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

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

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
3

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).

2Generally, 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.

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),
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

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).

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
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

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

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
11

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.”). 

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 singlechannel 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
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

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. 

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 oftrepeated.7

Second, even if the FCC were required to explain the basis
14

8Relatedly, 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).

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’
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 secondguessing 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.