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Y - Federal Communications Commission and United States of America,  Y -  Appellees/Respondentsă  Yb-&US WEST, Inc., et al.,  YK-C Intervenorsă 8Consolidated with  Nos. 951055, 951060, 951065, 951074 Appeal and Petitions for Review of Orders  of the Federal Communications Commission  YN-gg """" ă  Y -  Veronica M. Ahern and Gene A. Bechtel argued the cause for appellants/petitioners, with whom  Y-  Harold Mordkofsky, Robert M. Jackson, Harry F. Cole, George H. Shapiro and Robert B. Kelly  Y-were on the joint briefs.  Y!-  James M. Carr, Counsel, Federal Communications Commission, argued the cause for  Y"-  appellees/respondents, with whom William E. Kennard, General Counsel, Daniel M. Armstrong,  Y#-  Associate General Counsel, John E. Ingle, Deputy Associate General Counsel, Anne K.  Ys$-  Bingaman, Assistant Attorney General, United States Department of Justice, and Robert B.  Y^%-Nicholson, Attorney, were on the brief. Robert J. Wiggers, Attorney, entered an appearance.  Y2'-Before: Ginsburg, Sentelle and Rogers, Circuit Judges.  Y)-Opinion for the Court filed by Circuit Judge Sentelle.")0*0*0*0*"Ԍ Y- ԙSentelle, Circuit Judge: Five appellants/petitioners appeal from and seek review of a   Federal Communications Commission ("FCC" or "Commission") order which dismissed their   applications for "pioneer's preferences." Appellants/ petitioners claim that the dismissal of their  Y-  applications was not only arbitrary and capricious, but was also influenced by improper ex parte   contacts. As an initial matter, we conclude that these claims are properly before us as timely filed petitions for review. Upon considering the petitions, we grant one and deny the rest.  '"'<   Yc- '"'< s> I. Background ă  Until the early 1990s, the FCC employed only lotteries and comparative hearings to   assign licenses for radio communications services. Concerned that innovation was being stifled   xby the uncertainty of this licensing process, the FCC adopted "pioneer's preference" rules in  Y -  1991. Establishment of Procedures to Provide a Preference to Applicants Proposing an  Y -  Allocation for New Services, 6 F.C.C.R. 3488, 3492  32 (1991) [hereinafter Pioneer's  Y -  lPreference Order]. Under these rules, an applicant that demonstrates "that it (or its   ,predecessor-in-interest) has developed an innovative proposal that leads to the establishment of   a service not currently provided or a substantial enhancement of an existing service" may receive   a pioneer's preference when the Commission adopts rules governing the new or enhanced   service. 47 C.F.R.  1.402(a). A preference "effectively ... guarantee[s] the innovating party   a license in the new service (assuming it is otherwise qualified) by permitting the recipient of   Ma pioneer's preference to file a license application without being subject to competing  Y(-  applications." Pioneer's Preference Order, 6 F.C.C.R. at 3492  32. A party that does not   receive a pioneer's preference may obtain a license for the relevant service only by competing   Yon a separate track with other applicants for the remaining licenses. The Commission expected   that this revised licensing process, by giving preferential treatment to telecommunications   pioneers, would "help to ensure that innovators have an opportunity to participate either in new   ,services that they take a lead in developing or in existing services to which they wish to apply  Y-new technologies." Id. at 3488  1.  '"'<    '"'< When the Commission adopted the pioneer's preference rules, it explained that "the key   determinant of whether a pioneer's preference would be awarded is the degree to which a  YF-  xproposed service or technology is "new' or "novel.' " Id. at 3493  43. An applicant "must   demonstrate ... that it (or its predecessor-in-interest) has developed the capabilities or   ypossibilities" of a new service or technology "or has brought them to a more advanced or   effective state." 47 C.F.R.  1.402(a). Elaborating on this point, the Commission indicated that   ,it would not award a preference for a new technology that is not "associated with a licensable  Y -  service." Pioneer's Preference Order, 6 F.C.C.R. at 3492  37. In addition, the applicant   ,"must accompany its preference request with either a demonstration of the technical feasibility   =of the new service or technology or an experimental license application, unless [such an]   application has previously been filed for that new service or technology." 47 C.F.R.  1.402(a).   Finally, a pioneer's preference will be granted "only where [FCC] rules, as adopted, are a   reasonable outgrowth of the [applicant's] proposal and lend themselves to the grant of a  YM&-preference." Id.  '"'<   ? '"'< The Commission has applied its pioneer's preference rules to a number of services,   Kincluding personal communications services ("PCS"). PCS is a family of mobile or portable" )0*0*0*0*"   Yradio communications services "that free individuals from the constraints of the telephone wire   and allow them to send and receive communications while away from their homes or offices."  Y-  Adams Telecom, Inc. v. FCC, 38 F.3d 576, 579 (D.C. Cir. 1994). The Commission has divided   the PCS family into two service categories: (1) narrowband (900 MHz) PCS, and (2) broadband (2 GHz) PCS.  '"'<    '"'< The appellants/petitioners in this case"QUALCOMM Incorporated ("QUALCOMM");   Advanced MobilComm Technologies, Inc. jointly with Digital Spread Spectrum Technologies,   Inc. ("AMT/DSST"); Freeman Engineering Associates, Inc. ("Freeman"); Viacom   International, Inc. ("Viacom"); and Advanced Cordless Technologies, Inc. ("ACT")"filed   pioneer's preference applications in the initial PCS rulemaking proceeding, GEN Docket No.   90314. The Commission received a total of ninety-six preference requests in this proceeding.   The GEN Docket proceeding was eventually reserved for broadband PCS preference requests.   ,A separate proceeding, ET Docket No. 92100, was established for narrowband PCS pioneer's preference applications.  '"'<    '"'< In November 1992, the Commission released its tentative decision concerning the  Y{-  pioneer's preference requests filed in the broadband proceeding. Amendment of the   Commission's Rules to Establish New Personal Communications Services: Tentative Decision  YO-  and Memorandum Opinion and Order, 7 F.C.C.R. 7794 (1992) [hereinafter Tentative Decision].  Y:-  In the Tentative Decision, the Commission affirmed a decision by the Commission staff to   dismiss thirty-nine preference applications for failure to provide the information required by the  Y-  pioneer's preference rules. Id. at 780913 WW 3749. The Commission also tentatively decided   to grant pioneer's preferences to American Personal Communications ("APC"), Cox Enterprises,  Y-Inc. ("Cox"), and Omnipoint Communications, Inc. ("Omnipoint"). Id. at 77977804 WW 623.  '"'<   Y-  '"'< The Commission's Tentative Decision also reached tentative conclusions with respect to   appellants'/petitioners' pioneer's preference applications. As to ACT's proposal, the   YCommission first noted that ACT's proposed CT2 service was a "candidate[ ] for the 900 MHz  Ys-  spectrum proposed in the Notice for narrowband PCS." Id. at 7806  27. The Commission then   =concluded that ACT's proposal was not innovative in that CT2 service had already been  YG-  developed and "implemented in various parts of the world." Id. Thus, the Commission  Y2-  Ytentatively denied ACT's preference request. Id. Freeman's preference request was tentatively  Y-  <denied for failure to "demonstrate the feasibility of the technology." Id. at 7805  25. The   ,Commission tentatively rejected Viacom's preference application on the ground that it was not   innovative, but rather was merely a "compilation[ ] or aggregation[ ] of existing communications  Y -  <technologies or systems." Id. at 7805  26. As for AMT/DSST's proposal, the Commission   recognized that it appeared "innovative," but deemed it unworthy of a preference for two  Y"-  reasons. First, AMT/DSST had not developed its technology "to the point of field testing." Id.   ,at 7807  30. Further, the spectrum scheme AMT/DSST proposed was "substantially different  Y$-  ;than that which [the Commission] proposed." Id. Finally, the Commission tentatively rejected   QUALCOMM's preference request on the grounds that its proposed technology was "essentially   ... identical to that which it already ... developed for use in the 800 MHz cellular bands" and  Y?'-that it had not "developed and tested 2 GHz equipment." Id. at 7807  32.  '"'<   ^ '"'< Several months later, on July 23, 1993, the Commission released its order in the")0*0*0*0*"  Y-  narrowband proceeding. Amendment of the Commission's Rules to Establish New Narrowband  Y-  Personal Communications Services: First Report and Order, 8 F.C.C.R. 7162 (1993)  Y-  L[hereinafter First R&O]. ACT's preference request was denied in this order for the same  Y-  yreasons set forth in the Tentative Decision. First R&O at 7176  82. ACT petitioned for   reconsideration of this order on November 3, 1993, seventy-three days after the deadline for   seeking reconsideration had passed. The Commission rejected the reconsideration petition as  Y~-  untimely. Amendment to the Commission's Rules to Establish New Narrowband Personal  Yi-Communications Services: Memorandum Opinion and Order, 9 F.C.C.R. 1309, 1317 (1994).  YT- '"'<   Y=-  '"'< In the meantime, the Commission received numerous comments concerning its Tentative  Y( -  Decision. After receiving these comments, the Commission issued an order granting broadband  Y -  Ypioneer's preferences to APC, Cox, and Omnipoint. Amendment of the Commission's Rules to  Y -  ,Establish New Personal Communications Services: Third Report and Order, 9 F.C.C.R. 1337,  Y -  =1339 (1994) [hereinafter Third R&O]. The Commission denied the remaining preference  Y -  wrequests in the broadband proceeding. Id. at 134973 WW 81301. Freeman's application was  Y -  again denied for lack of "feasibility." Id. at 1365  221. The Commission denied AMT/DSST's   application for "incompatib[ility] with the spectrum scheme adopted" as well as lack of  Y-  "technical feasibility." Id. at 1359 WW 16566. Viacom's application was denied on the  Y~-  ground that it was merely a "compilation[ ] of existing technologies." Id. at 1373  301. As   ifor QUALCOMM, the Commission recognized that it had, in fact, done work at 2 GHz, but   nonetheless concluded that no preference should be granted because the work was merely an  Y;-  adaptation of existing technology. Id. at 136970  266. ACT's pioneer's preference application  Y&-was not mentioned in the Third R&O.  '"'<   Y-  '"'< AMT/DSST and QUALCOMM petitioned for reconsideration of the Third R&O.  Y-  Freeman and Viacom did not. The Commission denied the petitions for reconsideration filed  Y-  by AMT/DSST and QUALCOMM for the same reasons set forth in the Third R&O. Amendment   wof the Commission's Rules to Establish New Personal Communications Services: Memorandum  Y-  Opinion and Order, 9 F.C.C.R. 7805, 7808  14, 7811  35 (1994) [hereinafter Reconsideration  Y-  Order]. Though ACT's preference application was not mentioned in the Third R&O, it too   =petitioned for reconsideration of the order. The Commission rejected ACT's petition for   reconsideration on the ground that ACT was "merely again seeking reconsideration of the denial  YJ-  of its preference [request] in the First R&O." Id. at 7807. All five parties appealed from and petitioned for review of the Commission's orders.  Y- '"'<   Y - '"'< F II. Analysis ă  Y -  W!-A. Jurisdiction  Y"-  The Commission contends that we are without jurisdiction to hear the claims raised by   hACT and Viacom because their petitions for review were untimely filed. Section 402(b) of the   Communications Act provides that a party whose application for a license has been denied by   the FCC may appeal to this court, as may a person aggrieved by the Commission's decision to   grant or deny the license. 47 U.S.C.  402(b). Such appeal must be taken "within thirty days  Y9(-  from the date upon which public notice is given of the decision or order complained of." Id.    402(c). As to any Commission order that is not appealable under  402(b), a petition for"$)0*0*0*0*"  Y-  xreview may be filed under  402(a) to "enjoin, set aside, annul, or suspend" the order. Id.    402(a). Petitions for review under  402(a) must be filed "within 60 days after ... entry" of the order. 28 U.S.C.  2344.  '"'<    '"'< In their opening brief, ACT and Viacom (as well as the other appellants/petitioners)   ^assert that we have jurisdiction over their claims under  402(b). Alternatively,   ,appellants/petitioners assert jurisdiction under  402(a). However, "the provisions for judicial  Ya-  review contained in  402(a) and 402(b) are mutually exclusive." Friedman v. FCC, 263 F.2d  YL-  493, 494 (D.C. Cir. 1959); Rhode Island Television Corp. v. FCC, 320 F.2d 762, 766 (D.C.   Cir. 1963). A claim may be brought only under one of the two provisions. Therefore, we must   xdetermine whether the appeal-petitions filed by ACT and Viacom may be brought as appeals   iunder  402(b) or petitions for review under  402(a). The distinction is critical in this case   since the appeal-petitions of ACT and Viacom were filed thirty-three and thirty-five days,  Y -  Lrespectively, after the Commission's Reconsideration Order was published in the Federal  Y -  Register. If  402(b) were the proper route of review, then the appeals filed by ACT and  Y -  ;Viacom were untimely under 47 U.S.C.  402(c). An untimely appeal "must be dismissed" for  Y-  lack of jurisdiction. Waterway Communications Sys., Inc. v. FCC, 851 F.2d 401, 405 (D.C.   xCir. 1988) (emphasis in original). If, on the other hand,  402(a) were the proper method of   obtaining review of the Commission's order, then the petitions of Viacom and ACT were timely, and we may consider their claims.  '"'<   l '"'< On its face,  402(b) appears inapplicable to this case since the Commission neither   granted nor denied a license in the proceedings from which ACT and Viacom appeal-petition.   ;The Commission responds that the denial of a pioneer's preference application is "ancillary to"  Y-  the grant of a license, and thus within our jurisdiction under  402(b). In TomahMauston  Y-  Broad. Co., Inc. v. FCC, 306 F.2d 811, 812 (D.C. Cir. 1962), we held that a Commission   order " "ancillary' to the grant of a construction permit ... is reviewable under Section   402(b)(6)." We have not, however, held that a decision to grant or deny a pioneer's preference   application is "ancillary to" the license itself, and we do not so hold now. As we stated in  Yw-  Waterway Communications, "relief ... under  402(b) requires as a trigger the grant or denial   wof a license application." 851 F.2d at 403. The Commission does not grant licenses at the time   a pioneer's preference is awarded. Nor does the grant of a preference irrevocably commit the   YCommission to grant a license. The recipient of a pioneer's preference must still be "otherwise  Y-  qualified" in order to obtain a license. Pioneer's Preference Order, 6 F.C.C.R. at 3492  32.   It therefore appears that our jurisdiction to review a denial of a pioneer's preference application is not governed by  402(b), but falls within  402(a).  '"'<   Y!-  '"'< Our decision in Adams Telecom, Inc. v. FCC, 997 F.2d 955 (D.C. Cir. 1993), supports  Y"-  this reading of  402. In Adams, we considered whether a petition for review of an FCC order   dismissing an application for a pioneer's preference had been filed within the sixty-day filing   period established by 28 U.S.C.  2344. 997 F.2d at 956. In addressing this question, we   never explicitly held that a petition for review was the proper method of obtaining judicial   review of a Commission order denying an application for a pioneer's preference. Nor did we   ever cite  402(a). Nevertheless, the applicability of  402(a)'s sixty-day filing deadline was implicit in our holding.  Y)- '"'< ")0*0*0*0*"Ԍ Y-  '"'< The FCC disputes the authority of the implicit dicta of Adams, quoting Mobile  Y-  ;Communications Corp. of America v. FCC, 77 F.3d 1399, 1408 (D.C. Cir. ), cert. denied, 117   S. Ct. 81 (1996), to the effect that a challenge to the grant of a pioneer's preference "may be   viewed as an attack on the grant of a license, which the pioneer's preference was intended to   "guarantee,' " ... and thus within our jurisdiction under 47 U.S.C.  402(b)(6)." The   Commission, however, reads that statement out of context. Immediately following that sentence   we stated: "Alternatively, the challenge may be viewed as an attack on an order not appealable   under  402(b) and thus within our jurisdiction under  402(a).... There being no other apparent   possibilities, and the timing and venue provisions of both subsections being satisfied, we have  Y5-  jurisdiction." Id. In other words, we did not reach the issue in Mobile Communications because  Y -  it did not affect the outcome of the case. Mobile Communications provides no support for the Commission's position.  '"'<   N '"'< In sum, we hold that the Commission's denial of a pioneer's preference is neither a  Y -  hdenial of a license nor is it ancillary to such, and thus it is not appealable under  402(b) of the   ,Communications Act. Therefore, our jurisdiction derives from  402(a)'s grant of authority to   review petitions of aggrieved parties. Because ACT and Viacom's petitions for review were clearly filed within the sixty-day period, we have jurisdiction to consider their claims.  Yj- '"'<   WS- '"'< B. Arbitrary and Capricious Claims  =Petitioners each assert that the Commission's decision to reject their pioneer's preference   request was arbitrary and capricious in violation of the Administrative Procedure Act. 5 U.S.C.    706(2)(A). Under the arbitrary and capricious standard of review, we do not "substitute [our]  Y-  judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State  Y-  Farm Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather we look to see "whether the decision was   based on a consideration of the relevant factors and whether there has been a clear error of  Y-  judgment." Id. (internal quotations omitted). An agency decision will be considered arbitrary  Y-  if it "runs counter to the evidence before the agency." Id. Further, an agency may not "treat  Yu-  like cases differently." Airmark Corp. v. FAA, 758 F.2d 685, 691 (D.C. Cir. 1985). We apply these principles of review to each of the petitions before us.  '"'<   '"'< 1. QUALCOMM  '"'<   > '"'< Under the Commission's pioneer's preference rules, a preference will be granted only   when 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." 47 C.F.R.  1.402(a). The Commission rejected QUALCOMM's pioneer's   wpreference request for lack of innovativeness, finding that the proposed technology was merely   wan adaptation of its previously developed 800 MHz system to the 2 GHz PCS band. According   jto the Commission, adaptation of technology that was not "developed specifically for the  Yc%-  advancement of a particular service" is not innovative. Reconsideration Order, 9 F.C.C.R. at   7810  34. QUALCOMM contends that this ruling was arbitrary because the Commission has   never required that technology be "developed specifically for a particular service" in order to obtain a pioneer's preference.  '"'< " )0*0*0*0*"Ԍ  '"'< The Commission reads its pioneer's preference rule to require that a proposal lead to or  Y-  substantially enhance "a service," the emphasis being on the word "a." 47 C.F.R.  1.402(a)   (emphasis added). QUALCOMM, by contrast, argues that the emphasis of the rule was on the   word "service." In other words, according to QUALCOMM, the rules provide that the   ZCommission will not grant a pioneer's preference simply for the development of technology unrelated to some service.  '"'<    '"'< At its core, QUALCOMM's argument constitutes a challenge to the Commission's   interpretation of its pioneer's preference rules. We will defer to the FCC's interpretation of its   own regulations unless that interpretation is "plainly erroneous or inconsistent with the  Y -  regulation." Jersey Shore Broad. Corp. v. FCC, 37 F.3d 1531, 1536 (D.C. Cir. 1994) (citations   {and quotations omitted). Indeed, we will "accord even greater deference to agency   interpretations of agency rules than [we] do to agency interpretations of ambiguous statutory  Y -  terms." Capital Network Sys., Inc. v. FCC, 28 F.3d 201, 206 (D.C. Cir. 1994). "Our role is   not to ensure that [the Commission's] reading is the most natural or most logical, but only that  Y -  it is reasonable and consistent with the regulations." K N Energy, Inc. v. FERC, 968 F.2d 1295,   12991300 (D.C. Cir. 1992) (internal quotations omitted). We cannot say that the Commission's   Jinterpretation is unreasonable or inconsistent with the regulation. Therefore, we must defer to the Commission's interpretation.  '"'<    '"'< Applying its interpretation of the pioneer's preference rule, the Commission concluded  Y%-  <that QUALCOMM's proposal was not deserving of a preference. Reconsideration Order, 9   ,F.C.C.R. at 781011 WW 3435. The Commission recognized that QUALCOMM "ha[d] done   Ywork at 2 GHz" and that the resulting "equipment appear[ed] viable for the provision of PCS."  Y-  Third R&O, 9 F.C.C.R. at 1370  266. But the Commission also found that QUALCOMM's   ;equipment was initially "developed for implementation of its 800 MHz digital cellular system"  Y-  and then merely adapted "to the 2 GHz PCS band." Id. at 1369  266. Under the   Commission's reasonable interpretation of the pioneer's preference rules, such adaptations are not eligible for a preference.  '"'<   ^ '"'< QUALCOMM argues that the Commission erred in concluding that its proposed   technology was already "existing" given that, "[a]t the time QUALCOMM filed its preference   request, no CDMA digital cellular service at any frequency had been implemented commercially   anywhere in the world." Petitioner's Brief at 31. According to QUALCOMM, the Commission   has subsequently held that whether a technology is "existing" depends on whether it has been  Y-  "implemented in an existing service." Id. at 32 n.71 (citing Review of the Pioneer's Preference  Y -Rules: Memorandum Opinion and Order, 11 F.C.C.R. 2468, 2469 (1996) [hereinafter Review]).  '"'<   = '"'< At the time the FCC denied QUALCOMM's preference request, the Commission defined  Y#-  Yan existing technology as one that has been "developed for implementation of [a service]." See  Y|$-  .Reconsideration Order, 9 F.C.C.R. at 7810  32 (emphasis added). Undoubtedly, it was   hreasonable to define an "existing" technology as one that has been "developed." We agree that   there appears to be some tension between this definition and the one set forth in the  Y9'-  xCommission's subsequent Review. See 11 F.C.C.R. at 2469  10 (stating that "a technology   should be eligible for a pioneer's preference .... provided that the technology has not previously   been implemented in an existing service."). But "[w]e have held that the FCC is not bound" )0*0*0*0*"   retroactively by its subsequent decisions and need not explain alleged inconsistencies in the  Y-  resolution of subsequent cases." See CHM Broad. Ltd. Partnership v. FCC, 24 F.3d 1453, 1459   J(D.C. Cir. 1994). Any inconsistency between the two definitions should have been pursued in  Y-  the subsequent proceeding, not this one. Amor Family Broad. Group v. FCC, 918 F.2d 960, 962 (D.C. Cir. 1990).  Y- '"'<   Yz- m '"'< QUALCOMM also makes much of the fact that the Commission, in its Tentative  Ye-  Decision, erroneously concluded that QUALCOMM had not "developed and tested 2 GHz  YP-  Jequipment." Tentative Decision, 7 F.C.C.R. at 7807  32. The Commission concedes that this  Y;-  conclusion was erroneous. This error, however, was not repeated in either the Third R&O or  Y& -  hthe Reconsideration Order. The erroneous conclusion in the Tentative Decision is irrelevant so   long as it has since been corrected. Indeed, the very purpose of issuing tentative decisions is  Y -  to afford the Commission an opportunity to correct any errors. See Public Citizen Health  Y -Research Group v. Commissioner, FDA, 740 F.2d 21, 31 (D.C. Cir. 1984).  '"'<     '"'< Still further, QUALCOMM argues that the Commission's conclusion that its proposal    was not innovative is indefensible in light of the fact that the United States Patent Office granted   a patent for QUALCOMM's technology. This argument too is unconvincing. When the FCC   promulgated its pioneer's preference rules, it explicitly acknowledged that the standard for  Y]-  obtaining a patent differed from the standard for obtaining a pioneer's preference. Pioneer's  YH-  Preference Order, 6 F.C.C.R. at 3492  37. New technology standing alone is eligible for a   patent, 35 U.S.C.  101, while pioneer's preferences are granted only when "new technology  Y-is associated with a licensable service," Pioneer's Preference Order, 6 F.C.C.R. at 3492  37.  '"'<    '"'< Finally, QUALCOMM argues that the Commission's interpretation of the rule was not   ,applied equally to all preference applicants. According to QUALCOMM, Omnipoint received   a preference for technology that was adapted from the 900 MHz to 2 GHz. In its request for   a pioneer's preference, Omnipoint admitted that it began "designing the technology in 1987,"   several years before the pioneer's preference program was introduced. Moreover, Omnipoint   xstated several times in its preference request that its technology had been tested at 900 MHz.   Despite these statements, Omnipoint received a pioneer's preference. By contrast,   KQUALCOMM was denied a preference because the Commission found that QUALCOMM's   proposed technology was a non-innovative adaptation in that QUALCOMM "ha[d] been  Y!-  developing its ... technology since 1985" and had "validated [it] for 800 MHz." Reconsideration  Y -Order, 9 F.C.C.R. at 7811.  '"'<    '"'< Numerous parties to the FCC proceedings pointed out this disparate treatment to the  Y!-  Commission. See Third R&O, 9 F.C.C.R. at 1346. The Commission responded to these  Y"-  comments not by applying the "developed specifically for a particular service" test that the   Commission had applied to QUALCOMM, but by reverting to its "associated with" test, finding  Y$-  wthat Omnipoint's technology was "associated with a licensable service." Id. The Commission's   yexplanation ended with the statement that "Omnipoint has demonstrated that it performed   significant new work related to 2 GHz PCS after adoption of the pioneer's preference rules."  YE'-  Id. But the same could be said of QUALCOMM. QUALCOMM's adaptation was also "significant new work related to 2 GHz PCS."  '"'< ")0*0*0*0*"Ԍ  '"'< In its brief to this court, the Commission responds that even if QUALCOMM and   Omnipoint were disparately treated, QUALCOMM cannot complain that Omnipoint was granted  Y-  a preference to which it was not entitled, relying on Adams Telecom, Inc. v. FCC, 38 F.3d 576,  Y-  Z58182 (D.C. Cir. 1994). But this case is easily distinguishable from Adams. In Adams, the   pioneer's preference applications of similarly situated parties were subject to dissimilar   Kprocedural treatment. However, the applications of all the parties ultimately received equal  Yz-  treatment on the merits. See id. at 57981. We therefore declined to remand the case on the  Ye-  ground that the Commission's interpretation of its pioneer's preference rules as applied to every  YP-  applicant would require rejection of petitioners' applications. Id. at 58182. In this case, by   -contrast, the Commission applied a newly developed (and questionable) interpretation of its   pioneer's preference rules only to the merits of QUALCOMM's preference application. Were   this case remanded, it is not at all clear whether the Commission would continue to adhere to this interpretation of the pioneer's preference rules.  '"'<    '"'< In sum, we find reasonable the Commission's interpretation of the pioneer's preference   rules such that adaptations of technology are not innovative and thus not deserving of a   preference. However, we conclude that the Commission failed to apply this interpretation   <consistently to the detriment of QUALCOMM's application for a preference. We therefore   vacate that portion of the Commission's decision denying QUALCOMM's preference request. We remand for further proceedings to remedy this inconsistency.  '"' '"'<( AMT/DSST attack this incompatibility rationale as well, arguing that the Commission   Jgranted pioneer's preferences to applicants with equally incompatible proposals. According to   AMT/DSST, their preference request was denied because they requested only 5 MHz of   spectrum space rather than the full 30 MHz the Commission proposed. By contrast, other   parties to these proceedings requested more or less than 30 MHz, yet they received preferences. " ) 0*0*0*0*"   .AMT/DSST's argument is without merit. The Commission awarded preferences to other   applicants who proposed "spread spectrum systems" at varying band widths. AMT/DSST,  Y-  however, proposed a different type of system altogether"an "open architecture spectrum plan."  Y-  Id. at 7807  8. Given that AMT/DSST proposed a different type of system than other preference applicants, AMT/DSST cannot complain of the disparate treatment they received.  '"'<)   '"'<) 3. Viacom  '"'<*   YL-  '"'<* In its Third R&O, the Commission rejected Viacom's proposal on the ground that it was   ,not innovative, but rather was a "compilation[ ] of existing technologies." 9 F.C.C.R. at 1373   < 301. According to Viacom, this explanation is inadequate in that it does not explain why   compilations are not innovative or state what existing technologies Viacom's proposal combined.   Viacom further argues that the Commission acted arbitrarily by treating Viacom's proposal differently than APC's despite the fact that the proposals were similar.  '"'<+     '"'<+ As a general rule, "[t]he filing of a petition for reconsideration [is] not ... a condition   <precedent to judicial review of any [Commission] order" unless one plans to raise on appeal   "questions of fact or law upon which the Commission ... has been afforded no opportunity to   pass." 47 U.S.C.  405(a)(2). Interpreting this provision, we have held that in order to   question on appeal the adequacy of the FCC's explanation of its decision, a party must first   present its concerns to the Commission so that the agency is afforded an opportunity to cure any  Y#-defect. See United States v. FCC, 707 F.2d 610, 617, 619 (D.C. Cir. 1983).  Y- > '"'<, In response to the Commission's Tentative Decision, Viacom filed comments asserting  Y-  that it and APC were "equally deserving" of pioneer's preferences. See Viacom Comments in   Response to the Commission's Tentative Decision at 16. However, Viacom did not demonstrate   the similarity of its proposal to that of APC by comparing the two. Viacom's comments also   zcontained a passing reference to the Commission's failure to explain its decision. This   istatement, however, was far too vague to afford the Commission an opportunity to cure any  Yq-  Jdefect in its order. When the Commission issued its Third R&O rejecting Viacom's preference  Y\-  request on the same grounds advanced in the Tentative Decision, Viacom did not petition for   reconsideration. As a result, Viacom failed to raise its claims before the Commission clearly. Therefore, we will not consider them on appeal.  '"'<-  4. Freeman  '"'<.   Y - 0 '"'<. In its Tentative Decision, the Commission recommended that Freeman's preference   request be denied for lack of technical feasibility. 7 F.C.C.R. at 7805  25. In response,   Freeman filed four progress reports with the Commission detailing Freeman's experimentation   on its proposed technology. Despite these progress reports, the Commission denied Freeman's  Yz$-  preference request in the Third R&O, citing only the fourth progress report in support of the   conclusion that Freeman had not finished testing its proposed technology and thus had not demonstrated its technical feasibility. 9 F.C.C.R. at 1365  221 & n.249.  '"'   Y- z '"'<> In this case, the ex parte contact was quite serious in that the August Report contained  Y-  a direct attack on the feasibility of QUALCOMM's proposed technology. See August Report  Y-  -at 8. Moreover, the Commission cited the August Report in the Third R&O. 9 F.C.C.R. at   1346  56 & n.68. Further, the August Report was not served on opposing parties, thus denying   xQUALCOMM and the other preference applicants an opportunity to respond to Omnipoint's  Y`-  criticisms. Still further, the party making the ex parte contact, Omnipoint, benefited from the   agency's ultimate decision in that it received a pioneer's preference. These facts all tend to  Y4-indicate that the ex parte contact tainted the Commission's decision.  '"'