Crawford v. Federal Communications Commission , 417 F.3d 1289 ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2005 Decided August 5, 2005
No. 04-1031
CHARLES CRAWFORD,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of the
Federal Communications Commission
Gene A. Bechtel argued the cause and filed the briefs for
petitioner.
Stanley R. Scheiner, Attorney, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were Robert H. Pate, Assistant Attorney General,
Catherine G. O'Sullivan and Andrea Limmer, Attorneys, John
A. Rogovin, General Counsel, Austin C. Schlick, Deputy General
Counsel, and Daniel M. Armstrong, Associate General Counsel.
Gregory M. Christopher, Counsel, entered an appearance.
Before: RANDOLPH, TATEL, and GARLAND, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Charles Crawford petitions for
review of the Federal Communications Commission’s dismissal
of two proposals he filed to amend the Commission’s Table of
Allotments for FM radio channels. Crawford’s principal
contention is that he lacked notice that his proposals could be
precluded by another applicant’s earlier-filed submission. With
respect to one of Crawford’s proposals, we dismiss his petition
as moot. With respect to the other, we conclude that Crawford
received adequate notice and therefore deny the petition.
I
The Federal Communications Commission (FCC) uses a
two-stage process to allocate commercial FM radio frequencies
to broadcasters. First, a frequency must be allocated to a
particular community in the FM Table of Allotments. Second,
a prospective broadcaster may then apply for a license or
construction permit for that frequency in that community.
The Table of Allotments can be amended only by rule. See
Amendment of Part 1, Subpart C (Rulemaking Proceedings),
Rules of Practice and Procedure, 39 Fed. Reg. 44,020, 44,020
(Dec. 20, 1974); see also 47 C.F.R. § 1.420. The process begins
with an FCC notice of proposed rulemaking (NPRM), often in
response to a broadcaster’s petition. The notice sets forth the
proposed change -- for instance, “allot channel 229C at
Houston” -- and announces periods for initial comments and
reply comments.1 During the initial comment period, the FCC
1
In the Table of Allotments, each channel allocated to a particular
community is identified by a number between 221 and 300, which
designates the frequency. This number is followed by the station’s
class; possible classes are A, B1, B, C3, C2, C1, C0, and C, with each
3
accepts comments on the initial proposal. It also accepts
counterproposals that are “mutually exclusive” with the initial
proposal. 2 See 47 C.F.R. § 1.420(d); see also, e.g.,
Implementation of BC Docket No. 80-90 to Increase the
Availability of FM Broadcast Assignments, 5 F.C.C.R. 931, ¶ 4
n.5 (1990) (“Implementation of BC Docket No. 80-90”).
Because one amendment to the Table of Allotments may be
possible only if another amendment is made, broadcasters
commonly submit proposals or counterproposals that include
multiple amendments. In a given docket, the FCC considers the
initial proposal and any counterproposals that are filed during
the initial comment period. Also treated as counterproposals are
any ostensibly freestanding proposals that conflict with the
initial proposal or with other counterproposals -- as long as they
are filed before the end of the initial comment period. See, e.g.,
Notice of Proposed Rule Making, Amendment of Section
73.202(b), Table of Allotments, FM Broadcast Stations, 17
F.C.C.R. 5944, 5948 (2002); Amendment of Section 73.202(b),
Table of Allotments, FM Broadcast Stations, 16 F.C.C.R.
14,085, 14,085-86 (2001); see also 47 C.F.R. § 1.420(d).
After the initial comment period, any proposals that are
mutually exclusive with those considered in the proceeding are
“cut off” from consideration pursuant to 47 C.F.R. § 1.420(d),
class designation signifying maximum and minimum signal strengths
and antenna heights. Thus, channel 229C designates frequency 93.7,
class C. See 47 C.F.R. §§ 73.201-.202, .211(a)-(b).
2
Generally, two proposals are mutually exclusive if channels that
they propose would violate the FCC’s prescribed minimum distances
between stations of given classes and separations on the FM spectrum.
See 47 C.F.R. §§ 73.207(a)-(b). The purpose of these prescriptions is
to limit signal interference.
4
which states: “Counterproposals shall be advanced in initial
comments only and will not be considered if they are advanced
in reply comments.” This means that during the reply comment
period, comments can be filed on counterproposals submitted
during the initial comment period -- but further counterproposals
cannot be filed. See id.The impetus for this kind of cutoff rule derives from
Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945), which
held that mutually exclusive broadcast applications must receive
a comparative hearing. See id. at 330-31. As this Circuit
explained in Ranger v. FCC, 294 F.2d 240 (D.C. Cir. 1961):
Obviously, if all valid conflicting pending applications
must receive a comparative hearing, late filings create
procedural difficulties. Particularly is this so in view
of what is described in this litigation as a chain
reaction. Let us assume three towns, A, B and C, fifty
miles apart in a straight geographical line. Application
for a broadcast station at A is made. Grant of that
application would preclude a station at B on the same
or an adjacent channel; it would not affect the
possibility of a station at C. Before the application for
A has been acted upon, an applicant files for a license
at B and asks for a comparative hearing with A. A
grant in B would preclude a station at C. Therefore
potential applicants for C must file in the A-B case in
order to protect their rights. Theoretically this reaction
could go on indefinitely and could eventually involve
every potential broadcast-station situs in the United
States.
Id. at 243. And as we further noted in Florida Institute of
Technology v. FCC, “[i]f the filing deadline for each link of a
daisy chain” of applications like that described above “were
5
based on the filing date of the previous link rather than that of
the lead application, ‘[i]n theory, at least the chain might never
end.’” 952 F.2d 549, 550 (D.C. Cir. 1992) (quoting Kittyhawk
Broadcasting Corp., 7 F.C.C.2d 153, 155 (1967)) (second
alteration in original).
By setting a firm deadline for the filing of conflicting
proposals, the FCC’s cutoff rule prevents this kind of daisy
chain of applications from going on indefinitely. This circuit
has repeatedly invoked the daisy-chain rationale in upholding
the FCC’s application of cutoff rules in different broadcast
contexts. See, e.g., Florida Inst. of Technology, 952 F.2d at 549-
52; Ranger, 294 F.2d at 243-44. We have not, however,
previously addressed such rules in the context of an FM
allotment rulemaking proceeding.
On July 13, 2000, NationWide Radio Stations petitioned the
FCC to allot FM channel 233C3 at Quanah, Texas. On August
18, the FCC issued an NPRM proposing this change and setting
October 10, 2000 as the deadline for initial comments and
October 25, 2000 as the reply comment deadline. See Notice of
Proposed Rule Making, Amendment of Section 73.202(b), Table
of Allotments, FM Broadcast Stations, 15 F.C.C.R. 15,809,
15,812-13 (2000) (“Quanah NPRM”). It also set out the FCC’s
rules for counterproposals, including the cutoff rule. Id. at
15,813.
On October 10, 2000, the last day of the initial comment
period and thus the last day to submit a counterproposal, a group
of broadcasters (the “Joint Parties”) filed a counterproposal that
included twenty-two changes to the Table of Allotments. This
counterproposal conflicted with NationWide’s proposal for
Quanah because it proposed allotting the same channel at a
nearby location. Due to a clerical error, the FCC did not place
the Joint Parties’ counterproposal in its database or otherwise
6
make it public.3
On May 18, 2001, Charles Crawford -- the petitioner in this
case -- asked the FCC to allot channel 257C2 at Benjamin,
Texas. One week later, Crawford filed a second proposal,
seeking to allot channel 249C3 at Mason, Texas. Each of these
proposals conflicted with a piece of the Joint Parties’
counterproposal in the Quanah proceeding, and so should have
been precluded under the FCC’s cutoff rule. The FCC, however,
mistakenly docketed Crawford’s proposals and issued an NPRM
for each.
During the initial comment period for Crawford’s
proposals, the FCC realized that it had not given notice of the
Joint Parties’ counterproposal. Thereafter, it issued such notice.
The notice stated that the FCC would consider the
counterproposal as part of the Quanah proceeding, and it set a
deadline for reply comments.
On June 14, 2002, the FCC Media Bureau’s Audio Division
dismissed both of Crawford’s petitions as precluded by the Joint
Parties’ counterproposal. The Bureau explained that even
though the counterproposal had not been publicized
immediately, it had been submitted before the end of the initial
3
In the counterproposal, the Joint Parties observed that the FCC
could resolve the conflict by allotting channel 255C3 at Quanah,
instead of channel 233C3. NationWide, having been served with the
Joint Parties’ counterproposal, agreed to that resolution. When it later
bec ame clear that channel 255C3 was not actually available for
Quanah, however, NationWide withdrew its expression of interest in
any channel, stating that it “did not wish to be placed in an
advers[a]rial position in such a complex proceeding with so many
larger interests at stake.” NationWide Withdrawal of Expression of
Interest at 1-2 (J.A. 88-89).
7
comment period for the Quanah proposal, and it therefore
precluded late-filed conflicting proposals. Crawford petitioned
for reconsideration, claiming principally that the Quanah NPRM
provided him with insufficient notice that his proposals could be
precluded by a proposal as complex as that of the Joint Parties.
After this petition was denied, Amendment of Section 73.202(b),
Table of Allotments, FM Broadcast Stations, 18 F.C.C.R. 103,
106 (2003) (“Media Bureau Reconsid. Mem. Op. & Order”),
Crawford submitted an application for review by the full
Commission. The FCC denied that petition, Amendment of
Section 73.202(b), Table of Allotments, FM Broadcast Stations,
19 F.C.C.R. 470, 470-71 (2004) (“Commission Mem. Op. &
Order”), and Crawford petitioned for review in this court.
II
Before confronting the merits of Crawford’s petition for
review, we must consider whether this case is moot. As
Crawford notes, the Joint Parties have withdrawn the piece of
their proposal that conflicts with his proposed Benjamin
allotment. See Pet’r Reply Br. at 7-8. For this reason,
Crawford’s brief acknowledged that “there is no longer an active
controversy” with respect to the Benjamin proposal. Id. at 8; see
also id. at 8-9 (arguing for jurisdiction only with respect to the
Mason proposal). Although Crawford sought to resurrect his
Benjamin claim at oral argument, his initial position was correct.
Crawford’s claim regarding the Mason proposal may also
soon become moot. For reasons unrelated to the issues before
this court, the Media Bureau has dismissed the Joint Parties’
counterproposal and denied the Joint Parties’ petition for
reconsideration of that decision. See Resp’t Br. at 7 & n.15.
But the decision has not yet become final, and Crawford’s
Mason proposal remains precluded. Id. The controversy as to
Mason thus remains a live one. We proceed, then, to consider
8
the merits of Crawford’s petition only with respect to the Mason
proposal.
III
Crawford’s principal contention is that he lacked notice
that his proposal could be precluded by the Joint Parties’
submission. He also contends that the FCC failed to adequately
set forth its rationale for denying his petition, and that the FCC
should have rejected the Joint Parties’ counterproposal as the
product of impermissible collusion between the Joint Parties and
NationWide. We consider these challenges below.
A
The Administrative Procedure Act provides that an agency
that conducts an informal rulemaking typically must publish
“[g]eneral notice of proposed rule making . . . in the Federal
Register.” 5 U.S.C. § 553(b). The same section further provides
that, “[a]fter notice required by this section, the agency shall
give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments
with or without opportunity for oral presentation.” Id. § 553(c).
The parties agree that these requirements apply to FCC
rulemaking proceedings to amend the FM Table of Allotments.
The notice-and-comment requirements presume that the
contours of the agency’s final rule may differ from those of the
rule it initially proposes in an NPRM. It is well-settled that an
agency need not initiate a new notice-and-comment period as
long as the rule it ultimately adopts is a “logical outgrowth” of
the initial notice. E.g., First Am. Discount Corp. v. Commodity
Futures Trading Comm’n, 222 F.3d 1008, 1015 (D.C. Cir.
2000); Fertilizer Inst. v. EPA, 935 F.2d 1303, 1311 (D.C. Cir.
1991); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C.
9
Cir. 1978). Whether the “logical outgrowth” test is satisfied
depends, in turn, on whether the affected party “should have
anticipated” the agency’s final course in light of the initial
notice. Small Refiner Lead Phase-Down Task Force v. EPA,
705 F.2d 506, 549 (D.C. Cir. 1983).
Here, Crawford claims that the preclusive effect of the Joint
Parties’ counterproposal on his Mason petition was not a logical
outgrowth of the Quanah NPRM. The Joint Parties’
counterproposal, he argues, was simply too complex for
preclusion of the Mason proposal to have been “reasonably
foreseeable,” Pet’r Br. at 17, by virtue of that NPRM. How did
that counterproposal conflict both with the Quanah proposal (so
as to receive cutoff protection in the Quanah proceeding) and
with the Mason proposal (so as to preclude it)? The Joint Parties
proposed a change at Keller, Texas; this change necessitated a
“chain reaction” of amendments, the third of which conflicted
with the Quanah proposal. The Keller change also spurred an
additional chain reaction of amendments, the sixth of which
conflicted with the Mason proposal.
Despite the complexity of this “Texas Nine-Step,” we reject
Crawford’s contention that he lacked adequate notice, for two
reasons. First, Crawford presumes that the logical-outgrowth
test requires that an affected party be able to anticipate the
specific preclusive outcome of an allotment proceeding. But the
Quanah NPRM, as well as the FCC’s regulations, made clear
that the proceeding would encompass mutually exclusive
counterproposals and that late-filed conflicting proposals would
be cut off. See Quanah NPRM, 15 F.C.C.R. at 15,814; 47
C.F.R. § 1.420(d). This put all interested parties on notice that
their proposals could be precluded by any counterproposal --
whether foreseeable or not -- that was filed by the deadline,
mutually exclusive with the Quanah proposal, and mutually
exclusive with their own. See Commission Mem. Op. & Order,
10
19 F.C.C.R. at 471 & n.6. Thus, when the FCC deemed
Crawford’s proposal precluded, that was more than just a
“logical outgrowth” of the Quanah NPRM. Rather, the FCC
was “merely doing that which [it] announced” it would do.
Media Bureau Reconsid. Mem. Op. & Order, 18 F.C.C.R. at
104. The FCC’s cutoff rule puts prospective broadcasters on
notice that they should file their proposals as soon as they are
ready -- or risk being precluded by an earlier-filed proposal or
counterproposal that has received cutoff protection. Indeed, the
FCC has made this point on several previous occasions.4
Second, even if the logical-outgrowth test did require that
an affected party be able to anticipate a preclusive outcome in a
particular allotment proceeding, that test would be satisfied here.
In light of the FCC’s minimum distance separation
requirements, Crawford should at least have known that
NationWide’s initial proposal to allot channel 233C3 at Quanah
could conflict with a counterproposal that included only a single
channel up to 147 miles away. 5 Such a channel, in turn, could
4
See Conflicts Between Applications and Petitions for
Rulemaking to Amend the FM Table of Allotments, 8 F.C.C.R. 4743,
4745 (1993) (noting that the risk of preclusion “could in large part be
minimized by filing a counterproposal at the earliest possible time”);
Amendment of Section 73.202(b), Table of Allotments, FM Broadcast
Stations, 5 F.C.C.R. 7609, ¶ 10 (1990) (“Pinewood”) (holding that, to
“avoid possible preclusion . . . , other applicants must file by the
comment deadline stated in the notice of proposed rule making in the
allotment proceeding”); see also id. ¶ 8 (“The fact that we may allot
an alternate channel to . . . any community in [the] proceeding, which
in turn, would cause the exclusion of the [applicant’s] proposal as an
untimely conflicting proposal from the proceeding, is merely doing
that which we announced that we could do.”).
5
See 47 C.F.R. § 73.207(b)(1) tbl.A (providing that, absent
exceptions not relevant here, the minimum permissible distance
11
have conflicted with another class C3 channel -- the same class
as the channel Crawford proposed for Mason -- as far away as
another 147 miles. Thus, the foreseeable radius of conflict
arising from even such a simple proposal was 294 miles from
Quanah.6
Mason is just 192 miles from Quanah, well within this 294-
mile radius. See Pet’r Br. at 16. Thus, far from having to follow
the “labyrinthine trail” of the Joint Parties’ counterproposal, id.
at 5, Crawford could reasonably have anticipated the preclusive
effect of the Quanah proposal simply by postulating a single-
channel counterproposal between the two cities. And had he
done so, he could have safeguarded his own proposal from
preclusion by filing it during the initial comment period.
Our conclusion that notice was adequate is unaffected by
the FCC’s delay in entering the Joint Parties’ counterproposal
into its database or otherwise making it public. Under the
between a class C3 station and a class C station -- the class with the
largest signal contour -- on the same channel is 147 miles).
6
Even if the stations proposed for Mason and Quanah were too
far apart on the spectrum for any third station to conflict with both of
them, the FCC has long made clear that it may resolve a conflict
between two proposals by giving one community a different channel
than the one proposed for it. See, e.g., Quanah NPRM, 15 F.C.C.R.
at 15,814 (“The filing of a counterproposal may lead the Commission
to allot a different channel than was requested for any of the
communities involved.”); Pinewood, 5 F.C.C.R. ¶ 8 (“Because a
notice of proposed rule making in a channel allotment proceeding
specifically elicits counterproposals and alerts all interested parties
that alternate channels may be substituted for either the original
proposal or the counterproposal, both the actual counterproposal
advanced by the proponent and any alternate channel are within the
scope of the notice.”).
12
FCC’s cutoff rule, Crawford was precluded from filing his
Mason proposal after the close of the Quanah initial comment
period because the Joint Parties had filed their counterproposal
during that period. Preclusion did not depend upon public
notice of the counterproposal. Nor would notice have helped
Crawford, since the Joint Parties did not file their
counterproposal until the last day of the period (as the rule
permitted), after which it was too late for Crawford to take
effective action -- even if he had received notice of the
counterproposal. The notice that truly mattered in this case was
the Quanah NPRM, which the FCC filed on August 18, 2000.
As discussed above, that notice apprised Crawford that the only
way he could reliably protect himself was to file his Mason
proposal within the initial comment period that followed the
NPRM. It was Crawford’s failure to act during that period that
doomed his proposal. Cf. Kittyhawk, 7 F.C.C.2d ¶ 4 (holding
that, because the “Commission’s interpretation of the cutoff rule
has remained constant since its inception,” the applicant “knew
or should have known that an intervening proposal filed on the
last possible day could act to deny him consolidation”).
Crawford’s position is not improved by the FCC’s
mistaken, but short-lived, docketing of his Mason proposal. As
we have held in a similar factual setting, “an agency’s failure to
follow its own regulations is fatal to the deviant action.”
Florida Inst. of Technology, 952 F.2d at 553 (internal quotation
marks omitted). Thus, the FCC’s erroneous docketing of the
Mason proposal did not give Crawford any “rights he would not
otherwise enjoy.” Id.; see also 21st Century Telesis Joint
Venture v. FCC, 318 F.3d 192, 202 (D.C. Cir. 2003) (holding
that the petitioner may not “turn a clerical error into a windfall
of rights it would not otherwise enjoy” (internal quotation marks
omitted)). Nor did Crawford detrimentally rely on the agency’s
failure to follow its own regulations. Rather, we agree with the
FCC that “[a]t most, Mr. Crawford was misled into thinking he
13
could file his proposals when he subsequently thought of them,
whereas they had long since been precluded.” Resp’t Br. at 18-
19.
B
Crawford next argues that the Commission’s Order failed
to adequately set forth its reasoning for upholding the dismissal
of his proposal. He insists that the daisy-chain rationale
discussed in Part I above and relied upon in the FCC’s brief is
merely a post hoc rationalization by the agency. This contention
also fails.
First, the Commission’s order made clear that the dismissal
of Crawford’s proposal was dictated by application of the cutoff
rule. See Commission Mem. Op. & Order, 19 F.C.C.R. at 470-
71 & n.3. It was the cutoff rule, not the rationale for the rule,
that was the basis for the preclusion of the Mason proposal. The
cutoff rule specifically applicable to amendment of the FM
Table of Allotments has been in effect since 1974. See
Amendment of Part 1, Subpart C (Rulemaking Proceedings), 39
Fed. Reg. at 44,021. And as discussed in Part I, the underlying
rationale for the FCC’s cutoff rules is well-recognized and oft-
repeated.7
Second, even if the FCC were required to explain the basis
7
See Florida Inst. of Technology, 952 F.2d at 549-52; Ranger,
294 F.2d at 243-44; see also Conflicts Between Applications and
Petitions for Rulemaking to Amend the FM Table of Allotments, 8
F.C.C.R. at 4744-45; Conflicts Between Applications and Petitions for
Rulemaking to Amend the FM Table of Allotments, 7 F.C.C.R. 4917,
¶¶ 1, 3-4, 8, 17 (1992); Pinewood, 5 F.C.C.R. ¶ 12; Implementation of
BC Docket No. 80-90, 5 F.C.C.R. ¶ 4 & n.6; Kittyhawk, 7 F.C.C.2d ¶
4.
14
for the cutoff rule itself, we think it adequately did so. The
decision under review in this case stated that “[a]llotment cut-off
procedures and the need for these procedures are clear and well
established.” Commission Mem. Op. & Order, 19 F.C.C.R. at
471 (emphasis added). In support of that proposition, it cited
(inter alia) an earlier Commission decision, see id. at 471 n.5
(citing Pinewood), which itself cited Ashbacker and discussed
the need for a cutoff rule to prevent “the continuous filing of
proposals,” Pinewood, 5 F.C.C.R. ¶ 12. Given this circuit’s
repeated recognition of the daisy-chain rationale, we have no
difficulty apprehending the shorthand reference. And as we
have previously observed, “[i]f the necessary articulation of
basis for agency action can be discerned by reference to clearly
relevant sources other than a formal statement of reasons, we
will make the reference.” Committee to Save WEAM v. FCC,
808 F.2d 113, 118 (D.C. Cir. 1986) (internal quotation marks
omitted); see Atchison, Topeka & Santa Fe Ry. Co. v. Wichita
Bd. of Trade, 412 U.S. 800, 807 (1973) (“An agency may
articulate the basis of its order by reference to other decisions.”
(internal quotation marks omitted)).8
C
Finally, Crawford contends that the Joint Parties’
8
Relatedly, Crawford cites a footnote in Florida Institute of
Technology for the proposition that the cutoff rule is inapplicable
“where allocation tables virtually eliminate the possibility of daisy
chain situations.” 952 F.2d at 552 n.2 (internal quotation marks
omitted). Closer examination makes clear, however, that the quotation
refers only to applications for channels that already have been allotted
to particular communities (so that there is no daisy-chain problem),
and not to petitions to amend the table of allotments in the first
instance. See id.; Pinewood, 5 F.C.C.R. ¶¶ 8, 12; Implementation of
BC Docket No. 80-90 to Increase Availability of FM Broadcast
Assignments, 2 F.C.C.R. 1290, ¶¶ 8-9 (1987).
15
counterproposal had “suspect bona fides,” such that the FCC
should have treated it as the product of impermissible collusion
between the Joint Parties and NationWide. Pet’r Br. at 22;
see id. at 11-13, 22-23. But Crawford offers nothing to support
these allegations, other than speculation based on NationWide’s
subsequent withdrawal of its expression of interest. See supra
note 3. In rejecting that speculation, the FCC relied on a
certification filed by the Joint Parties, under oath, denying that
there were any agreements made or consideration exchanged
between the Joint Parties and NationWide. Certifications of No
Consideration (J.A. 97-102); see Commission Mem. Op. &
Order, 19 F.C.C.R. at 471; Media Bureau Reconsid. Mem. Op.
& Order, 18 F.C.C.R. at 105. We have no grounds for second-
guessing the FCC’s decision to accept that denial.
IV
For the foregoing reasons, we dismiss Crawford’s petition
for review as moot with respect to the Benjamin proposal.
Although the petition is not moot with respect to the Mason
proposal, we deny that aspect of the petition on the merits
because Crawford received adequate notice that the proposal
could be precluded.
So ordered.