Gene A. Folden, Coastal Communications Associates (“Coastal”), and Judith A. Longshore (collectively, “plaintiffs”) appeal the decision of the United States Court of Federal Claims (i) granting the United States’ motion to dismiss for failure to state a claim upon which relief could be granted, and (ii) granting the United States’ motion to dismiss for lack of subject-matter jurisdiction.
Folden v. United States,
We agree with the Court of Federal Claims that plaintiffs’ claims are covered by subsection 402(b), which places them within the exclusive jurisdiction of the D.C. Circuit. Accordingly, we affirm the court’s dismissal for lack of subject-matter jurisdiction.
BACKGROUND
I.
We begin by setting forth the evolution of the regulatory regime by which the Commission issues telecommunications licenses, for it is essential to understanding plaintiffs’ theory of recovery in the case. By statute, the Commission is charged
*1347
with granting applications for licenses if it finds that “public interest, convenience, and necessity would be served by the granting thereof . . . .” 47 U.S.C. § 309 (2000). To facilitate the allocation of cellular licenses, the Commission divided the United States into two geographic markets — metropolitan statistical areas (MSAs) and rural service areas (RSAs).
Folden,
To award the first thirty MSA cellular licenses, the Commission employed comparative hearings.
1
See Certain Cellular Rural Service Area Applications,
14 F.C.C.R. 4619, 4619 (1999). In 1981, however, through an amendment to the Communications Act of 1934 (Communications Act), Congress authorized the Commission to allocate licenses by a system of random selection or lottery.
See
Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, ch. 2, 1242, 95 Stat. 357, 736-37 (1981) (codified at 47 U.S.C. 309(i)). The House of Representatives conference report explained that [b]y the establishment of basic qualifications and the elimination of initial comparative hearings, the conferees intend that much of the present delay and expense can be eliminated with no adverse effect on the provision of services to the public. H.R. Conf. Rep. No. 97-208, at 897,
reprinted in
1981 U.S.C.C.A.N. 1010, 1259. However, despite agreeing that a lottery would speed service to the public, the Commission declined to adopt a lottery process for allocating telecommunications licenses.
Selection from Among Mutually Exclusive Competing Applications Using Random Selection or Lotteries Instead of Comparative Hearings,
In response, Congress passed a revised lottery statute, which imposed upon the Commission the mandatory requirement that lottery rules and procedures be adopted within 180 days. Communications Amendments Act of 1982, Pub.L. No. 97-259, § 115, 96 Stat. 1087, 1094-95 (1982) (codified at 47 U.S.C. § 309(i) as amended); H.R. Conf. Rep. 97-765, at 38, reprinted in 1982 U.S.C.C.A.N. 2261, 2282 (“1982 Conf. Rep.”). Congress instructed that upon selecting a lottery winner, the Commission was to determine whether the winner was qualified pursuant to 47 U.S.C. §§ 308(b), 309(a) (2000). 2 1982 Conf. Rep. *1348 at 39, reprinted in 1982 U.S.C.C.A.N. at 2283. If the initial winner was determined to be unqualified, the Commission was to conduct a subsequent lottery ... with the same applicant pool with each applicants selection probabilities recomputed as necessary . . . . Id.
In 1984, the Commission adopted rules for awarding cellular licenses by lottery. 47 C.F.R. 1.821-1.823, 22.33 (1984);
see also Selection from Among Mutually Exclusive Competing Cellular Applications Using Random Selection or Lotteries Instead of Comparative Hearings,
In 1988, the Commission amended the rules pertaining to lotteries. Under the amended regulations, after the tentative selectee was named, each remaining applicant was no longer to be randomly selected and ranked in order of selection. Rather, in accordance with the amended version of 47 C.F.R. § 1.823(a), the Chief of the Common Carrier Bureau and the Managing Director of the Commission were to determine, on a case-by-case basis, the number of remaining applicants to be selected, and thus ranked as alternative selectees, in each lottery. 47 C.F.R. § 1.823(a) (1989); Selection from Among Mutually Exclusive Competing Applications Using Random Selection or Lotteries in the Public Land Mobile and Domestic Cellular Radio Telecommunications Services, 4 F.C.C.R. 7294 (1988).
This was the state of the regulatory regime when plaintiffs filed their applications for cellular licenses in 1988.
II.
We now turn to the process by which plaintiffs applied for cellular licenses. On May 19, 1988, the Commission issued a list of the 428 RSAs for which lotteries would be held and identified the counties that comprised each RSA.
Listing of Cellular Rural Service Areas With Component Parts,
53 Fed.Reg. 18,133 (Dep’t Commerce May 10, 1988). Plaintiffs submitted applications to the Commission for cellular licenses in seven RSAs. Mr. Folden applied for a cellular license in the Florida 11-Monroe (“Fla.11”) RSA on Nov. 4, 1988, and submitted a $200 filing fee.
Folden,
The Commission issued lottery notices naming plaintiffs among those whose applications had been accepted for filing and providing the date upon which each lottery would occur. The lottery notices explained that each application had been assigned a code number, and that one code number would be drawn for each RSA. Furthermore, each notice stated, “In the event that the application selected cannot be granted, another lottery will be held for that market and another application will be selected from the remaining applications.”
Lotteries for the seven licenses were held on the following dates in 1989: April 13 (N.D.3), May 4 (Minn.11), June 14 (Tex.21), August 9 (Ark.9), August 23 (Fla.11), September 20 (P.R. 5), and November 8 (Pa.4). Am. Class Action Compl., ¶¶ 32-39. Only one applicant, the tentative selectee, was chosen in each lottery; none of the plaintiffs was chosen as a tentative selectee.
Folden,
On January 29, 1992, the Commission announced that it would hold relotteries for twenty-nine RSAs, including Tex. 21, on April 8, 1992. This relottery notice stated, “The new lotteries will be conducted among the applications which have already been filed for these markets, minus the dismissed applications. No new applications for these markets will be accepted.” As had been the case in the original lottery, each application was to be assigned a code number, only one code number would be drawn for each RSA, and “[i]n the event that the application selected cannot be granted, another lottery will be held for that market and another application will be selected from the remaining applications.” The Tex. 21 relottery was held on April 8, and on April 9, the Commission issued the results; neither Coastal nor Mr. Longshore was chosen as the new tentative selectee. However, the new tentative selectee, Alee Cellular Communications (“Alee”), was later disqualified by the Commission on July 24,1994, and its application was denied. Due in part to events that followed, the Commission never conducted a second relottery for the Tex. 21 RSA.
III.
While plaintiffs’ applications were still pending before the Commission, Congress intervened in the process. In 1993, Congress added subsection 309(j) to the Communications Act of 1934. The Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, tit. VI, § 6002(a), 107 Stat. 312, 387-92 (1993) (codified at 47 U.S.C. § 3090')) (“Auction Statute”). Subsection 309(j) authorized the Commission to use auctions as a method of selecting among mutually exclusive applications for cellular
*1350
licenses. The statute also permitted the Commission to continue to use lotteries for applications accepted for filing prior to July 26, 1993.
Id.
§ 6002(e)(2),
On March 8, 1994, the Commission adopted rules for implementing the Auction Statute. 47 C.F.R. §§ 1.2101-1.2111 (1994); Implementation of Section 309(j) of the Communications Act — Competitive Bidding, 9 F.C.C.R. 2348 (1994). For those applications filed prior to July 26, 1993, such as plaintiffs’, the Commission decided to continue to use lotteries, rather than auctions, to resolve pending applications for cellular unserved areas. Implementation of Section 3090) of the Communications Act — Competitive Bidding, 9 F.C.C.R. 7387, 7390-93 (1994). Accordingly, in August 1994, the Commission issued a revision of its licensing rules:
Pending applications for authority to operate the first cellular system on a channel block in an MSA or RSA market continue to be processed under the rules governing the processing of such applications that were in effect when those applications were filed, unless the Commission determines otherwise in a particular case.
Revision of Part 22 of the Commission’s Rules Governing the Public Mobile Services, 9 F.C.C.R. 6513, app. B (1994) (setting forth 47 C.F.R. § 22.959 (1995)). At the time plairftiffs’ applications were filed in 1988, 47 C.F.R. § 22.33 provided for the use of lotteries to distribute cellular licenses.
On July 12, 1996, the Commission issued a relottery notice for six of the seven RSAs at issue (Ark. 9, Fla. 11, Minn. 11, N.D. 3, Pa. 4, and P.R. 5), setting the relottery date for September 18, 1996. As it had done in the case of the January 29, 1992 relottery notice for the Tex. 21 RSA, the Commission explained that each application had been assigned a code number, that only one code number would be drawn for each unserved area, and that “[i]n the event that the application selected cannot be granted, another lottery will be held for that unserved area and another application will be selected from the remaining applications.”
However, on September 9, 1996, just before the relotteries were to be held for these six RSA licenses, Cellular Communications of Puerto Rico (“CCPR”) filed an
ex parte
petition requesting that the Commission issue a declaratory ruling that an auction, as opposed to a lottery, would be employed for the P.R. 5 RSA.
Folden,
[CCPR’s] petition raises issues concerning the broader applicability of the use of competitive, bidding to award cellu]ar licenses for RSAp for which applications were filed prior to July 26, 1993, where the original tеntative selectee has been disqualified and no license has been awarded to date. We will therefore treat CCPR’s petition as a petition for rulemaking, and request comment on it, as well as on The applicability of awarding eellular/market licenses via competitive bidding ip all cellular markets for which applications were filed with the Commission prior to July 26, 1993, and the original lottery winner has been disqualified.
*1351 Cellular Communications of Puerto Rico, Inc. Petition for Declaratory Ruling or Rulemaking to Determine Whether Competitive Bidding Procedures Should Be Used to License Certain Cellular Rural Service Areas, FCC Public Notice, DA 96-1685 (Oct. 24, 1996) (“CCPR Petition”).
IV.
Unsatisfied with the Commission’s response to its action allowing for the use of auctions rather than lotteries, Congress again injected itself into the licensing process. On August 5, 1997, Congress passed the Balanced Budget Act of 1997, which repealed section 6002(e) of the Auction Statute, which had preserved the Commission’s ability to use lotteries for applications filed prior to July 26, 1993. In addition, Congress terminated the Commission’s authority to hold lotteries for any license applications except aрplications for noncommercial educational and public broadcast stations. Balanced Budget Act of 1997, Pub.L. No. 105-33, tit. III, § 3002(a)(2)(B), (a)(4), 111 Stat. 251, 258, 260 (1997) (codified at 47 U.S.C. § 309(i)(5)) (“1997 Budget Act”). Following Congress’ action, the Bureau dismissed all pending cellular lottery applications for the following six RSAs: N.D. 3, Minn. 11, Ark. 9, Fla. 11, P.R. 5, and Pa. 4. Certain Cellular Rural Service Area Applications, 14 F.C.C.R. 4619 (1999). The Bureau further determined that the applicants did not qualify for refunds of their filing fees. Id. at 4621. The Coastal and Longshore applications for the Tex. 21 RSA were similarly dismissed without a refund of their filing fees by the Bureau. Certain Cellular Rural Service Area Applications in Market Nos. 599A and 672A, No. DA 99-814 (Apr. 29, 1999). Plaintiffs’ request for reconsideration of the dismissals was denied by the Bureau. Certain Cellular Rural Service Area Applications in Market Nos. 599A and 672A 16 F.C.C.R. 4860 (2001).
Congress subsequently reinstated the original tentative selectees for three of the seven RSAs at issue on December 21, 2000. Launching Our Communities’ Access to Local Television Act of 2000, Pub.L. No. 106-553, tit. X, § 1007, 114 Stat. 2762A-128, 2762A-138-40 (“Local TV Act”). In accordance with the statute, the Commission announced on March 16, 2001, that licenses for the Fla. 11, Minn. 11, and Pa. 4 RSAs had been granted to the original tentative selectees. Wireless Telecommunications Bureau Grants Rural Cеllular Licenses, 16 F.C.C.R. 5601 (2001).
On January 13, 2001, the Commission proposed rules for auctioning cellular licenses in the four remaining RSAs at issue: Ark. 9, N.D. 3, Tex. 21, and P.R. 5. Competitive Bidding Rules, 16 F.C.C.R. 4296 (2001). On January 16, 2002, the Commission adopted rules to govern auctions for licenses in these four RSA markets, in which no tentative selectee had been selected by relottery prior to July 1, 1997, and for which Congress had not directed the Commission to reinstate the original tentative selectee. 47 C.F.R. §§ 22.228-22.229, 22.969 (2002); Implementation of Competitive Bidding Rules to License Certain Rural Service Areas, 17 F.C.C.R.1960 (2002). The interim operators 4 won the bidding for the Ark. 9, N.D. 3, and P.R. 5 licenses. Cellular Rural Service Areas Auction Closes, 17 F.C.C.R. 10582 (2002). On November 1, 2002, a Commission Administrative Law Judge *1352 dismissed the application of Alee, the winner of the relottery, for the Tex. 21 license. In re Application of Alee Cellular Communications for Authorization to Construct Nonwireline Cellular System in Texas RSA 21 Market 672A, WT Docket No. 02-28, File No. 11025-CL-P-672-A-89 (Nov. 1, 2002).
V.
A.
Plaintiffs did not request review or reconsideration by the full Commission of the Bureau’s orders dismissing their applications.
5
Folden,
B.
The Court of Federal Claims dismissed plaintiffs’ amended complaint for failure to *1353 state a claim upon which relief could be granted. Id. at 51-55. The court assumed that it had jurisdiction to entertain plaintiffs’ breach of implied-in-fact contract claims, in part “because certain case precedent suggests that almost any implied-in-fact [contract] allegation gives [the Court of Federal Claims] jurisdiсtion to review such claims.” 7 Id. at 52. Reciting the elements of an implied-in-fact contract (mutuality of intent to contract, consideration, lack of ambiguity in offer and acceptance, and authority to bind the government), the court found lacking mutuality of intent to contract. Id. at 52-53. The court declined to adopt plaintiffs’ argument that 47 C.F.R. §§ 1.823 and 22.33(a) constituted contractual promises by the Commission to hold lotteries or relotteries. Id. at 53. Rather, because agency rules are subject to change in accordance with recognized procedures, especially when mandated by statute as in this case, and because the regulations did not prohibit the Commission from changing its lottery rules in the future in accordance with those recognized procedures, the court concluded that neither the regulations nor the lottery notices contractually bound the Commission to hold lotteries or relotteries within a definite time, before the statutory change occurred. Id. at 53-54.
The court further relied upon 47 C.F.R. § 22.959 (1995), which provided for the award of cellular licenses by lottery “unless the Commission determines otherwise in a particular case.”
Id.
at 54. This demonstrated to the court that the Commission had not manifested a clear intent to be obligated to use lotteries.
Id.
The court also invoked the “well established rule” that an agency such as the Commission is permitted to modify its rules pursuant to rulemaking proceedings and must follow the mandates of Congress.
Id.
Specifically, the D.C. Circuit has ruled that the Commission has the discretion to change license allocation procedures midstream, though it may disrupt the applicants’ expectations and alter the competitive balance among them.
Id.
(citing,
inter alia, Bachow Communications, Inc. v. FCC,
C.
The Court of Federal Claims also ruled in favor of the United States on its motion to dismiss for lack of subject-matter jurisdiction.
Id.
at 55-60. The court explained that 47 U.S.C. § 402(b) reserves judicial review of Commission licensing decisions exclusively for the D.C. Circuit.
Id.
at 56. Because the statutory term “station license” in subsection 402(b)(1) encompasses personal communications service (“PCS”) licenses, which, in turn, include licenses for cellular telephone service, the court concluded that an appeal by any applicant for a cellular license whose application is denied by the Commission falls within the scope of that subsection.
Id.
(citing
NextWave Pers. Communications, Inc. v. FCC,
The court was unpersuaded by plaintiffs’ argument that the Bureau’s dismissals of their applications did not constitute final decisions of the Commission and therefore did not trigger subsection 402(b).
Id.
Plaintiffs also argued that because they were seeking money damages, the D.C. Circuit could not have had, and the Court of Federal Claims did have, jurisdiction over their claims.
Id.
at 57-58. The court concluded that plaintiffs’ attempt to circumvent established agency and federal court procedures “conjured a contract theory from the mere chance to obtain a cellular license following submission of their applications” in the absence of any contract negotiations and documents.
Id.
at 57. The court added that plaintiffs had offered no precedent to support their theory of an implied-in-fact contract.
Id.
at 59. Thus, the court found plaintiffs’ claims to be one of those “instances in which a claim that is otherwise within the court’s jurisdiction is so insubstantial on its merits that a dismissal may be termed jurisdictional.”
Id.
(quoting
Lewis v. United States,
This appeal follоwed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
ANALYSIS
I.
Whether the Court of Federal Claims properly dismissed plaintiffs’ amended complaint for lack of subject-matter jurisdiction is a question of law that we review
de novo. W. Co. v. United States,
II.
In this case, plaintiffs allege subject-matter jurisdiction in the Court of Federal Claims under the Tucker Act, which provides as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1) (2000). Although the Tucker Act waives the sovereign immunity of the federal government, it does not provide any substantive rights.
United States v. Mitchell,
To establish Tucker Act jurisdiction in this case, plaintiffs allege implied-in-fact contracts with the Commission. In their amended complaint, they assert that the Commission breached implied-in-fact contracts to hold relotteries to award cellular licenses for the seven RSAs at issue. Plaintiffs’ theory is as follows: The Commission released “offers,” in the form of public notices, requesting applications for the seven RSA cellular licenses that it planned to award by lottery. Plaintiffs “accepted” those offers by preparing and timely filing letter-perfect applications, and plaintiffs provided “consideration” by paying the requisite filing fees for the seven licenses in accordance with the Commission’s lottery rules and procedures. The Commission then issued lottery notices that named plaintiffs as among those whose applications had been accepted, constituting “public acknowledgement” that plaintiffs had fulfilled the necessary requirements to apply for the lottеries. The Commission further promised to hold re-lotteries for each of the seven RSA licenses should none of the initial winners be qualified, and the Commission confirmed this promise upon disqualifying the original tentative selectee in each of the seven RSAs.
Plaintiffs contend that the Commission’s contractual obligations to conduct a relottery for each RSA license arose on the date that the initial lottery winner’s application was dismissed or denied. According to plaintiffs, the Commission breached those contracts when it failed to hold relotteries for six of the seven licenses for which plaintiffs had applied, and when it failed to hold a second relottery for the Tex. 21 RSA. For six of the RSA licenses, plaintiffs identify the date of the originally scheduled relotteries, September 18, 1996, as the date of the Commission’s breach. For the Tex. 21 RSA, plaintiffs identify April 17, 1997, as the date of the Commission’s breach, because between November 25, 1996, and April 17, 1997, plaintiffs assert, “various applicants made formal demands that re-lotteries be held for all remaining RSAs, including Tex. 21,” which the Commission allegedly ignored.
Having explained plaintiffs’ theory of Tuckеr Act jurisdiction, we now turn to the statutory and regulatory regime of the Communications Act.
III.
A.
Congress has vested the district courts with jurisdiction over enforcement of Commission orders. 47 U.S.C. § 401(b) (2000). At the same time, in 47 U.S.C. § 402, it has provided for judicial review of Commission decisions. Subsection 402(a) provides:
(a) Procedure. Any proceeding to enjoin, set aside, annul or suspend any order of the Commission under this Act (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in [28 U.S.C. §§ 2342-2351].
In turn, section 2342 of title 28 provides for the courts of appeals to have exclusive jurisdiction to “enjoin, set aside, suspend (in whole or in part), or to determine the validity of’ all final orders of the Commission made reviewable by subsection 402(a). 28 U.S.C. § 2342 (2000). Section 2343 sets the proper venue as either the judicial circuit in which the petitioner resides or has its principal office, or the D.C. Circuit. Id. § 2343.
Subsection 402(b), by contrast, specifically provides for the D.C. Circuit to have jurisdiction with respect to the following Commission decisions:
(b) Right to appeal. Appeals may be taken from decisions and orders of the *1356 Commission tо the United States Court of Appeals for the District of Columbia in any of the following cases:
(1) By any applicant for a construction permit or station license, whose application is denied by the Commission.
(2) By any applicant for the renewal or modification of any such instrument of authorization whose application is denied by the Commission.
(3) By any party to an application for authority to transfer, assign, or dispose of any such instrument of authorization, or any rights thereunder, whose application is denied by the Commission.
(4) By any applicant for the permit required by section 325 of this Act [47 USCS § 325] whose application has been denied by the Commission, or by any permittee under said section whose permit has been revoked by the Commission.
(5) By the holder of any construction permit or station license which has been modified or revoked by the Commission.
(6) By any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1), (2), (3), (4), and (9) hereof.
(7) By any person upon whom an order to cease and desist has been served under section 312 of this Act [47 USCS § 312],
(8) By any radio operator whose license has been suspended by the Commission.
(9) By any applicant for authority to provide interLATA services under seetion 271 of this Act [47 USCS § 271] whose application is denied by the Commission.
By their plain language, subsections 402(a) and (b) are mutually exclusive. When section 402 was amended in 1952 to its current form, the Senate Committee stated, “The language of this subsection [402(b)], when considered in relation to that of subsection (a), also would make it clear that judicial review of all cases involving the exercise of the Commission’s radio licensing power is limited to that court [the D.C. Circuit].” S.Rep. No. 44, at 10 (1951),
cited in Cook,
We think it clear that the D.C. Circuit’s jurisdiction over claims that fall within subsection 402(b) is exclusive.
8
The Supreme Court has ruled that the statutory jurisdiction of the courts of appeals over claims that fall within the scope of subsection 402(a) is exclusive.
FCC v. ITT World Communications, Inc.,
In the Communications Act, Congress enacted a comprehensive statutory and regulatory regime governing orders of the Commission. Congress vested the district courts with jurisdiction over enforcement of Commission orders, 47 U.S.C. § 401(b), and the courts of appeal and the D.C. Circuit with jurisdiction over judicial review of such orders,
id.
§ 402(a), (b). At the same time, section 155(c)(7) requires a party to appeal first within the Commission before pursuing a judicial remedy pursuant to section 402.
Id.
§ 155(c)(7);
see supra,
note 5. Congress also imposed various filing deadlines for appeals from Commission orders, prоvided for interested parties to receive notice of an appeal, required appeals to include specific information, and prescribed the procedure by which an interested party may intervene in appeal proceedings.
Id.
§ 402(c)-(e). We have explained that “[w]hen such a ‘specific and comprehensive scheme for administrative and judicial review1 is provided by Congress, the Court of Federal Claims’ Tucker Act jurisdiction over the subject matter covered by the scheme is preempted.”
Vereda, Ltda v. United States,
Plaintiffs contend, however, that the D.C. Circuit’s jurisdiction pursuant to subsection 402(b) and Tucker Act jurisdiction for the Court of Federal Claims may coexist. In making this argument, they rely on
Cellco Partnership v. United States,
Plaintiffs’ reliance on
Célico Partnership
is misplaced. We are not bound by decisions of the Court of Federal Claims. In any event, to the extent that the decision suggests that the Court of Federal Claims may exercise concurrent jurisdiction with the D.C. Circuit over claims that fall within the scope of subsection 402(b), we reject it. The availability of concurrent jurisdiction in district court over claims under subsection 402(b) was explicitly rejected in
City of Rochester,
The principles which frame our decision are unexceptionable ... Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur.... If ... there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.
The rationale for statutory review is that coherence and • economy are best served if all suits pertaining to designated agency decisions are segregated in particular courts. The choice of forum is, as we have said, for Congress . . . .
Id.
at 931 (citing
City of Tacoma v. Taxpayers of Tacoma,
In sum, if subsection 402(b) applies in this case, the D.C. Circuit had exclusive jurisdiction over plaintiffs’ claims. 11 It is to that question that we now turn.
*1359 B.
1.
Subsection 402(b)(1) applies to licensing decisions of the Commission, specifically, appeals by “any applicant for a ... station license, whose application is denied by the Commission.”
12
It is undisputed in this case that, strictly speaking, plaintiffs are not appealing from any formal denial of their applications, for plaintiffs do not contend that their applications for the seven RSA licenses were actually denied — only that the relotteries by which the Commission was allegedly obligated to award those licenses were canceled. Plaintiffs’ claims therefore do not fall within the literal language of subsection 402(b)(1). Nevertheless, in addition to the licensing decisions expressly enumerated therein, subsection 402(b) also extends to licensing decisions of the Commission that are “ancillary” to those set forth in subsections (1)-(9).
See Tomah-Mauston Broad. Co. v. FCC,
The Court of Federal Claims determined that subsection 402(b)(1) applied to plaintiffs’ claims.
Folden,
On appeal, plaintiffs point to
Freeman Engineering Associates, Inc. v. FCC,
in which the D.C. Circuit determined that the Commission’s dismissal of certain prefer
*1360
ence applications was neither a denial of a license nor a matter ancillary to the denial of a license, and that therefore the dismissal did not fall within the scope of subsection 402(b).
In response, the government asserts that subsection 402(b)(1) does encompass plaintiffs’ claims, thereby providing the D.C. Circuit with exclusive jurisdiction. The government refers us to
Cook,
2.
We agree with the Court of Federal Claims that subsеction 402(b)(1) encompasses plaintiffs’ claims. In our view, a Commission decision not to hold relotteries is ancillary to the denial of a station license as set forth in subsection 402(b)(1). 14
With regard to the substance of subsection 402(b), the Senate Report explained in 1951, “The language of this subsection [402(b)], when considered in relation to
*1361
that of subsection (a), also would make it clear that judicial review of
all cases involving the exercise of the Commission’s radio licensing power
is limited to that court [the D.C. Circuit].” S.Rep. No. 44, at 10 (emphasis added). Relying on this language, the D.C. Circuit ruled as early as 1962 that appeals of Commission orders that are “ancillary” to those explicitly set forth in subsection 402(b) also fall within the scope of the statutory requirement that the D.C. Circuit have exclusive jurisdiction. Toma
h-Mauston,
Perhaps most analogous to plaintiffs’ situation is
Kessler.
In that case, in a Report and Order issued on May 10, 1962, the Commission announced a “freeze” on the acceptance of applications for most classes of standard radio broadcast stations, effective at the close of business that day.
Kessler,
From these cases, we conclude that the Commission’s decision not to hold relotteries on September 18, 1996, for six of the RSA licenses, and its failure to hold a relottery for the Tex. 21 RSA license by April 17, 1997, constituted actions ancillary to the licensing power of the Commission, specifically to the denial of a station license set forth in subsection 402(b)(1). 15 We *1362 think that the Commission’s failure to hold relotteries when plaintiffs had already filed their lottery applications is just as ancillary to subsection 402(b) as the Commission decisions set forth in the cases above. For example, in Kessler, the applicants had not even filed their applications; yet, the court held that the Commission’s refusal to accept their applications was ancillary to the denial of a license. Plaintiffs’ claims here are even more closely related to the decisions listed in subsection 402(b)(1): they had filed their applications for the seven RSA licenses some eight years earlier; thus, by failing to hold the relotteries, the Commission necessarily determined that plaintiffs’ lottery applications would not result in their receiving licenses. Rather than, as the court characterized it in Kessler, “in effect” denying their applications, the Commission here “in fact” denied plaintiffs’ lottery applications, albeit without issuing a formal order.
Finally, plaintiffs rely upon
Freeman Engineering
and
Waterway Communications Sys., Inc. v. FCC,
Waterway Communications
also is distinguishable from this case. Waterway Communications System, Inc. (‘Water-corn”) petitioned the Commission to deny the pending applications for certain licenses filed by its competitor, Radio Television of Louisiana, Inc. (“RTL”).
Waterway Communications,
In sum, we conclude that the Commission’s failure to hold relotteries for the seven RSA licenses at issue was an action ancillary to the denial of an application for a station license, as set forth in subsection 402(b)(1). Therefore, subsection 402(b) provided for jurisdiction in the D.C. Circuit over plaintiffs’ claims had there been exhaustion of administrative remedies.
CONCLUSION
Plaintiffs’ amended complaint seeks judicial review of the Commission’s decision not to hold relotteries for the seven RSA licenses at issue. Such a decision by the Commission is ancillary to the denial of a license application, as set forth in 47 U.S.C. § 402(b)(1). For these reasons, plaintiffs’ claims are subject to the exclusive jurisdiction of the D.C. Circuit. We therefore affirm the Court of Federal Claims’ dismissal of plaintiffs’ suit for lack of subject-matter jurisdiction.
AFFIRMED.
Notes
. Historically, the Commission conducted "comparative hearings” to determine which applicant would best serve the statutory goals of public interest, convenience, and necessity. In comparative hearings, the Commission examined and compared each applicant based on diversification of media control, integration of management and ownership, previous broadcast experience, character, financial capability, and minority ownership.
See
47 U.S.C. § 309;
Policy Statement on Comparative Broadcast Hearings,
. As noted above, section 309(a) requires the Commission to grant licenses by determining whether "the public interest, convenience, and necessity will be served by the granting of such application . . . . ” 47 U.S.C. § 309(a). Section 308(b) sets forth matters into which the Commission may inquire, including
the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station; the ownership and location of the proposed station and of the stations, if any, with which it is proposed to communicate; the frequencies and the power desired to be used; the *1348 hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used....
Id. § 308(b).
. The original tentative selectees for the Minn. 11, Fla. 11, and Pa. 4 RSAs were dismissed, for example, because their percentage of foreign ownership exceeded the then-applicable statutory limits as set forth in 47 U.S.C. § 310(b)(1), (3) and 47 C.F.R. § 22.4.
In re Applications of Cellwave Telephone Services L.P., FutureWave General Partners L.P., and Great Western Cellular Partners,
7 F.C.C.R. 5955 (1992). These dismissals were affirmed by the D.C. Circuit.
Great W. Cellular Partners v. FCC,
. In the four RSAs in which Congress did not reinstate the original tentative selectees, Ark. 9, N.D. 3, Tex. 21, and P.R. 5, the Commission had granted interim operating authority, pending relotteries, to cellular telephone licensees in adjacent areas to provide service. Implеmentation of Competitive Bidding Rules to License Certain Rural Service Areas, 16 F.C.C.R. 4296, 4301 & n. 21 (2001) (‘‘Competitive Bidding Rules ”).
. Plaintiffs were required to file a petition for review of the dismissal of their applications with the full Commission, as a condition precedent to judicial review of the agency’s decision. 47 U.S.C. § 155(c)(7) (2000). Section 155(c)(7) imposes this requirement for orders and actions taken pursuant to 47 U.S.C. § 155(c)(1). Subsection 155(c)(1) applies to orders that involve the Commission’s delegation of its functions. In this case, plaintiffs’ applications were dismissed by the Bureau, to which the Commission has delegated that function pursuant to 47 C.F.R. § 0.131. Accordingly, plaintiffs were required to comply with section 155(c)(7) in order to preserve their right to judicial review of the dismissal of their applications.
See, e.g., Richman Bros. Records, Inc. v. FCC,
. Plaintiffs' takings claim was based on the theory that the government took their contract rights without paying just compensation. Plaintiffs contended .that the Commission’s decision to cancel the relotteries for the seven RSAs at issue, in anticipation of congressional revocation of the Commission’s authority to hold lotteries for cellular licenses, violated the Takings Clause of the Fifth Amendment.
Folden,
Plaintiffs’ theory of a taking of their contract rights in violation of Article III was as follows: The D.C. Circuit affirmed the Commission’s decision that the original selectees for the Minn. 11, Fla. 11, and Pa. 4 RSAs were ineligible to hold the licenses.
See supra,
note 3. According to plaintiffs, these decisions of the D.C. Circuit “vested” in plaintiffs the contractual right to a relottery for those three RSA licenses. Plaintiffs allege that when Congress subsequently awarded the licenses for these three RSAs to the original selectees by statute, the government "unconstitutionally appropriated thefir] contract rights” by eliminating their chances of winning a relotteiy for the three RSAs.
Folden,
The Court of Federal Claims dismissed all of plaintiffs’ constitutional claims, and plaintiffs have chosen not to appeal that ruling.
. The court prefaced its initial assumption of subject-matter jurisdiction, however, with the caveat that “logically, plaintiffs’ complaint, based on FCC decisions to dismiss plaintiffs’ applications, should be reviewed in the United States Court of Appeals for the District of Columbia and not in this court.”
Folden,
. Neither party contends that subsection 402(a) applies to plaintiffs’ claims; rather, the parties dispute whether plaintiffs' claims fall within the scope of subsection 402(b).
. We addressed the exclusivity of a statutory grant of jurisdiction in
Amerikohl Mining, Inc. v. United States,
Where "Congress specifically designates a forum for judicial review of administrative action, such a forum is exclusive, and this result does not depend on the use of the word 'exclusive' in the statute providing a forum for judicial review.”
Thus, regardless of how Amerikohl characterizes the present action, Amerikohl is preeluded from challenging the validity of regulations promulgated under section 1276(a)(1) because it is in the wrong court....
Id.
at 1215 (quoting
Getty Oil Co. v. Ruckelshaus,
.
Sykes
followed earlier precedent similarly construing the predecessor of subsection 402(b), section 16 of the Radio Act of 1927, ch. 169, 44 Stat. 1166.
E.g., White v. Fed. Radio Commn.,
. The Court of Federal Claims explained, and it is conceded by plaintiffs, that the D.C. Circuit may not, now, take jurisdiction over their claims because of their failure to timely appeal within the Commission from the dismissal of their applications by the Bureau.
Folden,
. Plaintiffs do not dispute the Court of Federal Claims’ conclusions (i) that the term "station license” encompasses PCS licenses,
see NextWave,
. Plaintiffs frame their challenge to the Commission’s action in terms of a claim for breach of contract. We have already held, however, that if subsection 402(b) applies in this case, it preempts Tucker Act jurisdiction. In analyzing whether subsection 402(b) applies, we must look to the true nature of plaintiffs' claim, not how plaintiffs characterize it. At root, plaintiffs’ action plainly represents a challenge to the Commission’s failure to hold relotteries for the seven RSA licenses at issue. It is on those terms that we approach the question whether subsection 402(b) applies to it.
. To the extent that plaintiffs contend that the Commission’s failure to hold relotteries was not an appealable "decision” or "order” as set forth in subsection 402(b)(1), we disagree. We conclude that the Commission’s decision was in fact an appealable order within the meaning of the statutory scheme. In re FCC, 217 F.3d 125, 141 n. 10 (2d Cir.2000). In In re FCC, the Second Circuit concluded that a Public Notice of Auction of certain PCS licenses constituted an appealable order of the Commission. Id. While admitting that the Commission had “issued no order formally announcing the cancellation of the Licenses,” the court nevertheless determined that revocation of the licenses was made explicit in the filing before the bankruptcy court and “implicit in the Public Notice announcing the re-auction of the Licenses . . . . ” Id. The court thus concluded that "the FCC action in question is unmistakably regulatory in nature.” Id. In addition, the court explained,
The FCC’s Notice announced that specified licenses — those formerly possessed by NextWave — were to be re-auctioned. It is easy to conclude that this “denies a right.” Illinois Citizens Comm. [for Broadcasting v. FCC], 515 F.2d [397,] 402 [ (D.C.Cir. 1974) ]. And if that decision is appealable, its regulatory nature requires that it be appealed in the court of appeals.
Id. Likewise, in this case, as seen above, the decision of the Commission not to hold relotteries was announced by public notice and subsequently explained in another public notice. At the same time, we have no difficulty concluding that the cancellation of the relotteries denied plaintiffs the ability to receive the licenses by lottery. Thus, we conclude that despite the absence of a formal "decision” or "order” by the Commission, the decision not to hold relotteries for the seven RSA licenses at issue constituted an appealable decision within the meaning of subsection 402(b).
. The examples of Commission decisions not falling within the scope of 402(b), to which plaintiffs analogize their situation, are not persuasive.
Straus Communications, Inc. v. FCC,
. The rules for pioneer’s preferences provide that if an applicant demonstrates that it "has developed an innovative proposal that leads to the establishment of a service not currently provided or a substantial enhancement of an existing service,” the applicant may receive a pioneer’s preference when the Commission adopts rules governing the new or enhanced service.
Freeman Eng’g,