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MorganPhyllis M. Morgan Default Paragraph FoDefault Paragraph Font footnote referencefootnote reference 2}K jXK#"i~'^.6@PP}666PZ*6*-PPPPPPPPPP--ZZZFsjjscZss6=scssZsjZcssssc6-6JP6FPFPF6PP--P-}PPPP6=-PPsPPFM MV6*VJ666*666666P6P-sFsFsFsFsFhjFcFcFcFcF6-6-6-6-sPsPsPsPsPsPsPsPsPsPsFsPsNsPsPsPZPsFsFsFjFjFjVjFsecFcFcFcFsPsPsPsVsPsVsP6-6P666PpZVVsPc-c@c6c6c-sP^sPsPsPsPsj6j6j6Z=Z=Z=ZVcCc-cJsPsPsPsPsPsPssVcFcFcFsPc6sPZ=c6sPe*PP55WppppppppppppppppppppppppppppppppppppppppppppppppxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN:``:JP6FPPPPP-3zzP03zzPz066FFP77`PP`y:``:_ZZ6FP0"jjjjzzPz`]VPZ``PK7jC:,ynXj\  P6G;XPt,U5.,U\  P6G;PK7jC:,ynXj\  P6G;XP7nC:,4 x_of concentration of ownership would result in an undesirable level of competition. See id. at  xu786973, paras. 94102. Concluding that a spectrum cap was needed to avoid "excessive  X4 xconcentration of licenses" and to promote competition in the CMRS marketplace, id. at 7869,  x}para. 94, the Commission considered various hypothetical market structures for mobile two-way"0*((aa)"  X4 xvoice communications service in the same geographic area.r" ; Xy4 xԍ For purposes of its HHI analysis, the Commission defined the product market as "mobile  xtwo-way voice communications service." 11 F.C.C.R. at 7904, App. A. "Competitors" were  xdefined as licensees for cellular service, broadband PCS, and the largest interconnected SMR.  X44 xSee id. Market share was measured in terms of "[a]llocated spectrum," which gauges a CMRS  X4 x carrier's long-term capacity, id. at 7870, para. 96, and the "capacity" for a geographic market was  xrepresented by licensed spectrum for cellular service (two licenses for 25 MHz), broadband PCS  x(three licenses for 30 MHz and three licenses for 10 MHz), and the largest potential  X4 xinterconnected SMR provider (holding multiple licenses for a maximum total of 10 MHz), see  X 4 xid. at 7870, para. 97. The Commission compared the market concentration that would result with and without the spectrum cap.r It determined that the 45 MHz cap  xwould do the trick"guard against high concentration in the market, prevent licensees from  xgaining too great a competitive advantage over new entrants, and further the goal of diversity.  X4 xSee id. at 787374, paras. 10102. The Commission noted that divestiture, see id. at 7876, para.  X4 xc107, and eventually disaggregation and geographic partitioning, see id. at 7873, para. 100, would be available to allow an entity to bid on blocks of PCS spectrum as they became available.  Xc4 xShortly thereafter, BellSouth Wireless requested a waiver of the spectrum aggregation limit.c ; X4 x}ԍ At footnote 18 of its waiver request, BellSouth suggested that the waiver could include the  xcondition that the .5 MHz of spectrum not be used for "real-time, two-way switched voice service."  x[Explaining that RAM Mobile (an entity in which it holds a 49% ownership interest) had a  xnumber of 900 MHz SMR licenses, BellSouth pledged that with those licenses RAM provided  xdata-only services and "does not offer now and does not intend in the future to offer real time,  xtwo-way switched voice service given the architecture of its network and the telecommunications  xmarket segments it has targeted." The spectrum cap would prevent BellSouth from bidding on  xtwo 10 MHz packages of PCS spectrum because its .5 MHz (or less) of SMR would take it over  xthe spectrum cap when added to the 25 MHz of cellular spectrum it already held. Consequently,  xBellSouth proposed that the Commission apply to the spectrum cap the distinction it had  X4 x3recognized in other contexts between "covered" and "non-covered" SMR.`L5; Xz4 xԍ In other proceedings, the Commission had defined "covered SMR" as spectrum devoted  xcto licensees that offer real-time, two-way switched voice service that is interconnected with the  xhpublic switched network. That term did not include "local SMR licensees offering mainly  xdispatch services to specialized customers in a non-cellular system configuration, ... licensees  xoffering only data, one-way, or stored voice services on an interconnected basis" or "any SMR  X#4 xprovider that is not interconnected to the public switched network." Interconnection and Resale  X#4 xObligations Pertaining to CMRS, First Report & Order, 11 F.C.C.R. 18455, 18466, para. 19 (1996).` BellSouth Corporation,  x<in turn, requested reconsideration of the rule so that it would include only "covered" SMR in the"}I0*((aa""  xspectrum cap, asserting that this modification would bring the Commission's spectrum cap policy in line with other decisions in the wireless area.  x4The FCC's response was two-fold. First, in a letter dated August 29, 1996, the Wireless  X4 xVTelecommunications Bureau denied BellSouth's request for a waiver. See Letter re: BellSouth  xWireless, Inc. Request for Waiver in Auction No. 11, 11 F.C.C.R. 9970 (1996). The Bureau  xstated that BellSouth's assertion that RAM does not compete with real-time two-way voice  xservice was based on a misconception about the underlying purpose of the CMRS spectrum cap;  xZthe cap in fact arose out of concerns about excessive horizontal concentration and market barriers.  X34 x'See id. at 9971. Additionally, while covered versus non-covered SMR was a significant  X 4 x_distinction in some contexts, it was not so in the spectrum aggregation context. See id. The  xBureau also invited BellSouth to seek to divest itself of the .5 MHz of SMR spectrum if it wished  x'to bid for two 10 MHz bundles of PCS or to pursue its argument as part of a request for  X 4reconsideration of related orders. See id. at 9972.  x<The Commission affirmed the Bureau's denial of a waiver, rejecting BellSouth's arguments that  xIthe rule was in effect unwaivable and that the Bureau had not given a "hard look" at the waiver  X4 xapplication. See Memorandum Opinion & Order, 12 F.C.C.R. 14031 (1997). The Bureau had  x}considered the facts proffered, balanced them and the purposes underlying the CMRS spectrum  x}aggregation limit, and noted the availability of alternative ways that BellSouth could obtain relief.  xyThe Commission also declined to reconsider the cap, rejecting BellSouth's narrow view of its purpose. The cap, the Commission explained, was designed  x[to promote diversity and competition in mobile services, by recognizing the possibility that  xmobile service licensees might exert undue market power or inhibit market entry by other service  xpproviders if permitted to aggregate large amounts of spectrum.... Despite BellSouth's contention  x'to the contrary, the underlying purpose of the spectrum cap was not limited to promoting competition in voice services only.  Xo4 xId. at 1403839, para. 12. Further, the Commission explained that it distinguished covered and  xnon-covered SMR in rules that only affected two-way voice services interconnected to the public  XC4 x[switched network. See id. at 14040, para. 14. With regard to spectrum aggregation, the Commission explained that it  xstill concludes that SMR technology holds the potential to permit SMR operators to offer services  xthat are nearly identical to those offered by both cellular and broadband PCS providers, and thus  xEthat all SMR services regulated as CMRS should be within the cap in order to guard against  xexcessive spectrum aggregation. Further, technological innovation may drive cellular, broadband  xIPCS, and SMR services toward a convergence of similar service offerings designed to respond to consumer demand.  V_%4Id.  X1'4~ II. ă"1'0*((aa%"Ԍ x"ԙIn its petition and appeal to this court, BellSouth makes two principal contentions: first, that the  xspectrum cap rule is overbroad, extending beyond its purpose to assure competition in voice  xcommunications, and second, that the Commission has adopted a virtually unwaivable rule and  x+failed to give the waiver request a "hard look." Just as narrowband is exempt from the cap,  x4BellSouth contends, SMR dedicated to data-only services should be as well. Essentially,  xBellSouth maintains that the only purpose of the rule was to prevent the exercise of market power  xin voice services, not non-voice data-only services. This purpose is clear, BellSouth maintains,  xufrom the fact that (1) the Commission exempted narrowband spectrum, which is used for  xnon-voice services; (2) in conducting its market analysis following the remand from the Sixth  x4Circuit, the Commission defined the market and other terms such that the only economic  xjustification for the cap is to deter excess spectrum concentration and market power in the voice  x<communication market; and (3) the Commission has repeatedly distinguished between covered  xSMR (voice services) and non-covered SMR (non-voice services) in regulatory decisions on the  xground that the services did not compete in the same market. Finally, BellSouth contends that  x/by failing to identify the standards for evaluating waiver requests, the Commission has engaged  X 4 xin the type of tautological reasoning rejected by this court in WAIT Radio v. FCC, 418 F.2d  X4 x1153, 1158 (D.C. Cir. 1969)(WAIT I). See Pet'r's Br. at 19 ("In sum, the [Commission's] failure  X}4 xto cure the overbreadth of its rule, coupled with its unwillingness to entertain a clearly de minimis waiver was unreasoned decisionmaking.").  X:4 A. ă  xUnder the Administrative Procedure Act, the court must "hold unlawful and set aside agency  x<action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.  706(2)(A) (1994). Thus, in reviewing decisions of the Commission, the court  xmust affirm the decision if we find that it is not contrary to law, that it is supported by substantial  xevidence and based upon a consideration of the relevant factors, and if we determine that the  x_conclusions reached have a rational connection to the facts found. When, as in this case, an  xlagency is obliged to make policy judgments where no factual certainties exist or where facts  xalone do not provide the answer, our role is more limited; we require only that the agency so state and go on to identify the considerations it found persuasive.  X4 x}Melcher v. FCC, 134 F.3d 1143, 1152 (D.C. Cir. 1998) (citations and quotation marks omitted).  x<Although the arbitrary and capricious standard of review is deferential, the court will "intervene  xto ensure that the agency has examine[d] the relevant data and articulate[d] a satisfactory  xexplanation for its action. Where the agency has failed to provide a reasoned explanation, or  X!4 xwhere the record belies the agency's conclusion, we must undo its action." Petroleum  X"4 xCommunications, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994) (alteration in original)  xc(citation and quotation marks omitted). However, to the extent that the FCC's decision is based  Xt$4 xcupon a "predictive judgment," the court's review is "particularly deferential." Melcher, 134 F.3d  xat 1151. The Commission is not required "to 'conclusively establish' the factual validity of the  XH&4 xgagency's premises." Id. (quoting FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 796 (1978))."3'0*((aa,%"Ԍ xԙChallenging the denial of a waiver is likewise not an easy task because an applicant for waiver  xVbears the heavy burden on appeal to show that "the Commission's reasons for declining to grant  X4 xthe waiver were so insubstantial as to render that denial an abuse of discretion." Turro v. FCC,  X4 xc859 F.2d 1498, 1499 (D.C. Cir. 1988); see also Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C. Cir. 1983).  Xz4 B. ă  xlCentral to BellSouth's challenge to the spectrum cap is its view that the cap has one goal: to  xfoster competition in mobile voice-to-voice communication. With this goal as a basis for  xregulation, BellSouth contends that the FCC irrationally included within the CMRS spectrum cap  xSMR spectrum dedicated to data services, which, BellSouth maintains, can have no impact on the  x&competitive nature of the voice communication market. Yet the Commission has taken a different  xposition, maintaining that it was concerned with the effect of CMRS spectrum aggregation on the  xdevelopment of market power and on the competitive market for mobile services as a whole in  xlight of the predicted potential for various services along that spectrum to converge. The general  xcap on CMRS spectrum thus reflects concern for the CMRS market generally. The Commission  xhas predicted that mobile services will converge because of consumer demands and providers'  xtechnological capabilities to offer various voice and data services. Contrary to BellSouth's  x}characterization, which either ignores or discredits other concerns and objectives that resulted in  xthe spectrum cap, the Commission has consistently maintained that general spectrum aggregation  xwill enable an anticompetitive exercise of market power absent a cap on the amount of spectrum  xRone entity can hold. So viewed, BellSouth's contentions about the effects of excluding SMR  xspectrum used to provide data-only services falter. To exempt SMR spectrum "dedicated" to  xdata-only use, as BellSouth proposes, would not prevent an entity from accumulating spectrum  xcand in the process, would allow that entity to preclude others from obtaining it. The same entity  xcould subsequently decide to use that spectrum to provide voice services, a change over which  xthe Commission has limited control. Further, even the provision of data-only services would have  xan impact on the market because mobile voice and data services are marketed to the same consumers and, under the Commission's theory, they are converging services.  xBellSouth maintains, however, that the economic analysis conducted by the Commission in  X$4 xresponse to the remand by the Sixth Circuit in Cincinnati Bell demonstrates that the Commission  xis only concerned with the market for voice communication. For purposes of its economic  x}analysis, the Commission defined the product market as "mobile two-way voice communications  xservice," and competitors as "licensees for cellular service and broadband PCS, and the largest  xinterconnected SMR." Report & Order, 11 F.C.C.R. 7824, 7904 (1996). For purposes of its  xrulemaking, however, the Commission has viewed the market as the CMRS spectrum as a whole,  xlnot merely the provision of certain services on that spectrum. It was this construction of the  X#4 x market that controlled when the spectrum cap was first established in the 1994 Third Report and  Xp$4 xOrder. While its HHI analysis focused on voice-to-voice communication, thus indicating that  x/voice communication was high on the Commission's list of concerns, there is nothing to suggest  xRthat the Commission abandoned its more general concern in responding to the Sixth Circuit's  xdirection for a "reasoned basis" and "an economic rationale" for the Commission's attribution and"-'0*((aa,%"  xeligibility rules. To the contrary, what BellSouth fails to acknowledge is that the HHI market  x4analysis, although confined to voice communication, takes into account general spectrum aggregation and market concentration concerns underlying the spectrum cap.  X4 xSince its Third Report and Order, the Commission has focused on the CMRS spectrum as a  xwhole. It has predicted that the services provided on the CMRS spectrum will converge. Those  Xx4 xservice providers who are not already actual competitors are certainly potential competitors. See  xI9 F.C.C.R. at 8003, para. 27. As a cellular licensee, BellSouth qualifies as a competitor. Once  xan entity qualifies as a competitor, the Commission is concerned with how much spectrum that  xentity accumulates. In its view, market power hinges on the amount of spectrum an entity holds.  xCMRS spectrum is a finite resource and is also exclusive in that whatever one entity holds cannot  x}be held by another. Moreover, all the spectrum included under the cap could potentially be used  xto provide voice services. It follows that identification of voice communications as the product  xRmarket would not undermine the force of the Commission's conclusion that a 45 MHz cap is needed to prevent the exercise of market power.  x&Furthermore, the fact that the Commission has distinguished between voice and data uses of SMR  X}4 xspectrum in other regulatory decisions=C}; X4 xԍ See Telephone Number Portability, CC Docket No. 95116 RM 8535, FCC 98275  X4 x"(released Oct. 20, 1998); In re Application of Motorola, Memorandum Opinion & Order, 13  X4 xF.C.C.R. 5182 (1998) (ARDIS Order); Interconnection and Resale Obligations Pertaining to  X4 xCMRS, First Report & Order, 11 F.C.C.R. 18455 (CMRS Resale Order) (1996); Interconnection  X4 xand Resale Obligations Pertaining to CMRS, Second Report & Order, 11 F.C.C.R. 9462 (CMRS  X4 x/Roaming Order) (1996); Revision of the Commission's Rules to Ensure Compatibility with  Xx4 x3Enhanced 911 Emergency Calling Systems, Report & Order, 11 F.C.C.R. 18676 (E911 Order)  Xc4 x(1996); Telephone Number Portability, First Report & Order, 11 F.C.C.R. 8352 (1996) (Number  XN4Portability Order).= does not, as BellSouth appears to conclude, necessarily  x<demonstrate that the Commission's refusal to do so with regard to the spectrum cap is arbitrary  xand capricious. Rather, an examination of these decisions reveals that the Commission made the  x"covered"/"noncovered" distinction primarily in addressing how a carrier could structure its CMRS services after acquiring the spectrum.  X4 xFor example, in CMRS Resale Order, the Commission decided that only covered SMR providers  xwould be required to comply with the cellular resale obligation, which prohibits cellular carriers  X4 xcfrom restricting resale of their services. See 11 F.C.C.R. at 18,466, para. 19. The Commission  xEconcluded that non-covered licensees, who offer narrowband-type services, do not compete  xsubstantially with cellular and broadband PCS providers, and wished only to regulate providers  xwith "significant potential to compete directly with cellular and broadband PCS providers in the  Xm4 x8near term." Id. Similarly, in CMRS Roaming Order, the Commission extended the manual  x/roaming rule only to "all CMRS licensees competing in the mass market for real-time, two-way  x/voice services" including covered SMR providers. 11 F.C.C.R. at 9470, para. 12. With regard  xto non-covered licensees, the Commission concluded that because they "do not compete"* 0*((aa"  xpsubstantially with cellular and broadband PCS providers," these providers would not be covered.  X4 xId. at 9471, para. 14. In other proceedings, the Commission has continued to recognize the  X4 xVcovered/non-covered distinction in determining how carriers can use their spectrum. See E911  X4 xOrder, 11 F.C.C.R. at 18716, para. 81; Number Portability Order, 11 F.C.C.R. at 8355, para.  x4 & 843334, para. 156. Recently the Bureau permitted Motorola to transfer ownership interests  X4 xin certain telecommunications holdings to the American Mobile Satellite Corporation, see ARDIS  X~4 x3Order 13 F.C.C.R. at 519394, paras. 1821, and the Commission decided that any CMRS system  xnot offering two-way switched voice service would be exempt from the requirements of number  XR4 xVportability, see Telephone Number Portability, CC Docket No. 95116 RM 8535, FCC 98275 (released Oct. 20, 1998).  x<The Commission can reasonably and rationally distinguish between regulating spectrum already  x+held and regulating the accumulation of spectrum. As the Commission notes in its brief, the  x}orders BellSouth cites for the covered/non-covered SMR distinction address the current state of  x the market, while the spectrum cap is forward looking, designed to prevent the exercise of market  xpower by providers in the future. In addition, covered and non-covered SMR are not necessarily  x0mutually exclusive over time because the distinction is based on the services offered.  x3Presumably, a licensee may choose to offer services that would render it subject to the regulations  xfor covered SMR; thus, a built-in remedy exists for such developments should they occur. By  xcontrast, the acquisition of spectrum must be limited from the outset. Once an entity acquires  xthe spectrum, it can exercise market power and prevent other licensees from acquiring that  x8spectrum. Although BellSouth argues that the covered/noncovered SMR distinction should  xoperate in the spectrum aggregation context just as it does in the spectrum regulation context,  xBellSouth has identified no parallel built-in remedy whereby an entity can be divested of  x_spectrum if the Commission later discovers that the market is anticompetitive. The practical  x[differences between regulating the use"as opposed to the acquisition"of spectrum can reasonably render the covered/non-covered SMR distinction inapplicable in this context.  x<Ultimately, BellSouth's contentions fail because of its restricted view of the Commission's goals  xand purposes that directly contradicts the Commission's analysis. Absent a showing that SMR  xspectrum dedicated to data is virtually identical to the "narrowband" spectrum excluded from the  xdcap, which BellSouth failed to make in its briefs or at oral argument, BellSouth cannot  xdemonstrate that the Commission acted arbitrarily when it drew the line between SMR and  xnarrowband spectrum and included SMR in the 45 MHz cap. The Commission's reliance on the  xconverging nature of the CMRS market is sufficient to justify its inclusion of all SMR in the  x+spectrum cap. Similarly, its explanation for the exclusion of narrowband PCS from the cap, namely that it is virtually impossible to accumulate sufficient spectrum, is adequate.  X"4 C. ă  x"BellSouth's attack on the denial of its request for a waiver of the spectrum cap fares no better.  X]%4 x BellSouth focuses on the fact that granting its waiver would have involved a de minimis  xexception to the cap, and maintains that the RAM spectrum was "incapable" of being used for"H& 0*((aaO$"  X4 x+voice communication.; Xy4 x"ԍ Contrary to BellSouth's contentions, the record does not confirm that SMR "dedicated" to data-only use is truly "incapable" of being used for voice-to-voice services. For these reasons it contends that the Commission failed to give the  xrequisite "hard look" at its waiver request and that the Commission has effectively adopted a "no  xwaiver" policy for the spectrum cap. Maintaining further that the Commission failed to articulate  x/the standards it would apply for waivers, BellSouth wants the court to require such articulation.  x"For the following reasons we conclude that BellSouth has failed to show that the Commission's  x"reasons for declining the waiver were 'so insubstantial as to render that denial an abuse of  Xv4 xdiscretion.' " Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C. Cir. 1983) (quoting WAIT  Xa4Radio v. FCC, 459 F.2d 1203, 1207 (D.C. Cir. 1972) (WAIT II)).  xThe "hard look" requirement assures that a general rule serving the public interest for a broad  xrange of situations will not be rigidly applied where its application would not be in the public  x}interest as, for example, where an applicant "proposes a new service that will not undermine the  X 4 xpolicy" served by the rule. WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (WAIT  X 4 xEI). Therefore, when an agency receives a request for waiver that is "stated with clarity and  xaccompanied by supporting data," such requests "are not subject to perfunctory treatment, but  X 4 xhmust be given a hard look." Id. While an agency must consider the relevant factors, see  X4 xKCST-TV, Inc. v. FCC, 699 F.2d 1185, 119192 (D.C. Cir. 1983), in explaining the denial of a  x4waiver request, "the agency is not required to author an essay for the disposition of each  Xn4 xapplication. It suffices, in the usual case, that we can discern the why and wherefore." ICBC  XY4 xCorp. v. FCC, 716 F.2d 926, 929 (D.C. Cir. 1983) (quotations omitted); see also P&R Temmer  XD4v. FCC, 743 F.2d 918, 932 (D.C. Cir. 1984).  xAt the same time, an agency that is required to give a "hard look" at a waiver request is not  xnecessarily required to have an existing waiver policy for all of its rules. The "strict adherence  xto a general rule may be justified by the gain in certainty and administrative ease, even if it  X4 x+appears to result in some hardship in individual cases." Turro v. FCC, 859 F.2d 1498, 1500  X4 x_(D.C. Cir. 1988); see also FCC v. WNCN Listeners Guild, 450 U.S. 582, 601 n.44 (1981);  X4 xThomas Radio, 716 F.2d at 925 & n.20. Rigid and consistent adherence to a policy will be  X4upheld if it is valid. See ICBC, 716 F.2d at 929.  xFrom the outset, the Commission has characterized the spectrum cap as a "bright line" rule.  x_Third Report & Order, 9 F.C.C.R. 7988, 810405, para. 250 (1994). A spectrum cap, unlike  xmany other regulations, might actually require a bright-line rule to be effective. Moreover,  x refusal to grant a waiver to BellSouth does not necessarily mean that the Commission has created  X 4 xca "no-waiver" policy. The Commission has consistently stated that the de minimis nature of the  xexcess above the cap, standing alone, would not justify a waiver. At oral argument, the  xCommission explained that, hypothetically, if a market was not adequately served by providers,  xthe Commission would consider permitting a carrier already in the market to accumulate spectrum  x"above the cap if it seemed that no competitor would enter the market and use otherwise fallow  x[spectrum. In other words, even a bright-line rule may give way to special circumstances"# b0*((aa!"  xwarranting an exception in the public interest. Such circumstances do not arise, however, where,  X4as here, a waiver applicant seeks to circumvent a rule merely because it does so only minimally. 1; Xb4 x"ԍ To the contrary, BellSouth's situation arguably presents an instance where the cap should  xapply. BellSouth is a major player in the CMRS market, and the aggregation of CMRS spectrum,  xIregardless of the use to which it is put, allows BellSouth to exercise market power. BellSouth's  xsituation is also far less sympathetic given the alternatives available, including divestiture of the  x.5 MHz of SMR spectrum, geographic partitioning, and disaggregation of larger spectrum blocks.  xInsofar as the record shows, BellSouth did not attempt to exercise the divestiture option as the  xlBureau hinted it could. Nor does BellSouth challenge the Commission's further observations  xabout how it might either acquire 19.5 MHz of disaggregated PCS spectrum in the "after market" or partition its licensing areas.  xThe Commission reasonably determined that the Bureau gave BellSouth's waiver request a "hard  xlook," explaining that the cap was designed to prevent aggregation of spectrum as well as spur  xcompetition and that BellSouth had alternative ways to avoid exceeding the cap. Because  Xv4 xVBellSouth did not explicitly present a de minimis argument in its waiver petition, the Bureau had  Xa4 xVno reason to address this argument in its letter ruling.@ a ; X4 xԍ Furthermore, BellSouth's contention that the Wireless Telecommunications Bureau applied  xthe wrong standard of review is of no moment, given the virtual identity of material provisions  xof the correct standard. The standard the Bureau should have applied allows the Commission to  x grant a waiver that is founded upon an appropriate general standard, shows special circumstances  Xw4 x_warranting a deviation from the general rule, and would serve the public interest. See WAIT  Xb4 xRadio, 418 F.2d at 115759. The standard the Bureau used, which applies only to broadband  xPCS waivers, explains that a waiver will be granted upon a showing that "the underlying purpose  xof the rule will not be served, or would be frustrated, by its application in a particular case, and  xthat grant of the waiver is otherwise in the public interest," 47 C.F.R.  24.819(a)(1)(i), or that  x"unique facts and circumstances of a particular case render application of the rule inequitable,  X4unduly burdensome or otherwise contrary to the public interest," id.  24.819(a)(1)(ii).@ In any event, as we have explained, the  XJ4 xpde minimis amount of excess above the cap will not suffice to warrant a waiver. BellSouth has  xVnever explained how the public interest would be served by granting its waiver request; instead  xit merely equates its own business interest with the public interest. In the end, BellSouth's  X 4 x~waiver request, aside from its de minimis nature, is nothing but a further attack on the  xCommission's decision to include all SMR spectrum within the 45 MHz cap, a decision which we have held to be reasonable.  xAccordingly, we deny BellSouth's petition and affirm the Commission's denial of the waiver request.