United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2017 Decided November 21, 2017

No. 16-1290

PRESS COMMUNICATIONS LLC,

APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLEE

ATLANTIC CITY BOARD OF EDUCATION,

INTERVENOR

On Appeal from an Order of the

Federal Communications Commission

Harry F. Cole argued the cause for appellant. With him on 

the briefs were Anne Goodwin Crump and Ashley Ludlow.

Thaila K. Sundaresan, Counsel, Federal Communications 

Commission, argued the cause for appellee. With her on the 

brief were Howard J. Symons, General Counsel at the time the 

brief was filed, Jacob M. Lewis, Associate General Counsel, 

and Richard K. Welch, Deputy Associate General Counsel.

Matthew T. Murchison argued the cause for intervenor. 

With him on the brief were James H. Barker, Matthew J. 

Glover, and Alexander L. Stout.
2

Before: PILLARD and WILKINS, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: Press Communications (Press) 

runs a radio station broadcasting from a small town on the 

Atlantic Coast in New Jersey. Press would like to move the 

station to different premises further inland—a move that for 

technological and regulatory reasons would require it also to 

shift to a new channel on the radio dial. Press accordingly

submitted an application to the Federal Communications 

Commission (FCC or Commission) for a license modification 

to permit its channel transfer. Specifically, Press asked the 

FCC to accommodate its move by authorizing Press to swap 

stations with Equity Communications (Equity). The proposed 

swap would assign Press’s WBHX (FM) the channel Equity’s 

WZBZ (FM) now occupies, and move Equity’s station to 

Press’s current channel. The FCC dismissed Press’s 

application because bumping Equity to Press’s channel would 

violate FCC channel spacing rules, putting Equity’s station too 

close to the Atlantic City Board of Education’s student run 

station WAJM (FM) and to Delaware station WJBR (FM). The 

Commission disagreed with Press’s view that, because Press 

filed its application after the lapse and before the untimely 

renewal of the Board of Education’s license, the short spacing 

problem was irrelevant. Press now asks us to set aside as 

arbitrary and capricious and inconsistent with the 

Communications Act of 1934 (Act) the FCC’s Memorandum 

Opinion & Order denying its application for review of the FCC 

Media Bureau’s decision. Because we conclude that the FCC 

acted reasonably and complied with the Act, we affirm the 

FCC’s Order.
3

I. BACKGROUND

A. LEGAL FRAMEWORK

Title III of the Act regulates American broadcast radio. 47 

U.S.C. § 301 et seq. The Act confers on the United States 

control “over all the channels of radio transmission,” id. § 301, 

charges the FCC with implementing a licensing scheme 

pursuant to the Act, id. § 303, and sets “public convenience, 

interest, or necessity” as the Commission’s guiding principles,

id. Operation of a broadcast radio station requires a license

from the FCC, id. §§ 301, 307(a)-(d), and a station must apply 

to the FCC for permission to modify its license, see 47 C.F.R. 

§ 73.3573. The FCC may dismiss an application that does not 

comply with FCC rules. Id. § 73.3566. The FCC’s rules cover

a lot of regulatory terrain, from the construction of radio towers 

to the conditions of broadcast operation. See generally 47 

C.F.R. subpts. B & H. Those rules spell out the conditions for 

modifying a station’s operation, whether by “major change”

such as new ownership, or “minor change” such as change to 

an adjacent channel. See id. § 73.3573. As FCC regulations 

explain, an application that does not comply with FCC “rules, 

regulations or other requirements,” “unless accompanied by an 

appropriate request for waiver, will be considered defective 

and will not be accepted for filing.” Id. § 73.3566. 

The rule at the heart of this case is Section 73.207 of the 

Commission’s regulations, which establishes minimum 

separation requirements for FM radio stations. Id. § 73.207. 

Each radio station has a home on the ground (its transmitter), 

and on the dial (its frequency). When two stations are not far 

enough apart both on the ground and on the dial, their signals 

are likely to interfere with one another, disrupting their 

broadcasts. The spacing requirements laid out in Section 

73.207 are designed to prevent that unwanted interference. The 
4

distance the FCC requires between station transmitters on the 

ground corresponds inversely to the distance between their 

frequencies on the dial. For example, for our purposes, the 

transmitters of “first-adjacent” channels, such as 99.3 and 99.5 

or 100.7 and 100.9, must be at least 113 kilometers apart; 

transmitters for “second-adjacent” channels, such as 99.3 and 

99.7 or 100.7 and 101.1, must have at least 69 kilometers 

between them. Id. § 73.207(b)(1) (Table A). As a general 

matter, an application that fails to meet these spacing 

requirements, both on the ground and between frequencies, is 

said to create short spacing and is therefore defective. Id. 

§ 73.207(a). 

Section 73.213 exempts the preexisting locations of 

“grandfathered” short spaced stations from compliance with 

the spacing rules of Section 73.207. See id. § 73.213. When 

the FCC adopted its minimum spacing requirements, it excused

stations at already-authorized locations from complying with

the new spacing criteria; as Section 73.213 explains, stations 

operating at locations authorized prior to 1964 or 1989 are 

thereby “grandfathered.” See id. § 73.213(a), (b). 

Grandfathered short spaced stations “may be modified or 

relocated” under Section 73.213, id., but any application for 

minor modification such as a change in channel “must” satisfy 

“the minimum spacing requirements of § 73.207” at the 

proposed new site “without resort” to the grandfathering

provision, id. § 73.203 Note. 

The FCC’s regulations also spell out licensing procedures. 

The Act provides that no station may broadcast without a 

federal license. 47 U.S.C. § 301. Once granted, “no such 

license shall be construed to create any right, beyond the terms, 

conditions, and periods of the license.” Id. A license term is 

“not to exceed 8 years,” id. § 307(c)(1), and may be renewed, 

id. §§ 307(c)(1), 309(k)(1). According to Section 73.3539 of 
5

the Commission’s regulations, applicants must submit 

broadcast license renewal applications to the FCC at least four 

months before the expiration of their current license terms. 47 

C.F.R. § 73.3539. In addition to processing license renewals, 

the FCC also handles license modifications. The FCC follows 

a “first come/first serve” processing sequence for license 

modification applications. Id. § 73.3573(f)(1). Under this cutoff rule, “the first acceptable application cut[s] off the filing 

rights of subsequent applicants” that would be mutually 

exclusive because, for example, they would use the same 

frequency or be so close as to create interference. Id.

B. FACTUAL BACKGROUND

On August 27, 2010, Press submitted a minor modification 

application to the FCC. At the time it applied, Press operated 

radio station WBHX from a facility it leased on a monthly basis 

in Beach Haven, Ocean County, New Jersey. Press sought to 

move the transmitter for WBHX to a new location that would 

be less prone to natural disaster and where it might find a longer 

term lease. Because moving its transmitter to a new location 

would make WBHX short spaced to nearby radio stations, 

Press proposed that the FCC effectuate an involuntary channel 

swap with the frequency now used by Equity’s station, WZBZ. 

Under Press’s proposal, Equity would keep its transmitters in 

their current location, but would switch frequencies with Press; 

that is, Equity would move on the radio dial from 99.3 to 99.7, 

while Press would move from 99.7 to 99.3. Broadcasting from 

99.3, Press could move its physical transmitters inland without 

short spacing itself to stations adjacent to 99.7.

In response to Press’s application, the FCC’s Media 

Bureau sent a deficiency letter notifying Press that its 

application involved two impermissible short spacings. The 

letter first explained that the proposed swap would leave 
6

Equity’s station, WZBZ, short spaced to Atlantic City Board of 

Education station WAJM, located at 88.9 on the dial. Press had 

acknowledged in its application that, were the swap to take 

place, Equity’s station would “theoretically” be short spaced to 

the Board of Education’s station, but argued the concern was 

“moot” because the Board of Education had failed to renew its

broadcast license. J.A. 57. The Board of Education’s license 

had expired in June 2006, and it did not submit a renewal 

application to the FCC until three weeks after Press submitted

its minor modification application. Even though the Board of 

Education’s license had expired, the Media Bureau recognized 

WAJM as an operational station (albeit broadcasting 

unlawfully) and disagreed with Press’s contention that the 

minimum distance requirement between WZBZ and WAJM

was “moot” or otherwise immaterial. 

Second, the new dial position Press proposed for Equity’s 

WZBZ—i.e. the position Press now holds—would, if occupied 

by Equity, make the station short spaced to Delaware station 

WJBR 99.5. Equity’s current dial position is also short spaced 

to WJBR, but enjoys grandfather status there. The move from 

99.3 to 99.7 would not change the distance between Equity and 

WJBR on the dial: At either location, Equity would be .2 MHz 

away from Delaware station WJBR 99.5. Nor would the 

physical distance between the two stations change: The tower 

locations and hence ground distance between the two stations 

would remain the same. The move, therefore, would not 

exacerbate Equity’s existing short spacing. But the Media 

Bureau wrote that the conventional spacing rules of Section 

73.207 applied to Equity’s move, and Equity would not meet 

those minimum spacing requirements with respect to WJBR at 

its new location; that short spacing, the Commission ruled,

“constitute[d] an acceptance defect.” J.A. 261. The Bureau 

noted that Press had “failed to cite any precedent for proposing 

an involuntary channel substitution to a grandfathered short-
7

spaced station.” J.A. 261 n.3. It therefore deemed the WZBZWJBR short spacing a defect in Press’s application. 

The Media Bureau gave Press thirty days to cure those two 

defects, and warned Press that failure to do so would result in 

a dismissal of its application. Press responded by insisting that 

its initial application was not defective because it “would not 

result in any unacceptable channel separations.” J.A. 276. It 

neither cured the defect nor sought a waiver, but urged the 

Bureau to accept its application as-is.

In an Order also granting the Board of Education’s renewal 

application, the FCC’s Media Bureau formally dismissed

Press’s minor modification application. In re Applications of 

Atl. City Bd. of Educ. & Press Commc’ns, LLC, 30 FCC Rcd. 

10,583 (Media Bureau 2015) (Bureau Order). The Bureau 

determined that the two short spacings rendered the application 

defective. Because Press declined to remedy the defects or to 

seek a waiver of the spacing rules, the Bureau dismissed its 

application. Id. at 10,585-87. Press then submitted to the full 

Commission an application for review of the Media Bureau 

decision. The Commission denied the application. In re Atl. 

City Bd. of Educ. & Press Commc’ns, LLC, 31 FCC Rcd. 9380 

(2016) (FCC Order). This appeal followed.

II. DISCUSSION

Press advances two arguments for reversal of the FCC’s 

decision to dismiss its modification application. It asserts first 

that the transfer of a grandfathered short spaced station is 

permitted under the FCC’s grandfathering rule, 47 C.F.R. 

§ 73.213, making arbitrary and capricious the agency’s

enforcement of its conventional spacing rules against a short

spacing between Equity’s WZBZ and Delaware station WJBR. 

Second, Press contends that the agency’s decision to accept the 

Board of Education’s late-filed application to renew the license 
8

for WAJM is contrary to the Communications Act and 

constitutes an arbitrary and capricious waiver of the agency’s 

deadline and cut-off rules. 

Press must prevail on both arguments in order for us to set 

aside the FCC Order. If either of those arguments fails—that 

is, if the FCC acted reasonably in rejecting the application on 

the basis of either the WZBZ-WBJR short spacing or the 

WZBZ-WAJM short spacing—we must uphold the agency’s 

decision to dismiss Press’s application. 

A. GRANDFATHERED SHORT SPACING: WZBZ-WJBR

We review the FCC’s decision only to determine whether

it was “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 

Our review is “very deferential,” Rural Cellular Ass’n v. FCC, 

588 F.3d 1095, 1105 (D.C. Cir. 2009). “Normally, an agency

[decision] would be arbitrary and capricious if the agency has 

relied on factors which Congress has not intended it to 

consider, entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs 

counter to the evidence before the agency, or is so implausible 

that it could not be ascribed to a difference in view or the 

product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the 

U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 

As we consider the FCC’s explanation for its decision, we 

recognize the FCC’s interpretation of its own regulations

“control[s] unless plainly erroneous or inconsistent with the 

regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) 

(internal quotations omitted).

We first consider whether the Commission permissibly 

dismissed Press’s application to move Equity’s station without 

Equity’s consent from its current location, where it is short

spaced but grandfathered under the Commission’s rules, to an 
9

alternative short spaced location. The FCC contends that any 

change in channel must meet the spacing requirements. Press 

would therefore at least need to establish that its proposed 

move yields adequate channel spacing or, alternatively, obtain 

a waiver of the spacing rule. Press does not dispute that its

proposed move would leave Equity short spaced to Delaware 

station WJBR, and it did not ask the Commission to waive its

spacing rules. It also failed to point to any precedent for an 

involuntary transfer of a third party’s station to a short spaced 

location in the absence of a waiver. Press instead rests on its 

assertion that grandfathered stations simply are not subject to 

the conventional spacing rules. We conclude otherwise. 

The FCC rationally applied its spacing rules, consistent

with its past practice, when it dismissed Press’s application. 

Press focuses on Section 73.213(b) of the Commission’s rules, 

which provides that “[s]tations at locations authorized prior to 

May 17, 1989, that did not meet the . . . separation distances 

required by § 73.207 and have remained short-spaced since that 

time”—such as Equity’s station WZBZ—“may be modified or 

relocated.” 47 C.F.R. § 73.213(b). But the regulation does not 

require the Commission to grant a modification application that 

imposes involuntary relocation on a third party, nor does it 

grandfather that third party’s short spacing in the absence of a 

request to waive the short spacing prohibition. Our inquiry, 

then, cannot end with Section 73.213(b). 

A grandfathered station qualifies for a change in channel, 

says the FCC, only if it meets standard spacing requirements at 

its new location. Press’s argument to the contrary ignores a 

crucial provision of the regulatory scheme: Applications for a 

change in channel—like the one Press seeks for itself and

Equity’s station WZBZ—must satisfy “the minimum spacing 

requirements of § 73.207 at the site specified in the application, 

without resort to the provisions of the Commission’s rules 
10

permitting [grandfathered] short spaced stations as set forth in 

[§] 73.213.” 47 C.F.R. § 73.203 Note (emphasis added). Even

without any deference to the Commission, we find it plain that 

the Note to Section 73.203 means that a short spaced station 

grandfathered under the rule is not necessarily permitted to rely 

on its prior grandfathering when it transfers channels. In any 

event, under Auer v. Robbins, the FCC’s interpretation of 

Section 73.203 is “controlling” because it is neither “plainly 

erroneous” nor “inconsistent with the regulation.” 519 U.S. at 

461. Press’s application to swap Equity into a new shortspaced 

channel position was therefore “not in accordance with the 

FCC rules,” and defective “unless accompanied by an 

appropriate request for waiver.” 47 C.F.R. § 73.3566(a). 

At argument, counsel for Press suggested that we could not 

rely on the Note to Section 73.203 without running afoul of the 

Chenery principle that a reviewing court may only affirm an 

agency’s action on the grounds the agency articulated. SEC v. 

Chenery Corp., 318 U.S. 80, 94-95 (1943). We have explained 

that “the contested decision need not be a model of clarity. As 

long as ‘the agency’s path may reasonably be discerned,’ we 

will uphold the decision even if it is ‘of less than ideal clarity.’” 

Casino Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d 715, 

717 (D.C. Cir. 2006) (quoting Bowman Transp., Inc. v. ArkBest Freight Sys., Inc., 419 U.S. 281, 286 (1974)). The FCC’s 

discussion of the WZBZ-WJBR short spacing is admittedly 

sparse, but the Bureau Order invokes the principle that 

involuntary channel changes for grandfathered stations must 

meet the FCC’s minimum spacing requirements. The agency 

need not have cited the Section 73.203 Note by name, so long 

as it made clear that Equity was subject to the spacing rules of 

Section 73.207. Bureau Order, 30 FCC Rcd. at 10,586. We 

can reasonably discern the Bureau’s path in its decision

enforcing the spacing requirements. Our consideration of the 

FCC’s citation of the Note in support of an already-familiar 
11

argument is therefore consistent with Chenery. In Chiquita 

Brands International, Inc. v. SEC, for example, we found “no 

violation of the Chenery principle” where the SEC’s reasoning 

was initially “articulated only briefly and in a somewhat 

conclusory fashion” and the agency in this court invoked 

reasoning “not specifically discussed in the order under 

review.” 805 F.3d 289, 299 (D.C. Cir. 2015).

The FCC’s enforcement of its spacing rules was also 

consistent with its past practice. Press sought an unprecedented 

license modification from the Commission. It asked to move 

Equity involuntarily to a new short spaced location. As Press 

conceded at oral argument, it could identify no prior case in 

which the Commission granted an application to move a third 

party’s grandfathered station to a different short spaced 

location without its consent. The FCC emphasized in its Staff 

Letter and the Bureau Order that there is no precedent for 

“involuntarily changing one station’s short-spaced channel to 

another short-spaced channel.” Bureau Order, 30 FCC Rcd. at 

10,586; see also J.A. 261 n.3. Regardless of a station’s 

grandfathered status, the FCC may force an involuntary 

transfer only if, “in the judgment of the Commission,” doing so 

would “promote the public interest, convenience, and 

necessity.” 47 U.S.C. § 316(a)(1). The statute leaves to the 

Commission’s discretion whether a transfer benefits the public, 

and Press has failed to identify any way in which the 

Commission exercised that discretion arbitrarily here.

Press rests instead on precedent approving voluntary 

moves by grandfathered stations. Even if Equity had joined 

with Press to apply for a voluntary station swap, however, the 

FCC’s precedent would not compel the agency to disregard its 

spacing rules. Rather, the FCC would merely be authorized to 

do so if, in its judgment, waiving the short spacing prohibition 

were shown to be in the public interest. In In re Eatonton, the 
12

Commission laid out the framework under which it is 

“appropriate to consider waiving strict application of Section 

73.207.” In re Eatonton and Sandy Springs, Ga., and Anniston 

and Lineville, Ala., 6 FCC Rcd. 6580, 6583 (Media Bureau

1991) (Eatonton). Waiver may be proper if: (1) no new short 

spacings are created; (2) no existing short spacings are 

exacerbated by bringing the relevant stations closer together; 

and (3) the potential for interference does not increase. See id.

The Commission has applied that waiver framework to 

applications seeking voluntary transfers of grandfathered 

stations to alternative short spaced locations. See In re Newnan 

and Peachtree City, Ga., 7 FCC Rcd. 6307, 6308 (1992). 

While a grandfathered station may change channels, then, it 

may only do so pursuant to an FCC waiver of Section 73.207’s 

requirements. 

Press responds that its application did not create “any 

unacceptable channel separations,” J.A. 276, so Press “did not 

propose a waiver [because] no waiver request was necessary,”

Appellant’s Br. 39—an assertion we have already rejected. To 

the extent Press argues it did in fact seek a waiver by eventually 

claiming that its request met the Eatonton framework, that 

belated contention does not render the Commission’s decision

arbitrary and capricious. Eatonton creates no entitlement to a 

waiver even where the specified circumstances are present, but 

merely sets out factors under which the Commission will 

“consider” waiver. The decision explains that “waivers of our 

spacing rules will not be granted absent a showing of 

compelling need,” Eatonton, 6 FCC Rcd. at 6584, and, indeed,

the Bureau declined to waive the spacing requirements in 

Eatonton itself, where the proposed channel transfer would 

have actually reduced existing short spacing. Id. 

Press has also argued that Eatonton does not impose an 

affirmative burden on applicants to seek spacing waivers; in 
13

other words, Press suggests the Commission should have 

conducted an Eatonton-style waiver analysis as a matter of 

course. Press cites rulemakings in which the Bureau applied 

the three-factor test without specifying that it did so in response 

to a party’s waiver request. Even where the Eatonton 

requirements may be met, however, the agency still makes 

case-by-case public-interest determinations, see id., and no 

party is entitled to waiver of the minimum spacing criteria as a 

matter of right.

Waivers of the spacing requirements are but one avenue 

by which the FCC may further the public’s “interest, 

convenience and necessity”; the Eatonton factors are a subset 

of the agency’s more general public interest consideration. See

id. at 6580, 6584. When the Bureau offered Press an 

opportunity to supplement its initial application—which did 

not so much as allude to waiver—Press eventually asserted that 

“all” of the Eatonton “factors are present here” and claimed its 

application would further the public interest. J.A. 275-78. The 

Media Bureau, however, remained unpersuaded. Press

discussed the anticipated spacing effects of its proposed swap, 

but offered no support for its contention that the swap would 

not increase interference. It also did not convince the FCC that 

the order approving the swap, which Equity opposed, would

nonetheless be in the interests of the public. Equity, 

meanwhile, told the Commission that “there was a good policy 

reason” that Press’s proposed involuntary swap was 

unprecedented: Not all short spaced allotments are created 

equal. “Equity should not be forced to accept an alternate 

short-spaced allotment that may prove to be operationally 

deficient to that of its existing allotment merely to facilitate a 

change by another station.” J.A. 104. With Press’s and 

Equity’s arguments before it, the Commission determined 

there was no “compelling need,” Eatonton, 6 FCC Rcd. at 

6584, or public interest sufficient to merit departure from its 
14

spacing rules. That decision, based on the objectives the 

Communications Act sets for the agency and FCC precedent 

seeking to serve those objectives, was not arbitrary or 

capricious. 

In short, FCC regulations, decisions, and practice support 

the Commission’s contention that applications for minor 

modifications are subject to the spacing requirements 

articulated in Section 73.207. Any nonconforming application

requires a waiver of that rule, and Press failed to justify such 

waiver. The Commission reasonably rejected its application as 

defective. We accordingly deny Press’s challenge to the FCC’s 

Order. 

B. LICENSE RENEWAL: WZBZ-WAJM

The Bureau Order also relied on a separate ground: The 

channel swap Press proposed in its application would create a 

conflict with WAJM, a station run by the Atlantic City Board 

of Education. Press argues that because WAJM had not filed 

for renewal of its expired license at the time of Press’s mutually 

exclusive application, the FCC was required to give Press the 

benefit of the cut-off rule and deny WAJM’s subsequent, latefiled renewal application.

Because the short spacing defect between WZBZ and 

WJBR is independently sufficient to support the FCC’s Order, 

we do not reach Press’s alternative argument. Press’s assertion 

of cut-off rights vis-à-vis the Board of Education’s station also 

is of limited prospective importance because the Media Bureau 

has adopted a new policy for processing license renewal 

applications that makes lapses like the Board of Education’s 

less likely to recur. FCC Order, 31 FCC Rcd. at 9384 n.30. 

Under its new policy, the Bureau monitors licenses due to 

expire and issues “a notice of apparent liability if the renewal 

has not been filed within 30 days of the original due date.” Id. 
15

A licensee in receipt of such a notice faces apparent liability

that presumably will prompt it to file a renewal application 

before its license expires. 

* * *

We uphold the FCC’s Order as valid based on the failure 

of Press’s proposed channel swap with Equity to comply with 

the applicable short spacing bar or establish its entitlement to a 

waiver of that bar. Because that defect suffices to support the 

Order, we do not reach Press’s challenge to the FCC’s licenserenewal practices, which have in any event been superseded by 

the new policy. 

So ordered.