UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ENTRAVISION HOLD CO

v.

FCC


99-1025a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Entravision Holdings, LLC, peti- tions for
review of an order of the Federal Communications  Commission denying
reconsideration of a prior order. Be- cause the Commission order
denying reconsideration is unre- viewable under ICC v. Brotherhood of
Locomotive Engineers,  482 U.S. 270, 280 (1987), and we cannot fairly
infer from  Entravision's filings an intent to seek review of the
prior  order, we dismiss the petition for lack of jurisdiction.


I. Background


In 1997 the Federal Communications Commission proposed  to reallocate
channels 60-69 from broadcast television service  to other commercial
and public safety uses. Latin Communi- cations Group (LCG),
Entravision's predecessor in interest in  the licenses for two low
power television (LPTV) stations  operating on channels 61 and 63,
submitted comments to the  Commission suggesting certain protections
be granted to  LPTV stations that would be displaced by the proposed 
reallocation. The Commission adopted the reallocation pro- posal but
declined to adopt the protections suggested by  LCG. In re
Reallocation of Television Channels 60-69,  Report & Order, 12
F.C.C.R. 22953 (Jan. 6, 1998). LCG filed  a petition for partial
reconsideration, asking the Commission  to reconsider the Report &
Order and to adopt the protec- tions LCG had suggested. The Commission
denied reconsid- eration. In re Reallocation of Television Channels
60-69,  Memorandum Opinion & Order, 13 F.C.C.R. 21578 (Oct. 9, 


Entravision and LCG then timely filed a joint petition for  review.
Subsequently, LCG completed assignment of the two 


LPTV broadcast licenses to Entravision and withdrew from  this action,
leaving Entravision as the sole petitioner.


II. Analysis


Under Fed. R. App. P. 15(a), a petition for review of an  agency order
must "specify the order or part thereof to be  reviewed."* Failure to
specify the correct order can result in  dismissal of the petition.
See City of Benton v. NRC, 136  F.3d 824, 826 (D.C. Cir. 1998); John
D. Copanos & Sons, Inc.  v. FDA, 854 F.2d 510, 527 (D.C. Cir. 1988). A
mistaken or  inexact specification of the order to be reviewed will
not be  fatal to the petition, however, if the petitioner's intent to
seek  review of a specific order can be fairly inferred from the 
petition for review or from other contemporaneous filings,  and the
respondent is not misled by the mistake. See Martin  v. FERC, No.
98-1398, 1999 WL 1261546, at *2-3 (D.C. Cir.  Jan. 25, 2000)
(reviewing order underlying rehearing order  specified in petition
because intent to seek review fairly  inferred from contemporaneous
motion for stay and respon- dent not prejudiced); Damsky v. FCC, No.
99-1018, 1999 WL  1211668, at *5-6 (D.C. Cir. Jan. 7, 2000) (reviewing
order  underlying rehearing order specified in notice of appeal be-
cause intent to seek review fairly inferred from filings at- tached to
notice and repondent not prejudiced); Southwest- ern Bell Telephone
Co. v. FCC, 180 F.3d 307, 313 (D.C. Cir.  1999) (declining to review
order underlying rehearing order  specified in petition because intent
to seek review not fairly  inferable from petition, docketing
statement, or preliminary  statement of issues); cf. Nichols v. Board
of Trustees of  Asbestos Workers Local 24 Pension Plan, 835 F.2d 881,
889  (D.C. Cir. 1987) (reviewing judgment inexactly designated in 
notice of appeal because contemporaneously-filed Rule 10(b) 
certification adequate to infer intent to appeal from judgment,  and
appellee not prejudiced); Brookens v. White, 795 F.2d  178, 180 (D.C.




__________

n * Effective December 1, 1998, Fed. R. App. P. 15(a) was amended  (in
style but not in substance) to require that a petitioner "specify" 
rather than "designate" the order or part thereof to be reviewed. 
Because Entravision and LCG filed their petition after the amend-
ment, we refer to the amended version of the Rule in this opinion.


judgment because intent to appeal from that judgment not  fairly
inferable from appellant's notice of appeal or subse- quent


Here Entravision specified for review the Memorandum  Opinion & Order.
Under ICC v. Brotherhood of Locomotive  Engineers, 482 U.S. 270, 280
(1987), however, that order, in  which the Commission merely denied
reconsideration of the  prior Report & Order, is unreviewable except
insofar as the  request for reconsideration was based upon new
evidence or  changed circumstances. See Southwestern Bell, 180 F.3d at
 311. Because Entravision gave neither as a ground for 
reconsideration of the Report & Order, the Memorandum  Opinion & Order
is unreviewable. Therefore we must dis- miss Entravision's petition
for lack of jurisdiction* unless we  can fairly infer that Entravision
intended to seek review of  the order not specified in the petition


Entravision's claim that we may infer it intended to seek  review of
the Report & Order appears to be foreclosed by  Southwestern Bell, 180
F.3d at 313-14. In that case the  agency had issued an Investigation
Order prescribing certain  actions that local exchange carriers (LECs)
were to take.  See id. at 310. Two LECs filed petitions for rehearing,
which  the Commission denied in a Reconsideration Order. South-
western Bell then petitioned for review of the Reconsidera- tion
Order. We denied the petition for review because the  Reconsideration
Order was unreviewable and we could not  fairly infer from the
petition for review or nearly contempora- neous filings an intent to
seek review of the Investigation  Order: the petition itself
designated for review only the  Reconsideration Order, and only that
order was appended to  the petition; the docketing statement likewise
named and had  appended only the Reconsideration Order; and the
prelimi- nary statement of issues discussed only matters raised in the
 LECs' petitions for rehearing. See id. at 313; see also City  of
Benton, 136 F.3d at 825-26 (dismissing petition that speci- fied only




__________

n * To the extent that Southwestern Bell Telephone Co. v. FCC, 180 
F.3d 307 (D.C. Cir. 1999), and Beehive Telephone Co. v. FCC, 180  F.3d
314 (D.C. Cir. 1999), treat nonreviewability under Brotherhood  of
Locomotive Engineers as nonjurisdictional, those holdings are 
disapproved. See 482 U.S. at 287. Our resolution of this issue has 


Entravision points to one difference between its filings and  those in
Southwestern Bell and City of Benton: Entravision  expressly mentioned
not just the order denying reconsidera- tion but the underlying Report
& Order--the one it wants the  court to review--in the petition for
review. In context,  however, the mere mention of the Report & Order
does not  make fairly inferable Entravision's intent to seek review of
 that order. On the contrary, Entravision mentions the Re- port &
Order in its petition for review only in the course of  stating the
history of the proceeding prior to the order of  which review is being
sought. Consider:


[Entravision and LCG] petition this Court for review of  the [FCC's]
Memorandum Opinion & Order ("MO&O"),  FCC 98-261 (released October 9,
1998; published in  Federal Register November 17, 1998), in which the
FCC  denied LCG's Petition for Partial Reconsideration of the  FCC's
earlier Report and Order ("RO&O") [sic] in which  it decided not to
protect low power television ("LPTV")  stations operating on Channels
60-69.... A copy of the  MO&O is attached hereto as Exhibit A.... The
MO&O  constitutes final FCC action rejecting LCG's request for 
protection....


The clear import is that only the Memorandum Opinion &  Order is under
review; this is reinforced by Entravision  having attached only the
Memorandum Opinion & Order to  the petition. See 28 U.S.C. s 2344
("The petitioner shall  attach to the petition as exhibits copies of
the order, report,  or decision [for review]").


Entravision's contemporaneous filings even more clearly  demonstrate
that it intended to put before the court only the  order denying
reconsideration. Entravision's docketing  statement, filed within a
month of its petition, specifies only  the Memorandum Opinion & Order
for review: In the space  for denoting the "date(s) of order(s) [under
review]," Entravi- sion entered the date of the Memorandum Opinion &
Order  and only that date. Entravision's preliminary statement of 
issues, filed the same day, likewise points only to the Memo-




__________

n been circulated to and approved by the entire court and thus 
constitutes the law of the circuit. See Irons v. Diamond, 670 F.2d 
265, 268 n. 11 (D.C. Cir. 1981).


randum Opinion & Order; there Entravision identifies two  issues, both
of which relate exclusively to the Commission's  denial of
reconsideration in the Memorandum Opinion &  Order:


1. Whether the FCC's denial of the Petition for Partial 
Reconsideration was contrary to law ...;


2. Whether the FCC's denial of the Petition for Partial 
Reconsideration adequately addresses how the FCC may  weigh the public
interest benefits of continued LPTV  services....


Based upon Entravision's petition for review and these nearly 
contemporaneous filings, we cannot fairly infer that it intend- ed to
seek review of the Report & Order. Because Entravi- sion fails to
satisfy this first requirement for review of an  unspecified order, we
need not consider the second require- ment--that the Commission not
have been prejudiced by  Entravision's mistake. See Southwestern Bell,
180 F.3d at  314. We conclude that Entravision has not brought the 
Report & Order before this court for review.


In a last ditch effort to avoid this conclusion, Entravision  claims
that, because the Commission's argument based upon  Brotherhood of
Locomotive Engineers and Southwestern Bell  would dispose entirely of
the case, the Commission was  required by Interim D.C. Circuit Rule
27(g)(1) to raise it in a  timely-filed motion, and the Commission
cannot now raise it  on brief. Rule 27(g)(1) provides:


Any motion which, if granted, would dispose of the  appeal or petition
for review in its entirety, or transfer  the case to another court,
must be filed within 45 days of  the docketing of the case in this
court, unless, for good  cause shown, the court grants leave for a
later filing.


If Entravision's interpretation of our Rule were correct, then  we
suppose briefs would contain only non-dispositive argu- ments and
there would be no point in counsel writing them or  in our reading
them. But of course, Entravision is not  correct: the Rule governs
motions, not arguments, and is 


therefore no bar to the disposition of this case on the basis of  the
arguments in the briefs.


III. Conclusion


Entravision petitioned for review only of the Memorandum  Opinion &
Order. Under Brotherhood of Locomotive Engi- neers, 482 U.S. at 280,
that order is unreviewable. Entravi- sion's petition is therefore


Dismissed.