United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 1998 Decided April 14, 1998
No. 97-1255
Electronic Engineering Company,
Appellant
v.
Federal Communications Commission,
Appellee
PageMart II, Inc. and
Personal Communications Industry Association,
Intervenors
Appeal of an Order of the
Federal Communications Commission
Timothy E. Welch argued the cause and filed the briefs for
appellant.
Roberta L. Cook, Counsel, Federal Communications Com-
mission, argued the cause for appellee, with whom Christo-
pher J. Wright, General Counsel, and Daniel M. Armstrong,
Associate General Counsel, were on the brief. John E. Ingle,
Deputy Associate General Counsel, entered an appearance.
David E. Weisman and Alan S. Tilles were on the brief for
intervenor Personal Communications Industry Association,
Ltd.
Before: Sentelle, Tatel and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Electronic Engineering Compa-
ny ("EEC") appeals a decision of the Federal Communica-
tions Commission allowing PageMart II, Inc. ("PageMart") to
use private paging frequency 929.7625 MHz on an exclusive
nationwide basis. EEC argues that the Commission should
have dismissed PageMart's applications because the Personal
Communication Industry Association ("PCIA"), the frequency
coordinator for 900 MHz paging frequencies, unlawfully al-
tered the frequency requested in PageMart's applications and
submitted the amended applications to the Commission with-
out obtaining additional signatures from PageMart. The
Commission, interpreting its own rules, determined that fre-
quency coordinators have the authority to alter a frequency
request on an application before filing it with the Commission,
provided that they act with the consent of the applicant.
Because we conclude that the Commission's interpretation
was neither plainly erroneous nor inconsistent with the rules,
we affirm.
I.
An applicant seeking to provide private land mobile radio
services must obtain a frequency recommendation from a
private organization known as a "frequency coordinator." A
frequency coordinator, as defined by the FCC's rules govern-
ing private land mobile radio services, is simply an "entity or
organization that has been certified by the Commission to
recommend frequencies for use by licensees...." 47 C.F.R.
s 90.7 (1994). Frequency coordinators were formed decades
ago in response to FCC rules requiring that channels be used
on a shared basis, and requiring that users and applicants
cooperate in the selection and use of the frequencies to
minimize interference. See In re Frequency Coordination in
the Private Land Mobile Radio Services, 103 F.C.C.2d 1093,
1095 (1986) ("Report and Order"). To facilitate this process,
interested parties organized frequency coordinating commit-
tees, which were comprised of entities using their services so
that the recommendations would be both knowledgeable and
impartial. Id.
The FCC formally recognized the role that frequency coor-
dinators play in the selection process in 1958. The Commis-
sion first adopted rules simply providing that applicants could
obtain frequency recommendations from these committees,
and that the Commission would consider their recommenda-
tions when making assignment decisions. In re Amendment
of Part 11, Rules Governing the Industrial Radio Services,
To Delete, Modify and Create Services and To Effect Changes
in the Availability of Frequencies, First Report and Order,
23 Fed. Reg. 4784 (1958). In 1969, the Commission issued a
Memorandum Opinion and Order that further clarified the
role of frequency coordinators. The order makes clear,
among other things, that a frequency coordinator must not
discriminate between members and non-members, and that a
coordinator's recommendation is not binding on either the
applicant or the Commission. In re Amendment of Section
91.8(a)(2) and (a)(3) of the Commission's Rules Relating to
Frequency Coordination in the Industrial Radio Service, 16
F.C.C.2d 299, 305-06 (1969).
In 1982, Congress amended the Communications Act and
affirmed the FCC's authority to use frequency coordinators in
the spectrum management process. 47 U.S.C. s 332(b)(1).
The Commission subsequently revised its rules to improve
the quality and efficiency of frequency selections. The
amended rules provide that all applicants for private land
mobile licenses that require frequency coordination must send
their applications to the certified frequency coordinator. 47
C.F.R. ss 1.912(b), 90.127(a). The coordinator is then re-
quired to perform appropriate coordination services. Id.
The rules make clear that each application for frequencies in
the 929-930 MHz band, the band at issue in this case, must
include a "statement from the coordinator recommending the
most appropriate frequency." 47 C.F.R. s 90.175(c). The
frequency coordinator then forwards the application along
with the frequency recommendation to the Commission for
evaluation and decision. 47 C.F.R. ss 1.912(b), 90.127(a).
The Report and Order that announced the new rules
further elaborated upon the frequency coordination process.
An applicant must send its completed application to the
certified frequency coordinator (a single coordinator is certi-
fied for each service), rather than to the Commission. 103
F.C.C.2d at 1100, 1104-05. When submitting materials, the
applicant can either request a particular frequency, or leave
the selection of the frequency entirely to the coordinator. Id.
at 1096-97, 1147. An applicant that requests a particular
frequency must submit a technical justification for that fre-
quency along with the application. Id. at 1147. Upon receiv-
ing the applications, the frequency coordinator is required to
process the submissions in the order of receipt. Id. at 1104,
1119. The coordinator checks each application for "complete-
ness, accuracy, and compliance with the Commission's rules."
Id. at 1100. If the coordinator encounters an application that
is incomplete or contains minor errors, the coordinator is
authorized to make the necessary corrections with the appli-
cant's approval. Id. at 1147. After reviewing the application,
the coordinator evaluates the channel availability and identi-
fies the most suitable frequency for that particular applicant.
Id. at 1100, 1119. The coordinator then files the application,
along with the frequency recommendation, directly with the
Commission. Id. at 1100, 1104-05. If the coordinator dis-
agrees with the frequency requested by the applicant, and if
the applicant disapproves of the coordinator's recommenda-
tion, the coordinator must submit the application, the techni-
cal submission, the coordinator's written reasons for rejection,
and the alternate frequency recommendation to the Commis-
sion. Id. at 1147-48.
All private paging systems were assigned on a shared basis
until 1993, when the Commission amended its rules governing
the 929-930 MHz band to grant channel exclusivity to quali-
fied local, regional, and national paging systems.1 Under the
amended rules, incumbent systems had the first chance to
obtain exclusivity rights. Incumbents were allowed thirty
days from the date of the order to submit a request for
exclusivity to PCIA (formerly known as the National Associa-
tion of Business and Educational Radio, Inc., or "NABER"),
the frequency coordinator for the 900 MHz private paging
systems. Upon receipt of the requests, PCIA was required
to review the submissions and then forward requests that
satisfied the exclusivity criteria to the Commission for review
and approval. Incumbent systems that satisfied the criteria
would have exclusivity rights with respect to their existing
authorizations as of the effective date of the rules. After the
thirty-day transition period, PCIA would begin to process
applications for exclusive licenses on a first-come, first-served
basis, regardless of whether the applicant was an incumbent
or a new entrant. However, all incumbents, regardless of
whether they qualified for exclusivity, would be grandfa-
thered with respect to their existing systems, so that no
incumbent would have to relocate, change frequencies, or
otherwise curtail previously authorized construction or opera-
tions.
On February 21, 1994, after the transition period had
expired, PageMart submitted applications to PCIA for over
three hundred sites, a sufficient number to qualify for an
exclusive nationwide paging system. PageMart specifically
requested to use frequency 929.4875 MHz. Over the next few
months, PageMart submitted additional applications, request-
ing a total of 429 sites on the 929.4875 MHz frequency. On
March 15, 1994, PCIA received PageMart's request for na-
tionwide exclusivity on frequency 929.4875 MHz for the sites
__________
1 In re Amendment of the Commission's Rules To Provide
Channel Exclusivity To Qualified Private Paging Systems at 929-
930 MHz, 8 F.C.C.R. 8318 (1993). The Commission has recently
abandoned its exclusivity rules and implemented a new geographic
licensing system. In re Revision of Part 22 and Part 90 of the
Commission's Rules To Facilitate Future Development of Paging
Systems, 12 F.C.C.R. 2732 (1997). That rule change, however, has
no bearing on the Commission's decision in this particular case.
requested in previous applications. That same day, PCIA
also received applications from EEC that sought to expand its
existing system on 929.7625 MHz by twelve sites. Although
EEC's existing system of thirty-eight sites had been eligible
for local exclusivity during the transition period, EEC did not
submit a request for exclusivity during that period of time.
Indeed, EEC did not submit a request for exclusivity until
October 17, 1994.
In May of 1994, PCIA began to evaluate the applications
that PageMart had submitted the previous February. PCIA
determined that the 929.4875 MHz frequency could not be
coordinated on an exclusive nationwide basis because it had
already been assigned to three exclusive regional systems.
PCIA ultimately decided that 929.7625 MHz was the most
appropriate frequency for use by PageMart on a national
exclusive basis, because there were only a few exclusive local
systems on that channel, and because no other channel was
entirely clear and available for nationwide exclusive use.
With PageMart's consent, PCIA crossed out the frequency
requested in PageMart's applications and exclusivity request
and inserted frequency 929.7625 MHz. PCIA then filed
PageMart's applications with the Commission.
A few weeks later, PCIA reached EEC's applications in the
queue and considered its request for expanded usage of the
929.7625 MHz frequency. PCIA concluded that it could not
approve EEC's request because it had already recommended
PageMart's use of that frequency on an exclusive nationwide
basis. As a result, EEC could continue to operate its existing
sites on the 929.7625 MHz frequency on a grandfathered
basis, but could not expand its use of that frequency if the
FCC approved PageMart's applications.
EEC eventually filed a petition with the Licensing Division
of the FCC's Wireless Telecommunications Bureau, seeking
dismissal of PageMart's request for nationwide exclusivity
because of alleged procedural irregularities. EEC objected
to the fact that "an unidentified party has crossed out Page-
Mart II, Inc.'s typewritten request for '929.4875 ' MHz and
pencilled in '929.7625' " on PageMart's exclusivity request and
on its applications. EEC contended that serious issues were
raised concerning who changed PageMart's materials and
when. PageMart responded that the frequency coordinator
had made the changes before forwarding PageMart's applica-
tions to the Commission. PageMart further declared that
PCIA had simply processed the applications in the order of
receipt and had recommended that PageMart be allowed to
use 929.7625 MHz. EEC replied that frequency coordinators
lack the authority to alter applications or exclusivity requests,
and also alleged that PCIA had shown unfair favoritism to
PageMart. By a letter order, the Bureau's Land Mobile
Division concluded that PCIA's handling of PageMart's appli-
cations was consistent with 47 C.F.R. s 90.175, even though
the rule does not "provide specific procedures for amending
applications while pending coordination."
EEC filed an Application for Review with the Commission.
EEC once again argued that PCIA had no authority to alter
PageMart's applications without obtaining additional signa-
tures, and that PCIA had shown improper favoritism to
PageMart. The Commission concluded that PCIA's actions
were consistent with its obligations as a frequency coordina-
tor and accordingly denied review. In re Electrical Engi-
neering Co. and PageMart II, Inc. Requests for Exclusivity
on 929.7625 MHz, 12 F.C.C.R. 3819 (1997) ("Denial Order").
The Commission first concluded that PCIA acted within its
authority when it changed the frequency requested on Page-
Mart's applications. The Commission ruled that a frequency
coordinator's authority to alter application materials derives
from its duty to select the most appropriate frequency for
each particular applicant. The Commission further concluded
that there was no basis in the record to support the allegation
that the applications submitted by PageMart and EEC re-
ceived disparate treatment by PCIA. Id. at 3821-22.
EEC filed a timely appeal in this court.
II.
EEC challenges the Commission's decision under section
706(2)(A) of the Administrative Procedure Act, which requires
us to hold unlawful and set aside any agency action that is
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. s 706(2)(A). To prevail on
its claim, EEC must overcome the highly deferential standard
of review that we accord to an agency's interpretation of its
own rules. Bluestone Energy Design, Inc. v. FERC, 74 F.3d
1288, 1292 (D.C. Cir. 1996). Provided that it does not violate
the Constitution or a federal statute, the agency's interpreta-
tion is entitled to controlling weight "unless it is plainly
erroneous or inconsistent with the regulation." Stinson v.
United States, 508 U.S. 36, 45 (1993) (internal punctuation
and citation omitted). We conclude that the Commission's
decision easily survives this deferential standard of review.
A.
We begin with EEC's claim that PCIA had no authority to
alter PageMart's applications and submit materials to the
Commission without obtaining additional signatures from a
PageMart representative.
EEC first makes an argument based on the authority of
frequency coordinators to correct clerical errors in applica-
tions. The Commission's 1986 Report and Order recognized
that frequency coordinators have the power to correct minor
errors in an application before forwarding it to the Commis-
sion: "In cases where the application submitted to the coordi-
nator is incomplete or if there is an obvious error, we are
allowing the coordinator to make the necessary corrections
provided that applicant approval is obtained. Again, we
believe allowing the coordinator to make minor changes will
speed up the overall licensing process." 103 F.C.C.2d at
1147. EEC argues that PageMart's original request for the
929.4875 MHz frequency was not the sort of "obvious" error
that frequency coordinators have the authority to "correct."
Rather, EEC continues, PageMart's selection of 929.4875
MHz was a deliberate act, as evidenced by the consistent
reference to this frequency in its applications and in its
nationwide exclusivity request. EEC contends that the Com-
mission, by approving PCIA's changes even though they did
more than correct minor errors, effectively transformed the
coordinators' limited authority into an all-inclusive amending
power that extends to even the most substantive changes to
an application.
The simple answer to EEC's objection is that PCIA did not
make those changes pursuant to its authority to correct
clerical errors. Frequency coordinators perform a variety of
functions in the spectrum management process. Correcting
clerical errors is one of those functions, but so is the selection
of the most appropriate frequency for use by each particular
applicant. 47 C.F.R. s 90.175(c); 103 F.C.C.2d at 1100.
PCIA made changes to PageMart's applications as part of its
responsibility to select the most appropriate frequency.
PCIA determined that the 929.4875 MHz frequency would not
be suitable for use by PageMart because other systems were
operating on an exclusive regional basis on that channel.
PCIA decided that the 929.7625 MHz frequency was the
appropriate frequency for PageMart, and made changes to its
applications only after receiving PageMart's consent to do so.
While it may be the case that a coordinator does not have
unlimited power to correct application errors, PCIA did not
purport to correct errors in PageMart's applications, but
rather carried out its responsibility to select the most appro-
priate frequency for this particular applicant.
EEC also faults the Commission for relying on the silence
of its rules as a basis for concluding that PCIA acted within
its authority as a frequency coordinator. EEC draws special
attention to the following passage in the Commission's order:
Rule 90.175(c) provides no specific instructions for han-
dling changes to applications while pending coordination,
and allows the frequency coordinator to recommend the
most appropriate frequency. Other rule sections cover
the execution of applications and amendments of applica-
tions before the Commission. Rule 90.175(c), however,
does not explicitly incorporate those rule sections in
connection with changes made to a proposal during pre-
filing procedures while still before the coordinator.
Thus, absent evidence that the changes made were with-
out authority of the applicant, or were made subsequent
to the frequency coordinator's submission of the applica-
tions to the Commission, PageMart's applications and
related exclusivity request for use of 929.7625 MHz were
properly accepted for filing.
12 F.C.C.R. at 3821-22. In EEC's view, the silence of Rule
90.175(c) must be construed as a denial, not a grant, of power
to frequency coordinators such as PCIA. Absent express
authorization from the rules, EEC argues, coordinators lack
the authority to amend applications and send them directly to
the Commission. We disagree.
The Commission's reasoning in the Denial Order is quite
clear. As the Commission explained, rule 90.175(c) provides
that applications for frequencies in the 929-930 MHz band
must include a "statement from the coordinator recommend-
ing the most appropriate frequency," but does not specify
how the coordinator is to proceed when making its recom-
mendation. 47 C.F.R. s 90.175(c). Nor does the rule else-
where outline specific procedures that a frequency coordina-
tor must follow when making changes to applications before
they are filed with the Commission. Even the Commission's
1986 Report and Order does not speak directly to the ques-
tion at hand. The Report and Order does explain how the
coordinator is to proceed in one specific circumstance: if the
coordinator disagrees with an applicant's frequency request,
and if the applicant wants to pursue its request with the
Commission, the coordinator is required to forward the appli-
cation, the technical submission, the coordinator's written
reasons for rejection, and the alternate frequency recommen-
dation to the Commission. 103 F.C.C.2d at 1147-48. The
Report and Order does not, however, specify how the coordi-
nator is to proceed if the applicant agrees that the frequency
selected by the coordinator is preferable to the frequency
originally requested by the applicant.
After acknowledging that the rules do not speak directly to
the question, the Commission returned to the basic require-
ment that coordinators recommend the "most appropriate
frequency" for each particular applicant. 47 C.F.R.
s 90.175(c). The Commission ultimately decided that altering
a frequency request on an application was an acceptable way
to make a frequency recommendation, provided that the
applicant approves the changes in advance of filing the appli-
cations with the Commission. 12 F.C.C.R. at 3821-22. We
conclude that the Commission's interpretation was neither
"plainly erroneous" nor "inconsistent with the regulation."
Stinson, 508 U.S. at 45. The rules require coordinators to
make frequency recommendations, but do not specify how
they are to proceed in every conceivable circumstance. The
Commission's reading gave content to these open-ended pro-
visions without compromising any other requirements in the
rules. EEC has presented us with no reason to conclude that
a coordinator's duty to "recommend[ ] the most appropriate
frequency" cannot be performed by making changes directly
to application materials. 47 C.F.R. s 90.175(c). Accordingly,
we defer to the Commission's interpretation that a coordina-
tor may recommend a frequency by making changes to an
application, with the applicant's consent, before forwarding
the materials to the Commission.
Equally unavailing is EEC's argument that a frequency
coordinator cannot alter an application without obtaining an
additional signature from the applicant. EEC cites to a
number of provisions in the rules that purportedly required
PCIA to return PageMart's applications and exclusivity re-
quest for additional signatures. For example, EEC draws
our attention to section 90.131(a), which provides that "[e]ach
amendment to an application shall be signed and submitted in
the same manner as required for the original application." 47
C.F.R. s 90.131(a); see also ss 1.743(a), 1.913(a). EEC also
cites to a few cases before the Commission in which the FCC
mentioned a signature requirement. See, e.g., R & L Broad-
casters, 8 F.C.C.R. 7031, 7032 (1993); WMOZ, Inc., 36 F.C.C.
202, 218 (1964). In EEC's view, a change in frequency
constitutes an amendment to the original application, and
thus requires the coordinator to obtain an additional signa-
ture before forwarding the amended application to the Com-
mission.
None of the rules cited by EEC requires frequency coordi-
nators to jump through this additional procedural hoop. As
the Commission explained, the rules relied upon by EEC
govern amendments to applications that have been filed with
the Commission. 12 F.C.C.R. at 3821. Frequency coordina-
tion, however, is clearly a pre-filing procedure. Frequency
coordinators are to file the applications directly with the
Commission after they have performed "appropriate frequen-
cy coordination." 47 C.F.R. ss 1.912(b), 90.127(a); 103
F.C.C.2d at 1104-05. Contrary to EEC's assumption, appli-
cations are not considered to be filed with the Commission
when they are received by the coordinator, but only when
they are received by the Commission at its designated loca-
tion. 47 C.F.R. s 1.7 (1997). At the time that it altered
PageMart's applications, PCIA obviously had not filed the
applications with the Commission, and thus PCIA was not
bound by rules that govern post-filing amendments.
The cases cited by EEC are off the mark. Two of the
cases, like the rules cited by EEC, concerned amendments to
applications already filed with the Commission. R & L
Broadcasters, 8 F.C.C.R. at 7032; CSJ Investments, Inc., 5
F.C.C.R. 3741, 3742 (Rev. Bd. 1990). Two others involved
applicants who attested to the contents of their applications
even though the applications were not complete at that time.
Johnston Broadcasting Co. v. FCC, 175 F.2d 351, 354 (D.C.
Cir. 1949); WMOZ, Inc., 36 F.C.C. 201, 218 (1964). The last
case cited by EEC discussed whether it was proper to dismiss
applications containing only facsimile signatures instead of
handwritten signatures. SBM Communications, Inc., 7
F.C.C.R. 3436, 3436 (1992). Not only did none of these cases
purport to discuss whether frequency coordinators are re-
quired to obtain additional signatures from applicants when
making changes to applications, none of them involved fre-
quency coordinators at all.
Moreover, the 1986 Report and Order undermines the
notion that frequency coordinators must obtain additional
signatures. The Order requires frequency coordinators to
forward applications directly to the Commission, but makes
no mention of returning material to applicants to gain approv-
al of their frequency recommendations. 103 F.C.C.2d at
1104-05. Indeed, the Commission initially proposed that a
coordinator return an application if it disagrees with a re-
quest for a specific frequency, but ultimately decided against
this proposal in its final rules. See Frequency Coordination
in the Private Land Mobile Radio Services, 49 Fed. Reg.
45454, 45457 (proposed Nov. 16, 1984); 103 F.C.C.2d at 1100,
1147-48. Even more illuminating is the procedure for han-
dling applications that do not request any particular frequen-
cy. The Report and Order makes clear that applicants are
free to request a specific frequency, but are under no obli-
gation to do so. 103 F.C.C.2d at 1096-97, 1147. The rules
contemplate, in other words, that some applicants will send
their materials to frequency coordinators with blank frequen-
cy requests. Frequency coordinators, consistent with their
obligation to recommend the most appropriate frequency, fill
in the blank frequency requests and forward the applications
directly to the Commission for review and approval. The
Commission accepts such applications for filing, even though
the applicant did not request any particular frequency, and
even though the coordinator inserted a frequency in the
applicant's materials without obtaining an additional signa-
ture. If a frequency coordinator can fill in a blank frequency
request without an additional signature, we see no reason
why an additional signature would be required if the coordi-
nator, acting with the consent of the applicant, changes the
frequency request in an applicant's materials before forward-
ing the application to the Commission.
Finally, EEC argues that PageMart's applications must be
considered untimely vis-a-vis EEC's applications for 929.7625
MHz even though PageMart submitted applications to PCIA
before EEC submitted its applications. The basis for this
argument is a rule providing that an application that is
"substantially amended" will be considered newly filed as of
the date of the filing of the amendment. 47 C.F.R.
s 1.918(b); see also 47 C.F.R. s 90.165(d)(1) (1997). EEC
cites to a number of scattered provisions, many of which do
not involve private radio services, to make the point that a
change in frequency constitutes a substantial amendment to
an application. See 47 C.F.R. ss 1.962(c)(1), 73.3571(a)(1),
73.3572(a)(1)(i), 73.3573(a)(1), 74.911(a)(1), 74.1233(a)(1); see
also ss 22.123(e)(6), 90.164(a), 90.165(d) (1997). EEC con-
cludes from these provisions that PCIA's changes to Page-
Mart's applications amounted to substantial amendments,
which moved PageMart's applications to the end of the queue
and thus behind the application submitted by EEC.
Like the argument about the signature requirement, this
argument fails because the rules cited by EEC apply to
applications that have been filed with the Commission. See,
e.g., 47 C.F.R. s 1.962(c) (referring to a "substantial amend-
ment of an application on file" ) (emphasis added). Nothing
in rule 90.175, which outlines the requirements for frequency
coordination, gives any indication that the Commission incor-
porated these provisions and imposed such procedural stric-
tures on frequency coordinators. 47 C.F.R. s 90.175. More-
over, the logical consequence of EEC's argument would be to
move an application to the end of the queue whenever the
applicant agrees that the frequency selected by the coordina-
tor is preferable to the frequency originally requested by the
applicant. This cumbersome result would seem to be in
tension with the more specific mandate that frequency coordi-
nators process applications "in order of receipt." 103
F.C.C.2d 1104, 1119. Furthermore, various parts of the
Report and Order mention the need to give frequency coordi-
nators flexibility in carrying out their coordination responsi-
bilities. 103 F.C.C.2d at 1109, 1115. Absent an express
provision in the rules, there would seem to be little reason to
encumber the coordinator's task by requiring it to move to
the end of the queue applications that the coordinator has
already considered. In sum, the Commission did not err
when it concluded that the provisions cited by EEC did not
require PCIA to move PageMart's applications to the end of
the queue.
B.
EEC next charges that PCIA violated the Commission's
rules requiring coordinators to handle applications in a non-
discriminatory manner by affording disparate treatment to
the EEC and PageMart applications. 103 F.C.C.2d 1101-02.
EEC contends that PCIA went the extra mile for PageMart
when coordinating its applications, but failed to provide even
basic assistance to EEC. EEC asserts, for example, that
PCIA recommended an alternative frequency to PageMart
when 929.4875 MHz was unavailable but made no similar
efforts on behalf of EEC. EEC faults the Commission for
returning its applications without even searching for an alter-
native frequency. EEC also complains that PCIA delayed
processing its applications, failed to explain the reason for the
delay, and did not inform EEC why its applications could not
be coordinated as requested. EEC speculates that PageMart
received favorable treatment because PageMart, unlike EEC,
is a member of PCIA and pays significant membership and
coordination fees to the organization.
EEC's depiction of the facts does not square with the
record, which reveals that PCIA processed the applications in
full compliance with the Commission's rules. PCIA, like all
frequency coordinators, had a duty to process the applications
in the order of receipt. 103 F.C.C.2d at 1100, 1104, 1119.
PageMart's applications arrived almost a month before
EEC's applications, so PCIA naturally considered PageMart's
applications first. PCIA determined that the frequency re-
quested by PageMart would not be suitable for nationwide
exclusive use because several regional systems already oper-
ated on that channel on an exclusive basis. PCIA recom-
mended an alternative frequency, 929.7625 MHz, for use by
PageMart because there were only a few exclusive local
systems on that frequency and because no other channel was
entirely clear and available for nationwide use. With Page-
Mart's approval, PCIA crossed out the frequency requested
by PageMart and inserted a request for 929.7625 MHz, then
filed the applications with the Commission.
When it reached EEC's applications in the queue, PCIA
could not approve the request for expanded usage of 929.7625
MHz because it had already sanctioned PageMart's use of
that channel on an exclusive nationwide basis. PCIA prompt-
ly notified EEC that it could not expand its system on
929.7625 MHz due to the assignment of that channel to
PageMart. EEC responded by asking PCIA to hold its
applications while it attempted to obtain a co-channel concur-
rence agreement with PageMart. PCIA returned EEC's
applications only after two months had elapsed without re-
ceiving any update from EEC regarding the status of its
applications. In sum, the record reveals that the process
worked precisely the way that it is intended to operate: the
frequency coordinator processed the applications on a first-
come, first-served basis, gave expeditious review to the appli-
cations, and informed the applicants of the status of their
submissions in a prompt manner. PCIA cannot be faulted for
failing to recommend an alternative frequency to EEC, given
EEC's request to put the applications on hold while it negoti-
ated a deal with PageMart. There is simply nothing in the
record to support EEC's allegation that PCIA breached its
duty to process applications with "total impartiality." 103
F.C.C.2d at 1101.
C.
Finally, EEC criticizes the Commission for failing to ex-
plain why 929.7625 MHz was the most appropriate frequency
for use by PageMart. EEC points out that the Denial Order
only briefly mentioned the coordinator's reasons for recom-
mending 929.7625 MHz: "PCIA ultimately determined that
the best choice for PageMart's nationwide system would be
929.7625 MHz because there were only a handful of exclusive
local systems on that channel, and there were no alternative
totally clear channels available." 12 F.C.C.R. at 3820. EEC
contends that the Commission did not engage in reasoned
decisionmaking because it offered an inadequate justification
for the selection of this particular frequency. However, EEC
did not contest the frequency selected by PCIA in its argu-
ments before the Commission, which helps to explain why the
Commission gave this issue only brief attention in its Denial
Order. EEC also neglected to file a petition for reconsidera-
tion of the FCC's order to challenge the selection of this
particular frequency. Under applicable law, we have no
authority to address the merits of an allegation of error that
EEC failed to raise in the proceedings before the Commis-
sion. 47 U.S.C. s 405(a); American Tel. & Tel. Co. v. FCC,
974 F.2d 1351, 1354 (D.C. Cir. 1992) ("We have construed this
section as codifying the exhaustion of administrative remedies
doctrine, which requires complainants, before coming to
court, to give the FCC a fair opportunity to pass on a legal or
factual argument.") (internal punctuation and citation omit-
ted).
III.
For the reasons set forth above, the decision of the Com-
mission is affirmed.