their views. See supra pp. 23 25. 2. Conflict with Presidential Authority Huawei points to other provisions in the Communications Act that vest national security judgments  exclusively in the President. Specifically, it cites 47 U.S.C. §§ 305(c), 308(a), and 606(c) (d). Drawing a negative inference from these provisions, Huawei argues the Act therefore did not delegate similar authority to the FCC. We disagree. As the FCC argues, none of these provisions conflicts with Congress s intent to allow the FCC to exercise limited national security judgment in applying the USF Rule. For instance, § 305(c) empowers the President to authorize foreign governments to operate radio stations near their American embassies if he deems it consistent with  national security. This accords with the President s traditional role as the nation s  sole representative with foreign nations. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting John Marshall, Annals, 6th Cong., col. 613 (Mar. 7, 1800)). Similarly, § 606(c) (d) addresses the President s authority to suspend communications rules during wars or other exigencies, reflecting the President s authority  in military and national security affairs. Dep t of Navy v. Egan, 484 U.S. 518, 530 (1988). These provisions are not at odds with (establishing committee of defense department heads  to assist the FCC in its public interest review of national security . . . concerns ). 31 Case: 19-60896 Document: 00515905664 Page: 32 Date Filed: 06/18/2021 No. 19-60896 Congress s giving the FCC authority to make certain national security decisions concerning communications networks. After all, Congress created the FCC in part  for the purpose of the national defense, § 151, and assigned the Commission duties requiring it to exercise limited judgment related to that purpose. See, e.g., § 310(b)(4) (empowering FCC to refuse or revoke the license of certain foreign corporations in the  public interest ).53 3. Secure Networks Act Finally, Huawei points to a statute enacted after the rule the Secure Networks Act or SNA which, it argues, confirms that Congress could not have intended to grant the FCC the authority asserted in the rule. See supra pp. 10 11 (discussing the SNA). We disagree. Similar to the USF Rule, the SNA prohibits using FCC-administered subsidies for certain purposes based on an assessment of  unacceptable risk to . . . national security. 47 U.S.C. § 1601(b)(1). Unlike the rule, however, the SNA delegates responsibility for making that assessment  exclusively to entities other than the FCC, relegating the FCC to a ministerial role. Id. §§ 1601(a), 1601(b)(1), 1601(c). Moreover, the SNA authorizes prohibitions 53 For similar reasons, we disagree with Huawei that constitutional avoidance principles require us to reject the FCC s construction of its authority under the Act. Huawei contends that permitting an independent agency like the FCC to  make independent judgments about national security and foreign affairs would unconstitutionally prevent the President from carrying out his role as the nation s  sole organ in external relations and communication with foreign nations. We disagree that the FCC s exercise of authority in applying the rule risks the separation-of-powers problem that Huawei fears. As we have explained, in applying the USF Rule, the FCC does not purport to make an entirely  independent judgment[] about national security and foreign affairs. Rather, the rule permits the agency to consider the expert national security judgments of other Executive Branch agencies and Congress while exercising its own judgment  within the agency[ s] core area[] of expertise. 47 C.F.R. § 54.9(a) (b); USF Order, 34 FCC Rcd. at 11438. 32 Case: 19-60896 Document: 00515905664 Page: 33 Date Filed: 06/18/2021 No. 19-60896 only of particular equipment or services, not entire companies like the rule. § 1601(b). Thus, Huawei argues, the SNA speaks more specifically to the topic and in a way inconsistent with the rule. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (explaining a statute s meaning  may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand ). Based on those inconsistencies, Huawei contends we should infer from the SNA s enactment that the FCC s construction is unreasonable.54 The FCC correctly responds, however, that the USF Rule is not fatally opposed to the SNA. First, the  national security authority exercised by the FCC in the rule is similar to the agency s role under the SNA. The SNA directs the FCC to list covered equipment or services based on determinations by (1) interagency bodies with national security expertise, (2) the Commerce Secretary pursuant to Executive Order 13,873, see supra note 6, (3) Congress in the 2019 NDAA, and (4)  an appropriate national security agency. § 1601(c)(1) (4). Under the USF Rule, the FCC similarly designates companies based on  all available evidence, including the kinds of sources listed in the SNA.55 As appropriate, the Commission  will [also] seek to harmonize its determinations with those of other executive agencies and of Congress. 34 FCC Rcd. at 11438 39. Thus, while the FCC s judgment is more constrained under the SNA, its assessments under the USF Rule rest on the same kind of sources in the SNA. Contrary to Huawei s argument, 54 The FCC contends Huawei waived its SNA argument by raising it for the first time in its reply brief. We need not decide this question because we find the argument unpersuasive regardless. 55 See 47 C.F.R. § 54.9(a); USF Order, 34 FCC Rcd. at 11438 (providing the Commission may consider determinations by the FCC, Congress, the President, and other executive agencies, as well as classified information). 33 Case: 19-60896 Document: 00515905664 Page: 34 Date Filed: 06/18/2021 No. 19-60896 then, the SNA s allocation of authority to make national security judgments does not rule out the FCC s construction of its authority in the rule. Second, the SNA s coverage only of equipment or services, rather than entire companies, reflects Congress s policy choice and does not fatally undermine the FCC s authority in the USF Rule. As noted, the FCC considered and rejected a rule of narrower scope based on its conclusion that a broad rule would  best promote[] national security, provide[] the most administrable rule, and ease[] compliance for USF recipients. USF Order, 34 FCC Rcd. at 11449 50. By contrast, Congress determined that the SNA s distinct objectives would be better achieved by a narrower prohibition covering only equipment or services. As the FCC argues, although the SNA includes a prohibition provision like the USF Rule, § 1602(a)(1), the SNA goes beyond the scope of the rule in various ways concerning equipment and services.56 Congress s decision to orient these additional actions around an equipment-based prohibition does not suggest that the FCC lacked the authority under the Act to craft a different design for the rule. Third, the Brown & Williamson principle Huawei invokes that subsequent laws can affect a statute s meaning looks to the entire body of relevant law. In addition to the SNA, that body of law now includes a statute showing Congress s approval of the FCC s assertion of authority in the rule. In the 2021 Consolidated Appropriations Act, Congress changed the SNA s definition of  covered communications equipment or services for whose 56 Specifically, the SNA (1) orders the Commission to a create a list of covered equipment and services that it would use in part to determine eligibility for reimbursement funds, (2) instructs the FCC to develop a list of suggested replacement equipment, (3) creates a fund to reimburse carriers who remove covered equipment, (4) directs carriers to report and justify their new purchases and continued use of covered equipment, and (5) provides enforcement mechanisms. §§ 1601(a), 1603(a) (c), (d), 1604, 1606. 34 Case: 19-60896 Document: 00515905664 Page: 35 Date Filed: 06/18/2021 No. 19-60896 removal or replacement a USF recipient could be reimbursed.57 While recipients under the original SNA could be reimbursed for removing equipment or services  on the initial list published under § 1601(a), § 1603(c)(1)(A), recipients under the amended SNA can be reimbursed for removing equipment or services  as defined in the USF Order or  as determined to be covered by the USF Order and Huawei/ZTE designation orders, § 901(1)(B), 134 Stat. at 2120. In other words, Congress replaced the original definition based on the  exclusive[] . . . determinations of certain expert agencies with a definition based on the challenged exercise of authority described in the USF Rule. Huawei counters that these amendments are merely  definition- borrowing provisions that  neither rel[y] on nor support[] [the USF Rule s] validity. It speculates  [t]he appropriations law s incorporation of the USF rule s definition likely reflects Congress attempt to make whole small carriers who tried to replace all equipment in the wake of the USF rule. And it contends the specified amendments cannot satisfy the standard for ratification of the USF Rule, pointing to Congress s failure to amend the SNA s prohibition or non-revisitation provisions or to use express ratification language. Huawei s rejoinder loses sight of the key question, which is whether the SNA  shape[s] or focus[es] the meaning of the relevant Communications Act provisions, rendering the FCC s constructions unreasonable. In Brown & Williamson, the FDA s construction of its authority to regulate tobacco  plainly contradict[ed] congressional policy as revealed in six distinct pieces of legislation over almost four decades. 529 57 See Pub. L. No. 260, § 901(1)(B), 134 Stat. 1182, 2120 (2020); see also 47 U.S.C. § 1603(c)(1)(A) (C). 35 Case: 19-60896 Document: 00515905664 Page: 36 Date Filed: 06/18/2021 No. 19-60896 U.S. at 126, 137 39, 143 44, 146. Here, by contrast, we have one statute that is not flatly inconsistent with the agency s assertion of authority, followed by a second statute amending the first statute to make it more consistent.58 In sum, contrary to Huawei s argument, the SNA does not show that the FCC s asserted authority in the USF Rule was unreasonable. 59 *** In sum, we conclude that the FCC reasonably interpreted its authority under the Communications Act in formulating the USF Rule. Specifically, we find the agency reasonably interpreted the Act s  public interest provisions (§ 254(c)(1)(D), in coordination with § 201(b)), to authorize 58 Because we disagree with Huawei s interpretation of the SNA, we do not address the argument it raises in a Rule 28(j) filing that the  SNA Rule, 86 Fed. Reg. 2904 (Jan. 13, 2021), confirms the USF Rule is inconsistent with the SNA. However, we note that the FCC concluded in its rule implementing the SNA that that rule and the USF Rule  are intended to complement each other, 86 Fed. Reg. at 2918 19, which is consistent with the interpretation of the SNA the FCC advances here. 59 Huawei levels two additional challenges to the FCC s authority that need not long detain us. First, Huawei contends the FCC may make universal service policies only in accord with § 254(b) s six enumerated principles, none of which involves national security. Our decision in TOPUC I forecloses this argument. See 183 F.3d at 412 (finding FCC could use the universal service mechanism to promote the unlisted goal of competition, provided it also advanced a § 254 command). Second, Huawei argues the rule  undermines the § 254(b) principles by  denying USF recipients access to . . . cost- effective and high-quality equipment and services. This argument assumes the agency cannot balance conflicting aspects of quality, which is not so. The language  should in § 254(b)  indicates a recommended course of action, but does not itself imply the obligation associated with  shall.  Qwest Corp. v. FCC, 258 F.3d 1191, 1200 (10th Cir. 2001); see also TOPUC I, 183 F.3d at 421 (describing § 254(b) s principles as containing  aspirational language and not  constitut[ing] a series of specific statutory commands ); Alenco, 201 F.3d at 621 (describing  predictability in § 254(b)(5) as  only a principle, not a statutory command ). Thus, the  FCC may exercise its discretion to balance [§ 254(b) s] principles against one another when they conflict. Qwest Corp., 258 F.3d at 1200; Alenco, 201 F.3d at 621 (holding  [t]o satisfy a countervailing statutory principle, therefore, the FCC may exercise reasoned discretion to ignore [§ 254(b)(5) s principle] ). 36 Case: 19-60896 Document: 00515905664 Page: 37 Date Filed: 06/18/2021 No. 19-60896 allocation of universal service funds based on the agency s exercise of limited national security judgment. We also hold that it reasonably interpreted the  quality services provision in § 254(b)(1) to support that exercise. We therefore defer to the agency s interpretation under Chevron and reject Huawei s argument that the agency lacked statutory authority for the rule. III. Substantive Challenges Huawei raises numerous challenges to the lawfulness and constitutionality of the USF Rule, which we treat as follows. Part A considers whether the NPRM provided adequate notice. Part B considers whether, as Huawei claims, the USF Rule was not the result of reasoned decisionmaking because the FCC (1) ignored relevant legal arguments and evidence; (2) engaged in a flawed cost-benefit analysis; and (3) failed to consider a more effective alternate approach for advancing national security. Part C examines Huawei s argument that the rule violates the APA because it is vague and standardless. Finally, Part D considers whether the rule must be vacated because it fails to provide adequate process before an initial designation. A. Adequacy of Notice First, we consider Huawei s argument that the NPRM failed to give adequate notice of the designation process adopted in the USF Rule. Under the APA, an agency must publish notice of the legal authority for a proposed rule and of the rule s substance or subject matter, 5 U.S.C. § 553(b)(2), (3), and must also provide an opportunity for interested persons to participate in the rulemaking, § 553(c). Notice suffices if it is a  logical outgrowth of the proposed rule, meaning the notice must  adequately frame the subjects for discussion such that  the affected party  should have anticipated the agency s final course in light of the initial notice. Nat l Lifeline Ass n v. FCC, 921 F.3d 1102, 1115 (D.C. Cir. 2019) (internal citations omitted). If a party  should have anticipated that course, it  reasonably 37 Case: 19-60896 Document: 00515905664 Page: 38 Date Filed: 06/18/2021 No. 19-60896 should have filed [its] comments on the subject during the notice-and- comment period. Tex. Ass n of Mfrs. v. U.S. Consumer Prod. Safety Comm n, 989 F.3d 368, 381 (5th Cir. 2021) (citing Am. Coke & Coal Chems. Inst. v. EPA, 452 F.3d 930, 938-39 (D.C. Cir. 2006)). Huawei identifies five aspects of the designation procedure that, it claims, appeared for the first time in the final rule without  any notice. These are: (1) an initial designation process without pre-deprivation process; (2) a thirty-day response period for written comments, absent which the initial designation becomes final; (3) delegation to the Bureau of authority  to make both initial and final designations and  to reverse prior designations ; (4) delegation to the Bureau of authority  to revise th[e] process ; and (5) independent FCC review before judicial review. Huawei argues these procedures were not a  logical outgrowth of the notice because  [s]omething is not a logical outgrowth of nothing. We agree that if the FCC had failed to provide any notice of these changes, the NPRM would have violated § 553. See, e.g., Kooritzky v. Reich, 17 F.3d 1509, 1514 (D.C. Cir. 1994) (holding agency violated § 553 where proposed rulemaking  contain[ed] nothing, not the merest hint, to suggest it would amend a regulation). But that is not what happened. As the FCC argues, the notice satisfied the requisite standard by  fairly appris[ing] interested persons of the subjects and issues the agency [was] considering. Chem. Mfrs. Ass n v. EPA, 870 F.2d 177, 203 (5th Cir. 1989); see also United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 317 (5th Cir. 1987) (identifying this as  [t]he proper test and collecting cases). Specifically, the NPRM sought comment on the ultimate subject of § 54.9(b) identifying companies posing a national security threat to networks and apprised interested parties of the related issues under consideration by offering designation proposals and inviting alternatives. NPRM, 33 FCC Rcd. at 4064 66. This was  all the APA demands. Chem. 38 Case: 19-60896 Document: 00515905664 Page: 39 Date Filed: 06/18/2021 No. 19-60896 Mfrs. Ass n, 870 F.2d at 203. The agency was not required to  specifically identify  every precise proposal which [the agency] m[ight] ultimately adopt,  and it permissibly implemented changes in the final rule  instigated by . . . comments during the rulemaking. Chem. Mfrs. Ass n, 870 F.2d at 203 (quoting United Steelworkers of America, 828 F.2d at 317). Consequently, the NPRM should have enabled and in fact, did enable Huawei to anticipate those aspects of the final rule it claims were not properly noticed. See Tex. Ass n of Mfrs., 989 F.3d at 381 82. For example, by proposing to define a covered company as one already subject to agency or congressional prohibitions, see NPRM, 33 FCC Rcd. at 4064, the FCC signaled it was considering designating companies without pre- designation process. Indeed, Huawei objected that the absence of  notice and  a meaningful individualized hearing violated due process. The FCC also proposed allocating designation authority to itself, another federal agency (including one that  regularly deals with national security risks ), or the Universal Service Administrative Company ( USAC ) under the FCC s supervision.60 NPRM, 33 FCC Rcd. at 4065. In response, Huawei commented that the agency could not itself designate companies given its lack of expertise, that assigning the task to another agency  would constitute an unlawful subdelegation, and that if the agency subdelegated authority at all, it must be to  a subordinate. Thus, the initial notice and subsequent comments alerted Huawei to the issues it flags here e.g., whether pre- designation process should be provided, and whether (and to whom) the agency could delegate its designation authority. 60 The Universal Service Administrative Company is an independent not-for-profit organization designated by the FCC that administers the universal service fund with FCC policy guidance. About USAC, Universal Serv. Admin. Co., https://www.usac.org/about/ (last visited Mar. 31, 2021). 39 Case: 19-60896 Document: 00515905664 Page: 40 Date Filed: 06/18/2021 No. 19-60896 Indeed, the new designation processes adopted by the USF Rule responded directly to Huawei s comments, confirming the rule is a  logical outgrowth of the rulemaking. See Chem. Mfrs. Ass n, 870 F.2d at 203 (final rule changes  were instigated by industry comments and so grew out of comment process). The final rule adopts the kind of process Huawei commented was absent from the proposed rule. See 47 C.F.R. § 54.9(b)(1) (2) (providing notice of initial designation and a thirty-day comment period); see also supra note 12. A company that opposes its initial designation is finally designated only after receiving, as Huawei advocated, opportunity to  review and respond to the evidence against it and a  meaningful individualized hearing. Id. And the rule similarly responds to Huawei s comments about designation authority by delegating not to the Commission or another agency but to a subordinate entity that  regularly deals with [homeland] security risks, an expertise closely related to national security.61 NPRM, 33 FCC Rcd. at 4065. In sum, while the NPRM did not specify the precise procedures the agency ultimately adopted, the rulemaking fairly acquainted Huawei with the subject and issues delineated in § 54.9(b), which is all § 553 demands. Chem. Mfrs. Ass n, 870 F.2d at 203; see also Hodge v. Dalton, 107 F.3d 705, 711 12 (9th Cir. 1997) (regulation adopted in reaction to comment adequately noticed where  in character with the original proposal (citation omitted)). 61 As noted, the Public Safety and Homeland Security Bureau is  the FCC s primary expert on public safety and homeland security matters. Public Safety and Homeland Security, FCC, https://www.fcc.gov/public-safety-and-homeland-security (last visited June 17, 2021); see also Cybersecurity & Comm ns Reliability Div., Public Safety and Homeland Security Bureau, FCC, https://www.fcc.gov/cybersecurity-and- communications-reliability-division-public-safety-and-homeland-security-bureau (last visited June 17, 2021) (describing Bureau s work to  identify and reduce risks to network reliability). 40 Case: 19-60896 Document: 00515905664 Page: 41 Date Filed: 06/18/2021 No. 19-60896 And the final rule s adoption of changes responsive to Huawei s comments underlines that the rule logically emerged from the rulemaking. B. Arbitrary and Capricious Review Next, we turn to Huawei s arguments the FCC acted arbitrarily and capriciously in adopting the USF Rule. We consider in turn: (1) whether the agency ignored relevant evidence and legal arguments, (2) whether its cost- benefit analysis was irrational, and (3) whether it failed to explain its rejection of a narrower approach that would have more effectively advanced its stated objective. In each case, we find the agency  acted within a zone of reasonableness. Prometheus Radio Project, 141 S. Ct. at 1158. 1. Consideration of Relevant Evidence and Arguments First, Huawei contends the FCC failed to consider relevant evidence and legal arguments. See State Farm, 463 U.S. at 43. Although the FCC could have done more, under our  narrow and highly deferential standard of review, it did enough. Sierra Club, 939 F.3d at 672. Arbitrary-and-capricious review requires that an agency  has reasonably considered the relevant issues and reasonably explained the decision. Prometheus Radio Project, 141 S. Ct. at 1158; see also Carlson v. Postal Regul. Comm n, 938 F.3d 337, 344 (D.C. Cir. 2019) (agency violates the arbitrary-and-capricious standard  if it fails to respond to  significant points and consider  all relevant factors raised by the public comments (citation omitted)). Comments are  significant, and thus require response, only if they raise points  which, if true . . . and which, if adopted, would require a change in an agency s proposed rule. City of Portland v. EPA, 507 F.3d 706, 714 15 (D.C. Cir. 2007) (emphasis removed) (citation omitted). Huawei identifies five categories of evidence-based comments it says the FCC  ignored or largely disregarded without explanation. First, it 41 Case: 19-60896 Document: 00515905664 Page: 42 Date Filed: 06/18/2021 No. 19-60896 argues the FCC failed to meaningfully consider economic reports that the rule would harm rural communities by eliminating a low-cost market competitor, as well as rural carrier declarations that Huawei s exclusion could produce ruinously higher costs. But as the FCC argues, it did respond to those arguments. The agency acknowledged evidence that the USF Rule could  widen the digital divide and drive certain rural providers out of business, but it deemed those costs outweighed by the security risk to national networks associated with a partial ban.62 The agency also suggested it viewed rural carrier costs as overstated, explaining that  [n]o provider ha[d] yet offered the detailed financial records necessary to show an inability to  maintain its existing network without violating [the] rule. USF Order, 34 FCC Rcd. at 11453. Elsewhere, it noted that the carriers who provided cost estimates represented only 0.15% of mobile carrier end-user revenues and suggested they likely had stronger incentives to comment than similarly situated non-reporting carriers. Id. at 11467. Still, the agency developed a waiver process  to minimize the [rule s] economic burden . . . on small entities facing exceptional financial straits. Id. at 11454 n.227, 11515. Thus, the FCC  clearly thought about the [commenters ] objections and offered  reasoned replies all the APA requires. City of Portland, 507 F.3d at 714.63 Huawei next contends the FCC ignored comments from rural carriers arguing the rule would reduce availability of affordable quality services. But again, as the FCC points out, it did address the rule s  potential impact on 62 USF Order, 34 FCC Rcd. at 11449 50 & n.206, 11453 (citations omitted); see also id. at 11434 (discussing covered companies ability to out-compete more secure competitors due to foreign government subsidies). 63 See also PSSI Global Servs., L.L.C. v. FCC, 983 F.3d 1, 12 (D.C. Cir. 2020) (rejecting argument FCC failed to  reasonably respond to [a] concern where it  establish[ed] several significant protections against it ). 42 Case: 19-60896 Document: 00515905664 Page: 43 Date Filed: 06/18/2021 No. 19-60896 this issue. It pointed to record evidence  demonstrat[ing] that [quality] service [could] be provided at reasonable rates  without [covered] suppliers, and it theorized that the rule would  unleash competition among higher quality suppliers that did not pose similar security risks. USF Order, 34 FCC Rcd. at 11434.64 Huawei replies that the FCC s first response  ignores actual evidence about excluding Huawei and that the second  does not explain why eliminating a competitor will  unleash competition.  We disagree. The FCC considered the costs Huawei identified, including arguments the rule would  drive up rates without a proportionate increase in quality, id. at 11434 & n.85 (citation omitted), but it concluded Huawei s low-cost equipment came with security and thus quality tradeoffs impossible to tolerate, id. at 11434. And with respect to competition, the Commission suggested that the presence of foreign-government-subsidized carriers distorted market costs and that eliminating them would promote competition among  higher-quality suppliers for the USF subsidies. Id. (emphasis added).65 In other words, as with rural carrier costs, the agency 64 The FCC cited the Telecommunications Industry Association ( TIA ) s Reply Comments, 34 FCC Rcd. at 11434 & n.86, which contested the argument that  eliminating the availability of equipment from two problematic vendors would violate § 254(b)(1) s  broad principle that quality equipment be available at affordable rates  when only a very small number of companies m[ight] be impacted, Telecomms. Indus. Ass n, Reply Comments on Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, 78 (July 2, 2018) [hereinafter  TIA Reply Comments ]. Rather, it asserted,  hundreds of USF-companies have been able to provide quality services at reasonable and affordable rates using other suppliers. Ibid.; see also 2 Pierce, supra, § 11.6, at 1047 (explaining that courts may consider the  whole record, which includes comments received in response to an NPRM (quoting 5 U.S.C. § 706(e))). 65 The FCC cited TIA s Reply Comments, 34 FCC Rcd. at 11434 & n.87, which discussed the  preferential financial treatment of Huawei and ZTE by the Chinese government, TIA Reply Comments at 62 65. Contrary to Huawei s and other commenters arguments that Huawei s presence increased competition, TIA contended that Huawei s participation in the market created distortions that   breed indiscipline and overcapacity  and argued that,  [i]f anything, Huawei s presence in the market harms 43 Case: 19-60896 Document: 00515905664 Page: 44 Date Filed: 06/18/2021 No. 19-60896 weighed the evidence differently than Huawei and reached contrary but reasonable policy conclusions. Next, Huawei asserts the FCC did not respond directly to arguments that a company-based approach would  ignore global supply-chain risks, i.e., risks arising from other major suppliers operating in or purchasing materials from China. The FCC counters that it did answer those arguments by explaining that Huawei and ZTE pose a  unique threat. We agree with Huawei that this response is off-point. Pointing to  unique threats posed by Huawei and ZTE does not address why a company-based approach might mitigate global supply chain risks, and the FCC does not direct us to any place in the record where it addressed these comments. That flaw is not fatal, however. Huawei fails to show that the agency s consideration of these comments would have impacted adoption of a company-based prohibition. While the comments speak to the difficulty of improving American supply chain security through a company-based rule or any other prohibition given the global nature of the supply chain, they do not show that an equipment-based rule would be more effective. Thus, even if the agency failed to respond to these comments, it was not required to do so because they were  incapable of affecting the rule the agency ultimately adopted. City of Portland, 507 F.3d at 715. Finally, Huawei argues the FCC failed to consider comments that a company-based approach would improve network security less effectively than a narrower approach, such as prohibiting switching equipment.66 The genuine free-market competition and hurts innovation by driving legitimate competitors out of business on the strength of its unfair advantages. Id. at 65 n.209 (citation omitted). 66 From these comments, Huawei argues that  excluding all equipment of covered companies . . . does not improve network security. That overstates the matter. The cited 44 Case: 19-60896 Document: 00515905664 Page: 45 Date Filed: 06/18/2021 No. 19-60896 FCC responds that it did consider such arguments and concluded a company- based approach would be  safer and more administrable. Huawei counters that the FCC s only safety-related justification for a broader rule was that malicious actors can build malware and vulnerabilities  directly into communications equipment, even non- flagship equipment. USF Order, 34 FCC Rcd. at 11450. Yet, the agency failed to address the argument advanced in comments that the rule could, as Huawei puts it, prohibit  all dangerous equipment ( flagship or otherwise), regardless of supplier, without banning safe products. The FCC has the better argument, if just barely. The Commission did consider comments warning that prohibiting  every product from a covered company would not serve any  material security purpose. Id. at 11449. The FCC also considered exempting products  that cannot route or redirect user data traffic, or which do not provide visibility into user data. Id. at 11450 n.209. Nonetheless, the agency found that the need to guard against the risk associated with any equipment provided by a covered company outweighed the costs of a broad rule, and it underscored the importance of preventing  bad actors [from] circumvent[ing its] prohibitions through clever engineering. Id. at 11450 & n.209. It also concluded that  a blanket prohibition would promote ease of administration and compliance, a justification amply supported in the record and one that would apply regardless of an equipment-based approach s relative security virtues. Id. at 11449 50.67 Thus, we conclude the FCC did not fail to offer a  reasonable and reasonably explained analysis of the comments argue only that excluding all equipment will cover equipment that is inherently secure, not that a broad prohibition will fail to reduce security threats. 67 For example, the FCC cited comments from Vermont Telephone arguing the proposed rule  would eliminate uncertainty and reduce regulatory burdens that fall most heavily on small operators. USF Order, 34 FCC Rcd. at 11450. 45 Case: 19-60896 Document: 00515905664 Page: 46 Date Filed: 06/18/2021 No. 19-60896 relative virtues of a company-based, rather than equipment-based rule, which is all the APA requires. Prometheus Radio Project, 141 S. Ct. at 1160. Similarly, we do not find the agency failed to consider any properly- raised legal arguments that Huawei identifies. To the contrary, the Commission discussed and rejected arguments that the FCC lacks authority and expertise to make national security judgments, USF Order, 34 FCC Rcd. at 11435 36, as well as arguments that U.S.-based subsidiaries of Chinese companies are immune from Chinese government control, id. at 11442 43 & nn. 146 47. True, the FCC did not respond to Huawei s contention that delegating designation authority to the Bureau violates the Appointments Clause of the U.S. Constitution, art. II, § 2, cl. 2. But Huawei does not dispute the FCC s assertion that the company made this argument in  a single sentence, buried in a list of  additional reasons  in a submission focused on the Commission s citation of CALEA. And the FCC correctly points out that it  need not sift pleadings and documents to identify arguments that are not stated with clarity by a petitioner. New England Pub. Commc ns Council, Inc. v. FCC, 334 F.3d 69, 79 (D.C. Cir. 2003) (citation omitted) (cleaned up). Thus, we cannot say the FCC acted arbitrarily and capriciously by failing to consider any relevant and significant comment. 2. Cost-Benefit Analysis Next, we consider Huawei s contention that the FCC s cost-benefit analysis  ignored important aspects of the problem and is irrational. An agency s decision to rely on a cost-benefit analysis as part of its rulemaking can  render the rule unreasonable if the analysis rests on a  serious flaw. Nat l Ass n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012). But courts afford agencies considerable discretion in conducting  the complex . . . economic analysis typical in the regulation 46 Case: 19-60896 Document: 00515905664 Page: 47 Date Filed: 06/18/2021 No. 19-60896 promulgation process. Ibid. (quoting Nat l Wildlife Fed n v. EPA, 286 F.3d 554, 563 (D.C. Cir. 2002)); see also Charter Commc ns, Inc. v. FCC, 460 F.3d 31, 42 (D.C. Cir. 2006) ( [C]ost-benefit analyses epitomize the types of decisions that are most appropriately entrusted to the expertise of an agency[.] (citation omitted)).  [C]ourts of review should be mindful of the many problems inherent in [considering costs] and uphold a reasonable effort made by the Agency. Nat l Wildlife Fed n, 286 F.2d at 563 (quoting FMC Corp. v. Train, 539 F.2d 973, 979 (4th Cir. 1976)). Indeed, our job  is not to undertake our own economic study, but to determine whether the [agency]  has established in the record a reasonable basis for its decision.  Chem. Mfrs. Ass n, 870 F.2d at 251 (quoting Kennecott v. EPA, 780 F.2d 445, 456 (4th Cir. 1985)). Huawei argues the agency unreasonably calculated the rule s costs  on the unstated assumption that the rule applies to Huawei and ZTE alone and also ignored evidence about the costs of excluding Huawei from the USF program.68 Additionally, Huawei asserts the agency illogically estimated the rule s benefits by calculating the level of benefits necessary to offset the rule s $960 million cost and then assuming benefits at that level without substantiation. We disagree that the FCC s cost-benefit analysis reflects unreasoned decisionmaking. First, as the FCC argues, it was reasonable to calculate the rule s cost based on Huawei and ZTE alone: Those were the only companies initially designated, and the Commission lacked an evidentiary basis to calculate the 68 Specifically, Huawei argues the FCC ignored evidence that: Huawei exerts competitive pressure on prices; replacing or adapting Huawei equipment would result in long-term interoperability problems; Huawei s exclusion would cause some carriers to go out of business or raise prices; Huawei s exclusion would result in reduced access to and quality of services in areas where Huawei is the only provider; and Huawei s exclusion would exacerbate the problem of delayed 5G deployment in rural communities. 47 Case: 19-60896 Document: 00515905664 Page: 48 Date Filed: 06/18/2021 No. 19-60896 rule s costs based on other companies. See Prometheus Radio Project, 141 S. Ct. at 1160 (noting the  APA imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies ). Huawei counters that it submitted  detailed evidence about similarly situated companies and  extensive economic analysis the Commission failed to consider. But Huawei does not point us to record evidence about the costs of excluding similarly situated companies from the USF program, which was the relevant data for the FCC s analysis. Rather, the FCC reasonably relied on  the evidence it had  extensive data about the costs of excluding Huawei and ZTE from the market. See USF Order, 34 FCC Rcd. at 11467 (noting seven carriers provided cost data on replacing Huawei or ZTE equipment);69 see also Prometheus Radio Project, 141 S. Ct. at 1159 (rejecting argument that FCC s judgment was arbitrary and capricious because it acted on the imperfect data it had). Second, while it is true that the FCC did not consider certain costs identified by commenters,70 Huawei does not identify relevant cost data the 69 Each of these carriers reported that Huawei or ZTE equipment made up a significant percentage of their networks and estimated the cost of replacing that equipment. 70 The Commission s cost-benefit analysis did not mention arguments about three of the five costs Huawei identifies: (1) the effect of Huawei s market presence on equipment costs, (2) the likelihood that some carriers could not comply with the rule and stay in business, and (3) the absence of comparable providers in rural areas and thus the probability of reduced access. But as discussed, it considered the second and third costs elsewhere in the Order. 34 FCC Rcd. at 11434, 11453. Additionally, the Commission considered and discounted the fifth cost identified by Huawei, delays in 5G deployment in rural communities. See USF Order, 34 FCC Rcd. at 11470 (noting the  four largest U.S. mobile carriers do not use and [do not plan] to use Huawei (or ZTE) radio access network equipment ). It also considered  interoperability costs or  capital outlays beyond replacement costs, such as associated  service and maintenance costs, incorporating them into its cost stream estimate. Id. at 11466, 11467 nn.308 09, 11468. Huawei does not argue the FCC s capital cost estimate was unreasonable but rather argues that it failed to consider these costs altogether, which is incorrect. 48 Case: 19-60896 Document: 00515905664 Page: 49 Date Filed: 06/18/2021 No. 19-60896 agency ignored. For example, a representative comment identified by Huawei recognized Huawei has  little presence in the U.S. today but asserted without evidence that a  small sales share does not by itself indicate a firm lacks competitive significance. Another estimated the competitive effect if Huawei were permitted to enter the market, not its current effect in reducing prices. A third speculated that  [customer] fees might have to be raised and that it would  be a struggle to [stay] afloat. The FCC was not required to  conduct or commission [its] own empirical or statistical studies to confirm or reject the speculative costs identified by comments such as these. See Prometheus Radio Project, 141 S. Ct. at 1160; Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (an agency  need not respond at all to comments that are  purely speculative and do not disclose the factual or policy basis on which they rest  (citation omitted)). Indeed, as noted, the agency stated elsewhere that  [n]o provider ha[d] yet offered the detailed financial records . . . necessary . . . to determine whether an individual provider actually could not maintain its existing network and comply with the rule. USF Order, 34 FCC Rcd. at 11453. Rather, as the agency suggests, it reasonably focused on the most significant cost suggested by the record  the cost of replacing Huawei and ZTE equipment, USF Order, 34 FCC Rcd. at 11466 and it reasonably explained its methodology.71 For example, in calculating the replacement cost, the FCC explained that it considered estimates from the seven carriers that had reported their replacement costs and based its analysis on the 71 See Charter Commc ns, Inc., 460 F.3d at 41 42 (finding FCC adequately explained  why the costs of [an] integration ban were justified where agency generally discussed its agreement with some commenters initial cost estimates and agreement with others long-term estimates); cf. State Farm, 463 U.S. at 52 53 (agency failed to justify rescission of passive seat belt rule where  no direct evidence showed that passive seatbelts would not substantially increase usage). 49 Case: 19-60896 Document: 00515905664 Page: 50 Date Filed: 06/18/2021 No. 19-60896 median estimate, discounted by ten to twenty percent, because carriers with  above average costs were likely to have the strongest incentives to comment and because the reporting carriers represented  only 0.15% of mobile carrier end-user revenues. Id. at 11467 & n.308. Huawei does not object to specific cost calculations such as these but to the agency s failure to consider additional, difficult-to-measure costs about which the FCC lacked hard data, such as  the broader economic costs of depriving Americans of access to Huawei s market-leading technology. The agency s decision to base its analysis instead on the replacement cost estimates before it does not render its analysis unreasonable. Similarly, Huawei does not show the FCC s calculation of benefits renders its analysis unreasonable. Huawei argues the agency provided no hard evidence that the rule s claimed benefits would accrue. That is true. As the FCC admits in its brief, it merely  opined that the benefits of the rule included avoiding network disruption and surveillance, as well as possible data breaches and that these benefits were  difficult to quantify but  likely to be substantial based on the digital economy s size and the current estimated cost of such disruption. See USF Order, 34 FCC Rcd. at 11465 66, 11481; supra note 16. The agency also explained that the rule would result in additional benefits even harder to quantify, such as preventing detrimental impacts to national defense, public safety, homeland security, military readiness, and critical infrastructure, as well as the resulting loss of life that could occur if national communications networks were disrupted. Id. at 11466. But the FCC was not required to support its analysis with hard data where it reasonably relied on difficult-to-quantify, intangible benefits. For example, the D.C. Circuit rejected a similar challenge to a cost-benefit analysis where the FCC identified  benefits likely to flow from a more competitive and open supply market, including  potential savings to 50 Case: 19-60896 Document: 00515905664 Page: 51 Date Filed: 06/18/2021 No. 19-60896 consumers from greater choice among navigation devices, the  spurring of technological innovations, and Congress s view of the commercial availability of navigation devices  as a benefit in and of itself. Charter Commc ns, Inc., 460 F.3d at 42. Moreover, the Third Circuit opinion upon which Huawei principally relies was recently reversed by the Supreme Court in a decision underlining the deferential nature of our review in this context. See Prometheus Radio Project v. FCC, 939 F.3d 567 (3d Cir. 2019), rev d, 141 S. Ct. at 1161. Accordingly, we are limited to considering whether  the FCC made a reasonable predictive judgment based on the evidence it had, and we cannot demand the agency perform its own  empirical or statistical studies, especially when it relies on unquantifiable benefits. Prometheus Radio Project, 141 S. Ct. at 1160.72 In sum, the FCC did not act unreasonably by concluding that hard-to- quantify benefits, such as protecting national defense and public safety and preventing potential loss of life, would exceed the rule s costs, which it reasonably calculated based on the record evidence. Nor did the FCC unreasonably estimate that excluding insecure equipment or services from even a portion of the nation s communications networks would reduce the likelihood of a significant disruption to the digital economy and counter the frequency of malicious cyberactivity. 3. Rejection of Risk-Based Approach Finally, we turn to Huawei s contention that the FCC acted arbitrarily and capriciously by rejecting an alternate approach that would have  served 72 See also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 519 (2009) (distinguishing State Farm as  set[ting] aside agency action . . . because of failure to adduce empirical data that can readily be obtained, as opposed to  propositions for which scant empirical evidence can be marshaled, such as  the harmful effect of broadcast profanity on children, and refusing to  insist upon obtaining the unobtainable ). 51 Case: 19-60896 Document: 00515905664 Page: 52 Date Filed: 06/18/2021 No. 19-60896 its putative national security objective more effectively and at lower cost. In Huawei s view, the agency failed to consider its own expert advisors recommendations to adopt a risk-based approach,73 rather than a company- based approach, and failed to explain its ultimate decision to focus on companies instead. The agency counters that it did explain that a company- based approach was the  only reliable protection against potential incursions because equipment beyond the  company s flagship equipment might contain vulnerabilities. Additionally, a company-based prohibition would provide  regulatory certainty and greater ease of implementation and enforcement, reducing compliance costs. But, counters Huawei, the agency failed to show that it even considered a risk-based approach, and regardless, the possibility that flagship equipment might contain vulnerabilities does not support barring safe equipment. The agency has the better argument. First, the FCC did explain why it rejected a risk-based approach. Responding to a comment advocating for a  testing program that would allow impacted carriers to submit for government approval their proposed, but mission-critical, service or maintenance plans, i.e., a risk-based approach, the FCC stated that  such a framework would do little to address the potential for foreign adversaries to intentionally and maliciously access or exploit equipment within our communications networks. USF Order, 34 FCC Rcd. at 11449 n.204. In other words, the FCC found, as one commenter argued, that a risk-based approach like  product testing less effectively addressed the  the risk of deliberately compromised products those that have 73 Huawei uses  risk-based to refer to an approach that would  focus[] on design principles and processes. Huawei cites comments suggesting such an approach might include permitting voluntary compliance with the NIST Cybersecurity Framework or  an equipment testing regime. 52 Case: 19-60896 Document: 00515905664 Page: 53 Date Filed: 06/18/2021 No. 19-60896 been intentionally altered by a state-sponsored actor to enable future exploitation rather than those products that are merely vulnerable to a future attack due to inherent weaknesses in design or implementation. Telecomms. Indus. Ass n, Comments on Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, 36 (June 1, 2018). Second, as discussed, the FCC offered a reasoned explanation for adopting a company-based approach. USF Order, 34 FCC Rcd. at 11449, 11450 n.209, 11453. Even accepting Huawei s premise that a risk-based approach would have more effectively achieved the FCC s security objective, we must defer to the agency s reasoned explanation, supported by comments in the record, that a company-based prohibition would be  easier for providers to implement and for the Commission to enforce and  thus more cost effective than alternative approaches. Id. at 11449 & n.204, 11450.74 The agency explained that a blanket prohibition would avoid the time-consuming and costly administrative burden of making determinations  on a product-by-product basis. Id. at 1150. It would also reduce providers compliance burden by allowing them to certify their subsidiaries and affiliates had not used a covered company s equipment, rather than certifying compliance  on a product-by-product or even component-by-component basis. Ibid. By the same token, a company-based certification would simplify and make less costly USAC s auditing responsibilities. Ibid. Finally, the agency acknowledged that its rule would not  completely address the risks posed by equipment or services produced or provided by covered companies and reasonably concluded that its  targeted rule 74 See USF Order, 34 FCC Rcd. at 11450 ( We agree with Vermont Telephone . . . that our rule  would eliminate uncertainty and reduce regulatory burdens that fall most heavily on small operators[.]  (citation omitted)). 53 Case: 19-60896 Document: 00515905664 Page: 54 Date Filed: 06/18/2021 No. 19-60896 would be part of  ongoing and incremental efforts to secure the supply chain and national communications networks. Id. at 11453. Such efforts could very well include a risk-based approach in future.  Nothing prohibits federal agencies from moving in an incremental manner. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 522 (2009). And Huawei does not suggest the agency unreasonably found that a broad prohibition would cover insecure equipment, just that it covered more equipment than necessary. Nor does it argue the FCC unreasonably gave significant weight to the compliance and administrative burden associated with an alternative approach.  Mindful that we cannot  substitute [our] judgment for that of the agency, we do not find the agency s action outside the realm of reasonableness. See Sierra Club, 939 F.3d at 664 (quoting 10 Ring Precision, 722 F.3d at 723). C. Vagueness We next consider Huawei s claim that the USF Rule violates the APA because it is vague and standardless.75 As discussed, the rule directs designation of companies  pos[ing] a national security threat to the integrity of communications networks or the communications supply chain. 47 C.F.R. § 54.9; USF Order, 34 FCC Rcd. at 11438. Huawei argues the rule does not give  meaningful guidance to affected companies, for instance by 75 The title of the relevant section of Huawei s opening brief states the USF Rule also  violates . . . due process, but the brief itself does not develop this point as a distinct argument. Instead, it states in passing that the APA s arbitrary-and-capricious standard  comports with the Due Process Clause, which likewise requires regulations to  give fair notice . . . and to establish intelligible standards. Further, this section relies entirely on APA cases in applying vagueness principles to the rule, and Huawei s reply brief exclusively discusses APA arguments. Accordingly, we do not address whether the USF Rule is also vague and standardless in violation of the Fifth Amendment. See Roy v. City of Monroe, 950 F.3d 245, 251 (5th Cir. 2020) ( Failure adequately to brief an issue on appeal constitutes waiver of that argument. (citation omitted)). 54 Case: 19-60896 Document: 00515905664 Page: 55 Date Filed: 06/18/2021 No. 19-60896 failing to define key terms such as  national security threat,  integrity, and  communications supply chain. It also claims the rule provides no  metric for assessing whether a designation reflects reasoned decisionmaking, instead relying on the  totality of evidence. See USF Order, 34 FCC Rcd. at 11439. For this argument, Huawei cites a line of D.C. Circuit decisions, beginning with Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999), which, according to Huawei, teach that agency action is arbitrary and capricious  if it does not articulate a comprehensible standard. See also ACA Int l v. FCC, 885 F.3d 687 (D.C. Cir. 2018); Tripoli Rocketry Ass n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 437 F.3d 75 (D.C. Cir. 2006). These cases do not support Huawei s claim. The D.C. Circuit has rejected the argument that  Pearson stands for the proposition that an unarticulated standard does not comport with . . . the APA. PDK Lab ys Inc. v. DEA, 438 F.3d 1184, 1194 (D.C. Cir. 2006) (cleaned up). To the contrary, Pearson holds only that  an agency proceeding on a case-by-case basis must pour  some definitional content into a vague statutory term by  defining the criteria it is applying.  Ibid. (quoting Pearson, 164 F.3d at 660). And a closer examination of this line of cases reveals they are far afield from Huawei s challenge to the USF Rule. Begin with Pearson itself. Marketers of diet supplements challenged the FDA s ruling that health claims on their labels were not supported by  significant scientific agreement. 164 F.3d at 652 (quoting 21 C.F.R. § 101.14(c)). The court sustained the challenge because the agency  never explained why the claims failed to meet the standard. Id. at 654. But the court did not imply that the standard itself was invalid. To the contrary, it rejected the notion that  the agency was necessarily required to define the term in its initial general regulation or that it was  obliged to issue a comprehensive definition all at once. Id. at 661. Instead, the agency could 55 Case: 19-60896 Document: 00515905664 Page: 56 Date Filed: 06/18/2021 No. 19-60896 give  definitional content to the standard on a  case by case basis. Id. at 660, 661; see also id. at 660 n.12 (suggesting APA could be satisfied if agency  provide[s] guidance in implementation of the general standard). Next, Tripoli Rocketry. Rocket enthusiasts challenged the ATFE s designating a specific fuel as an  explosive because it  deflagrates. 437 F.3d at 77 78, 79 (citing 18 U.S.C. § 841(d)). The court remanded for reconsideration because the agency  never reveal[ed] how it determines that a material deflagrates. Id. at 81. The agency merely stated that deflagration was  much faster than burning, thus  articulat[ing] no reasoned basis for its decision. Id. at 81, 83. But, again, the court did not suggest the  deflagration standard was itself invalid. Rather, it faulted the agency for failing to  offer a coherent explanation for  designat[ing] a particular material as deflagrating. Id. at 84; see also id. at 77 ( The problem . . . is that ATFE s explanation for its determination that APCP deflagrates lacks any coherence. ). Finally, ACA International. Petitioners challenged the FCC s ruling clarifying the scope of an  automatic telephone dialing system for purposes of the federal ban on unwanted robocalls. 885 F.3d at 693 94 (citing 47 U.S.C. § 227(b)(1)(A)(iii); 30 FCC Rcd. 7961 (2015)).76 The court set the ruling aside as unreasonable because it swept in all  smartphones, thus giving the federal ban an  eye-popping sweep Congress never contemplated. Id. at 697. Moreover, interpreting the ruling not to include smartphones would make its standard  [in]comprehensible : the ban would then have embraced internet browsers but not smartphones, based on  [p]recisely the same logic. Id. at 700. Thus, the court invalidated the 76 See Declaratory Ruling and Order in the Matter of Rules and Reguls. Implementing the TCPA, FCC 15-72, CG Docket No. 02-278, WC Docket No. 07-135, 30 FCC Rcd. 7961 (released July 10, 2015). 56 Case: 19-60896 Document: 00515905664 Page: 57 Date Filed: 06/18/2021 No. 19-60896 agency ruling as either grossly overbroad (by sweeping in all smartphones) or incoherent (by arbitrarily excluding smartphones but not browsers). Huawei s attack on the USF Rule is quite different from the challenges to agency action in those cases. Huawei does not here challenge the agency s application of a broad standard to a specific case. Rather, as its reply brief makes perfectly clear, Huawei challenges the putative vagueness of the USF Rule  on its face. 77 But that facial attack finds no support in the cases Huawei relies on. As discussed, those cases involve an agency s failure to explain how a broad standard applied to a particular case (Pearson and Tripoli Rocketry) or an agency s ruling that rendered a statutory term incoherent (ACA International). Indeed, those cases support rejecting Huawei s claim. An agency is  not  . . . obliged to issue a comprehensive definition all at once.  PDK Lab ys, 438 F.3d at 1194 (quoting Pearson, 164 F.3d at 661). Instead, it may   proceed case by case   as the FCC seeks to do through the initial designation process  in fleshing out the contours of vague statutory terms. Ibid. (quoting Pearson, 164 F.3d at 661).78 Based on that standard, the USF Rule falls well within the permissible bounds of agency decisionmaking. True, as Huawei suggests, the FCC s application of its  totality of the circumstances test could become  a cloak for agency whim, but an 77 To the extent that Huawei purports to challenge the FCC s application of the rule in the initial designation, we have already explained that its challenge is unripe. See supra pp. 15 17. But nothing we say here precludes Huawei from bringing a similar claim in the context of its challenge to the final designation, which has been held in abeyance pending our decision in this case. See supra p. 12. 78 See also Chippewa & Flambeau Improvement Co. v. FERC, 325 F.3d 353, 359 (D.C. Cir. 2003) (upholding FERC s  case-by-case approach to determining whether a reservoir is  necessary or appropriate  where it  adequately explained its application of that approach to the facts of this case ). 57 Case: 19-60896 Document: 00515905664 Page: 58 Date Filed: 06/18/2021 No. 19-60896 agency s adopting such a standard is not  necessarily arbitrary and capricious. PDK Lab ys, 438 F.3d at 1194 (citation omitted). Rather, the relevant question for examining the rationality of the  national security threat standard is whether the agency adequately explained why it adopted it. See Prometheus Radio Project, 141 S. Ct. at 1158. We have already exhaustively examined that question and concluded that the FCC did so. See supra pp. 41 54. Accordingly, we reject Huawei s claim that the rule facially violates the APA because it is vague and standardless. D. Due Process Finally, we turn to Huawei s contention that the rule must be vacated because the initial designation process (1)  rests on an error of law, namely the assumption the agency could initially designate companies without process, and (2) fails to provide such procedures consistent with the Constitution. Both arguments fail. Agency action shall be set aside if it is unlawful, 5 U.S.C. § 706,  which of course includes unconstitutional action, Fox Television Stations, 556 U.S. at 516; see also SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) ( [A]n order may not stand if the agency has misconceived the law. ). Huawei argues the rule should be vacated because  the FCC failed to recognize that  initial designation implicates constitutionally protected interests and, thus, erred legally in determining it need not provide due process of law prior to initially designating a company. See U.S. Const. amend. V.; Mathews v. Eldridge, 424 U.S. 319, 332 35 (1976). Similarly, Huawei contends the rule  requires vacatur on constitutional grounds because the FCC  must provide adequate pre-deprivation procedural protections. The FCC responds that Huawei s due process challenge to the initial designation  makes little sense, because the initial designation is how the agency provides 58 Case: 19-60896 Document: 00515905664 Page: 59 Date Filed: 06/18/2021 No. 19-60896 process. Huawei counters that the Commission did not  contest [on appeal] that the USF rule fails to provide pre-deprivation due process, so the  rule must be vacated for that reason alone. Huawei s arguments rest on the erroneous premise that the initial designation is itself a deprivation. Yet, the sole potential deprivation to initially designated companies is a reputational injury. And  [a]llegations of damages to one s reputation by a state actor s statements generally  fail to state a claim of denial of a constitutional right, unless they are  accompanied by an infringement of some other interest. Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995). Huawei argues that an initial designation  tangibly alters both designated companies ability to compete and their protected goodwill. But Huawei does not contend the initial designation seeks to put designated companies out of business in the same way the state actors attempted to do in Thompson, where we recognized  a liberty interest in operating a legitimate business. 70 F.3d at 392; see also Phillips v. Vandygriff, 711 F.2d 1217, 1222 (5th Cir. 1983) (finding liberty interest in ability to pursue specific occupation). Nor can Huawei rely on our precedent in Marrero v. City of Hialeah, applying state law, for the proposition that business goodwill represents a  tangible interest under federal law. See 625 F.2d 499, 514 15 (5th Cir. 1980) (finding Florida could not deprive plaintiffs of business goodwill without due process of law because  that interest [was] a protected property interest under Florida law ). Thus, even if Huawei could establish that an initial designation stigmatizes designated entities, it fails to show that it deprives the company of  some other interest requiring due process protection. See Texas, 70 F.3d at 392. Moreover, as the FCC argues, the rule affords pre-deprivation due process through the initial designation procedures, which provide  notice of evidence in the record and the Commission s consideration of that evidence and  invite[ a company] to be heard on its sufficiency or any 59 Case: 19-60896 Document: 00515905664 Page: 60 Date Filed: 06/18/2021 No. 19-60896 countervailing evidence. Only after receiving this process does an entity face agency action with legal effect, i.e., a final designation. 47 C.F.R. § 54.9(b)(2); see supra p. 16. As the agency rightly contends,  [b]y Huawei s logic, if the FCC had provided pre-initial-designation process,  Huawei would have been entitled to object that that notice should have been preceded by an even earlier round of notice and a hearing. That is not what due process requires. See Goldberg v. Kelly, 397 U.S. 254, 267 n.14 (1970) ( Due process does not, of course, require two hearings. ); see also Riggins v. Goodman, 572 F.3d 1101, 1110 (10th Cir. 2009) ( [D]ue process is required not before the initial decision or recommendation to terminate is made, but instead before the termination actually occurs. ); Crum v. Vincent, 493 F.3d 988, 993 (8th Cir. 2007) (finding one  meaningful opportunity to be heard satisfies due process). In short, Huawei fails to demonstrate the initial designation would stigmatize an initially designated company s reputation in connection with a   more tangible interest, as our precedents require to show a constitutionally protected reputational interest in pre-deprivation process. Marrero, 625 F.2d at 513; see also Orton Motor, Inc. v. HHS, 884 F.3d 1205, 1215 (D.C. Cir. 2018) (rejecting petitioner s argument that  mere issuance of a warning letter, absent further enforcement action, where injury was to  reputation alone, required due process).79 Accordingly, we do not find the 79 Huawei s best authority for finding a tangible injury is an out-of-circuit case holding an airline had a  constitutionally cognizable interest in avoiding the loss of government contracting opportunities based on stigmatizing charges. Reeve Aleutian Airways, Inc. v. U.S., 982 F.2d 594, 598 (D.C. Cir. 1993). But that case is distinguishable. The agency action challenged there was Reeve s actual  suspen[sion] . . . from participation in all military airlifts, id. at 597, which would be analogous to Huawei s final designation. But Reeve did not claim it was entitled to pre-deprivation process before the notice that the company might be suspended, id. at 596, which would be analogous to 60 Case: 19-60896 Document: 00515905664 Page: 61 Date Filed: 06/18/2021 No. 19-60896 rule must be vacated, either because it rests on a mistaken view of the law or because it fails to provide constitutionally required due process. Conclusion The petition for review is DENIED. Huawei s initial designation. Reeve, therefore, does not stand for the proposition that Huawei was somehow entitled to process before the initial designation occurred. 61