# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2005 Decided August 5, 2005

No. 04-1031

C HARLES C RAWFORD

, P ETITIONER

v.

F EDERAL C OMMUNICATIONS C OMMISSION AND

U NITED S TATES OF A MERICA

, R ESPONDENTS

On Petition for Review of an Order of the

Federal Communications Commission

G ene A. Bechtel argued the cause and filed the b riefs 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 A ndrea Limmer , Attorneys, J ohn

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: R

ANDOLPH , T

ATEL , and G

ARLAND

, Circuit Judges

.2

1 In the Table of Allotments, each channel allocated to a particular

community is identified by a number between 221 and 3 00, 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 G ARLAND

.

G ARLAND

, Circuit Judge :

Charles Crawford petitions for

review of the Federa l Communications Commission’s dismissal

of two proposals he filed to a mend the Commission’s Table of

Allotments for FM radio channels. Crawford’s principal

contention is that he lacked notice that hi s proposals could be

precluded by another applicant’s earlier-filed submis s ion. 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 F M Table of Allotments. Second,

a prospective broadcaster m ay then apply for a license or

construction permit for that frequency in that community.

The Table of Allotments c an be amended only by rule. S ee

A mendment 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 prop osed rulemaking (NPRM), often in

response to a broad caster’s petition. The notice sets forth the

p roposed change

-- for instance, “allot channel 229C at

Houston”

-- and announces periods for initial comments and

reply comm

ents. 1 During the initial comment period, the FCC3

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 minim um 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 initia l proposal. It also accepts

counterproposa ls that are “mutually exclusive” with the initial

proposal. 2 S

ee 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 ame ndment to the Table of Allotments may be

possible only if another

amendment is made, broadcasters

commonly submit proposals or counterproposals that include

multiple a mendments. In a given docket, the FCC considers the

initial p roposal and any counterproposals that are filed during

the ini tial comment period. Also treated as counterproposals are

any ostensibly f

reestanding proposals that conflict with the

initial proposal or with other cou nterproposals -- as long as they

are filed before the end of the initial co mment period. S ee, e.g.

, Not ice 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 Allotme

nts, FM Broadcast Stations , 16 F.C.C.R.

14,085, 14,085-86 (2001); see also 47 C.F.R. § 1.420(d).

A fter the initial comment period, any proposals that are

mutually exclusive with those considered in the procee ding are

“cut off” from consideration pursuant to 47 C.F.R. § 1.420(d),4

which states: “C ounterproposals shall be advanced in initial

comments only and will not b e 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. S ee id

. at 330-31. As this Circuit

explained in Ranger v. FCC , 294 F.2d 240 (D.C. Cir. 1961):

Obvi ously, 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 litigatio n as a chain

reaction. Let us assume three towns, A, B and C, fifty

miles apart in a straight g

eographical line. Application

for a broad cast station at A is made. Grant of that

application w ould preclude a station at B on the same

or an adjacent channel; it would n ot affect the

possibility of a station at C. Before the application for

A has been acted upon, an applicant f iles for a license

at B and asks for a comparative hea ring 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

co uld go on indefinitely and could eventually involve

every potential broa d cast-station situs in the United

States.

Id. a t 243. And as we further noted in F lorida Institute of

Technology v. FCC

, “[i]f the filing deadline for each link of a

daisy chain” of applications like that des cribed above “were5

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 o f conflicting

proposals, the FCC’s cuto f f rule prevents this kind of daisy

chain of applicat

ions from going on indefinitely. This circuit

has repeatedly invoked the daisy-chain rationale in u pholding

the FCC’s applicatio n of cutoff rules in different broadcast

contexts. S

ee, e.g.

, Florida Inst. of Technology

, 952 F.2d at 549-

52; Range r , 294 F.2d at 243-44. We have not, however,

previously addre ssed 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. I d. 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 twe nty-two changes to the Table of Allotments. This

counterproposal conflicted with NationWide’s proposal for

Quanah because it proposed allotting th e same channel at a

nearby location. Due to a clerical error, the FCC did not place

the Joint Parties’ counterproposal in its database or otherwise6

3 In the counterproposal, the Jo i nt 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

be c ame clear that channel 255C3 was not actually available for

Quanah, however, Nati

onWide withdrew its expression of interest in

any channel, stating that it “did not wish to be pla ced in an

advers[a]rial positio n 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 chann e l 257C2 at Benjamin,

Texas. One week later, Crawford filed a second proposal,

seeking to allot channel 249C3 a t Mason, Texas. Each of these

proposals conflicted with a piece of the Joint Parties’

counterproposal in the Qu anah 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 gi ven 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 petitio ns as precluded by the Joint

Parties’ counterproposal. The Bureau explained that even

though the counterproposal had not been publicized

immediately, it had been sub m itted before the end of the initial7

comment period for the Quanah proposal, and it therefore

precluded late-filed conflicting proposals. Crawford petitioned

for reconsideration, claiming principal ly 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) (“

Me dia Bureau Reconsid. Mem. Op. & Order ” ),

Crawford submitted an ap plication for review by the full

Commission. The FCC denied that petition, A mendment of

Section 73.202(b), Table of Allotments, FM Broadcast Stations

, 19 F.C.C.R. 470, 470-71 (2004) (“ Commission M em. Op. &

Order ”), and Crawford petitioned for review in this court.

II

Bef ore confronting the merits of Crawford’s petition for

review, we must consider whether t his case is moot. As

Crawford notes, the Joint Parties ha ve withdrawn the piece of

th eir proposal that conflicts with his proposed Benjamin

allotm ent. S ee 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. I d. at 8; see

al so 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 i nitial position was correct.

Crawford’s clai

m 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 Pa rties’

co unterproposal and denied the Joint Parties’ petition for

reconsideration

of that decision. S

ee Resp’t Br. at 7 & n.15.

But the decision has not yet become final, and Crawford’s

Mason proposal remains precluded. I d

. The controversy as to

Mason thus remains a live one. We proceed, then, to consider8

the merits of Crawford’s petition only with respect to the Mason

proposal.

III

Crawford’s pri

ncipal contention is that he lacked notice

that his proposal could b e precluded by the Joint Parties’

submission. He also contends that the FCC failed to adequately

set forth its rationale for denying his petition, and th at the FCC

should have rejected the Joint Parties’ counterproposal as the

product of impermissible collusion between t h e Joint Parties and

NationWide. We consider these challenges below.

A

The Administrative Procedure Act provide s that an agency

that conducts an inform al rulemaking typically must publish

“[g]e neral notice of proposed rule making . . . in the Federal

Register.” 5 U.S.C. § 553(b). The same section further provides

that, “[a]fter not

ice required by this section, the agency shall

give interested persons an opportunity to participate in the rule

making through su

bmission 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 requirem e nts presume that the

contours of the agency’s final rule m ay differ from those of the

rule it initially proposes i

n an NPRM. It is well-settled that an

agency need not initiate a new notice-and-comment period as long as the r

ule 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

Ci r. 1978). Whether the “logical outgrowth” test is satisfied

depends, in turn, on whether the af fected party “should have

anticipated” the agency’s final course in light of the initial

notice. S mall Refiner Lead Phase-Do wn 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 no t a logical

outgrowth of the Quanah NPRM. The Joint Parties’

counterp r oposal, he argues, was simply too complex for

preclusion of the Mason proposal to have been “rea sonably

foreseeab le,” Pet’r Br. at 17, by virtue of that NPRM. How did

that counterproposal confli c t 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, T exas; this change necessitated a

“chain reaction” of amendments, the third of which conflicted

with the Quanah proposal. The Keller change also spurred an

a d ditional 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 no tice, for two

reason s. 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

Qua nah NPRM, as well as the FCC’s regulations, made clear

that the procee ding would encompass mutually exclusive

counterproposals and that late-filed conflicting proposa ls would

be cut off. S

ee 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 count erproposal --

whether foreseeable or not

-- that was filed by t he deadline,

mutually exclusive with the Quanah proposal, and mutually

exclusive with their own. S ee Commission Mem. Op. & Order

,10

4 See Conflicts Between Applicati o ns 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 app l icants must file by the

comment deadline stated in the notice of proposed rule making in the

allotment proceeding”); s ee also id. ¶ 8 (“The fact that we may a llot

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 h ere, the minimum permissible distance 19 F.C.C.R. at 471 & n.6. Thus, when the FCC deemed

Crawfor d’s proposal precluded, that was more than just a “logical outgrowth” of th

e Quanah NPRM. Rather, the FCC

was “merely doing that which [it] an nounced” it would do.

Media Bureau Re consid. 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 re quire that

an affe cted party be able to anticipate a preclusive outcome in a

partic ular allotment proceeding, that test would be satisfied here.

In light of the FCC’s minimum distance separation

requiremen

ts, Crawford should at least have known that

NationWide’s initial proposal to allot channel 23 3C3 at Quanah

could conflict with a counterpropo sal that included only a single

channel up to 147 miles

away. 5 Such a channel, in turn, could11

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 confl i ct

between two proposals by giving one community a different channel

than the one proposed for it. S ee, 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 th an was requested for any of the

co mmunities involved.”); P inewood

, 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 substit uted for either the original

proposal or the counterproposal, both the actual counterproposal

advanc e d 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 fo r Mason -- as far away as

another 147 miles. Thus, the foreseeable radius of conflict

arising from even su

ch a simple proposal was 294 miles from

Quanah. 6

Mason is just 192 miles f

rom Quanah, well within this 294-

mile radius. S

ee Pet’r Br. a t 16. Thus, far from having to follow

the “labyrinthine trail” of the Joint Parties’ c ounterproposal, i d.

at 5, Crawford could reasonably hav e anticipated the preclusive

effect ofthe Quanah proposal simply by postulating a singlechannel counterproposal between the two cities. And had he

done so, he could have safeguarded his ow n 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’ co unterproposal

into its database or otherwise making it public. Under the12

FCC’s cutoff rule, Crawford was precl uded from filing his

Mason proposal after the close of t he 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

c ounterproposal until the last day of the period (as the ru l e permitted), after which i

t was too late for Crawford to take

effective acti

on -- 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 discus sed above, that notice apprised Crawford that the only

way he c o uld reliably protect himself was to file his Mason

proposal within

the initial comment period that followed the

N PRM. It was Crawford’s failure to act during that period that

doomed his proposal. C

f. Kittyhawk

, 7 F.C.C.2d ¶ 4 (holding

that, because th

e “Commission’s interpretation of the cutoff rule

has remained constant since its inception,” the applican t “knew

or should have known tha t an intervening proposal filed on the

last possible day could act to deny him consolidation”).

Crawfor d’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

otherwis e enjoy.” I

d. ; see also 21st Century Telesis Joint

Venture v. FCC

, 318 F.3d 1 92, 202 (D.C. Cir. 2003) (holding

that the petitioner may not “turn a clerical error into a windfa l l

of rights it would not otherwise enjoy” (internal quotation marks

o mitted)). Nor did Crawford detrimentally rely on the agency’s

fail ure to follow its own regulations. Rather, we agree with the

FCC that “[a]t most, Mr. Crawford was misled into thinking he13

7 See Florida Inst. of Technology

, 952 F.2d at 549-52; R anger

, 294 F.2d at 243-44; see also Conf licts 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. co u ld file his proposals when he subsequently thought of them,

whereas they h

ad 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 relie d upon in the FCC’s brief is

merely a post hoc rationalization b y the agency. This contention

also fails.

First, the Commission’s ord er 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 sp ecifically applicable to amendment of the FM

Table of Allotme n ts has been in effect since 1974. S ee

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 we re required to explain the basis14

8 Relatedly, Crawford cites a footnote in Florida Institu te of

Technology for the proposition that the cutoff rule is i napplicable

“where allocation tables virtually eliminate th e possibility of daisy

c hain 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 tabl e of allotments in the first

instance. S

ee id. ; Pinewood

, 5 F.C.C.R. ¶¶ 8, 12; Implementation of

BC Docket No. 80-90 to Increase Availabili ty 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]ll otment 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, s ee id. at 471 n.5

(citing P inewood

), which itself cited Ashbacker and discuss e d

t he 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 sh orthand reference. And as we

have previously observed, “[i ]f the necessary articulation of

basis for agency action can be discerned by reference to clearly

relev ant sources other than a formal statement of reasons, we

will make the reference.” C ommittee to Save WEAM v. FCC

, 808 F.2d 113, 118 (D.C. Cir. 1986) (internal quotati on marks

omitted); see Atchison, Topeka & Santa Fe Ry. Co. v. Wichita

Bd. of Trade

, 412 U.S. 800, 807 (1973) (“An age ncy may

articulate the basis of its ord er 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

b etween 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. S ee supra

note 3. In rejecting that speculation, the FCC relied on a

certification filed by the Joint Part ies, under oath, denying that

there were any

agreements made or consideration exchanged

between the Joint Parties and Natio nWide. 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 res pect to the Benjamin proposal.

Although the petiti

on 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 propo sal

could be precluded.

So ordered.