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Broad. v. FCC, 935  xF.2d 1340, 1342 (D.C. Cir. 1991) (appellant claimed a deposition that the FCC reviewed was not  xpart of the record), and where an appellant claimed the Commission erroneously ascribed a rival  X- xapplicant's research methods to it. Gencom Inc. v. FCC, 832 F.2d 171, 18687 (D.C. Cir. 1987);  X - xsee also Freeman Eng'g, 103 F.3d at 182 (petitioner was required to present its claim that the  xFCC failed to explain why it treated a competitor's similar proposal differently to give the FCC  X"- x="an opportunity to cure any defect"). But cf. Alabama Power Co. v. FCC, 773 F.2d 362, 368 &  xn.12 (D.C. Cir. 1985) (argument that Commission used "a wholly irrelevant percentage figure" to discount certain costs did not need to be raised in a petition for reconsideration).   xTo sum up, in our section 405 cases we have asked whether the issue that a petitioner"^&y0*0*0*%"  xbrings to us was "flagged," or to use a sports metaphor, "teed up," before the Commission. But  xif petitioner complains of only a technical or procedural mistake, such as an obvious violation  xof a specific APA requirement, we have insisted that a party raise the precise claim before the  xCommission if necessary, in a motion for reconsideration because we assume the Commission  xsimply overlooked the requirement. In those instances, we are concerned that the petitioner, by  xbringing the issue first to us, is playing a game of "gotcha." If, however, a petitioner makes a  xbasic challenge to a Commission policy, but the formulation of the issue presented to us was not  X_- xprecisely as presented to the Commission, we ask whether a reasonable Commission necessarily would have seen the question raised before us as part of the case presented to it.   xWe think it a close question here whether our remand itself should be thought to have,  xat least, adequately presented to the Commission the "issue" of whether petitioner was entitled  xyto fully recover the excluded gap period external cost increases. We never explicitly addressed  xmthe scope of the remedy, but the logic of our opinion that it was unreasonable for the  xCommission to justify its refusal to permit cable operators to recover gap external cost increases  x?on administrative burden grounds applies equally to past losses and future ones. If the  xCommission had relied on a new consideration, other than the discredited administrative burden,  xthat would be another matter, but it did not; it offered no reasoning beyond its "concession"  xrationale. Surely if the FCC had merely said that "we do not wish to grant full relief, as the  xcourt's opinion suggests we should, because it might prove politically unpopular" or, because "we  xZdo not like petitioner," it could not be argued that a petition seeking review brought into question  xa truly new issue of law. On the other hand, we have warned that a party must be careful on  X- xremand to raise issues before the Commission before they come back to us. See Illinois Bell Tel.  X-Co. v. FCC, 988 F.2d 1254, 1264 n.12 (D.C. Cir. 1993).= Xl- xkԍ Given the apparent tension in our cases, a prudent counsel when in doubt should seek reconsideration before the Commission.   xIt is unnecessary for us to decide whether our remand put the issue to the FCC, however.  xThe Commission apparently recognized that the rationale of our decision did not easily support  x<the distinction it wished to draw, and that petitioner's supposed "concession" allowed it to avoid  xconfronting the problem. But there is no question that the Commission expressly decided the  x-concession issue whether petitioner was even seeking to recover its revenue deficiency. And, in  xthat regard, we agree with petitioner that the FCC's interpretation of petitioner's motion for  xexpedition filed in this court was a disingenuous gimmick used to avoid a principled response to  xMour remand. (Indeed, as we have noted, itappears that the Commission took Time Warner's  x>statement in its motion to expedite out of context.) The truth is that parties often claim that  x drastic harm will occur when seeking expedited consideration. But it is rather farfetched to  xinterpret such predictions as consent to their imposition. In this case, we suspect petitioner was  xreflecting a natural fear that convincing the Commission to authorize cable operators to fully  xrecover their past losses from consumers was a chancy proposition at a minimum, that action is  x?politically trouble-some. It appears to us that by seizing upon Time Warner's purported  x=concession, the Commission avoided addressing the scope of relief question in an unfair way.  Xn$- xCf. Illinois Public Telecommunications Ass'n v. FCC, 117 F.3d 555, 56566 (D.C. Cir. 1997)  xz(rejecting FCC's argument that petitioner had abandoned its argument because the FCC had"Y%b0*0*0*'$"  x<selectively quoted from petitioner's petition). We do not look sympathetically to the Commission  xZplaying "gotcha" either. The Commission had an opportunity to pass on the question of whether  x[operators should be allowed to recover their revenue deficiencies, but chose to duck its failure to address the point was not an accidental mistake.   xOur view is different as to whether the Commission had a fair opportunity to consider  Xv- x[Time Warner's argument that the Order on Remand unreasonably denied transition rate-based  Xa- xoperators any recovery of their gap period external cost increases. Petitioner does not claim that  x=it or any party ever raised this argument to the Commission, arguing again that our decision in  xthe first case put this issue before the Commission. While that may have been true as to the  xscope of relief argument, our opinion did not even recognize a distinction between full reduction  xrate-based and transition rate-based operators, so it can hardly be said that our opinion put this  xsecond issue before the Commission. Indeed, our opin-ion only considered the problem as it  xaffected the former class of operators. Nor is this issue necessarily implicated by petitioner's  X - x[more general argument. As we noted above, supra note 2, Commission's counsel explains that  xtransition rate-based operators' rates, set without reference to September 30, 1992, already reflect  xany external cost increases incurred during the gap period. Time Warner objects that this is a  x"post-hoc explanation," and argues that transition rate operators do have a gap, albeit a different  x-one. But counsel's explanation is legitimate and persuasive as to why the Commission would not  xhave thought this issue essential to resolving petitioner's more general complaint. Unlike the  xkscope of relief question, we do not perceive that here the Commission was trying to avoid a  xvexing problem. It simply went unaddressed because the Commission apparently did not  xunderstand that it was an issue. Time Warner therefore should have raised it to the Commission in a petition for reconsideration.  X-> * * * * ă   ~xWe grant the petition with respect to the scope of relief question. Because the  xCommission chose not to argue the merits in the alternative, we have no choice but to vacate the  xchallenged portions of the order in so far as the Commission has not allowed full reduction rate operators to recover their revenue deficiencies. The remainder of the petition is denied.  X&- So ordered. "0*0*0*"  X-  >xRandolph, Circuit Judge, concurring in part and dissenting in part: Time Warner's claim  xthat the Federal Communications Commission should have allowed it to recoup external cost  xincreases occurring during the so-called "gap" period should not have been considered by this court.   xNot once during the administrative and judicial proceedings leading up to this case did  xTime Warner make that claim, or a single argument in support of it not during the original  x]rulemaking, not in its first petition for review in this court, not in its motion for expedited  x-consideration, not in its briefs in this court, not during the Commission's proceedings on remand,  X - x1and not in a petition for administrative reconsideration. Our opinion in Time Warner  X - x\Entertainment Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995), said nothing on the subject, and for good reason. We usually do not pronounce on questions no one has presented.   xAfter we remanded the case, Time Warner could have placed its claim and its supporting  X - xyarguments before the Commission. Time Warner surely knew of the rules allowing this. See 47  xlC.F.R.  1.1206 (1995). Yet during the ensuing eighteen months, while the case remained  xzpending before the Commission, Time Warner chose to do nothing. We have held time and  x-again, in cases involving this and other administrative agencies, that if a party does not raise and  XS- xargue an issue before the agency, the court will not consider it. See, e.g., the cases cited below.  xThat "common law" or nonstatutory rule of exhaustion, a rule we also apply on appeals from the  xkdistrict court, is enough to preclude Time Warner's claim in this court. There is still another  X- xreason why we should not consider the claim. Even after the Commission issued its Order on  X- xjRemand, Time Warner could have filed a motion for reconsideration. Again, it chose to remain  xLsilent. Section 405 of the Communications Act therefore stands as an additional bar to judicial  xreview of Time Warner's recoupment claim. In the words of  405, 47 U.S.C.  405, the  xCommission had "no opportunity to pass" upon the "legal questions" raised by arguments Time  xWarner is now making for the first time in this court. Those legal arguments consist of analogies  xyto Commission decisions dealing with the "Exchange Network Facilities for Interstate Access,"  xto decisions of the Federal Energy Regulatory Commission allowing gas pipelines to impose  xretroactive surcharges, and so on. To state the obvious, the Commission never had a chance to  xpass on Time Warner's legal arguments concerning the agency's remedial discretion because  x<Time Warner never presented those arguments to the Commission. "It is," we recently reiterated,  xz"only through the adversarial process (or analogous circumstances) that the Commission is  X- xafforded such an opportunity within the meaning of  405." Bartholdi Cable Co. v. FCC, 114  xF.3d 274, 280 (D.C. Cir. 1997). We also stressed that it is not up to the Commission to "sift  xpleadings and documents" in an effort to predict what might have been argued if the litigant had  X!- xtaken the trouble to present the claim. Id. at 279; see also, e.g., Russian River Vintage  X"-Broadcasting v. FCC, 5 F.3d 1518, 1521 (D.C. Cir. 1993)X01Í ÍX01Í Í. K "= X!%- x|ԍ The majority is quite mistaken in supposing that #&n6X@DQ&@##&J\  P6Qu&P# 405 ousts the judicially-imposed  xzrequirement that parties present their claims to the Commission before the agency decides the matter.  xMaj. op. at 7 n.5. Section 405 deals only with petitions for agency reconsideration, which necessarily  S'- x/come after the Commission's decision. To read #&n6X@DQ&@##&J\  P6Qu&P# 405 as the majority does sub silentio is to render it  xsenseless: parties would be free to hide their contentions, to say nothing while the proceedings wind their"(0*0*0*("  xway to a final agency decision, and then, only after the decision comes down, spring their arguments on  x\the Commission and march into court when the Commission refuses to consider them. The courts of  S@- xyappeals do not allow anything of the sort. New arguments#&n6X@DQ&@#C#&J\  P6Qu&P#that is, arguments that could have been made  S-but were not#&n6X@DQ&@#C#&J\  P6Qu&P#may not be raised in petitions for rehearing.   xSection 405 thus does not deal with the question whether, in order to have claims considered on  S- xjudicial review, parties must present those claims to the Commission before it renders its rulemaking or  xadjudicatory decision. In light of this statutory gap, the federal courts may fill it by insisting that if parties  xlfail to raise their claims prior to final agency action, those claims will not be considered on judicial  S* - xreview. McCarthy v. Madigan, 503 U.S. 140, 144 (1992), made this very point, adopting Justice White's  S - xkstatement in Patsy v. Board of Regents of Florida, 457 U.S. 496, 518 (1982) (concurring in part), that "exhaustion is a 'rule of judicial administration,' ... and unless Congress directs otherwise, rightfully sub- ject to crafting by judges." Here, Congress has not directed otherwise. "" f 0*0*0*f!"Ԍ  xThe majority refuses to follow this well-marked path. Instead, it heads up a blind alley  xsearching for a distinction between something called a "technical" defect and something described  X- xyas a "policy" difference. See maj. op. at 910. As best I can make out, the majority thinks it has  xdiscovered a trend: litigants trying to raise "technical" defects in court without having raised  xythem before the Commission will lose, but litigants raising "policy" differences for the first time  xin court, without having presented their arguments to the Commission, might just get away with  Xx-it. xf = X- xԍ The majority suggests that exhaustion is entirely controlled by statute, see maj. op. at 7 n.5, and then contradicts itself by proposing a technical-policy distinction found in no statute.   lxSo far as I can tell, this technical-policy trend winds up playing no discernible role in the  xloutcome. Still, a few words about the majority's digression are in order. For starters, the  xydistinction lacks any coherent rationale. The majority suggests that requiring a litigant to raise  x-a procedural or "technical" point with the agency may allow the agency to correct its error before  X - xthe case reaches the court. See maj. op. at 910. This is true, but it is also true about "policy"  xor "substantive" mistakes. Besides, as any student of administrative law knows, allowing an  xKagency the chance to correct its errors is only one of many reasons behind the raise-it-or-waive-it  xrule. For instance, the "exhaustion doctrine recognizes the notion, grounded in deference to  xCongress' delegation of authority to coordinate branches of Government, that agencies, not the  xcourts, ought to have primary responsibility for the programs that Congress has charged them to  Xf- xadminister." McCarthy v. Madigan, 503 U.S. 140, 145 (1992); see, e.g., McKart v. United  XQ- xStates, 395 U.S. 185, 19295 (1969). "Exhaustion concerns," the Supreme Court added, "apply  xKwith particular force when the action under review involves exercise of the agency's discretionary  x{power or when the agency proceedings in question allow the agency to apply its special  X- x]expertise." McCarthy, 503 U.S. at 145. In its brief, Time Warner treats the Commission's  xauthority to allow recoupment as a matter of agency "discretion" and so the Court's words in  X- xyMcCarthy should have had particular force here. Of all things, remedial claims of the sort Time  xWarner raises in this court ought to be at the top of the list of items a litigant must first raise"  0*0*0*"  X-before the Commission.$ = Xy- x/ԍ Darby v. Cisneros, 509 U.S. 137 (1993), cited by the majority in a footnote, see maj. op.  Xd- xat 7 n.5, has nothing to do with this case. Darby interpreted #&n6X@DQ&@##&J\  P6Qu&P# 10(c) of the Administrative Procedure  SO- xAct, 5 U.S.C. #&n6X@DQ&@##&J\  P6Qu&P# 706(2)(A), to mean that an "an appeal to 'superior agency authority' is a prerequisite to  S'- xzjudicial review only when expressly required by statute or when an agency rule requires appeal before  S- x/review and the administrative action is made inoperative pending that review." 509 U.S. at 154. See  S- xMarine Mammal Conservancy, Inc. v. Department of Agric., 134 F.3d 409, 411 (D.C. Cir. 1998). No one  S- xkis saying Time Warner should have, or could have, perfected an intra-agency appeal#&n6X@DQ&@#C#&J\  P6Qu&P#the Commission rendered the decision under review and the Commission, of course, is the superior agency authority.$   xIt is therefore hardly surprising that careful attention to our decisions reveals that the  X- xjmajority's technical-policy line does not exist. Take, for instance, Petroleum Communications,  X- xInc. v. FCC, 22 F.3d 1164 (D.C. Cir. 1994), a case in which the petitioners claimed the  xCommission had failed to give notice and an opportunity to comment before promulgating a rule  Xz- xa mere "technical defect" according to the majority. See maj. op. at 10. The majority seems to  Xe- xhave forgotten the balance of the case. The Petroleum Communications petitioners also argued  XP- xjthat the rule had been applied in a discriminatory fashion. See Petroleum Communications, 22  xF.3d at 1171. Both claims were raised for the first time in the petition for review. We refused  X$ - xto reach the merits of either issue for "substantially the same reasons," namely that "petitioners  xlfailed to exhaust their remedies ... by declining to bring [the alleged error] first before the  X - xjCommission." Id. To take another recent case, Freeman Engineering Associates, Inc. v. FCC,  x103 F.3d 169, 182 (D.C. Cir. 1997), treated a so-called "technical defect" (petitioner argued that  x/the Commission failed to address certain record evidence) and an alleged substantive error  x(petitioner claimed the Commission treated him different than other similarly situated applicants)  x=identically: the court held that both claims were waived because petitioner failed to raise them  X- xfirst before the Commission. In Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 739 (D.C.  x/Cir. 1976), we held that the Commission had not been given a "fair opportunity" to pass on  x]petitioner's argument, raised for the first time before this court, that a television station's  xybroadcast license should not have been renewed because it offered a minimal amount of public  xinterest programming devoted to minority community problems where minorities comprised 40%  X- xMof the market. In Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 68081  xP(D.C. Cir. 1983), we held that  405 precluded our considering the challenge to the  xCommission's license renewals on the ground that the television stations had provided inadequate  X- x[weekday programming for children. In Illinois Bell Telephone Co. v. FCC, 988 F.2d 1254, 1264  xn.12 (D.C. Cir. 1993), we invoked the exhaustion doctrine to refuse to pass on allegations that  X- xithe Commission had been "impermissibly inconsistent." In Northwestern Indiana Telephone Co.  X- xv. FCC, 824 F.2d 1205, 1210 n.8 (D.C. Cir. 1989), we declined to reach the merits of petitioners'  xLlast minute argument that the Commission violated the First Amendment. Petitioners, we held,  Xf- xcould not "bypass statutory exhaustion requirements." Id. And in ASTV v. FCC, 46 F.3d 1173,  XQ- x1177 (D.C. Cir. 1995), we refused to consider ASTV's argument that "wireless cable is a 'cable  x!system' under the Act, because ASTV failed to raise it before the Commission" surely a  x\substantive, "policy" matter rather than what the majority would treat as a mere "technical" peccadillo. " | 0*0*0*"Ԍ  xThe majority ultimately comes to rest on grounds other than its technical-policy  xdichotomy. The Commission loses because it was playing something called "gotcha," it was  x"unfair," its view of the matter was "farfetched," it relied on a "disingenuous gimmick." Maj. op.  xat 1112. All this excitement is directed at a footnote in the Commission's decision on remand.  xThe footnote quoted a Time Warner motion conceding that cable operators could not recoup the  xlosses they were incurring even if "they ultimately succeed in persuading this Court to rule in  xtheir favor," Memorandum of Law of Time Warner Entertainment Company, L.P. in Support of  xIts Emergency Motion for Expedited Consideration, at pp. 1718. That concession directly  xcontradicts Time Warner's current position. The Commission rightly took the statement in  xcontext: Time Warner was referring to the effect of delaying review of the entire "rate-regulation  X - xrulemaking."  Id. at 17. "The truth is," according to the majority, "that parties often claim that  x=drastic harm will occur when seeking expedited consideration." Maj. op. at 12. Maybe so, but  xthat misses the point. If Time Warner believed that it was entitled to recoup its losses, if the  xcompany thought the question was still open despite what it told this court, it was incumbent  xupon Time Warner to make its views known to the Commission. It had ample opportunity to do  xso, not only while the matter was pending before the agency on remand, but also after the Commission handed down its decision. Time Warner nevertheless remained mute.   NxPure and simple, the majority has offered no good reason for rejecting the Commission's  x<determination not to decide a legal claim Time Warner neither raised nor supported with pertinent  xauthorities. If "gotcha" and "disingenuous gimmick" are meant to embody a legal principle, I confess the principle eludes me. I therefore dissent from this portion of the majority opinion.