United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 3, 2017 Decided July 21, 2017

No. 15-1500

NUEVA ESPERANZA, INC.,

APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLEE

G-TOWN RADIO, ET AL.,

INTERVENORS

On Appeal of an Order of the 

Federal Communications Commission

Devi M. Rao argued the cause for appellant. With her on 

the briefs were John L. Flynn and Matthew S. Hellman

Scott M. Noveck, Counsel, Federal Communications 

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

brief were Jonathan B. Sallet, General Counsel, and Jacob M. 

Lewis, Associate General Counsel. Richard K. Welch, Deputy 

Associate General Counsel, entered an appearance. 

Andrew Jay Schwartzman and Drew T. Simshaw were on 

the brief for intervenors G-Town Radio, et al. in support of 

appellee. 
2

Before: ROGERS and SRINIVASAN, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge: Appellant Nueva 

Esperanza, Inc., a nonprofit corporation based in Philadelphia, 

Pennsylvania, applied to the Federal Communications 

Commission in 2013 for a license to construct and operate a 

Low Power FM Radio (LPFM) station in Philadelphia. The 

Media Bureau of the Commission dismissed the Appellant’s 

application. The Commission affirmed, LPFM MX Group 304, 

NAACP Social Justice Law Project, et al., Application for a 

Construction Permit for a New LPFM Station at Philadelphia, 

Pennsylvania, 30 FCC Rcd. 13983 (2015) (the Order), and the 

Appellant now asks this court to vacate that decision. We 

affirm the decision of the Commission.

I. Background

In 2000, the Commission introduced the LPFM service “to 

create opportunities for new voices on the air waves and to 

allow local groups, including schools, churches and other 

community-based organizations, to provide programming 

responsive to local community needs and interests.” Creation 

of Low Power Radio Service, 15 FCC Rcd. 2205, 2213 (2000). 

To that end, it limited “eligibility for LPFM licenses ... to 

noncommercial, educational entities and public safety 

entities.” Id. at 2209. Although the Commission is required to 

resolve “mutually exclusive” applications by commercial 

applicants through a competitive bidding process, id. at 2213

(citing 47 U.S.C. § 309(j)), the Commission resolves mutually 

exclusive LPFM applications through a point system, in 
3

keeping with the noncommercial nature of the new service, id. 

at 2258. 

Under that system, the Commission gives an applicant one 

point for each of six characteristics, such as having an 

“established community presence of at least two years.” 

Commission Identifies Tentative Selectees in 111 Groups of 

Mutually Exclusive Applications Filed in the LPFM Window, 

29 FCC Rcd. 10847, 10848 (2014). 

Several community organizations, including the 

Appellant, applied during the October 2013 filing period to 

construct an LPFM station in Philadelphia, PA. After the 

Commission identified eleven applications, including that of

the Appellant, as mutually exclusive, Media Bureau Identifies 

Mutually Exclusive Applications, 28 FCC Rcd. 16713, 16715

(2013), it awarded five points to each of seven of the applicants, 

thus creating a seven-way tie, 29 FCC Rcd. at 10857-65

(announcing the “tentative selectees, i.e., the single applicant 

with the highest point total or the applicants tied for the highest 

point total from each [mutually exclusive] group,” id. at 

10847). Under the Commission’s procedures, 47 C.F.R. 

§ 73.872(c), in order to break a tie “two or more of the tied 

applicants in each [mutually exclusive g]roup may propose to 

share use of the frequency by filing ... a time-share proposal.” 

29 FCC at 10852. The Commission then “aggregate[s] the 

point totals of applicants that submit acceptable time-share 

proposals.” Id. 

Four of the tied applicants, not including the Appellant, 

filed a timeshare agreement and received 20 points. This group 

comprised G-Town Radio, Germantown United Community 

Development Corp., Germantown Life Enrichment Center, and 

South Philadelphia Rainbow Committee Community Center, 

Inc. (collectively, the Timeshare Applicants). The Appellant, 
4

together with another applicant, the Social Justice Law Project

of the Philadelphia NAACP, Inc., which had received five 

points, also filed a timeshare application, thereby receiving ten 

points. Because their point total was higher, the Timeshare 

Applicants were awarded the license. 

Two months before the Timeshare Applicants filed their 

agreement, the Appellant and the NAACP Project had 

petitioned the Commission to deny several applications, 

including those of three of the Timeshare Applicants, viz., GTown Radio, Germantown United Community Development 

Corporation, Germantown Life Enrichment Center, and 

Historic Germantown Preserved. In its petition to deny, the 

Appellant argued those four applicants had violated the 

Commission’s rule prohibiting multiple applications, by or on 

behalf of the same applicant, 47 C.F.R. § 73.3520, alleging that 

the parties were all acting on behalf of G-Town Radio. The 

three Germantown applicants in the Timeshare group filed an 

opposition, claiming they were all independent entities, each of 

which “pledg[ed] to operate a radio station on their own” but 

recognized their best chance at operating a station 

dedicated to Germantown was by working together at 

the outset with plans to potentially aggregate points 

during the Mutually Exclusive ... stage so that they 

might share time on a single station.

In reply to the opposition, the Appellant argued this preapplication collaboration by the Germantown entities was 

prohibited according to a blog post authored by William T. 

Lake, the Chief of the Media Bureau, intended to give guidance 

to applicants. Updated: The Low Power FM Application 

Window Is Fast Approaching, FCC BLOG (Oct. 21, 2013, 3:13 

PM), https://www.fcc.gov/news-events/blog/2013/10/21/updat
5

ed-low-power-fm-application-window-fast-approaching. The 

Blog Post provided “reminders and highlights” concerning the 

application process for the “new low-power FM radio station 

licenses during the next window, October 15 – November 14, 

2013.” Id. As relevant to this case, Mr. Lake noted:

Third, we will permit organizations in a community to 

work together to file a single ... application. 

Alternatively, organizations in a community could 

apply separately – for the same or different frequency –

knowing that they may decide later to aggregate points 

so they can negotiate a time-share agreement if the 

Commission determines that they are tied with the 

highest point total in the same mutually exclusive group

...

Fourth, please bear in mind that it is the specified

applicant on the application who must intend to carry 

out the station construction and operation described in 

the application. Therefore, multiple groups should not 

attempt to maximize the chances of receiving an LPFM 

construction permit by submitting multiple applications 

under the different groups’ names with a prior 

understanding that the groups will later share time or 

ownership with each other if just one applicant 

succeeds in getting a construction permit. If this prior 

understanding does exist, then all the applicants must 

be listed as parties to the application, and only one 

application can be filed (our rules only allow for one 

application per organization). The FCC requires 

applicants to be truthful when listing all the parties that 

have control over the applicant entity and, in the event 

the application is granted, would have control over the 

future LPFM station.
6

Id. We shall refer to these two paragraphs as the Third and 

Fourth Paragraphs.

The Media Bureau responded to the timeshare applications

and petitions to deny in a single decision, in which it granted 

the application of the Timeshare Applicants, dismissed the 

applications of the Appellant and others, and denied the 

Appellant’s petition to deny the applications of the four

Germantown applicants. The Bureau concluded the Appellant 

and the NAACP Project, its timeshare partner, “have not 

demonstrated that the Germantown Applicants violated any [of 

the Commission’s rules] in coordinating their applications with 

the intention of filing a joint time-share agreement or that the 

applications were filed for the benefit of G-town.” First, the 

Bureau found no evidence of “common control of the 

Germantown Applicants as a group,” noting that each had an

“independent corporate history and independent board,” and 

also noting the inclusion of a non-Germantown applicant, 

South Philadelphia, in the final timeshare group and the 

exclusion of Historic Germantown, one of the alleged 

colluders. The Bureau went on to say “there is no Rule 

prohibiting LPFM applicants from filing separate applications 

with the goal of arriving at a timeshare agreement, provided

that each applicant remains under separate control and intends 

to construct and operate the proposed station if its application 

is granted.” The Bureau also observed that the Third Paragraph 

of the Blog Post had “specifically approved of such 

agreements,” adding that the Appellant’s 

selective quotation from the Commission’s Blog 

ignores that coordinated applications from multiple 

applicants were prohibited only in cases where there is 

“a prior understanding that the groups will later share 

time or ownership with each other if just one applicant 

succeeds in getting a construction permit.” 
7

The Appellant petitioned the Media Bureau for 

reconsideration, which the Timeshare Applicants opposed. 

The Bureau denied reconsideration, once again concluding 

“that the Time-Share Applicants’ filing of separate applications 

and aggregation of points were consistent with the relevant 

portion of the Blog Post.” The Bureau explained that the 

Appellant had misinterpreted the Blog Post: 

Aggregation is explicitly limited by rule to “tied 

applicants” with “the same point total” whereas [the 

Appellant and its co-petitioner] rely on a portion of the 

blog directed at circumstances where “just one 

applicant succeeds in getting a construction permit,” 

e.g., a single applicant with the most points 

nevertheless has previously committed to allow others 

to share time even if the others would be eliminated due 

to fewer points or other problems.

The Appellant sought review by the Commission, which the 

Commission denied for the reasons given by the Bureau: 

“Neither the [Commission’s rules] nor the LPFM Blog Post 

prevented the Germantown Applicants from agreeing to 

aggregate their comparative points prior to filing their 

applications.” 30 FCC Rcd. 13983, 13983. 

II. Analysis

The question presented by the Appellant is whether the 

Blog Post prohibits timesharing arrangements between LPFM 

applicants before tentative selectees are announced. Because 

we conclude the Appellant’s interpretation of the Blog Post is 

not correct, we affirm the Commission’s denial of the 

Appellant’s application for review without reaching the 
8

Appellant’s claim that the Blog Post – as the Appellant

interprets it – is binding upon the agency. 

A. The Commission’s Interpretation of the Blog Post

Under the Administrative Procedure Act, we are to “hold 

unlawful and set aside agency action, findings, and conclusions 

found to be ... arbitrary, capricious, an abuse of discretion, or 

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

Although we defer to an agency’s interpretation of its own 

regulation if it is not “plainly erroneous or inconsistent with the 

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

(internal quotation marks omitted), “it is the court that 

ultimately decides whether a given regulation means what the 

agency says.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 

1208 n.4 (2015). 

The Appellant argues the Blog Post said entry into

timesharing arrangements was prohibited before the filing of 

parties’ applications, and until the Commission has announced 

the points awarded to each applicant. For this, the Appellant 

relies upon the Fourth Paragraph of the Blog Post, insofar as it 

states: 

[M]ultiple groups should not attempt to maximize the 

chances of receiving an LPFM construction permit by 

submitting multiple applications under the different 

groups’ names with a prior understanding that the 

groups will later share time or ownership with each 

other if just one applicant succeeds in getting a 

construction permit.

The Commission argues, as the Media Bureau said, that the 

arrangement here was consistent with the Third Paragraph,

which provides: 
9

[O]rganizations in a community could apply separately 

– for the same or different frequency – knowing that 

they may decide later to aggregate points so they can 

negotiate a time-share agreement if the Commission 

determines that they are tied with the highest point total 

in the same mutually exclusive group.

Therefore, per the Commission, the Appellant’s proposed 

interpretation of the Fourth Paragraph would make it

inconsistent with the Third Paragraph. 

The Appellant discounts the Commission’s reading of the 

Third Paragraph, arguing that paragraph merely “explains that 

parties are obviously allowed to know that the LPFM licensing 

regime allows for aggregation of points upon the awarding of 

tied point totals to multiple applicants.” According to the 

Appellant, the Fourth Paragraph instead prohibits applications 

from parties that have entered into a “preexisting agreement to 

share points.” In other words, according to the Appellant, 

“know[ledge] that [the applicants] may decide later to 

aggregate points,” as permitted by the Third Paragraph, is 

different from “a prior understanding that the groups will later 

share time,” which is prohibited by the Fourth Paragraph. 

This distinction is seemingly irrelevant considering the 

Commission’s determination that the record does not show the 

Germantown applicants entered into any sort of binding 

agreement. Passing that point, we agree with the Commission 

that the Appellant’s distinction between “concrete agreements 

to share points” (prohibited) and “discussions” of future plans 

(permitted) cannot be drawn from the Blog Post and would be 

difficult to enforce. As the Commission persuasively explains, 

the phrase in the Third Paragraph, “knowing that they may 

decide later to aggregate points,” alludes to the Commission’s 
10

requirement that timeshare agreements may be filed only after 

“tentative selectees” are announced by the Commission. 

Next, the Appellant contends a prohibition of timeshare 

arrangements before tentative selectees are announced is 

implicit in the Commission’s regulations requiring applicants 

to submit timeshare agreements only after that announcement. 

As the Commission points out, however, the reason for this 

requirement is simply that “[i]t would make little sense to allow 

premature submission of time-sharing arrangements that may 

turn out to be invalid if one of the parties is found ineligible to 

participate.” 

As the Media Bureau stated in its denial of the petition for 

reconsideration, the Appellant’s interpretation also requires us 

to ignore the phrase in the Fourth Paragraph, “if just one 

applicant succeeds in getting a construction permit.”

According to the Commission, the Fourth Paragraph merely 

“forbids agreements that would allow an organization that does 

not qualify as a tentative selectee (and thus is not eligible to 

receive the license or to participate in any time-sharing 

arrangement) to nonetheless share in a winning applicant’s 

airtime.” The Commission argues this interpretation must be 

understood in light of the last sentence, which states 

“applicants [must] be truthful when listing all the parties that 

have control over the applicant entity and, in the event the 

application is granted, would have control over the future 

LPFM station”; that disclosure would not be necessary if, as in 

this case, each party to a timesharing agreement also had 

applied separately and was listed in the agreement as a group 

member. We agree.

The Appellant, however, argues the Commission’s 

interpretation is implausible because “when ‘just one applicant

succeeds in getting a construction permit,’” that one applicant 
11

must have received the highest point total and anticipated with 

certainty that it would do so, thus leaving “no way for [a] prior 

agreement between the parties to ‘maximize the chances of 

receiving an LPFM construction permit.’” The Commission

convincingly responds that the award of points is not always a 

straightforward exercise, citing several disputes in LPFM 

licensing matters to show the award of points is not as 

predictable as the Appellant assumes. Because applications are 

also often rejected for technical reasons and applicants cannot 

always predict who will be placed in a “mutually exclusive” 

group, the Commission persuasively argues that a sole winning 

applicant could have rationally sought to “maximize” its 

chances by entering into an agreement with others at some 

point before tentative selectees are announced.

Finally, the Appellant contends its reading of the Blog Post

is more sensible than the Commission’s because allowing 

agreements to aggregate points before tentative selectees are 

announced would invite “gamesmanship.” Here, it argues, the 

Germantown applicants “stack[ed] the deck in their favor ...

virtually ensur[ing] they would win the license from the 

outset”; only the Appellant’s reading would “level[] the 

playing field for a strong applicant like Esperanza that applied 

in good faith, to ensure that [it] is not shut out of the process,” 

and would give “all of the tied entities a shot at teaming up with 

others to amass the most aggregated points.” 

The point is not without some merit. In its 2012 Report 

and Order the Commission acknowledged “the potential for 

gamesmanship in the voluntary timesharing process,” but 

decided to stick with that process because “it is one of the most 

efficient and effective means of resolving mutual exclusivity 

among tied LPFM applicants.” Creation of a Low Power 

Radio Service, Sixth Report & Order, 27 FCC Rcd. 15402, 

15474 (2012). Had the Commission committed in 2012 to 
12

reducing gamesmanship at all costs, then the Commission’s 

rejection of the Appellant’s interpretation of the Blog Post 

would seem anomalous and, if unexplained, perhaps arbitrary 

and capricious. But the Commission struck a balance, 

accepting the risk of some gamesmanship in order to encourage 

voluntary resolutions. Id. The time for objecting to that 

determination has long since passed. See 47 U.S.C. § 402.

In sum, the Appellant has given us no reason to think the 

Commission’s interpretation of the Blog Post is arbitrary and 

capricious. Therefore, we need not reach the question whether 

the Blog Post is binding upon the Commission.

B. Fair Notice

The Appellant also argues it did not have fair notice of the 

Commission’s interpretation of the Blog Post. See, e.g., 

Satellite Broad. Co. v. FCC, 824 F.2d 1, 4 (D.C. Cir. 1987). 

We agree with the Commission that the Appellant has forfeited 

this argument.

To preserve the argument for appellate review, the 

Appellant was required to present it to the Commission in its 

application for review of the Media Bureau’s decision. 47 

U.S.C. § 405(a). See, e.g., Bartholdi Cable Co. v. FCC, 114 

F.3d 274, 279 (D.C. Cir. 1997) (“It is ‘the Commission’ itself 

that must be afforded the opportunity to pass on the issue”). 

The Appellant argues it did present the argument in its 

application for review when it argued that it would have tried 

to make a similar timesharing agreement “[h]ad the policy on 

pre-application and pre-mutually exclusive phase agreements 

to aggregate points and agree to timeshare agreements been 

clear.” 
13

That submission did not raise the issue of “fair notice” 

with sufficient clarity to require the Commission to pass upon 

it. The quoted passage appears at the end of a section entitled 

“The Bureau Unlawfully Addressed a Novel Question of Law

or Policy in its July Order,” in which the Appellant argued the 

Media Bureau “exceeded its authority” under a Commission 

regulation, 47 C.F.R. § 0.283(c), providing that the Chief of the 

Media Bureau does not have authority to decide “[m]atters that 

present novel questions of law, fact or policy that cannot be 

resolved under existing precedents and guidelines.” In denying

review, the Commission disagreed on the point the Appellant 

did argue, stating: “The Bureau’s determination that the 

applicable rules do not prohibit the subject agreement between 

the Germantown Applicants fell squarely within [its] 

authority.” 30 FCC Rcd. 13983, 13983 n.10.

The question of forfeiture vel non under § 405(a) is 

“whether a reasonable Commission necessarily would have 

seen the question raised before us as part of the case presented 

to it.” NTCH, Inc. v. FCC, 841 F.3d 497, 508 (D.C. Cir. 2016)

(internal quotation marks omitted). Here, the Appellant argued 

the Media Bureau had exceeded its authority, not that it had 

deprived the Appellant of fair notice regarding the meaning of 

the Blog Post. Therefore the Commission had no chance to 

pass upon the issue of fair notice and the issue is not properly 

before the court.

III. Conclusion

Because the Appellant’s interpretation of the Blog Post is 

incorrect and it forfeited its argument regarding fair notice, the 

decision of the Commission is

Affirmed.