MEMORANDUM OPINION
I. INTRODUCTION
This case’s roots can be traced to a Federal Communications Commission (“FCC”) action that was initiated nearly twenty years ago. In 1992, plaintiff North American Catholic Education Programming Foundation, Inc. (“NACEPF”) applied for a license for Instructional Television Fixed Service (“ITFS”) channels around Las Vegas, Nevada. The licenses were instead given to Clark County School District (“CCSD”), and after unsuccessfully exhausting its administrative remedies, plaintiff appealed the Commission’s decision to the United States Court of Appeals for the District of Columbia Circuit. Unfortunately, defendant Howard J. Barr— then counsel to plaintiff and an attorney with co-defendant Womble, Carlyle, Sandridge & Rice, PLLC (“Womble”) — filed the notice of appeal two days late, and the court dismissed the appeal as untimely filed.
N. Am. Catholic Educ. Programming Found., Inc. v. FCC,
*242 II BACKGROUND
On May 13, 1992, NACEPF applied to the FCC for an ITFS license for four channels in the area of Las Vegas, Nevada. Pl.’s Statement of Material Facts as to Which There Is No Genuine Issue ¶ 7, ECF No. 17, Sep. 18, 2009 (“Mat. Facts”). On December 30, 1993, CCSD filed a competing application, along with a request for the FCC to waive the rule that limited the number of ITFS licenses a single entity could hold in a certain region. Pl.’s Mem. P. & A. Opp. Def.’s Mot. Partial Summ. J. (“Summ. J. Mem.”) Ex. H at 1, Sep. 18, 2009, ECF No. 17-12 (“Waiver App.”). At the time of CCSD’s waiver application there were nearly 150,000 students enrollеd in the more than 150 schools that constituted the school district, see N. Am. Catholic Educ. Programming Found., Inc., 12 FCC Red. 24449, 24450 (1997), and CCSD was already authorized to use eight ITFS channels (the maximum allowed is four). See Waiver App. 1. Plaintiff filed a petition to deny the waiver request, arguing that waiver was not in the public interest and that CCSD had not met the “exceedingly high burden” required in order for waiver to be granted. Summ. J. Mem. Ex. I at 7, ECF No. 17-13 (“Pet. Deny”). At that time, NACEPF was represented by Howard Barr, then an attorney at Pepper & Corazzini, a law firm that would merge with defendant Womble in March 2002. Mat. Facts ¶ 10. The Video Services Division of the Commission’s Mass Media Bureau (“MMB”) granted CCSD’s waiver request, and after following the procedure for deciding between competing applications, determined that CCSD was the tentative selectee. NACEPF, 12 FCC Red. at 24453.
Plaintiff — with defendants as counsel— petitioned the MMB to reconsider its decision to waive the four-channel rule. Summ. J. Mem. Ex. K, ECF No. 17-15 (“MMB Pet. Recons.”). Plaintiff argued that the Division failed to apply the Commission’s four-channel waiver rule, that Supreme Court and D.C. Circuit precedent required the Division to apply an “exceedingly high” standard, that the Division’s decision did not genuinely engage in reasoned decision-making, and that the decision contravened the Commission’s goal of diversity. Id. The MMB affirmed, finding “that there are no errors of law or new facts that would warrant reversing the staff action.” Clark Cnty. Sch. Dist., 17 FCC Red. 5325 (2002). The MMB held that “the Commission properly found that the requested channels are necessary to be able to provide the wide range instructional programming proposed,” and stated that “the public interest is best served by granting CCSD a waiver of the four-channel rule.” Id. at 5327 (emphasis added).
At this point, plaintiff enlisted new counsel and filed an Application for Review (“AFR”) to the full Commission. Summ. J. Mem. Ex. M at 9, ECF No. 17-17 (“AFR”). Among other things, plaintiff argued that the MMB had not applied the “exceedingly high burden” test and had not analyzed CCSD’s need for new channels in terms of the public interest. Plaintiff further argued that the fact that CCSD aired some duplicate programs meant it did not actually need the new channels. The Commission denied the AFR, finding that the grant of waiver was “consistent with the Commission’s Rules and precedent.” Clark Cnty. Sch. Dist., 18 FCC Red. 18815, 18819 (2003). The Commission said that NACEPF had cited no authority in support of its argument based on duplicate programming, and found that in accordance with its precedent, “full utilization of the currently assigned channels [was] not a prerequisite to an applicant’s request for additional channels.” Id. at 18820. The Commission also determined that “Clark County’s use of the channels at *243 issue was reasonable and consistent with both precedent and furtherance of the public interest.” Id. at 18821.
NACEPF then rehired defendants and filed a Petition for Reconsideration (“PFR”) to the Commission. Summ. J. Mem. Ex. O, ECF No. 17-19 (“PFR”). On October 8, 2004, the Commission held, in accordance with its precedent, that the PFR would be denied because it did not “present any new facts or changed circumstances,” and raised new arguments that should have been raised before the MMB in the first instance. 19 FCC Red. 20169, 20173 (2004).
On November 9, 2004, thirty-two days after the Commission’s denial of the PFR, defendant Howard Barr filed a notice of appeal on behalf of plaintiff with the D.C. Circuit. The Circuit dismissed the appeal as untimely on January 31, 2006.
NACEPF,
III. LEGAL STANDARD
Review of a magistrate judge’s report and recommendation for a dispositive motion is
de novo.
Fed.R.Civ.P. 72(b)(3);
see also
28 U.S.C. § 636(b)(1);
United States v. Wheeler,
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton,
IV. DISCUSSION
In order for a plaintiff to prevail on a legal malpractice claim, he or she must prove the applicable stаndard of care, a breach of that standard, and a causal relationship between the violation and harm alleged.
Television Capital Corp. of Mobile v. Paxson Commc’n Corp.,
A. Plaintiffs arguments based on WAIT Radio and Northeast Cellular
In its motion for summary judgment, NACEPF argues that the FCC’s waiver of the four-channel rule would have been overturned on appeal because the FCC did not comply with
WAIT Radio,
The D.C. Circuit “cannot review ‘questions of fact or law upon which the Commission, or designated authority within the Commission, has been afforded no opportunity to pass.’ ”
NetworkIP, LLC v. FCC,
In its Reply in Support of Its Objections to the Report & Recommendation of the Magistrate Judge, ECF No. 36 (“R & R Reply”), plaintiff insists that the Court “need review only two bodies of material to verify that [NACEPF advanced arguments based on WAIT Radio and Northeast Cellular: ]” (1) a number of sections of NACEPF’s FCC filings, and (2) the two cases themselves. R & R Reply 1. The Court has examined those sources and remains unconvinced. At best, plaintiff’s argument before the FCC amounts to an argument that waiver should not have been granted because it was not in the public interest. While perhaps persuasive, that argument is quite different from the argument it makes now: that Northeast Cellular requires an agency to use a comparative test to “explain why its waiver better served the public interest than adhering to the rule and articulate special circumstances that justify the waiver.” Pl.’s Mem. P. & A. Opp. Def.’s Mot. Partial Summ. J. 18, Sep. 18, 2009, ECF No. 17.
The issue is not, as plaintiff insists, whether it made “arguments based on the principles embodied in
WAIT Radio
and
Northeast Cellular,”
R & R Reply 5, but whether the issues in those cases were “necessarily implicated by the argument mаde to the Commission.”
Time Warner,
The closest plaintiff comes to implicating the
WAIT Radio/Norbheast Cellular
argument is in its Application for Review to the Commission. App. Rev. 5. There, plaintiff argues that “[njeither in the
Bureau Order
nor in the
Prior Order
gives [sic] any hint of
analysis
of the gravity of Clark’s need for the additional channels in terms of public policy or the public interest.”
Id.
(emphasis in original). Nowhere in the text surrоunding this excerpt does plaintiff mention
WAIT Radio
or
Northeast Cellular.
And though this argument makes a gesture towards public interest analysis, it still does not necessarily implicate the specific, two-part test allegedly required by
Northeast Cellular.
Simply saying that “the FCC failed to analyze the waiver in terms of public interest” is not the same as, nor does it necessarily implicate, what plaintiff argued on summary judgment,
*246
which was that the agency must compare its options and “explain why its waiver better served the public interest than adhering to the rule.” Summ. J. Mem. 18. Plaintiff never raised the
WAIT Radio/Northeast Cellular
argument in front of the FCC, nor did any of its arguments in front of the Commission necessarily implicate that issue, and so these arguments are waived.
NetworkIP,
Even had NACEPF’s WAIT Radio/Northeast Cellular argument not been waived, the Circuit court would not have held for plaintiff on that ground. Plaintiff charactеrizes WAIT Radio and Northeast Cellular as creating a strict requirement that agencies say the magic words “public interest” and “special circumstances” before granting waiver. This interpretation is at odds with a proper reading of the cases and their progeny.
WAIT Radio
concerned the FCC’s denial of a request for waiver of its clear channel rules.
The Circuit went a bit further in
Northeast Cellular,
establishing a rule that “[t]he agency must explain why deviation serves the public interest and articulate the nature of the special circumstances to prevent discriminatory application and to put future parties on notice as to [waiver’s] operation.”
This reading comports with
WAIT Radio’s
statement that waivers should be “granted only pursuant to a relevant standard,”
The FCC’s waiver to CCSD does not suffer from the same deficiencies. In its Memorandum Opinion & Order, the Video Services Division of the MMB explained the standard used to determine whether waiver was proper:
An applicant seeking waiver of Section 74.902(d) must demonstrate how the additional channels will be used for traditional ITFS purposes and why present channel capacity is insufficient to accommodate the additional needs. In assessing such showings, the Commission has stated that waivers may be granted only where the applicant can overcome a heavy burden of proof. Among the factors we consider in acting on requests for waiver of the four-channel limitation are the amount of ITFS programming that is being proposed on all of the channels involved, the simultaneous use of the channels for a substantial portion of the day, the extent of repetition of the programming and a demonstrated need for the additional channels.
12 FCC Red. 24449, 24450 (1997) (internal citations omitted). The Bureau went on to explain why CCSD’s application met these criteria and warranted waiver — that is, why CCSD’s circumstances were sufficiently unique to merit waiver of the four-channel rule. In the Full Commission Memorandum & Order, the Commission explained that:
the Division twice reached the determination that, given all of the circumstances surrounding the request and weighing all of the factors, granting a waiver of the four-channel limitation was fully warranted and in the public interest. Given the specific circumstances of this matter, we believe that Clark County’s use of the channels at issue was reasonable and consistent loith both precedent and furtherance of the public interest.
Clark Cnty. Sch. Dist.,
18 FCC Red. at 18821 (emphasis added). In
WAIT Radio,
the D.C. Circuit said that in reviewing an
*248
agency’s grant of waiver, “[i]t suffices, in the usual case, that [the Court] can discern the why and the wherefore.”
The Commission followed its precedent and applied a rational standard to determine whether waiver was in the public interest and whether CCSD’s circumstances were sufficiently unique to warrant waiver. Its decision was not arbitrary and capricious, and the Court will not deem it so merely because it did not use the precise phrasing suggested — but not required — by the D.C. Circuit. Thus, even had plaintiff not waived its WAIT Radio and Northeast Cellular arguments by failing to raise them before the FCC, the D.C. Circuit would not have vacated the FCC’s decision on those grounds. 1
B. Plaintiffs Argument that the FCC Relied on Unlawful Precedent in Granting CCSD’s Waiver Request
In the alternative, plaintiff argues that summary judgment is appropriate even though the FCC followed its precedent in granting waiver because that precedent was unlawful. See Summ. J. Mem. 26. While this specific argument was never made before the FCC, some of the issues it raises were, and so the court will not consider it waived entirely. In its summary judgment memorandum, plaintiff puts forwаrd three arguments for why the waiver decision followed unlawful precedent. The first argument — that the FCC’s decision was inconsistent with Northeast Cellular and WAIT Radio — would have been waived in the Circuit, as explained above. The second argument is that the FCC’s waiver standard “was legally deficient for the reasons stated in the D.C. Circuit briefs that Womble filed on NACEPF’s behalf (and reiterated herein).” Id. The third is that “the FCC effected the ‘evisceration by waiver’ of the four-channel rule, which the D.C. Circuit held is unlawful.” Id. Neither of the latter two arguments warrants summary judgment, so plaintiffs motion must fail.
*249 Plaintiff argues that the FCC followed unlawful precedent “for the reasons stated in [its] D.C. Circuit briefs” and says that “[b]lind adherence to precedent that is itself unlawful cannot justify similarly unlawful action.” Id. Before the Circuit, NACEPF contested the FCC’s decision on many grounds, arguing that the waiver ruling was inconsistent with the FCC’s anti-monopolization policy, Summ. J. Mem. Ex. U at 21, ECF No. 17-25 (“Circuit Brief’); that the ruling was inconsistent with the FCC’s spectrum efficiency goals, id. at 23; that the FCC’s history of granting waiver constituted impermissible rule-making, id. at 26; that the ruling was inconsistent with the exceedingly high burden required to waive the four-channel rule, id. at 28; that the FCC was required to inquire about possible alternatives to waiver; id. at 29; that the FCC did not properly address CCSD’s obligation tо demonstrate why the current channel capacity was insufficient, id. at 30; and that granting CCSD permission to amend its waiver request subsequent to the cut-off date violated the FCC’s rules, id. at 31. The Court will not reach these last four arguments because their necessary premise is that the FCC did not follow its own precedent in granting waiver. Indeed, they fall under the section of the Circuit brief entitled “The Commission’s Grant of a Waiver of the Four Channel Limit in this Case Contradicts Commission Precedent.” Id. at 27. Here, however, plaintiff is arguing that the FCC did follow precedent, but that the precedent it followed was unlawful. NACEPF cannot logically argue both that the FCC broke with preсedent and that the FCC unlawfully followed precedent, so those arguments will be disregarded.
Review of plaintiffs remaining arguments — that waiver was inconsistent with the FCC’s anti-monopolization and spectrum efficiency policies
2
and that the repeated waiver of the four-channel rule constituted impermissible rulemaking on the part of the FCC — is waived because plaintiff failed to object to the Magistrate’s Report & Recommendation on those grounds.
See Aikens v. Shalala,
Plaintiffs third argument is that the Commission’s consistent waiver of the four-channel rule constitutes an impermissible “evisceration by waiver” that would have persuaded the D.C. Circuit to overturn the FCC’s decision. Essentially, plaintiff argues that the FCC’s history of frequently waiving the four-channel rule is unlawful. The Court will not pass judgment on whether this argument was made before the Commission, аs the simple lack of authority plaintiff provides is sufficient to dispose of it. In fact, the only authority plaintiff (repeatedly) cites is the phrase “evisceration by waiver” from
WAIT Radio,
[t]he court’s insistence on the agency’s observance of its obligation to give meaningful consideration to waiver applications emphatically does not contemplate that an agency must or should tolerate evisceration of a rule by waivers. On the contrary a rule is more likely to be undercut if it does not in some way take into account considerations of hardship, equity, or more effective implementation of overall policy, considerations that an agency cannot realistically ignore, at least on a continuing basis.
Id.
A mere warning to agencies that they should not feel that the court’s holding requires them to blindly grant waivers is not sufficient authority to overturn the FCC’s ruling in this case. The court’s digression is properly understood as a warning that — though the court was overturning the FCC’s unexplained denial of waiver — agencies should not let the pendulum swing the other way by indiscriminately granting waivers. The FCC did not do so in this case, nor — as far as this Court can tell — had it in the past. It applied a reasonable, clear standard, and granted waivers where doing so would be consistent with that standard. Plaintiff points to a number of cases where the FCC has granted waivers and insists that the Commission almost never denies waiver requests. That may be, but as long as it does not “act out of unbridled discretion or whim,”
WAIT Radio,
While plaintiff may have raised arguments in the Circuit Court beyond those it mentions in its summary judgment memorandum, the Court will not reach them. In opposing defendant’s motion to dismiss (plaintiffs motion for summary judgment also served as its opposition to defendants’ motion to dismiss), plaintiff only argued that it would have succeeded in the Circuit Court because of
Northeast Cellular
and because the FCC allegedly followed unlawful precedent. “It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments ... a court may treat those arguments that the plaintiff failed to address as conceded.”
FDIC v. Bender,
V. CONCLUSION
Defendants may have violated their standard of care by filing the notice of appeal two days late, but a plaintiff seeking to win a legal malpractice case must also demonstrate a causal relationship between that negligence and a harm that it suffered. NACEPF is unable to satisfy this second requirement. NACEPF may have been a deserving applicant for the ITFS channels, but so was CCSD. The Commission followed the precedent it was required to follow, and the Court will not hold its decision to be arbitrary and capricious merely because it analyzed the competing interests in a way that displeased plaintiff. NACEPF waived several arguments by failing to bring them up in front of the Commission, and the Court is nevertheless convinced that it would not have prevailed in front of the Circuit with the arguments it had at its disposal. After careful consideration of the parties’ filings, the applicable law, and the record herein, the Court grants defendants’ motion for partial dismissal, and denies plaintiffs motion for partial summary judgment. All of plaintiffs claims arising out of the Las Vegas ITFS application are dismissed, and plaintiffs objections to the magistrate’s Report and Recommendation are overruled.
A separate Order consistent with these findings shall issue this date.
Notes
. The Court is aware that this dual argument puts it in the seemingly contradictory position of arguing both that the FCC was never given the chance to pass on the
Northeast Cellular
rule, and that the Commission’s ruling complied with those precedents. However, in detеrmining whether 47 § 405(a) applies, the question is "whether a reasonable Commission
necessarily
would have seen the question raised before [the Circuit] as part of the case presented to it,”
Time Warner, 144
F.3d at 81, and for the Circuit to reach an issue "the Commission must have somehow been put on notice of the problem."
Qwest Corp. v. FCC,
. The Court is aware that this argument seems to fit under the first category, as it could be read to mean that the FCC was not following its own precedent. However, plaintiff’s point in making the argument was that the FCC precedent the Commission followed was at odds with its stated policies, and therefore unlawful. For this reason, the Court will not group these two points with the aforementioned arguments.
. The exact phrase is actually "evisceration of a rule by waivers,” but plaintiffs repeated misquoting is immaterial.