Cellular Mobile Systems of Pennsylvania, Appellants, v. Federal Communications Commission, Appellee,celcom Communications Corporation of Pennsylvania, Automaticwide-area Cellular Systems, Inc., Intervenors.celcom Communications Corporation of Pennsylvania, Appellant, v. Federal Communications Commission, Appellee,cellular Mobile Systems of Pennsylvania, Automatic Wide-areacellular Systems, Inc., Intervenors.celcom Communications Corporation of Pennsylvania, Appellant, v. Federal Communications Commission, Appellee, 792 F.2d 239 (D.C. Cir. 1986)

PER CURIAM:

Appellants Cellular Mobile Systems of Pennsylvania ("CMS") and Celcom Communications Corporation of Pennsylvania ("Celcom") are unsuccessful applicants for the Philadelphia nonwireline cellular telephone license. They challenge the decision of the Federal Communications Commission ("FCC") to award the license to Automatic Wide-Area Cellular Systems, Inc. ("AWACS"). We affirm the Commission's decision. Most of the arguments made by Celcom and CMS focus on issues that have already been resolved in previous cellular telephone appeals¹  or otherwise are without merit. Two contentions, however, warrant brief comment.

Celcom and CMS argue that, in evaluating the competing applications, the FCC erred in awarding AWACS a moderate preference for its superior assessment of relative demand. In particular, they claim that the AWACS market study merited no preference because it ignored the nonbusiness component of demand. We disagree. The FCC reasonably concluded that AWACS should receive a preference even though its demand estimates were based only on business users. None of the applicants' studies included nonbusiness users; and, in all other respects, the AWACS market study was, without doubt, superior to the studies of the other applicants. Moreover, AWACS did not merely assume that business users would be the only significant cellular telephone customers. Instead, AWACS conducted a residential survey, and, based on the results of this survey, the advice of its consultants, and its own business judgment, AWACS reasonably concluded that nonbusiness use would be insignificant.²  Similar preferences have been given to market studies that excluded residential demand in the Chicago and Atlanta markets.³ 

Notwithstanding the claims made by Celcom and CMS, the FCC Final Decisions in the San Diego⁴  and Phoenix⁵  proceedings do not require a different result in this case. The cited unsuccessful applicant in Phoenix conducted no residential study, and based its assumption that residential demand would be insignificant solely on its "experience." Additionally, the Phoenix study had other serious defects--such as its assumption that paging service provides a good model for cellular telephone demand. The San Diego proceeding involved the same survey methodology at issue in Phoenix. Because the same applicant using the same study methodology was involved in both the Phoenix and San Diego proceedings, the FCC correctly concluded that the decision in Phoenix "compel [ed] a finding that [the applicant's] demand assessment [in San Diego] is defective."⁶  We do not read the San Diego Final Decision, however, as embracing an FCC policy requiring the denial of a preference to any market study that ignores residential demand. Indeed, in the San Diego Final Decision, the FCC left open the possibility that an applicant who adequately explained an assumption that businesses would be the primary users could merit a preference.⁷ 

Therefore, as we understand current FCC policy, a business-only market analysis may warrant a preference when the applicant provides evidence--such as additional market studies of residential demand coupled with the exercise of business judgment and experience--that there is a sound basis for excluding consumer demand. This is particularly so when, as here, the applicant's study is otherwise qualitatively better than competing studies because it forecasts demand on the basis of more reliable data. We conclude that the FCC decision in this case was consistent with current policy.

Celcom argues that the FCC erred in refusing to reopen the record to examine the possible anticompetitive impact of the AWACS cellular telephone proposal on the Philadelphia paging market. Although this court remanded a similar issue in the New York appeal,⁸  we conclude that no such action is required here. In New York, Celcom raised this issue in its exceptions to the Administrative Law Judge's decision. In marked contrast, however, in the instant proceeding Celcom raised this issue after Exceptions and Reply Exceptions to the Administrative Law Judge's decision had been filed. Because Celcom easily could have raised this issue at an earlier stage in the proceeding, we affirm the Commission's conclusion that Celcom's request to reopen the record was untimely.

Affirmed.