author: TATEL, Circuit Judge:

text:
    PORTLAND GENERAL ELECTRIC COMPANY, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Northwest & Intermountain Power Producers Coalition, et al., Intervenors
    No. 15-1237 Consolidated with 15-1275
    United States Court of Appeals, District of Columbia Circuit.
    Argued February 13, 2017
    Decided April -25, 2017

      Lawrence G. Acker, Washington, DC, argued the cause for petitioner Portland General Electric Company. With him on the briefs was Gary D. Bachman, Washington, DC.
    Eric Lee Christensen, Seattle, WA, argued the cause for petitioner PáTu Wind Farm LLC. With him on the briefs were Peter J. Richardson and Gregory M. Adams.
    Carl M. Fink was on the briefs for inter-venors Northwest & Intermountain Power Producers Coalition and Community Renewable Energy Association in support of petitioner in case No 15-1275.
    Elizabeth E. Rylander, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief was Robert H. Solomon, Solicitor.
    Eric Lee Christensen, Seattle, WA, Peter J. Richardson, and Gregory M. Adams were on the brief for intervenors PáTu Wind Farm, LLC in support of respondent in case No. 15-1237.
    Lawrence G. Acker and Gary D. Bach-man, Washington, DC, were on the brief for intervenor Portland General Electric Company in support of respondent.
    Before: TATEL and SRINIVASAN, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
   TATEL, Circuit Judge:

This is a dispute between a small Oregon wind farm and the utility serving Portland over how much of the former’s power the latter must purchase. The Federal Energy Regulatory Commission ruled that under the Public Utility Regulatory Policies Act and the power-purchase agreement between the parties, the utility must purchase all of the wind farm’s power, though it rejected the wind farm’s insistence that the utility do so by utilizing a technology known as dynamic scheduling. Both petition for review, and for the reasons set forth in this opinion, we dismiss the utility’s petition for lack of jurisdiction and deny the wind farm’s on the merits.

I.

The centerpiece of these consolidated petitions is section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA), which Congress enacted in the wake of the 1973 energy crisis in order to “encourage conservation and more efficient use of scarce energy resources.” FERC v. Mississippi, 456 U.S. 742, 757, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982); see PURPA, Pub. L. No. 95-617 tit. II § 210, 92 Stat. 3117, 3144 (codified as amended at 16 U.S.C. § 824a-3). To accomplish this objective, section 210 seeks “to reduce reliance on fossil fuels” by increasing the number of what are known as energy-efficient cogen-eration and small power-production facilities. American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U.S. 402, 417, 103 S.Ct. 1921, 76 L.Ed.2d 22 (1983). Cogeneration facilities capture otherwise-wasted heat and turn it into thermal energy; small power-production facilities produce energy (fewer than 80 megawatts) primarily by using “biomass, waste, renewable resources, geothermal resources, or any combination thereof.” 16 U.S.C. § 796(17)-(18). PURPA refers to both as “qualifying facilities.” This case concerns a small power producer.

Recognizing that various obstacles were frustrating the development of such facilities, including the reluctance of traditional utilities to buy their power, see Mississippi, 456 U.S. at 750, 102 S.Ct. 2126 (describing “impediments to] the development of nontraditional generating facilities”), Congress enacted in section 210 a “self-contained scheme” to mitigate those obstacles as well as to stimulate markets for nontraditional power, Niagara Mohawk Power Corp. v. FERC, 117 F.3d 1485, 1488 (D.C. Cir. 1997). Subsection (a) of section 210 directs FERC to promulgate broad, generally applicable rules that encourage small power production by, among other things, requiring utilities to sell power to and buy power from such facilities at favorable rates, as detailed in subsections (b) through (d). See PURPA § 210(a)-(d). Subsection (e) authorizes FERC to ease the regulatory burdens on these facilities by exempting them from the Federal Power Act, as well as from certain federal and state regulations. Id. § 210(e). Subsection (f), in turn, requires state public-utility commissions to implement FERC’s rules at the local level. See id. § 210(f). And subsections (g) and (h) establish a mechanism to enforce PURPA rights, allocating distinct responsibilities to state and federal forums. See id. §§ 210(g)-(h). We shall have more to say about these provisions in Part II, infra.

In 1980, FERC issued its first set of PURPA regulations, which required utilities to buy energy from small power producers “at a rate reflecting the cost that the purchasing utility [could] avoid [by] obtaining energy ... from [the small power producer], rather than [by] generating an equivalent amount of energy itself....” Small Power Production and Cogeneration Facilities; Regulations Implementing Section 210 of the Public Utility Regulatory Policies Act of 1978, 45 Fed. Reg. 12,-214, 12,215 (1980) (codified at 18 C.F.R. Part 292). This so-called avoided-cost rate usually exceeds the market price for wholesale power. See, e.g., New Charleston Power I, L.P. v. FERC, 56 F.3d 1430, 1433 (D.C. Cir. 1995) (estimating $7 million-per-year difference between avoided-cost and market rates for one particular biomass facility). Under PURPA, state utility commissions are responsible for calculating the avoided-cost rates for utilities subject to their jurisdiction, which they may “accomplish[ ] by ... issufing] regulations, [by addressing particular issues] on a case-by-case basis, or by [taking] any other action designed to give effect to the Commission’s rules.” 45 Fed. Reg. at 12,216; see PURPA § 210(b), (f), 16 U.S.C. § 824a-3(b), (f).

Oregon implements its PURPA responsibilities largely through its Public Utility Commission (OPUC), which, as relevant here, has directed utilities subject to its jurisdiction to draft off-the-shelf, standard-form power-purchase agreements — replete with terms, conditions, and rate schedules — that OPUC then reviews for compliance with PURPA. See Oregon Public Utilities Commission Order No. 05-584, at 39-42 (May 13, 2005). OPUC has approved two standard-form power-purchase agreements submitted by petitioner Portland General Electric Co.: one for qualifying facilities directly linked to the utility’s grid and another for “off system” facilities that must transmit their power through a separate transmission system to get to Portland’s grid. See OPUC Order No. 07-065, at 1 (Feb. 27, 2007).

Petitioner PáTu Wind Farm LLC, a six-turbine, nine-megawatt generator in rural Oregon, is classified under PURPA as a small power producer. Because PáTu is not directly linked to Portland’s grid, it sells power to Portland under the OPUC-approved power-purchase agreement for “off system” generators. In order to transmit its power to Portland’s grid, PáTu obtains transmission services from two other entities: Wasco, a rural electric cooperative, and Bonneville Power Administration, a federal power agency. Wasco transmits PáTu’s power to Bonneville, which in turn transmits it to Portland’s Troutdale substation, the power-purchase agreement’s designated point of delivery.

Before the ink had dried on the power-purchase agreement, the parties locked in a dispute over the nature of Portland’s purchase obligation. PáTu believes that the agreement requires Portland to buy all of the power that PáTu generates at any given moment, which, for obvious reasons, varies with the strength of the wind. According to PáTu, moreover, the only way for Portland to buy all of its variable output is to do so using “dynamic transfer” services — a combination of hardware, software, engineering, and other tools that involves “electronically transferring generation from the balancing authority area in which [the energy] physically resides to another balancing authority area in real-time.” Timothy P. Duane & Kiran H. Griffith, Legal, Technical, and Economic Challenges in Integrating Renewable Power Generation into the Electricity Grid, 4 San Diego J. Climate & Energy L. 1, 45 (2013) (citation and internal quotation marks omitted).

Portland has a different view of its obligations under the power-purchase agreement. Believing it has purchased a firm product, Portland requires PáTu to set day-ahead schedules under which the wind farm commits to deliver whole-megawatt blocks of energy for each hour of the day. If PáTu overschedules — that is, if it promises to deliver 3 megawatts but delivers only 2.3 — Portland pays favorable avoided-cost rates for 2.3 megawatts and requires the wind farm to make up the difference by buying an additional .7 from Bonneville. Because the additional .7 megawatts are not generated by PáTu, however, Portland pays the wind farm only the lower market rate. By contrast, if PáTu undersche-dules — that is, if it predicts 3 megawatts but produces 4.8 — then Portland accepts and pays for only 3, forcing the wind farm to dispose of the excess 1.8 at less-favorable rates.

In December 2011 PáTu filed a complaint with OPUC alleging that Portland’s refusal to pay for all power PáTu delivers, regardless of whether the power is generated by the wind farm or Bonneville, violates both the power-purchase agreement and the state’s PURPA rules and regulations. It also challenged Portland’s refusal to utilize dynamic scheduling. Although OPUC saw nothing in the power-purchase agreement requiring Portland to utilize dynamic scheduling, it concluded that the utility must purchase all power PáTu generates and delivers. See PáTu Wind Farm, LLC, OPUC Order No. 14-287, at 14 (Aug. 18, 2014). But drawing a distinction between power “produced” and power “delivered,” OPUC appeared to leave Portland free to refuse to purchase any power produced in excess of what PáTu schedules (the underschedule situation). See id.

PáTu appealed to the Oregon Court of Appeals, which affirmed without opinion. PáTu then filed a Complaint with FERC, arguing, as it did before OPUC, that Portland must buy all of its output, scheduled or not, and that dynamic scheduling is the only way to accomplish that result. It grounded its argument not only in the language of the power-purchase agreement, but also in a FERC-promulgated PURPA regulation requiring utilities to purchase “any energy and capacity which is made available from a qualifying facility.” 18 C.F.R. § 292.303(a). PáTu also alleged that Portland was violating FERC-issued Federal Power Act regulations prohibiting discrimination, as well as the Commissions’ standards of conduct, which require a utility’s transmission and merchant functions to operate independently.

FERC concluded that the power-purchase agreement and its PURPA regulations require Portland “to accept PáTu’s entire net output ... delivered to Portland .... ” PáTu Wind Farm, LLC, 150 FERC ¶ 61,032, P 49 (Jan. 22, 2015) (“Initial Order”). Although the Commission rejected PáTu’s specific request for dynamic scheduling, explaining that it has never required a utility to use any particular method to carry out its purchase obligation, it nonetheless made clear that, contrary to what OPUC had suggested, Portland may not escape that obligation by imposing overly rigid scheduling requirements or by refusing to .purchase all power PáTu “produces.” Id. PP 52-53. FERC dismissed PáTu’s Federal Power Act claims, concluding first that because the wind farm is Portland’s supplier, not its transmission customer, it has no basis for alleging discrimination in the provision of transmission services. For similar reasons, it found that Portland was violating none of FERC’s standards of conduct, as they, too, apply only to transmission providers. Id. P 56.

After FERC denied petitions for rehearing, PáTu Wind Farm, LLC, 151 FERC ¶ 61,223 (June 18, 2015) (“Rehearing Order”), PáTu and Portland both filed petitions for review. We consolidated the petitions and permitted Portland and PáTu to intervene as respondents to defend those aspects of FERC’s orders they favor. Portland challenges only the PURPA-related aspects of FERC’s orders, arguing that the Commission lacked jurisdiction to interpret a state-regulated power-purchase agreement. PáTu challenges FERC’s rejection of its Federal Power Act claims.

II.

We begin with Portland’s petition and, as we must, with FERC’s argument that we lack jurisdiction to entertain it. American Petroleum Institute v. SEC, 714 F.3d 1329, 1332 (D.C. Cir. 2013) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.” (internal quotation marks and alteration omitted))). A full appreciation of the jurisdictional question we face requires some facility with how the enforcement and judicial-review provisions of PURPA and the Federal Power Act interact. Although resolving, the jurisdictional question turns out to be relatively simple, we think it helpful to start with a thorough explanation of the statutory landscape, as it has long vexed utilities, qualifying facilities, state utility commissions, and even FERC itself.

A.

The Federal Power Act gives FERC broad authority to supervise “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in interstate commerce.” FPA § 201(b), 16 U.S.C. § 824(b). FPA section 205 “prohibitfs], among other things, unreasonable rates and undue discrimination ‘with respect to any transmission or sale subject to the jurisdiction of the Commission,’ 16 U.S.C. §§ 824d(a)-(b), and [section] 206 g[ives] the [Commission] the power to correct such unlawful practices, 16 U.S.C. § 824e(a).” New York v. FERC, 535 U.S. 1, 7, 122 S.Ct. 1012, 152 L.Ed.2d 47 (2002). FERC exercises this authority by initiating administrative proceedings “upon its own motion or upon complaint.” FPA § 206(a), 16 U.S.C. § 824e(a).

The Federal Power Act also creates a comprehensive scheme for obtaining judicial review of and enforcing FERC’s orders. Section 313(b) establishes a right of review:

Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order ... in the United States Court of Appeals for the District of Columbia....

FPA § 313(b), 16 U.S.C. § 8252(b). Sections 314 through 317, in turn, direct that any action to enforce any liability or duty arising under the Federal Power Act— whether by rule, regulation, or order — lies exclusively in federal district court, with appellate review to follow in the normal course. See, e.g., FPA § 314(a), 16 U.S.C. § 825m(a) (directing FERC enforcement actions to proceed in district court); FPA § 316A(b), 16 U.S.C. § 825o-l(b) (authorizing FERC to assess civil penalties of up to $1,000,000 per day for disobedience of any “rule or order”); FPA § 317,16 U.S.C. § 825p (granting district courts exclusive jurisdiction over enforcement actions).

By contrast, PURPA section 210’s judicial-review and enforcement provisions focus narrowly on advancing the statute’s goal of encouraging development of nontraditional energy facilities like the wind farm at issue here. New York State Electric & Gas Corp. v. FERC, 117 F.3d 1473, 1476 (D.C. Cir. 1997) (“The Congress declared with specificity the means by which the ends of the PURPA are to be achieved.”). Just as PURPA carves out precise responsibilities for FERC and the states in implementing its substantive goals, it “specifically delineate[s]” distinct enforcement “roles [for] the Commission, the state public utility commissions (PUCs), and the federal courts.” Connecticut Valley Electric Co. v. FERC, 208 F.3d 1037, 1043 (D.C. Cir. 2000).

State-based adjudication serves as the mainstay for enforcing PURPA rights. PURPA section 210(g), entitled “Judicial Review and Enforcement,” permits “any person” to “bring an action against any electric utility [or] qualifying small power producer ... to enforce any requirement” created by a state’s implementation of PURPA. PURPA § 210(g)(2), 16 U.S.C. § 824a-3(g)(2). Reflecting Congress’s judgment that “federal rights granted by PURPA can appropriately be enforced through state adjudicatory machinery,” Mississippi, 456 U.S. at 761, 102 S.Ct. 2126, the statute channels actions under this subsection into “the appropriate State court,” PURPA § 123(c)(1), 16 U.S.C. § 2633(c)(1); see PURPA § 210(g)(2), 16 U.S.C. § 824a-3(g)(2) (directing any action brought thereunder to proceed “in the manner, and under the requirements, as provided under section [123] ”). It is this path that PáTu followed when it took its contract dispute to the Oregon Public Utility Commission.

PURPA gives FERC and the federal courts a separate and more limited role. Although section 210(h), captioned “Commission Enforcement,” seems at first glance quite impenetrable, careful attention to its language reveals what Congress had in mind. We quote it here virtually in full, adding a few bracketed descriptors to help the reader:

(1) For purposes of enforcement of any rule prescribed by the Commission under subsection (a) of this section [requiring FERC to promulgate rules to encourage nontraditional power generation] with respect to any operations of an electric utility [ie., Portland], a qualifying cogeneration facility or a qualifying small power production facility [ie., PáTu] which are subject to the jurisdiction of the Commission under part II of the Federal Power Act [FPA § 201 et seg.], such rule shall be treated as a rule under the Federal Power Act. Nothing in subsection (g) of this section [providing for state judicial review] shall apply to so much of the operations of an electric utility [ie., Portland], a qualifying cogeneration facility or a qualifying small power production facility [ie., PáTu] as are subject to the jurisdiction of the Commission under part II of the Federal Power Act [FPA § 201 et seq.]. (2)(A) The Commission may enforce the requirements of subsection (f) of this section [requiring states to “implement” PURPA] against any State regulatory authority [ie., OPUC] or nonregulated electric utility. For purposes of any such enforcement, the requirements of subsection (f)(1) of this section [requiring states to “implement” PURPA] shall be treated as a rule enforceable under the Federal Power Act. For purposes of any such action, a State regulatory authority [ie., OPUC] or nonregulated electric utility shall be treated as a person within the meaning of the Federal Power Act. No enforcement action [FPA §§ 314-317] may be brought by the Commission under this section other than—
(i) an action against the State regulatory authority [ie., OPUC] or no-nregulated electric utility for failure to comply with the requirements of subsection (f) of this section [requiring states to “implement” FERC’s PURPA rules] or
(ii) an action under paragraph (1) [ie., (h)(1)].
(B) Any electric utility [ie., Portland], qualifying cogenerator, or qualifying small power producer [ie., PáTu] may petition the Commission to enforce the requirements of subsection (f) of this section [requiring states to “implement” PURPA] as provided in subparagraph (A) of this paragraph [ie., subsection (h)(2)(A)]. If the Commission does not initiate an enforcement action under subparagraph (A) against a State regulatory authority [ie., OPUC] or no-nregulated electric utility within 60 days following the date on which a petition is filed under this subparagraph with respect to such authority, the petitioner may bring an action in the appropriate United States district court to require such State regulatory authority or no-nregulated electric utility to comply with such requirements, and such court may issue such injunctive or other relief as may be appropriate....

PURPA § 210(h), 16 U.S.C. § 824a-3(h).

Notice first how enforcement works under subsection (h). By providing that, in some circumstances, PURPA regulations “[f]or purposes of’ enforcement “shall be treated as ... rule[s] enforceable under the Federal Power Act,” PURPA § 210(h)(1), (h)(2)(A), the subsection channels all enforcement actions brought thereunder into the Federal Power Act’s general enforcement scheme. Industrial Cogenerators v. FERC, 47 F.3d 1231, 1234 (D.C. Cir. 1995) (observing that subsection (h) relies on the Federal Power Act’s enforcement provisions, citing FPA §§ 314 & 317, 16 U.S.C. §§ 825m & 825p). As explained above (swpra at pp. 9-10), that scheme grants the “District Courts of the United States ... exclusive jurisdiction” over all enforcement actions. FPA § 317, 16 U.S.C. § 825p.

The second thing to observe is that subsection (h) permits only two types of enforcement actions. Subsection (h)(1) addresses those situations where enforcing a PURPA rule necessarily requires regulating those “operations of an electric utility [ie., Portland] ... or a qualifying small power production facility [ie., PáTu] which are subject to the jurisdiction of the Commission under part II of the Federal Power Act.” PURPA § 210(h)(1), 16 U.S.C. § 824a-3(h)(l). In other words, if a PURPA enforcement action, in effect, regulates interstate transmission or wholesale generation — matters falling squarely within FERC’s exclusive Federal Power Act authority — then FERC, not the state, oversees the enforcement action. See id. (“Nothing in [PURPA’s state-court enforcement provisions] shall apply to so much of the operations of an electric utility [or] ... qualifying small power production facility as are subject to the jurisdiction of the Commission under part II of the Federal Power Act.”).

Consider, for example, a 35-megawatt wind farm which, as a PURPA qualifying facility, benefits from PURPA’s requirement that utilities buy its power at avoided-cost rates. See PURPA § 210(a)(2)-(b), 16 U.S.C. § 824a-3(a)(2)-(b). Because Congress and FERC have chosen not to exempt from regulation qualifying facilities that generate more than 30 megawatts, the wind farm in our example — unlike PáTu— remains subject to rate regulation under the Federal Power Act. See PURPA § 210(e), 16 U.S.C. § 824a-3(e) (permitting FERC to exempt certain qualifying facilities from regulation under the Federal Power Act); 18 C.F.R. § 292.601(b) (exempting only small power producers with a capacity of under 30 megawatts). For this hypothetical wind farm, then, a conflict could arise between, on the one hand, state authority to set the rate at which a utility must buy its power, and on the other, FERC authority to set the rate at which the wind farm must sell its power. Where such a regulatory overlap occurs, subsection (h)(1) provides that PURPA must be enforced by FERC via the Federal Power Act’s district-court enforcement scheme rather than via PURPA section 210(g)’s state-court adjudication mechanism. See PURPA § 210(h)(1), 16 U.S.C. § 824a-3(h)(1) (precluding states from enforcing PURPA rules touching on FERC-jurisdic-tional “operations”); Policy Statement Regarding the Commission’s Enforcement Role Under Section 210 of the Public Utility Regulatory Policies Act of 1978, 23 FERC ¶ 61,304, 61,645-46 & n.6 (May 31, 1983) (interpreting subsection (h)(1) to give FERC the exclusive authority to “establish the rate for sale,” and thus the “rate for purchase” for the 30-to-80 megawatt class of small power producers).

Subsection (h)(2) addresses a very different situation, ie., where a state, contrary to PURPA section 210(f), fails to “implement” FERC’s PURPA rules. In such a case, subsection (h)(2) gives FERC authority to direct the state utility commission to comply, which the Commission accomplishes by treating PURPA’s implementation obligation “as a rule enforceable under the Federal Power Act.” PURPA § 210(h)(2)(A), 16 U.S.C. § 824a-3(h)(2). Like subsection (h)(1) actions, subsection (h)(2) actions require FERC to proceed in district court. See FPA §§ 314-317, 16 U.S.C. §§ 825m-825p. But unlike subsection (h)(1), subsection (h)(2) allows private parties to petition FERC to initiate such an enforcement action, and, should FERC decline to do so, permits those parties to sue the state utility commission in federal district court. See PURPA § 210(h)(2)(B), 16 U.S.C. § 824a-3(h)(2)(B).

The final thing worth noticing about PURPA section 210(h) is the total absence of any provision for direct review of FERC orders that interpret PURPA. Although at first glance one might think that the Federal Power Act’s broadly worded judicial-review provision would cover FERC orders interpreting PURPA, our court has ruled otherwise. As we made clear in Midland Power Co-op. v. FERC, FPA section 313(b) “limits review to orders issued in proceedings under the [Federal Power] Act — and [PURPA] § 210 is not part of th[at] Act.” 774 F.3d 1, 3 (D.C. Cir. 2014). Instead, review of section 210(h) enforcement actions occurs on appeal from a district court’s final decision. See Industrial Cogenerators, 47 F.3d at 1234 (“The decision of the district court is reviewable in the court of appeals in the ordinary course.”).

There is, however, a caveat: in Midland, we speculated, though with healthy skepticism, that FERC orders purporting to resolve a PURPA dispute “might” be directly reviewable if they were “in fact ... mandatory, in the sense that” they “fix[ed] the rights” of the parties and that “failure to ‘comply’ could expose [the losing party] to penalties as high as $1,000,000 a day under” the Federal Power Act’s civil-penalty provisions. Midland, 774 F.3d at 6-7 (citations and internal quotation marks omitted). Because the order in Midland posed no such risk, we declined to decide “whether such a mandatory order might somehow fall within our jurisdiction.” Id. at 7-8. It is precisely this hypothetical exception that PáTu believes applies here.

B.

With this background in mind, we turn to the question of whether we have jurisdiction to review Portland’s petition. In its opening brief, Portland maintained that, by directing it to buy “all” of PáTu’s power, FERC created binding duties that are directly reviewable under the narrow — hypothetical—subsection (h) exception left open by Midland. See 774 F.3d at 7-8. In response, FERC claims that the PURPA-related aspects of its orders are non-binding and that we therefore lack jurisdiction to review them. In rfeply, Portland hinted that it might agree, and then at oral argument confirmed it would concede that we lack jurisdiction were we to determine that FERC’s orders in this case are in fact advisory. Oral Arg. Rec. 3:20— 4:00. Intervening on behalf of FERC, PáTu disagrees, arguing that the orders are reviewable because, in its view, they bind Portland and represent an exercise of FERC’s subsection (h)(1) enforcement authority.

We agree with FERC that this jurisdictional issue is controlled by Midland. Although FERC’s order in that case contained some language that appeared mandatory — in particular, it directed that a cooperative utility “shall” reconnect with a specific PURPA qualifying facility, 774 F.3d at 3 — we nonetheless treated the order as declaratory because it contained “neither any deadline ... [for] compliance] nor any possible consequence of non-compliance,” id. at 7. So too here. Although FERC’s orders contain language that appears mandatory— e.g., “ordering Portland General to accept PáTu’s entire net output,” Initial Order, P 49, and stating that Portland “must, take from PáTu its entire net output,” Rehearing Order, P 44 — they neither set deadlines for compliance nor specify any repercussions for non-compliance. Given this, and given FERC’s concession that the orders are declaratory, we have no jurisdiction to review them. See Midland, 11A F.3d at 7 (citing New York State Electric & Gas, 117 F.3d at 1477 (“[We lack jurisdiction] to review a nonbinding declaratory order....”)); Consumers Energy Co. v. FERC, 428 F.3d 1065, 1067 (D.C. Cir. 2005) (“In evaluating FERC’s interpretation of its own orders, we afford the Commission substantial deference .... ”).

Even so, we are mystified by FERC’s continued use of mandatory language to resolve PURPA disputes in orders that it later insists are purely hortatory. See, e.g., Xcel Energy Services Inc. v. FERC, 407 F.3d 1242, 1244 (D.C. Cir. 2005) (per curiam); Niagara Mohawk, 117 F.3d at 1488. Although Midland holds that such mandatory language, without more, is in fact declaratory, FERC could avoid a great deal of confusion and waste of judicial resources by not using words like “shall” and “must,” and by making clear in its orders- — -as opposed to later in this court— that its discussions of PURPA-related issues are advisory only.

PáTu’s jurisdictional theory suffers from a second defect. Recall that the wind farm argues that we have jurisdiction not just because it thinks FERC’s orders are binding, but also because it believes that, pursuant to subsection (h)(1), they directly enforce PURPA against Portland. As explained above, however, the Federal Power Act and the relevant PURPA provisions confine FERC enforcement authority to wholesale generation and the interstate transmission activities of transmission providers. See PURPA § 210(h)(1), 16 U.S.C. § 824a-3(h)(1) (permitting FERC to treat PURPA rules affecting those “operations of an electric utility ... subject to [its Federal Power Act] jurisdiction” as rules enforceable under the Federal Power Act); FPA § 201(b), 16 U.S.C. § 824(b) (granting FERC authority over wholesale generation and transmission). Although Portland is a transmission provider subject to FERC jurisdiction, it is not PáTu’s transmission provider; that function is performed by Wasco and Bonneville, who together transmit PáTu’s power to Portland’s Troutdale Substation. Portland is a purchaser of PáTu’s power, which is why their relationship is controlled by a state-regulated power-purchase agreement, not a FERC-approved tariff, and why FERC’s orders say nothing at all about transmission, focusing instead on Portland’s obligation to “purchase” PáTu’s power. See Initial Order, P 50. Because Portland provides PáTu with no transmission services, this case does not involve the “operations of an electric utility ... subject to the jurisdiction of the Commission under part II of the Federal Power Act.” PURPA § 210(h)(1), 16 U.S.C. § 824*300(1).

III.

PáTu’s petition deals exclusively with Portland’s refusal to utilize dynamic scheduling. The petition is without merit.

Citing FERC’s anti-discrimination regulations, PáTu claims that Portland is discriminating against it “by systematically denying [PáTu] dynamic transfer services ... while providing those same services to [Portland’s] own generation resources.” PáTu Br. 28-29. But as FERC explained in its rehearing order, see Rehearing Order, PP 57-58, every one of the regulations PáTu cites governs the relationship between transmission providers and transmission customers, see, e.g., 18 C.F.R. § 358.2(a) (directing all “transmission provider[s]” to “treat all transmission customers, affiliated and non-affiliated, on a not unduly discriminatory basis”), and, as just explained, PáTu is not Portland’s transmission customer, see Part II.B, supra.

PáTu next argues that Portland violated FERC’s standards of conduct “when [its] Merchant personnel directed [its] Transmission [personnel] to deny dynamic scheduling services to PáTu.” PáTu Br. 40. Promulgated by FERC as part of its 1996 decision to require utilities to un-bundle their service offerings, the standards of conduct were “designed to ensure that a public utility’s employees ... engaged in transmission system operations function independently of [its marketing-function] employees ... who are engaged in wholesale purchases and sales.” Open Access Same-Time Information System (Formerly Real-Time Infor- motion Networks) and Standards of Conduct, 61 Fed. Reg. 21,737, 21,740 (May 10, 1996). Because a utility’s merchant function will frequently operate as a transmission customer of its own transmission function, however, FERC permits “[a] transmission provider’s transmission function employee [to] discuss with its marketing function employee a specific request for transmission service submitted by the marketing function employee.” 18 C.F.R. § 358.7(b). As the Commission explained, that is precisely what is happening here. Once PáTu delivers its electricity to Portland’s marketing function, the standards of conduct allow the marketing function to choose what to do with it — including whether to use dynamic scheduling to distribute the electricity within Portland’s grid. “Portland General’s merchant arm,” FERC explains, “not PáTu[,] is the customer transmitting energy on Portland General’s system, [and] communications between Portland General’s merchant arm and Portland General’s transmission division concerning transmission of PáTu’s power [therefore] did not violate the” standards of conduct. FERC Br. 54. That said, although Portland’s actions are permissible under the Federal Power Act, they may, as FERC suggested, violate Portland’s PURPA obligation to purchase PáTu’s entire net output. See Initial Order, P 53 (noting that Portland cannot escape its “mandatory purchase obligation”).

Finally, PáTu challenges FERC’s refusal to address a filing it made during the proceedings before the Commission in which it asked FERC to modify Portland’s transmission tariff to include dynamic scheduling. FERC rejected the filing because it viewed the document as an “answer to a[n] ... answer,” which its procedural rules prohibit. Id. at P 48 (citing 18 C.F.R. § 385.213(a)(2) (“An answer may not be made to ... an answer.”)); see Rehearing Order, P 60. Protesting, PáTu argues, in essence, that its filing was not labeled an answer to an answer. That, however, makes no difference given that FERC, interpreting its own procedural rules, has long held that “the style in which a party frames a document ... does not dictate how the Commission must interpret and treat it.” High Prairie Pipeline, LLC, 149 FERC ¶ 61,004, P 8 (Oct. 1, 2014) (citing Stowers Oil & Gas Co., 27 FERC ¶ 61,001 n.3 (Apr. 2, 1984)). Because PáTu nowhere argues that the Commission’s interpretation of its own regulation is unreasonable, we have no basis for even considering whether FERC erred in rejecting PáTu’s request. See TRT Telecommunications Corp. v. FCC, 857 F.2d 1535, 1552 (D.C. Cir. 1988) (concluding that courts owe considerable deference to an agency’s “interpretation and administration of its own procedural rules”) (emphasis omitted).

IV.

For the foregoing reasons, we deny PáTu’s petition and dismiss Portland’s for lack of jurisdiction.

So ordered.


source: Caselaw Access Project

author: EDWARDS, Senior Circuit Judge:

license: Public Domain

text:
    BELLAGIO, LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
    No. 15-1327 Consolidated with 15-1390
    United States Court of Appeals, District of Columbia Circuit.
    Argued January 6, 2017
    Decided April 25, 2017

      Paul T. Trimmer, Las Vegas, NV, argued the cause and filed the briefs for petitioner.
    Rebecca J. Johnston, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Meredith L. Jason, Deputy Assistant General Counsel. Kira D. Vol, Attorney, National Labor Relations Board, entered an appearance.
    Before: BROWN, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   EDWARDS, Senior Circuit Judge:

The petition for review in this case, filed by Bellagio, LLC (“Bellagio” or “Company”), challenges a Decision and Order issued by the National Labor Relations Board (“NLRB” or “the Board”). The Board determined that Bellagio violated section 8(a)(1) of the National Labor Relations Act (“NLRA” or “the Act”) when it interfered with employee Gabor Garner’s right to have a union representative present during an investigatory meeting; retaliated against him for invoking that right by placing him on “Suspension Pending Investigation” (“SPI”); unlawfully surv-eilled Garner after placing him on SPI; and then coercively prevented him from discussing his suspension with other employees. The Board ordered Bellagio to cease and desist from these activities, post a notice informing employees of the violations, and pledge not to repeat them. Bellagio, LLC, 362 NLRB No. 175 (2015).

Bellagio contends that the Board’s determinations should be vacated because they are inconsistent with established precedent and not supported by substantial evidence. It also asserts that the Board violated the Company’s due process rights in finding that a Company supervisor engaged in coercive conduct to compel Garner not to speak with coworkers about his discipline because this was not among the charges in the complaint that had been issued against Bellagio. We find that Bella-gio’s contentions are meritorious. We therefore grant in full the petition for review and deny the Board’s cross-application for enforcement.

I. Background

At the time of the events giving rise to this dispute, Garner was a bellman at Bel-lagio, a hotel in Las Vegas, Nevada. As a bellman, Garner was represented by the Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 156 (“Union”), affiliated with UNITE HERE. Garner’s job duties included greeting arriving guests, assisting them with their luggage, and escorting departing guests from the hotel. Bellagio expects its bellmen to treat customers with courtesy and respect at all times, and forbids them from soliciting tips.

On May 12, 2013, a guest complained that Garner had inappropriately attempted to solicit a tip and, when the customer did not oblige, Garner allegedly responded with a sarcastic comment. The next day, shortly before Garner’s shift was to end, Front Services Supervisor Brian Wied-meyer summoned him to a meeting regarding the customer’s complaint. Max Sanchez, another supervisor, also attended as a witness. Garner asked Wiedmeyer whether the meeting could result in discipline. Wiedmeyer told him that it might, at which point Garner requested a Union representative. Wiedmeyer requested that Garner provide a statement describing the incident, but Garner declined to do so without a representative present.

When Garner declined to contact a representative himself, Wiedmeyer and Sanchez left the meeting in search of a Union agent. However, neither Wiedmeyer, Sanchez, nor Company representatives in the Employee Relations department could locate a Union representative. Wiedmeyer then returned to the meeting room and again asked Garner to fill out a statement, but Garner refused to do so without a Union representative present. Wiedmeyer then placed Garner on SPI and told him that he had to leave the premises.

Garner exited the meeting and walked into the dispatch area. This is a heavily-trafficked location on Bellagio premises where bellmen store their belongings and wait for assignments. Most of the customers’ luggage at the hotel also passes through the dispatch area, and it is common for employees to enter the area throughout the day. While gathering his personal belongings, Garner started to tell another bellman about his meeting with Wiedmeyer and the resulting SPI. At that point, Wiedmeyer entered the room, told Garner that he could not discuss the matter at that time, and once again instructed him to leave the hotel. Wiedmeyer then followed Garner to ensure that he was heading towards the building’s exit.

Later that day, Bellagio contacted Garner to schedule a disciplinary meeting. The next morning, Garner and a Union steward attended a meeting with Front Services Director Charles Berry and Employee Relations Manager Susan Moore. Garner completed a statement, received a verbal warning, and then returned to his job. As a result of the SPI, Garner missed a short amount of work, for which he was fully compensated.

Garner subsequently filed an unfair labor practice charge with the NLRB. The Board’s General Counsel issued a complaint against the Company, alleging that it had violated the Act by conducting an investigatory interview after Garner had invoked his right under NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), to have a Union representative present. The complaint also charged Bellagio with retaliating against Garner for invoking his Weingar-ten right; unlawfully surveilling him; and promulgating an overly broad rule prohibiting employees from discussing disciplinary matters that were under investigation. Following a hearing, an Administrative Law Judge (“ALJ”) issued findings that Bellagio had indeed committed the unfair labor practices as alleged.

The Board adopted the ALJ’s findings on all but one charge. It held that Wied-meyer did not promulgate an unlawful rule when he instructed Garner not to discuss his SPI in the dispatch area. Instead, the Board found that Wiedmeyer had “engaged in coercive conduct to compel Garner to cease speaking to coworkers about his discipline.” Bellagio, LLC, 362 NLRB No. 175, at 1 n.3. The Board adopted the ALJ’s Order requiring the Bellagio to cease and desist from its unfair labor practices and post a notice informing employees of these violations and promising not to repeat them.

The Company petitioned for review of the NLRB’s Decision and Order, and the Board cross-applied for enforcement. We have jurisdiction to decide this case pursuant to 29 U.S.C. §§ 160 (e) and (f).

II. Analysis

A. Standard of Review

Our role in reviewing an NLRB decision is deferential and limited. “We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board’s findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case.” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C. Cir. 2011) (quoting Mohave Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188 (D.C. Cir. 2000)). Substantial evidence requires enough “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Micro Pac. Dev. Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999) (citation omitted). Thus, a court’s duty is not to impose its own preferred judgment, but to reverse the Board “only when the record is so compelling that no reasonable factfinder could fail to find to the contrary.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (citations and quotations omitted).

B. Bellagio Did Not Violate Gamer’s Weingarten Right to Union Representation

The Board determined that Bella-gio deprived Garner of his right to union representation under Weingarten, and thus violated section 8(a)(1) of the Act, when Wiedmeyer asked Garner to fill out a written statement after the employee had requested a Union representative. This conclusion finds no support in the applicable law.

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” section 7 of the Act. 29 U.S.C. § 158(a)(1). More than forty years ago, the Supreme Court held that the Board’s determination that section 7 “creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline” was a permissible construction of the Act. Weingarten, 420 U.S. at 256, 260, 95 S.Ct. 959. The right is not absolute, however, because it “may not interfere with legitimate employer prerogatives.” Id. at 258, 95 S.Ct. 959. Therefore, in assessing a situation to determine whether Weingarten has been violated, the Board must take account of the context in which a request for union representation has been made. The situations are highly variable because, once an employee validly requests a union representative, an employer has three paths open to it: it may grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all. Washoe Med. Ctr., Inc., 348 NLRB 361, 361 n.5 (2006); see Weingarten, 420 U.S. at 258-59, 95 S.Ct. 959. In other words, the mere fact that an employee’s request for union representation is not met does not, without more, mean that the employer has committed an unfair labor practice.

There is no dispute here that Garner reasonably believed that the meeting with Wiedmeyer and Sanchez might lead to discipline, and that he made a valid request for representation. The Board determined that the Company violated the Act because, after Garner invoked his Weingar-ten right, “Wiedmeyer continued to press Garner to complete a statement.” Bellagio, LLC, 362 NLRB No. 175, at 2. We disagree because the Board’s finding rests on a perverse reading of the record. What the record shows is that the actions of Bella-gio’s supervisors were fair, reasonable, and entirely consistent with Weingarten.

After Garner asked for a Union representative, Bellagio’s supervisors worked diligently to comply with this request. Wi-edmeyer first invited Garner to contact a Union agent himself, but the employee declined to do so. Wiedmeyer and Sanchez then left the room and attempted to locate a Union representative. The supervisors sought help from the Employee Relations department, but to no avail. Wiedmeyer then returned to the meeting room in which Garner was waiting. Before ending the interview, Wiedmeyer first gave Garner the option to fill out a written statement. Garner refused to do so. Wiedmeyer then placed Garner on SPI. In other words, Garner was suspended with pay, and instructed to leave the work place, pending further investigation by the Company. That further investigation occurred the next day and it included an interview with Garner and his Union representative.

It is clear that the Company never resisted or undermined Garner’s invocation of his right to seek union representation. There is no suggestion that Bellagio’s supervisors threatened or intimidated Garner. Indeed, Garner testified that Wied-meyer stopped asking questions after he requested a Union representative. Wied-meyer simply took Weingarten⅛ third path and offered Garner “the choice between having an interview unaccompanied by [a] representative, or having no interview and forgoing any benefits that might be derived from one.” 420 U.S. at 258, 95 S.Ct. 959. Such lawful behavior cannot sustain an unfair labor practice finding.

Because Bellagio’s supervisors acted reasonably and in compliance with Wein-garten, we reverse the Board on this count.

C. Bellagio Did Not Unlawfully Retaliate Against Garner

We also reverse the Board’s determination that Bellagio retaliated against Garner in violation of section 8(a)(1) when it placed him on SPI after he invoked his Weingarten right.

It is well settled that an employer violates the Act when it retaliates against an employee for engaging in protected activity. See Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir. 2001). The Board analyzes the question of unlawful retaliation by applying the test enunciated in Wright Line, 251 NLRB 1083 (1980). See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401-04, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (approving the Wright Line test). “Under that test, the General Counsel must first ‘make a prima facie showing sufficient to support the inference that protected ... conduct was a motivating factor in [an] ... adverse action.’ ” Tasty Baking Co., 254 F.3d at 125 (quoting TIC-The Indus. Co. Se. v. NLRB, 126 F.3d 334, 337 (D.C. Cir. 1997)). A finding of unlawful retaliation thus requires a predicate determination that an employer took an adverse action. Adverse acts are those that reduce a worker’s prospects for employment or continued employment, or worsen some legally cognizable term or condition of employment. See Ne. Iowa Tel. Co., 346 NLRB 465, 476 (2006). Garner was not the subject of any “adverse action.” Therefore, the Board erred in concluding that Bellagio retaliated against Garner in violation of section 8(a)(1).

The SPI form given to Garner stated, in relevant part:

You are being placed on Suspension Pending Investigation effective 5/13/13. This is not a disciplinary action; it is a process that Bellagio utilizes to remove you from the work place in order to investigate a serious situation or policy infraction in which you may have been involved.
Upon the completion of the investigation process, one of the following things will occur:
1. You will be returned to work without disciplinary action and compensated for the scheduled shifts missed resulting from the suspension pending investigation ...; or
2. You will be returned to work with disciplinary action if warranted based on the outcome of the investigation and possibly no compensation; or
3. You will be separated from the company if warranted based on the outcome of. the investigation.

Deferred Joint Appendix (“JA”) 306 (emphasis added and omitted). Although, as the form indicates, the action is called “Suspension Pending Investigation,” this does not indicate that Bellagio actually took disciplinary action against Garner when it issued the SPI. Id. Rather, the SPI merely confirmed that the matter at issue was pending final resolution. And there is nothing to indicate that the SPI had a negative impact on Garner’s employment situation or job prospects. See Ne. Iowa Tel. Co., 346 NLRB at 476.

The form clearly states that SPIs are not disciplinary. Susan Moore, Bellagio’s Employee Relations Manager, testified that SPIs are not a part of any system of progressive discipline. And she further explained that the Company does not keep track of SPIs in its employee files. Although the SPI form indicates that an employee might face discipline once a pending investigation is concluded, the issuance of an SPI does nothing more than confirm that a matter is under investigation. Therefore, the issuance of an SPI, without more, does not have any adverse' impact on the employee who receives the form.

The fact that Garner was required to leave the hotel did not render the SPI an adverse action. It is reasonable for an employer to remove an employee from the workplace while that employee is being investigated for alleged misconduct. If, for example, an employee was accused of attacking a customer, and claimed self-defense, the employer would clearly be entitled to remove that employee pending an investigation. The same principle applies in this case.

The Board found that Bellagio’s actions had a “chilling effect on the exercise of [Garner’s] Weingarten right.” Bellagio, LLC, 362 NLRB No. 175, at 3. The record does not support this conclusion. In fact, the record indicates that Garner was anything but “chilled,” either during the interview or after being placed on SPI. He did not hesitate to request Union representation; he insisted that the Company supervisors find a Union agent because he declined to do so; he did not waffle in his refusal to talk without Union representation; and he did not hesitate in saying that he would not give a statement. Even when Wiedmeyer placed him on SPI,' Gamer did not relent, and before leaving the premises he registered a complaint with Bellagio’s Employee Relations department. Garner also understood that he would have Union representation when he met with the supervisors the following day. And, he was fully aware before being placed on SPI that a customer had complained about his behavior and that he was being investigated for the alleged misconduct.

There is nothing in the record to suggest that Garner was surprised or otherwise intimidated during his interactions with the supervisors. Indeed, he had good reason to understand that no adverse action was being taken against him when he was asked to leave the premises, and that none would be taken against him before an investigation was completed. He also knew that the delay in the investigation was a result of his lawful insistence on Union representation. And Bellagio worked quickly to resolve the issue, holding an appropriate disciplinary meeting the morning after placing Garner on SPI. After-wards, Garner went back to his job as normal, albeit with a verbal warning because of his actions, and the Company fully compensated him for the short amount of work that he missed. This is not the story of an employee who suffered “chilling effects” when Bellagio exercised its “legitimate employer prerogatives.”

In defense of its position, the Board points to decisions which it asserts stand for the proposition that actions that are not “disciplinary” may nevertheless be “adverse.” See Br. for NLRB at 23-24. But the circumstances here bear little resemblance to the cases upon which the Board relies. Most of the decisions involve employees who suffered material changes in the terms and conditions of their employment. E.g., Tasty Baking Co., 254 F.3d at 129-30 (employee transferred to the night shift); Southwire Co. v. NLRB, 820 F.2d 453, 464 (D.C. Cir. 1987) (employees confined to their work stations and forbidden from speaking to other employees). In this case, Garner’s job status was not adversely affected by the issuance of an SPI. We can find no case law that supports the Board’s position in this case. In any event, the record in this case makes it clear that the Board erred in finding that Bellagio retaliated against Garner.

D. Bellagio Did Not Engage in Unlawful Surveillance

The Board additionally adopted the ALJ’s determination that Wiedmeyer engaged in unlawful surveillance when he “aggressively” observed Garner in the dispatch area and then watched him exit the building. This finding borders on absurd, and it is certainly not supported by substantial evidence.

As we explained in Parsippany Hotel Management Co. v. NLRB,

Section 8(a)(1) of the NLRA makes it “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the[ir] right[ ]” to self-organize. The courts have held that an employer’s conduct violates Section 8(a)(1) if it creates the impression among employees that they are subject to surveillance. This prohibition against surveillance does not prevent employers from observing] public union activity, particularly where such activity occurs on company premises so long as the employer does not engage in conduct that is so out of the ordinary that it creates the impression of surveillance.

99 F.3d 413, 420 (D.C. Cir. 1996) (citations and quotation marks omitted).

In determining whether an employer’s observation of employees crosses the line into unlawful surveillance, the Board must look to “the duration of the observation, the employer’s distance from its employees while observing them, and whether the employer engaged in other coercive behavior during its observation.” Aladdin Gaming, LLC, 345 NLRB 585, 586 (2005), enf'd sub nom. Local Joint Exec. Bd. of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008).

There are simply no facts supporting the Board’s holding that Wiedmeyer unlawfully surveilled Garner. He observed Garner in the dispatch room, a heavily-trafficked area located on Company property. Wied-meyer’s presence in the dispatch area was not “out of the ordinary,” Parsippany Hotel, 99 F.3d at 420 (quoting Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257, 266 (D.C. Cir. 1993)), because as Front Services Supervisor his job duties sometimes required him to be there. His observation of Garner was also very brief — they exchanged a few words, and then Wiedmeyer observed him to ensure that he was heading towards the building’s exit.

Wiedmeyer’s behavior was qualitatively different from cases in which the Board has found unlawful surveillance. In Parsip-pany Hotel, for example, we upheld the Board’s finding of unlawful surveillance where, in the run-up to a representation election, the employer increased the size of its security force, identified union organizers to the guards, and there was extensive testimony by employees that they were constantly observed for extended periods of time. Id. at 419-20. In Sands Hotel & Casino, the employer assigned guards to watch employees, including placing one guard in an upstairs hotel room with binoculars. 306 NLRB 172, 189 (1992), enf'd sub nom. mem. S.J.P.R., Inc. v. NLRB, 993 F.2d 913 (D.C. Cir. 1993). And in Eddyleon Chocolate Co., the company president questioned multiple employees about rumors of their support for the union, watched employees from his car while speaking into his phone, and later called the police on a leafletting union representative. 301 NLRB 887, 887-88 (1991). All Wiedmeyer did in this case was briefly observe Garner in a common area where Wiedmeyer had every right to be.

Wiedmeyer’s actions are analogous to situations in which the Board has found that employers did not engage in unlawful surveillance. See Aladdin Gaming, LLC, 345 NLRB at 585-86 (supervisor observed employees for two minutes in an open area, and then spoke against the union for eight minutes); Metal Indus., Inc., 251 NLRB 1523, 1523 (1980) (observation of employees at place and time where management was often present was lawful). As in these cases, Wiedmeyer’s observation of Garner was routine, and there is nothing to indicate that it was “aggressive,” “coercive,” or “out of the ordinary.” We therefore reverse the Board’s finding on this point.

E. The Finding of Unlawful Coercion Cannot Stand

Finally, we reverse the Board’s holding that Wiedmeyer engaged in unlawful coercion by telling Garner not to discuss his SPI. Bellagio was not charged with any such unfair labor practice, and in any event the Board’s finding is not supported by substantial evidence.

A complaint filed by the General Counsel must include “[a] clear and concise description of the acts which are claimed to constitute unfair labor practices.” 29 C.F.R. § 102.15(b). The Board may not find and remedy a violation of the Act not specified in the complaint unless “the issue is closely connected to the subject matter of the complaint and has been fully litigated.” Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190, 1200 (D.C. Cir. 2003) (quoting Pergament United Sales, 296 NLRB 333, 334 (1989), enf'd 920 F.2d 130 (2d Cir. 1990)). The Board has held that to do otherwise “would violate fundamental principles of procedural due process, which require meaningful notice of a charge and a full and fair opportunity to litigate it.” Lamar Cent. Outdoorf 343 NLRB 261, 265 (2004).

The General Counsel charged Bellagio with promulgating an overly broad oral rule prohibiting employees from discussing their discipline. This continued to be the General Counsel’s theory throughout the hearing before the ALJ. During cross-examination, Bellagio elicited from Garner testimony that, following the events in question, he had frequently discussed discipline while at work, and did not feel that it was forbidden activity. This testimony effectively undercut the General Counsel’s charge, and no other evidence was offered to support any finding that Bellagio had adopted a broad oral rule prohibiting employees from discussing their discipline. Nonetheless, the ALJ recommended that the charge against the Company be sustained.

In its consideration of the case, the Board modified the charge against Bella-gio. The Board held:

Although we agree that Wiedmeyer’s instruction [to Garner] violates Sec. 8(a)(1), we do not find, as did the [ALJ], that this instruction constituted the promulgation of an oral rule. Rather, we find that Wiedmeyer[ ] engaged in coercive conduct to compel Garner to cease speaking to coworkers about his discipline. See Food Services of America, 360 NLRB No. 123 slip op. at 5 fn. 11 (2014). We will modify the judge’s order to reflect this rationale.

Bellagio, LLC, 362 NLRB No. 175, at 1 n.3. It is clear that Bellagio never had an opportunity to defend itself against this charge because it was not in the complaint issued by the Board’s General Counsel and it was not an issue in the case that was tried before the ALJ. Although the Company thoroughly cross-examined Garner, it did so without the knowledge that it might be found liable for the charge later credited by the Board. Therefore, the Board’s finding must be set aside.

Even if the General Counsel had properly included this allegation in the complaint against Bellagio, we would still reverse the Board’s finding because it is not supported by substantial evidence. When Wiedmeyer approached Garner in the dispatch area and instructed him to stop his discussion, the supervisor did not engage in coercive conduct to compel Garner to cease speaking to coworkers about his discipline. Wiedmeyer was simply enforcing the valid SPI that he had issued to Garner. As noted above, given the circumstances in this case, it was perfectly reasonable for the Company to instruct Garner to leave the workplace pending investigation of his alleged wrongdoing.

III. Conclusion

For the reasons stated above, we grant Bellagio’s petition for review and deny the Board’s cross-application for enforcement.


author: SILBERMAN, Senior Circuit Judge: ROGERS, Circuit Judge,

text:
    SOUNDEXCHANGE, INC., Appellant v. MUZAK LLC, Appellee
    No. 16-7041
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 9, 2016
    Decided April 25, 2017

      Joshua M. Segal, Washington, DC, argued the cause for appellant. With him on the briefs were Michael B. DeSanctis, Emily L. Chapuis, and Devi M. Rao, Washington, DC. David A. Handzo, Washington, DC, entered an appearance.
    Brian M. Willen, New York, NY, argued the cause for appellee. With him on the brief was Gary R. Greenstein, Washington, DC.
    Before: ROGERS and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
   Concurring opinion filed by Circuit Judge ROGERS.

SILBERMAN, Senior Circuit Judge:

This case pits SoundExchange, a nonprofit entity, charged with the responsibility of collecting royalties for performing artists and copyright owners of music, against Muzak, a company that supplies digital music channels to satellite television networks who, in turn, sell to subscribers. SoundExchange sued Muzak under the Copyright Act in district court, claiming that Muzak underpaid royalties owed. The district court dismissed SoundExchange’s complaint. (From the point of view of classic administrative law, the Register of Copyrights, to which we normally are obliged to defer, plays a rather unusual role.) Although the case is close — the controlling, statute is dreadfully ambiguous— we conclude that SoundExchange has the better position, and therefore reverse the district court.

I.

Muzak is a curator of copyrighted work. It generates revenue by packaging sound recordings into digital music-only channels and providing those channels to individuals who subscribe to cable and satellite television system operators. Businesses such as Muzak (called subscription services) at one time were not required to obtain a license to publicly perform sound recordings because copyright owners did not have an exclusive right to publicly perform their work. But, sensing that emerging technology posed a threat to copyright owners’ interests, Congress stepped in. The Digital Performance Right in Sound Recordings Act of 1995 gave copyright owners an exclusive right “to perform the copyrighted work publicly by means of a digital audio transmission.”

However, entities such as Muzak could obtain a statutory license that allowed them to play copyrighted music in return for the payment of “reasonable rates.” These rates are set in adversarial rule-making proceedings every five years by a Copyright Royalty Board. The first such proceeding began in 1996. Three curator companies participated: Muzak, Digital Cable Radio Associates (operating as “Music Choice”), and DMX Music, Inc. The panel set rates that, some argued, favored the subscription services providers over the copyright holders. Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings, 63 Fed. Reg. 25,394, 25,406 (May 8, 1998). Congress, persuaded, revisited the issue and passed the present statute, the Digital Millennium Copyright Act (the Act), which instructed the Royalty Board’s predecessor to set rates reflecting those that “would have been negotiated in the marketplace between a willing buyer and a willing seller,” i.e., market rates. That standard favored the copyright holders.

As an obvious compromise, however — in a concession to the businesses that had invested under the more favorable pre-1998 rates — the Act provides a grandfather clause. “Preexisting subscription services” could still pay rates set according to the old method. “New subscription services,” on the other hand, were relegated to the new rate-making regime based on a hypothetical free market. As should be obvious, a grandfather status is quite valuable and it is that status — the meaning of “preexisting subscription service” — at stake in this case.

At the time Congress acted, Muzak apparently provided its collection of music channels only to customers of the satellite television network called the Dish Network (owned by EchoStar Corporation and then branded as the DiSH Network). Taking the name of the program from its distributor, the package of music-only channels was called DishCD. (The Dish Network also provided its customers other unrelated programming such as television channels.)

SoundExchange is designated by regulation as the sole representative of the copyright holders. Its job is to obtain the royalties owed under the statutory licenses and to distribute them to performing artists and copyright holders. In this case, SoundExchange claims that Muzak owes it substantial royalties because Muzak erroneously applied the grandfather rate to ineligible transmissions and therefore underpaid.

The controversy stems from a series of corporate transactions. In 2011, Mood Media Corporation acquired Muzak, as well as, in 2012, one of Muzak’s competitors, DMX. DMX offered a music program called SonicTap, which was quite similar to Muzak’s DishCD, but was transmitted over a different satellite television network, DirecTV. Before Mood Media bought DMX and put it under the same corporate roof as Muzak, DMX was not entitled to, nor did it pay, the grandfather rates for its SonicTap program. (It will be recalled that an entity called “DMX” participated in the original rate-making proceedings beginning in 1996. But, due to corporate restructuring, that legal entity is not the same one as the “DMX” that Mood acquired in 2011.) After Mood bought both companies, it arranged to have DMX transfer to Muzak the right to make transmissions to DirecTV subscribers under the SonicTap brand. When the smoke cleared, Muzak had acquired DMX’s consumer music customers.

After the corporate transactions, Muzak paid the grandfathered rate for all of its subscription service transmissions, which, as noted, led SoundExchange to sue' in district court under the Copyright Act. SoundExchange claimed that Muzak was entitled to pay the more favorable rate only for its transmissions packaged as DishCD, but not for those made under the SonicTap brand or any others. The district court, essentially equating the new customers acquired by acquisition of DMX to new customers Muzak acquired on its own, dismissed the complaint. See SoundExchange, Inc. v. Muzak, LLC, 167 F.Supp.3d 147 (D.D.C. 2016).

II.

The dispute between the parties turns on the language of the Act, specifically, what does “preexisting subscription service” (the grandfathered category defined by the Act) mean? Does it refer to Muzak, the business entity, however it grows? Or is that term limited to the program offering, DishCD, that was marketed by Muzak at the time the statute was passed?

The Act defines a “preexisting subscription service” as:

[A] service that performs sound recordings by means of noninteractive audio-only subscription digital audio transmissions, which was in existence and was making such transmissions to the public for a fee on or before July 31, 1998....

The parties quarrel over the meaning of the phrase “such transmissions.” SoundEx-change seeks a rather less textual interpretation, i.e., that “such transmissions” refers to more than the language that precedes it (generic “noninteractive audio-only subscription digital audio transmissions”), and instead refers specifically to the program a claimant was offering to the public at the relevant time. Muzak, by contrast, argues that “such transmissions” refers to the general category of transmissions identified in the preceding part of the definition: noninteractive audio-only subscription digital audio transmissions made by an entity that was in existence and making that category of transmissions on or before July 31,1998.

Muzak’s reading of “such transmissions” is the more persuasive. Cf. Middle S. Energy, Inc. v. FERC, 747 F.2d 763, 768 (D.C. Cir. 1984). But we do not think the crucial phrase is “such transmissions.” Rather, it is the term “service,” which is also disputed. Does “service” refer only to the business entity, or does it also include the original program offerings? Put differently, does the grandfather rate inhere in the business or the product? Here, we are faced with persistent confusion.

Unfortunately, the statute is quite unclear. It uses the word “service” in both senses. Some sentences only make sense if “service” means business entity. For example, one provision allows, in some circumstances, that “services ... submit to the Copyright Royalty Judges licenses....” There, the “service” must be an entity capable of submitting a license to the Judges; it makes no sense to talk of a program offering such as DishCD “submitting” something to anyone. But then in other parts of the same statute, “service” most logically refers to a program offering. In the provision immediately preceding the main disputed' language that defines “preexisting satellite digital audio radio service,” Congress said that term refers to a “service” that is, among other things, “provided pursuant to a . i. license issued by the Federal Communications Commission....” So “service” there must indicate a program offering because an entity would not be “provided pursuant to a .... license.” (emphasis added). Perhaps strangest of all, the statute permits any “preexisting subscription service” to file a petition for an off-cycle rate-making if a “new type of ... service” becomes operational. That is to say, a “service” can file a rate-making petition if it will provide a new “type of service,” which is, of course, circular.

The legislative history is no more pellucid; it, .too, uses “service” both ways. For example, when the report discusses the meaning of preexisting subscription service, it provides an illustration: “[I]f a cable subscription music service making transmissions on July 31, 1998, were to offer the same music service through the Internet, then such Internet service would be considered part of a preexisting subscription service.” H.R. Rep. No. 105-796, at 89 (1998), reprinted in 1998 U.S.C.C.A.N. 639, 664. That explanation uses “service” to describe the entity making the transmissions (cable service) and the transmissions themselves (the “offered” service), in other words, a “service” offering a “service.”

As if this was not puzzling enough, it turns out that the Register has issued a relevant opinion, which only adds to the confusion. Although it is the Royalty Board that sets rates every five years, the statute provides that “[i]n any case in which a novel material question of substantive law concerning an interpretation of those provisions of this title that are the subject of the proceeding is presented, the Copyright Royalty judges shall request a decision of the Register of Copyrights ... to resolve such novel question.” Moreover, the Register “may review,” on her own motion, any legal error contained in a final determination of the Copyright Royalty Judges and can correct the error in the proceeding. It is to be binding precedent. And a determination of the Copyright Royalty Judges, which includes any legal determination the Register made as part of the proceeding, may be appealed directly to our court, the U.S. Court of Appeals for the D.C. Circuit, by any aggrieved participant in the proceeding.

As it happened, in 2006 the Register was asked by the Board for, and did deliver, an opinion that affects our case because it dealt with the scope of the grandfather clause. See Designation as a Preexisting Subscription Service, 71 Fed. Reg. 64,639 (Nov. 3, 2006). At the time, Sirius Satellite Radio, a satellite digital audio radio business, claimed that some of its transmissions were eligible for the grandfather rate - transmissions that were made over the Dish Network to Dish Network subscribers (recall that the Dish Network, a satellite television network, was identified in the conference report as the satellite network over which Muzak was providing its content at the time the statute was passed). In short, Sirius asserted the grandfather status attached to the network, not the curator.

Although there is no record as to how the Board sought the Register’s view, we are told by the government that the issue arose because the Board asked the Register whether. Sirius could participate in the rate-making proceeding. The question put to the Board was:

Is the universe of preexisting subscription services — defined in [the preexisting subscription services provision]— [limited by] law to only Muzak (provided over the DiSH Network), Music Choice, and DMX?

Id. at 64,640. The Register in turn characterized the question as “a controversy over whether the term [“preexisting subscription service”] applied to the use of the sound recording, or the business entity that operated under the § 114 statutory license.” Id. at 64,647.

The Register did not have an easy time of it. She recognized, as do we, that the word “service,” as used both in the statute as well as the legislative history, sometimes referred to the business entity and sometimes the program offerings. Id. at 64,646. Nevertheless, she rejected Sirius’s claim, determining that only three business entities — Muzak, Music Choice, and the old DMX — were expressly designated in the conference report as the companies entitled to pay the grandfather rate. Muzak insists she therefore determined that it was the business entity that was entitled to grandfather status. Yet, as Muzak concedes, the Register’s opinion doesn’t foreclose SoundExchange’s position. Her opinion did not address whether those three business entities’ grandfather status was further limited to the programs they were offering at the time the statute was passed.

As we examined the Register’s opinion, it occurred to us to wonder why our case was not before the Register. Indeed, since Royalty Board decisions are appealed to our court, did the district court even have jurisdiction? We asked for supplemental briefs, including from the Justice Department, and were persuaded that, under this unusual statute, the legal issues that go to the Register do so only as part of the every-five-year rate “proceeding,” and only then can be appealed to our court. As we explained, the 2006 Register opinion was issued only because the Board asked whether Sirius could participate in the rate proceeding, whereas our case is divorced from a rate proceeding. Of course, since we have held that a Register’s opinion is entitled to deference under Chevron, see Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., 836 F.2d 599, 609 (D.C. Cir. 1988), it is conceivable that should this exact issue come up during a rate proceeding, the Register might legitimately differ with us, cf. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

In any event, although the Register did not decide our issue, she did emphasize that the grandfather clause should be interpreted narrowly. See 71 Fed. Reg. at 64,645. We should respect her guide to interpretation. The district judge analyzed Muzak’s acquisition of DMX as analogous to Muzak simply acquiring more customers through Dish Network’s expansion customer by customer. 167 F.Supp.3d at 151. But we do not think that is a fair comparison. Indeed, Mood-Muzak’s acquisition of DMX, if allowed to expand Muzak’s grandfather eligibility to “services” other than DishCD, threatens the very purpose of the Act. After all, it was designed to move the industry to market rates. If Mood-Muzak were permitted to pay the grandfather rate for transmissions made to customers who subscribed to a “service” that was previously provided by DMX, what would prevent — assuming no anti-trust barriers — the complete elimination of the market-rate regime by Mood-Muzak’s acquisitions strategy.

The grandfather provisions were intended to protect prior investments the three business entities had made during a more favorable pre-1998 rate-setting regulatory climate. “Muzak was [a] pioneer music service that incurred both the benefits and risks that came with its investment,” specifically its investment in DishCD. 71 Fed. Reg. at 64,646. But when Muzak expands its operations and provides additional transmissions to subscribers to a different “service,” (i.e., SonicTap), this is an entirely new investment.

We conclude, therefore, that the better interpretation of the statute is that the term “service” contemplates a double limitation; both the business and the program offering must qualify before the transmissions are eligible for the favorable rate.

So ordered.

ROGERS, Circuit Judge,

concurring:

The court describes the context in which the parties differ on when rates under a grandfather clause in the Digital Millennium Copyright Act of 1998 (“DMCA”), Pub. L. No. 105-304, 116 Stat. 2860, are available. I write separately to expand on the reasons for my concurrence.

As a general rule, grandfather clauses that operate in derogation of a statute’s dominant purpose should be narrowly construed. Patagonia Corp. v. Bd. of Governors, 517 F.2d 803, 811 (9th Cir. 1975). The DMCA defines a “preexisting subscription service” (“PSS”) as

a service that performs sound recordings by means of noninteractive audio-only subscription digital audio transmissions, which was in existence and was making such transmissions to the public for a fee on or before July 31, 1998, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service.

17 U.S.C. § 114(j)(ll). The parties offer differing interpretations of the phrase “such transmissions” and the word “service.” Although the court does not view the former as “the crucial phrase,” Op. at 716, it considers the word “service” to present “persistent confusion,” id. at 716. Does it refer only to the business entity or also to the entity’s original program offerings? Congress uses words to have their ordinary meaning, absent a contrary indication, see Engine Manufacturers Ass’n v. South Coast Air Quality Management District, 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004), and there is none here; the word “service” can mean both an entity (such as a branch of the armed services) and the activity performed by that entity. E.g., Random House Webster’s College Dictionary 1199 (2d ed. 1999) (“the supplying or supplier of utilities ... that meet a public need”) (emphasis added).

Where there are two plausible interpretations of the statutory text, the court has turned to the legislative history to discover congressional intent. See Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 271 (D.C. Cir. 2001). Indeed, the court has done so even when the text is superficially clear. See Sierra Club v. EPA, 358 F.3d 976, 988 (D.C. Cir. 2004). Today the court is quick to dismiss that history as “no more pellucid” than the statutory text merely because it too uses the term “service” both ways. Op. at 717. But this ignores clear evidence of congressional intent: the conferees gave careful consideration to the intended extent of PSS eligibility for grandfather rates, and their analysis resolves the debate over the meaning of the grandfather clause in favor of SoundExehange.

The Conference Report of the House and Senate conferees confirms that Muzak’s non-Dish offerings are ineligible for PSS rates. The Report states that “[t]he purpose of distinguishing preexisting subscription services making transmissions in the same medium as on July 31, 1998, was to prevent disruption of the existing operations by such services,” and that “[tjhere [are] only three such services that exist: DMX (operated by TCI Music), Music Choice (operated by Digital Cable Radio Associates), and the DiSH Network (operated by Muzak).” H.R. Conf. Rep. 105-796, at 80-81 (1998), reprinted in 1998 U.S.C.C.A.N. 639, 656-57. The Report paraphrased the statutory definition, stating that a PSS “is a noninteractive subscription service that was in existence and was making transmissions to the public on or before July 31, 1998, and which is making transmissions similar in character to such transmissions made on or before July 31, 1998.” Id. at 89, reprinted in 1998 U.S.C.C.A.N. at 665 (emphasis added). The Report proceeded to illustrate the extent of a PSS’s offerings that would be eligible for the grandfather rates, explaining the grandfather clause covered two circumstances only: “In grandfathering these services [i.e., the three PSSs], the conferee’s objective was to limit the grandfather [1] to their existing services in the same transmission medium and [2] to any new services in a new transmission medium where only transmissions similar to their existing service are provided.” Id. The Report gave examples of the relevant program offerings: “[I]f a cable subscription music service making transmissions on July 31, 1998, were to offer the same music service through the Internet, then such Internet service would be considered part of a preexisting subscription service.” Id. (emphasis added). But if “a subscription service making transmissions on July 31, 1998, were to offer a new service either in the same or new transmission medium ..., such new service would not quality as a preexisting subscription service.” Id. (emphasis added).

The Report thus makes clear that when Congress acted in 1998 there were only three PSS entities (ie., Muzak, TCI Music, and Digital Cable Radio Associates) and that eligibility for grandfather rates did not extend to altogether new program offerings made by those entities. The Report also makes clear that identifying grandfathered program offerings requires more than consideration of whether an entity’s present transmissions are “noninteractive audio-only subscription digital audio transmissions,” but see Appellee Br. 16-17 (quoting 17 U.S.C. § 114(j)(ll)), because the grandfathered program offerings are limited to those that the entity “made on or before July 31, 1998.” H.R. Conf. Rep. 105-796, at 89. The Report’s use of the phrase “their existing services” necessarily required a comparison to the specific services the entity was offering before July 31, 1998, id. not simply comparison with “noninteractive audio-only subscription digital audio transmissions” in the abstract. 17 U.S.C. § 114(j)(ll). And the examples given show that the entity “must ‘offer the same music service’ as it was offering over cable” in order for that service to be eligible for the grandfather rate. Appellant Reply Br. 13 (quoting H.R. Conf. Rep. 105-796, at 89). The 2006 decision of the Register of Copyrights underscores that PSS eligibility requires not only that the entity (i.e., the “PSS service”) be the same as in 1998, but that the music offering (the programmatic “service”) be the same. See Designation as a Preexisting Subscription Service, 71 Fed. Reg. 64,639, 64,646 (Nov. 3, 2006). It is undisputed that Muzak began offering SonicTap in May 2014, and thus the SonicTap offering does not qualify for the grandfather rate.

In sum, the Conference Report shows how the multiple meanings of the word “service” are to apply to the statutory definition and thereby demonstrates that Muzak’s non-DiSH offerings were not entitled to the grandfather rates. Although the Report is imprecise in any suggestion that entities other than Muzak might be able to pay grandfather rates for transmission over DiSH, see 71 Fed. Reg. at 64,645-46, that imprecision does not mean Muzak is entitled to pay PSS rates for its non-DiSH offerings because the Report’s sole reference to “Muzak” is in its connection with DiSH. Appellant Reply Br. 1-2. My colleagues insist that this is “incorrect” simply because the Report refers to “DiSH Network” rather than to its music offering “DishCD,” Op. at 717 n.ll, without calling into question the more fundamental point: no matter how the Report refers to DiSH, “nowhere did the Report [refer to] Muzak qua Muzak as the relevant PSS.” Appellant Br. 27. Nor do my colleagues offer any support for their claim that “for every point in the conference report supporting SoundExchange, there can be found a countervailing one in support of Muzak,” Op. at 717 n.ll, particularly as regards the passages discussed herein showing Congress’s intent to impose on PSSs a double limitation (same entity and same program-offering).

Especially in light of the conferees’ explanation of the grandfather clause, then, I concur in reversing the dismissal of Soun-dExchange’s complaint.

      . See Pub. L. No. 104-39, § 2, 109 Stat. 336, 336 (1995) (codified at 17 U.S.C. § 106(6)); see also H.R. Rep. No. 104-274, at 13 (1995).

      . See 17 U.S.C. § 114(f). The predecessor to the Copyright Royalty Board, the Copyright Arbitration Royalty Panel, was phased out by the Copyright Royalty and Distribution Reform Act of 2004. See Pub. L. No. 108-419, § 5, 118 Stat. 2341, 2363.

      . See Pub. L. No. 105-304, § 405(a), 112 Stat. 2860, 2896 (1998) (codified at 17 U.S.C. § 114(f)(2)(B)).

      . Compare 17 U.S.C. § 114(f)(1)(B) (preexisting subscription services) with id. § 114(f)(2)(B) (new subscription services).

      . See 37 C.F.R. §§ 380.4, 382.2, 382.11, 382.13; see also 17 U.S.C. § 114(g).

      .Muzak also gained the right to provide music to other distributors previously served by DMX.

      . 17U.S.C. § 1140X11).

      . Id. § 114(f)(1)(A).

      . Id. § 114(j)(10).

      . Id. § 114(f)(1)(C) (emphasis added).

      . Our concurring colleague would make more use of the legislative history when resolving this case. But for each point in the conference report supporting SoundEx-change, there can be found a countervailing one in support of Muzak. And many of the report’s observations are susceptible of multiple interpretations — as evidenced by the pages the parties (and the concurrence) devote to disputing the significance of individual phrases in that report. During the 2006 Copyright Office proceedings, SoundExchange itself discouraged over-reliance on the “imprecise language of the legislative history,” which is “clearly inconsistent with the statute itself’

      Take the phrase in the report most relied on by the concurrence: "There [are] only three [preexisting subscription services] that exist: DMX (operated by TCI Music), Music Choice (operated by Digital Cable Radio Associates), and the DiSH Network (operated by Muzak).” The concurrence finds this phrase illuminating, pointing out that "the Report’s sole reference to 'Muzak' is in its connection with DiSH.” Concur. Op. at 721. But that is incorrect. The Report confusingly refers to “the DiSH Network (operated by Muzak)”, even though the DiSH Network was an entirely separate satellite television network not "operated by Muzak.”

      . 17 U.S.C. § 802(f)(l)(B)(i) (referral to Register); id. § 802(f)(1)(D) (Register review); id. § 803(d)(1) (judicial review).