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S 3 Federal Communications Commission,  S 3u<Appelleeă  S 3a Northeast Cellular Telephone Company, L.P. and _Portland Cellular Partnership,  S033Intervenorsă H+Consolidated with Nos. 931423, 961439 R |<________ R Appeals from Orders of the [Federal Communications Commission  S3 &xAlan Y. Naftalin argued the cause for appellant Northeast  0$j Cellular Telephone Company, L.P., with  S3whom Peter M. Connolly, Carter G. Phillips and Stephen F. Smith were on the briefs.  S3 xTheresa Fenelon argued the cause for appellant Saco River Cellular, Inc., with whom Harold J.  Sf3Carroll was on the briefs.  S 3 xLaurence H. Schecker, Counsel, Federal Communications Commission, argued the cause for  S 3 Pw"appellee, with whom William E. Kennard, General Counsel, Daniel M. Armstrong, Associate General  S!3 Pw"Counsel, and Roberta L. Cook, Counsel, were on the brief. John E. Ingle, Deputy Associate General  S"3Counsel, and Renee Licht, Counsel, entered appearances.  SX$3 xAnne M. Lobell, Counsel, U.S. Department of Justice, argued the cause for amicus curiae United  S2%3 Pw"W States of America, with whom Frank W. Hunger, Assistant Attorney General, U.S. Department of Justice,  S &3 Pw"Mary Lou Leary, U.S. Attorney, Marleigh D. Dover, Special Counsel, U.S. Department of Justice, and  S&3Richard A. Olderman, Attorney, were on the brief.  S'3Ԍ S3 xAlan Y. Naftalin, Peter M. Connolly, Mark D. Schneider and Michael A. Nemeroff were on the  S3 Pw"7brief for intervenor Northeast Cellular Telephone Company, L.P. Herbert D. Miller, Jr. entered an appearance.  Sd3xTheresa Fenelon and Harold J. Carroll were on the brief for intervenor Saco River Cellular, Inc.  S3 xL. Andrew Tollin and Michael Duele Sullivan were on the brief for intervenor Portland Cellular  S3Partnership. Charles D. Ossola and Michael B. Barr entered appearances.  S3xBefore: Edwards, Chief Judge, and Ginsburg and Tatel, Circuit Judges.  ST 3xOpinion for the Court filed by Circuit Judge Ginsburg.  S 3 W z Ginsburg, Circuit Judge: Appellants Saco River Cellular, Inc. and Northeast Cellular Telephone Co.,  W  L.P., applicants for a license to provide cellular telephone service in the Portland, Maine area, challenge  W a series of decisions by the Federal Communications Commission culminating in the award of the license  W to Portland Cellular Partnership (PortCell). In the most recent decision under review, the Commission  Sh3 W 5 concluded that the 1995 amendments to the Paperwork Reduction Act, 44 U.S.C.  3501 et seq., required  W %it to reinstate PortCell's application, which it had previously dismissed, and consequently to award the  W Ylicense to PortCell. We agree that the 1995 amendments to the PRA obligated the Commission to  W reconsider its dismissal of PortCell's application. Accordingly, we affirm the agency order awarding the  W license to PortCell and dismiss as moot Saco River's challenge to the  0$Q& Commission's handling of its application. I. BACKGROUND  p&pIn 1986 the Commission held a lottery for a license to offer cellular phone service in the Portland  W area. Seacoast Cellular, Inc. placed first among five applicants, followed by Saco River, Community  W h Services Telephone Co., Northeast, and NYNEX Mobile Communications Co. Shortly thereafter Seacoast  W amended its application to substitute PortCell, a general partnership the original partners of which were  W h Seacoast, NYNEX Mobile, and Community, as the winning applicant. (The current partners are Seacoast, NYNEX Mobile, and LewistonAuburn Cellular.)  ppSaco River and Northeast, the remaining two applicants, objected that PortCell was ineligible for  W a license because it had failed to "obtain a firm financial commitment for the financing necessary to  W construct and operate for one year its proposed cellular system and amend its application to so demonstrate," as required by 47 C.F.R.  22.917(b)(1) (1986). The regulation then in force provided that:  -Xp` ` The firm financial commitment ... shall be from a recognized bank or other  p\financial institution and shall evidence the lender's determination that it has assessed the  p\~creditworthiness of the loan applicant and that it is committed to providing the necessary  p\Kfinancing, including any actions required of the applicant to continue the commitment in  p\force. Applicants obtaining financing from other than a recognized lending institution  p\must submit proof that the financing entity has such funds available and uncommitted to another cellular application.  Xp(#  W 47 C.F.R.  22.917(b)(1)(i) (1986). As evidence of the financial commitment it had obtained, PortCell submitted a letter of credit from NYNEX Credit Corp. "(0*0*0*,"Ԍ ppIn 1989 the Commission agreed with Saco River and Northeast that PortCell's application was  W defective to the extent that the letter of credit did not include the terms of the proposed loan and failed  W zto indicate that NYNEX Credit had assessed PortCell's creditworthiness. Nonetheless, the Commission  W y waived the firm-financial-commitment requirement and granted the license to PortCell on the basis of the  W Commission's "lengthly [sic] experience in dealing with NYNEX Corporation and its various subsidiaries  S83and affiliates." Portland Cellular Partnership, 4 FCC Rcd 2050, 2051 (1989).  pJpIn 1990 this court vacated that decision as arbitrary and capricious because the waiver of the  S3 W firm-financial-commitment requirement "was not based on any rational waiver policy." Northeast Cellular  S3 W Telephone Co., L.P. v. FCC, 897 F.2d 1164, 1167. Upon remand the Commission, finding that it could  Sv3 W y not justify the waiver, dismissed PortCell's application as defective. Portland Cellular Partnership, 6 FCC Rcd 2283 (1991).  p:pThe Commission also dismissed Saco River's application as defective because Saco River's  W proposed service contour extended beyond the Portland service area. The Commission determined that,  S 3 W because the proposed extension involved more than de minimis encroachments into adjacent service areas,  W Saco River would not be permitted to amend its filing to bring it into compliance with the applicable  Sb3rules. Id. at 2284.  p|pWith PortCell and Saco River no longer in the running, the Commission designated Northeast as  S3 W  the tentative selectee. Id. Community filed a timely motion to reconsider. Nearly a year later PortCell  W 5 filed its own petition to reconsider, arguing for the first time that the Commission had erred in dismissing  W its application because the firm-financial-commitment reporting requirement had not been approved by  Sv3 W h the Office of Management and Budget. The Paperwork Reduction Act, 44 U.S.C.  3501 et seq., provides  W that "[a]n agency shall not conduct or sponsor the collection of information unless in advance of the  W adoption or revision of the collection of information ... the Director [of the OMB] has approved the  W Xproposed collection of information." 44 U.S.C.  3507(a). The Commission responded that it had no  S3 W authority to consider PortCell's petition because the petition was filed too late. Portland Cellular  S3Partnership, 8 FCC Rcd 4146, 4146 n.4 (1993).  Sd3 ppIn 1993 the Commission denied Community's petition for reconsideration, id. at 414950, and  S>3 W  granted Northeast's application over the objections of Saco River and PortCell, id. at 415052. PortCell  W filed a timely petition for reconsideration of the grant of Northeast's application. In addition, PortCell  W  and Community filed petitions for further reconsideration of the dismissal of PortCell's application, with PortCell again raising its PRA objection.  ppIn 1994 the Commission denied PortCell's and Community's petitions for further reconsideration  W of the order dismissing PortCell's application. In a somewhat different analysis than it had offered when  W it first denied PortCell's petition for reconsideration, the Commission explained that, because Community's  W h original rehearing petition had been timely, the agency was free upon reconsideration thereof to entertain  Pw" any relevant argument, including the PRA argument in PortCell's untimely petition. The Commission then declined to exercise its discretion to consider PortCell's "grossly untimely" PRA objection because  '=XxPort Cell's failure to avail itself of this argument when its compliance with [the  '<Commission's] financial qualifica-tions rule was first called into question imposed a  'particularly heavy burden on the resources of the court, the Commission and the other parties ... litigating the issue of Port Cell's compliance.  "'0*0*0*+"Ԍ S3 Pw"Portland Cellular Partnership, 9 FCC Rcd 3291, 3292 (1994). Meanwhile, the Commission deferred  S3 Pw" reconsideration of its grant of Northeast's application, id. at 3291 n.2, and Northeast constructed a cellular system that has been operating in the Portland market since November 1994.  xIn 1995 the Congress added subsection (b) to the "public protection" provision of the PRA. The amended version provides:  Xx` ` (a) Notwithstanding any other provision of law, no person shall be subject to any  'penalty for failing to comply with a collection of information that is subject to this chapter if"   7 QXxX` `  (1) the collection of information does not display a valid control  number assigned by the Director [of the OMB] in accordance with this chapter;....x` XxX` ` (#`  7 QXxX` `  (b) The protection provided by this section may be raised in the  form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.x` Xx(#  Pw" 44 U.S.C.  3512. PortCell then filed yet another petition for reconsideration, this time asserting that  3512(b) requires the Commission to consider its PRA argument.  xIn 1996 the Commission agreed that because the administrative proceedings were still ongoing,  Pw"Gthe amended statute required it to consider PortCell's PRA defense. The Commission then determined  Pw"ithat it had violated the PRA by dismissing PortCell's application on the basis of an unapproved request  SD3 Pw" for information about financial commitments. Portland Cellular Partnership, 11 FCC Rcd 19997, 20001 Pw"06 (1996). Accordingly, the Commission allowed PortCell to amend its application to satisfy the  Pw"firm-financial-commitment requirement, and PortCell submitted a 1995 letter of credit from Fleet Bank  Pw"of Maine. Although this financial showing did not illuminate what commitment, if any, PortCell had  Pw"Yobtained as of the time of its selection in 1986, the Commission accepted PortCell's amendment in  Pw"!satisfaction of the firm-financial-commitment requirement. The Commission thereupon rescinded its grant  SV3 Pw"{of the license to Northeast and awarded the license to PortCell. Id. at 20013. Upon the motion of Northeast, this court stayed the Commission's 1996 order pending judicial review.  xBoth Northeast and Saco River appealed. Because Saco River placed second behind PortCell in  Pw"the lottery for the Portland license, however, we need consider Saco River's challenge to the dismissal of its application only if we determine that the Commission erred in awarding the license to PortCell. 2II. ANALYSIS  xNortheast presents six arguments why the Commission erred when it revoked Northeast's license  Pw"to serve the Portland market: (1) the Communications Act prevents the Commission from considering  Pw"PortCell's belated argument invoking the PRA; the Commission's application of  3512(b) of the PRA  Pw"F to this case (2) is an impermissible retroactive application of the new statute, and (3) reverses this court's  SP$3 Pw"1990 decision in Northeast v. FCC, in violation of the separation-of-powers doctrine; (4) the lack of an  Pw"OMB control number does not excuse PortCell's failure to comply with the statutory requirement to  Pw" submit information to the Commission; (5) the OMB approved the firm-financial-commitment rule before  Pw"it was "enforced" against PortCell; and (6) the firm-financial-commitment requirement is a substantive  Pw"requirement for a license, not merely a collection of information. For the reasons detailed below, we reject all these arguments and affirm the Commission's 1996 order."(0*0*0*,"Ԍ S3ԙA.xDid  3512 Require the Commission to Consider PortCell's PRA Defense?  8xIn the order under review the Commission acknowledged that "strong policy reasons" counseled  Pw"5 against considering PortCell's PRA defense. 11 FCC Rcd at 20001. The Commission believed that it was  Pw"{required to do so, however, because it understood the 1995 amendments to the PRA as allowing any  Pw"Gadversely affected person "to raise PRA violations without limitation, so long as the administrative or  S3 Pw"judicial process in connection with a particular license or with a particular application continues." Id. at 20003. We agree with that reading of the Act as amended. x1. The Communications Act  kxAccording to Northeast, the Commission violated  402(h) and 405(a) of the Communications  Pw"Act when it considered PortCell's PRA defense. Section 402(h) requires the Commission, after a case  Pw"h has been remanded by this court, to give effect to our judgment "upon the basis of the proceedings already  Pw"had and the record upon which [the] appeal was heard and determined." 47 U.S.C.  402(h). Section  Pw"405(a) establishes a 30day deadline for filing petitions for reconsideration. 47 U.S.C.  405(a). The Commission responded to Northeast's argument as follows:  '~XxWe are not waiving the financial qualification requirements for licensees in contravention  'Lof the court's mandate. Instead, we are considering whether the financial qualification  'requirement regulation is valid and enforceable under the PRA. Section 402(h) does not  '<restrict us from doing so. In any event, Section 3512 of the PRA ... overrides any  'restriction 402(h) might place on our consideration of PRA issues in a proceeding on remand from a court.  Xx(# 11 FCC Rcd at 20005.  xWe need not address today what restrictions  402(h) and 405(a) of the Communications Act  Pw"impose when  3512 of the PRA is not invoked. Because  3512 of the PRA applies by its terms  Pw"W "notwithstanding any other provision of law," we agree with the Commission that  3512 "simply trumps  SR3 Pw"HSection 405(a) and, to the extent it might be relevant, Section 402(h)."  Id. at 20003; see Liberty  S,3 Pw"XMaritime Corp. v. United States, 928 F.2d 413, 416 (D.C. Cir. 1991) (similar "notwith0$Q- standing" clause "supercede[s] all other laws"). x2. Retroactivity  |xNortheast argues that applying the PRA amendments to this case contravenes the principle that  Pw"retroactivity is not favored in the law. As we recently noted, however, in determining whether a statute  Pw"has retroactive effect it is necessary "to examine the temporal relationship between the statute and the  S 3 Pw" activity the statute is meant to govern." Legal Assistance for Vietnamese Asylum Seekers v. Department  S!3 Pw"%of State, 104 F.3d 1349, 1352 (D.C. Cir. 1997). Section 3512(b) requires that, from October 1, 1995  Pw"F onward, agencies and courts entertain arguments that would otherwise have been barred either by a statute  Pw"Iof limitations or by the proponent's failure to have made the argument at an earlier stage in the  Pw"administrative or judicial process. In this case, the Commission had dismissed PortCell's PRA defense  Pw"$ as untimely without ruling upon the merits of it; the PRA amendments merely required the Commission,  Pw"when the issue was raised anew, to make that ruling. Because  3512(b) governs only the conduct of  Pw"litigation after the effective date of the statute and does nothing to reopen matters litigated before that date, it does not offend any norm against retroactive lawmaking. "(0*0*0*,"Ԍ xNor is a statute retroactive "merely because it is applied in a case arising from conduct antedating  S3 Pw"y the statute's enactment or upsets expectations based in prior law." Landgraf v. USI Film Prods., 511 U.S.  Pw"F 244, 269 (1994). By permitting parties to raise the PRA issue at any time in ongoing proceedings, the  Pw"statute does not "impair rights a party possessed when he acted, increase a party's liability for past  Sb3 Pw"%conduct, or impose new duties with respect to transactions already completed." Id. at 280. Rather, it  Pw"6simply prevents an agency or court from refusing to consider a PRA argument on the ground that it is untimely.  xWe conclude that the Commission correctly interpreted the amended statute as requiring it to consider PortCell's PRA defense when that defense was raised in the ongoing proceedings upon remand. x3. Separation of powers  xNortheast argues that even if  3512(b) can be applied to ongoing proceedings in other  S 3 Pw"circumstances, its application in this case would effectively reverse our decision in Northeast v. FCC, in  S 3 Pw"5 violation of the separation-of-powers doctrine as the Supreme Court interpreted it in Plaut v. Spendthrift  S 3 Pw"Farm, Inc., 514 U.S. 211 (1995). Plaut was a sequel to Lampf, Pleva, Lipkind, Prupis & Petigrow v.  Sb3 Pw"Gilbertson, 501 U.S. 350 (1991), in which the Court had announced a new statute-of-limitations rule for  S<3 Pw"certain securities fraud suits. The Congress had responded to the Lampf, Pleva decision by passing a law  S3 Pw"purporting to revive suits that had been dismissed in the wake of Lampf, Pleva, but the Court held in  S3 Pw"Plaut that, as an attempt by the Congress to reopen a final judgment, the new law was unconstitutional.  Pw"5 514 U.S. at 225. According to Northeast, application of  3512(b) in this case would likewise nullify this  S3 Pw"court's determination in Northeast, which became final when PortCell failed to seek review in the  Pw"Supreme Court, that the Commission "must disqualify" PortCell's application if the agency could adduce no rational waiver policy to support it. 897 F.2d at 1167.  S3 xPlaut is no bar to the application of  3512 to the present case, however, because no party in  S3 Pw"%Northeast raised, and we did not purport to resolve, the PRA issue. Nor did we render a final judgment  Pw"terminating the case; rather we remanded it to the Commission for further proceedings. For the  Pw"Commission and the court to apply  3512 to this case after October 1, 1995, therefore, is merely to  Sh3 Pw"zfollow the rule, which the Supreme Court acknowledged in Plaut itself, that "each court, at every level,  SB3 Pw"must 'decide according to existing laws.' " 514 U.S. at 226 (quoting United States v. The  0$Q) Schooner  S3Peggy, 5 U.S. (1 Cranch) 103, 109 (1801)).  S3B.XxDid the Commission Violate the PRA?(#  JxThe public protection provision of the PRA provides that "no person shall be subject to any  Pw" penalty for failing to comply with a collection of information" that lacks a currently valid OMB control  Pw"number. 44 U.S.C.  3512(a). When PortCell filed its application, the Commission had not obtained  Pw"OMB approval for the firm-financial-commitment filing requirement then codified at 47 C.F.R.   Pw"22.917(b) (1986). Therefore, to the extent that  22.917(b) mandated a collection of information, the Commission could not lawfully penalize PortCell for failing to comply with it.  {xNortheast makes three arguments for the proposition that  3512 of the PRA does not prevent the  Pw"jCommission from punishing PortCell for failing to comply with  22.917(b): First, the mandate to  Pw" demonstrate a firm financial commitment originated with the Congress (as opposed to the Commission);  Pw"%therefore PortCell was obligated to comply with the filing requirement regardless of the Commission's  Pw"failure to comply with the PRA. Second, the Commission's failure to comply with the PRA was at most  Pw"h harmless error because the Commission had obtained an OMB control number for  22.917(b) by the time"(0*0*0*,"  Pw"zit penalized PortCell. Third,  22.917(b) is a substantive legal requirement rather than a "collection of  Pw"information" requirement. For the reasons set out below, we reject these three arguments and conclude  Pw"Ythat the Commission was obliged, as it held, to permit PortCell to amend its application in order to demonstrate that it had complied with  22.917(b). x1. Statutory obligation  xNortheast contends that the requirement that an applicant demonstrate a firm financial commitment  Pw"is a statutory obligation and therefore not subject to the PRA. The OMB's regulations clearly state that  Pw"W  3512 "does not preclude the imposition of a penalty on a person for failing to comply with a collection  Pw"W of information that is imposed ... by statute," 5 C.F.R. 1320.6(e), and we shall assume that is a reasonable interpretation of the law.  lxAs the OMB has explained, however, that principle "does not extend to situations in which a  Pw"h statute authorizes, or directs, an agency to impose a collection of information on persons, and the agency  Pw"does so." Controlling Paperwork Burdens on the Public; Regulatory Changes Reflecting Recodification  Pw"F of the Paperwork Reduction Act, 60 Fed. Reg. 30438, 30441 (1995). That is all that has happened here.  Pw" Section 308(b) of the Communications Act provides that "[a]ll applications for station licenses ... shall set  Pw"forth such facts as the Commission by regulation may prescribe as to the ... financial ... qualifications of  Pw"the applicant to operate the station." 47 U.S.C.  308(b). The Commission duly required that each  Pw"W applicant submit information showing that it had a firm financial commitment. There is no collection of  Pw"information imposed by statute, much less a specific congressional command to provide information  Pw"showing a firm financial commitment. The Congress merely authorized, it did not require, the  Pw"jCommission to collect information regarding the financial qualifications of applicants for a license.  Pw"Accordingly, the Commission must itself have complied with the PRA before it may enforce that information collection requirement under  308 of the Communications Act. x2. Harmless error  kxNortheast argues that the Commission's temporary failure to adhere to the PRA was harmless as  Pw"far as PortCell is concerned. The OMB issued a control number for the firmfinancial-commitment  Pw"regulation in 1990, which was after the information was collected from PortCell but before the  Pw"Commission dismissed PortCell's application (in 1991) for failure to comply with the regulation.  Pw" Northeast reminds us that the PRA "does not prevent the promulgation of a rule, only its enforcement."  S3Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1405 (D.C. Cir. 1996).  xNortheast's argument loses sight of the Congress's purpose in enacting the PRA"to "minimize  Pw"the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal  Pw"icontractors, State, local and tribal governments, and other persons." 44 U.S.C.  3501(1). In order to  Pw" fulfill that purpose, the PRA must protect a member of the public when the agency imposes the paperwork  Pw"Xburden upon it, not merely when the agency relies upon the paperwork in making a decision, which (as  Pw"this case illustrates) can be years later. Therefore, an agency may not, having belatedly gotten OMB  Pw" approval of an information collection requirement, punish a respondent for its faulty compliance while the  Pw"collection was still unauthorized. Because  22.917(b) lacked a control number when the Commission  Pw"required that PortCell submit information about its financial commitment, the Commission could not punish PortCell for failing to submit  0$Q| the information it required. x3. Not a collection of information "(0*0*0*,"Ԍ xThe regulation in force at the time PortCell became the tentative selectee required that a cellular  Pw"!applicant "obtain a firm financial commitment for the financing necessary to construct and operate for one  Pw"year its proposed cellular system and amend its application to so demonstrate." 47 C.F.R.   Pw" 22.917(b)(1)(1986). Northeast submits that this regulation is not a "collection of information" within the  Pw" meaning of the PRA because it requires the tentative selectee not merely to provide information about but  Pw"actually to obtain a firm financial commitment. The Commission, on the other hand, considers the  Pw"{regulation to be a collection of information because the selectee must provide the Commission with evidence of the commitment.  xClearly enough the regulation imposes both a substantive and a reporting requirement. The  Pw"%selectee must obtain a firm financial commitment as a precondition to receiving a license, and it must  Pw"amend its application to demonstrate that it has obtained the commitment. The latter requirement is a  Pw" collection of information; therefore, the Commission may not punish a selectee for failing to provide the information unless it has first obtained a valid OMB control number.  kxIn the present case the letter of credit from NYNEX Credit that PortCell submitted in 1986 was  Pw""incomplete because it failed to provide all of the evidence required by the regulation" and thus " 'failed  Pw"5 to comply' with the requirement of the information collection." 11 FCC Rcd at 20007. The 1986 letter  Pw"of credit did not, however, demonstrate that PortCell had failed to obtain the required firm financial  Pw"W commitment, and the Commission did not fault PortCell on that substantive ground. Therefore, this case  Pw"F involves PortCell's failure to comply with a collection of information that lacks an OMB control number  Pw"and not, as Northeast would have it, PortCell's failure to fulfill an underlying substantive requirement.  Pw"5 Accordingly, we have no occasion to decide whether the PRA prevents an agency from punishing a party  Pw" for a failure to fulfill a substantive legal requirement that is brought to light only because that substantive requirement is also the subject of an information collection requirement.  S3C.xDid the Commission Rely upon Inapposite Information in Granting the License to PortCell? xThe OMB regulations implementing the PRA require that where, as here,  'Xxan agency has imposed a collection of information as a means for proving or satisfying  'a condition for the receipt of a benefit or the avoidance of a penalty, and the collection  ';of information does not display a currently valid OMB control number ... [the agency  'Kmust] permit respondents to prove or satisfy the legal conditions in any other reasonable manner.  Xx(#  Pw"z5 C.F.R.  1320.6(c). Hence, the Commission appropriately allowed PortCell to amend its application  Pw"jin order to demonstrate that it had obtained the firm financial commitment that is a prerequisite to receiving a license to provide cellular service.  jxWe note that the Commission disqualified PortCell for want of evidence that PortCell had obtained  Pw" a firm financial commitment as of 1986, while PortCell's amended application demonstrates only that it  Pw"had obtained a firm financial commitment as of 1995; the amendment sheds no light upon what  SH$3 Pw"commitment, if any, PortCell had obtained in 1986.  Cf., e.g., Pontchartrain Broadcasting Co. v. FCC,  S"%3 Pw"15 F.3d 183, 184 (D.C. Cir. 1994) ("In cases involving amendment of an applicant's initial financial  Pw"!certification, the Commission generally requires that the applicant also demonstrate that it had a reasonable  S&3 Pw"y assurance of financing at the time that it made its initial certification." (citing Aspen FM, Inc., 6 FCC Rcd  Pw" 1602, 160304 (1991))). At oral argument Northeast responded to an inquiry from the court by arguing  Pw"Hfor the first time that the Commission erred in accepting PortCell's amendment because it failed to"(0*0*0*,"  Pw" demonstrate that it had a firm financial commitment as of 1986. As the Commission correctly noted in  Pw"its 1996 order, however, before the agency "Northeast [did] not oppose the amendment or argue that it  Pw"W is insufficient." 11 FCC Rcd at 20008. Because no one challenged the amendment as anachronous before  Pw" the Commission, the agency did not have an opportunity to consider that charge. Therefore, the issue was  S`3 Pw"ineither preserved nor presented for our review, and we do not pass upon it. Cf. United States v. Tucker  S:3 Pw"Truck Lines, 344 U.S. 33, 37 (1952) ("Simple fairness to those who are engaged in the tasks of  Pw"5 administration, and to litigants, requires as a general rule that court should not topple over administrative  Pw"%decisions unless the administrative body not only has erred but has erred against objection made at the  S3 Pw"time appropriate under its practice"); Center for Auto Safety v. Peck, 751 F.2d 1336, 1360 (D.C. Cir. 1985) ("Such an ambush at this late stage cannot be allowed"). (III. CONCLUSION  xFor the foregoing reasons we affirm the Commission's order rescinding the grant of the Portland,  Pw"zMaine Block B cellular license to Northeast, reinstating PortCell's applica 0$Q- tion, and granting the license  Pw"ito PortCell. Accordingly, we vacate our order of March 10, 1997 staying the Commission's order, and  Pw"we dismiss as moot Saco River's challenges to the Commission's handling of its application for a cellular license.  S3`s(#It is so ordered.ă