Communications & Control, Inc. v. Federal Communications Commission

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2004 Decided July 23, 2004

No. 03–1213

COMMUNICATIONS AND CONTROL, INC.,
APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE

Appeal of Orders of the
Federal Communications Commission

Timothy E. Welch argued the cause for the appellant.
Roberta L. Cook, Counsel, Federal Communications Com-
mission, argued the cause for the appellee. John A. Rogovin,
General Counsel, and Daniel M. Armstrong, Associate Gener-
al Counsel, were on brief.
Before: HENDERSON, RANDOLPH and ROBERTS, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

These changes in latitudes, changes in attitudes;
Nothing remains quite the same.
Through all of the islands and all of the highlands,
If we couldn’t laugh we would all go insane
— JIMMY BUFFETT, CHANGES IN LATITUDES,
CHANGES IN ATTITUDES (ABC 1977)
Appellant Communications and Control, Inc. (CCI) would
no doubt agree that geographic change can make all the
difference. For CCI a one-degree change in longitude would
have allowed its transmitter to operate from terra firma
rather than not at all. Instead of permitting CCI to amend
its license to reflect the transmitter’s true location, however,
the Federal Communications Commission (FCC or Commis-
sion) cancelled the license, concluding that no station could
have been authorized to operate where CCI’s application
specified—a dot on the Pacific Ocean. CCI now appeals,
claiming that the Commission arbitrarily and capriciously
refused to allow a correction. See 5 U.S.C. § 706(2)(A). We
agree and, accordingly, reverse and remand.

I.
Following a lottery of spectrum in the 220–222 megahertz
(MHz) band, the Commission in 1993 granted CCI a broad-
cast license to operate a non-nationwide Phase I 220 MHz
trunked radio system under the call sign WPCX448.1 CCI’s
application proposed to transmit from Mount Allison, Milpi-
tas, California, at a latitude of 37∞ 298 5688 North and a
longitude of 122∞ 528 1688 West. But the longitude coordinate
CCI supplied in fact indicated a location one degree—or
approximately 88 kilometers—west of Mount Allison in the
Pacific Ocean. Unaware of CCI’s error, the Commission
granted the application. Still unaware of the error itself, CCI
supplied the bad longitude coordinate again when notifying
1 The same day the Commission granted CCI’s application it also
granted Kitsap Cellular a license to operate a Phase I 220 MHz
system under the call sign WPCX469 at a site near Stockton,
California, less than 120 kilometers from CCI’s site on Mount
Allison. Kitsap Cellular later transferred its license to ComTech.
 3

the Commission that it had constructed its station and was
operating from Mount Allison.
Months later, CCI informed the Commission of an ‘‘incon-
sistency with the [a]ntenna [l]ongitude’’ in its application and
requested that the Commission change the longitude coordi-
nate listed on its license from 122∞ 528 1688 West to 121∞ 528
1688 West. Deferred Appendix (D.A.) 26. The Land Mobile
Branch (Branch) of the Licensing Division (Division) of the
Wireless Telecommunications Bureau (WTB) denied CCI’s
request, finding that CCI failed to make ‘‘a timely effort to
correct its application.’’ D.A. 27. The Branch further in-
structed CCI to submit its license for cancellation, explaining
that ‘‘applications are processed based on the coordinate
information provided by the applicant, and since there are no
frequencies available at [CCI’s] requested location, TTT [CCI]
should submit its license for cancellation.’’ D.A. 27.
CCI responded to the Branch’s letter with another of its
own. Its second letter—styled a ‘‘Second Request for Coor-
dinate Correction’’—again sought to correct the coordinate
and included an engineering study in an effort to show that
its operation from Mount Allison adequately protected Com-
Tech’s neighboring station (call sign WPCX469) from harmful
interference. The Branch again denied CCI’s request, this
time rejecting CCI’s interference analysis as untimely and
wrong. Relying on its own technical analysis, the Branch
explained that CCI failed to meet the exception for short-
spacing contained in section 90.723(f) of the Commission
rules2 because ‘‘station WPCX469 does not receive 10dB of
protection’’ and ‘‘the 28 dBu contour of station WPCX448
overlaps the 38 dBu contour of station WPCX469 by more
than 20 kilometers.’’ D.A. 32.
2 Section 90.723 provided at the time that ‘‘the separation of co-
channel base stations shall be 120 kilometers. Shorter separations
will be considered on a case-by-case basis upon submission of a
technical analysis indicating that at least 10 dB protection will be
provided to an existing station’s 38 dBu signal level contour.’’ 47
C.F.R. § 90.723(f) (1991 version).
 4

CCI responded with another letter; this one met a slightly
different fate from the previous two. Although the Branch
rejected CCI’s claim that the ‘‘incorrect coordinate[ ] on its
license is a typographical error which has no bearing on its
operations at Mount Allison,’’ explaining that ‘‘[s]ince CCI did
not timely request a change of its coordinates, its application
was processed consistent with its stipulated coordinates,’’ it
nevertheless offered that ‘‘[i]f CCI desires to modify its
license to correct those coordinates, it must wait for the filing
window for 220 MHz applications to reopen.’’ D.A. 35. The
Branch further proposed that, in the meantime, ‘‘[d]ue to the
circumstances, CCI may request STA [Special Temporary
Authority] to obtain legal authority for its operation on Mount
Allison.’’ Id. CCI took the Branch’s advice and the Branch
granted it STA for six months.
Before the STA expired, CCI requested an extension. The
Branch denied the request, however, noting that ComTech
had complained that CCI’s operations were interfering with
its own and that CCI was ‘‘not in compliance with Rule
90.723(f) at the requested relocation.’’ D.A. 50. CCI re-
sponded by submitting an application to modify its license to
allow it to permanently transmit from Mount Allison and,
shortly thereafter, by petitioning the Branch for reconsidera-
tion of the denial of its extension request.
Following the Branch’s denial of the extension request, the
Commission separately advised CCI of ComTech’s interfer-
ence complaint and ordered it ‘‘to cease operati[ng].’’3 D.A.
66. CCI responded by reminding the Commission that its
petition for reconsideration remained pending before the
Branch and stated that it would ‘‘await further review TTT
before determining whether the operating status [of] Station
WPCX448 should be altered.’’ D.A. 67.
3 This notice was followed by two more. The second warned that
CCI’s ‘‘evident continued operation of Station WPCX–448 in open
defiance of the Commission’s warning is an extremely grave mat-
ter’’ and instructed it to ‘‘cease the operation of WPCX–448 IMME-
DIATELY.’’ D.A. 191. The third notice was similar to the second.
 5

The Division later denied CCI’s petition for reconsideration
along with its application for authority to permanently trans-
mit from Mount Allison. The Division concluded, as the
Branch had before, that CCI failed to comply with Commis-
sion rule 90.723(f) because it ‘‘proposes to operate 88.4 Kilom-
eters from Comtech’s station’’ and its proposed relocation
failed to ‘‘provide 10 dB of protection to Comtech’s protected
site.’’ D.A. 107. CCI next applied to the Commission for
review of the Division’s decision.4 The Commission was no
more receptive than the Division.
Finding that the staff correctly instructed CCI to submit
its license for cancellation, the Commission denied CCI’s
application for review. Communications & Control, Inc.,
Request for Extension of Special Temporary Authority &
Modification of Authorization of 220 MHz System WPCX448
& Comtech Communications, Inc., Request for Extension of
Special Temporary Authority & Modification of Authoriza-
tion of 220 MHz System WPCX469, Memorandum Opinion &
Order, 15 FCC Rcd 5428 (2000) [hereinafter First Order].
CCI’s license was void ab initio, said the Commission, be-
cause it flowed from an administrative error: CCI would have
been granted no license had the Commission realized that
CCI’s requested coordinates were for a site in the Pacific
Ocean. Id. at 5432, ¶12. The Commission also rejected
CCI’s contention that it, the Commission, should have discov-
ered the error in processing the application, observing that
the burden of providing accurate information rests on the
applicant—not the Commission—and that, accordingly, the
Commission ‘‘is entitled to rely on the site coordinates an
applicant provides.’’ Id.
4 CCI also requested permission for its station ‘‘to remain silent’’
pending the resolution of its application for review. See D.A. 193–
96. The Commission granted the request, agreeing that ‘‘CCI’s
silence pendente lite at the Mt. Allison facility should not prejudice
its claim to an authorization.’’ D.A. 197. Before resolving CCI’s
application for review, the Commission in February 1999 renewed
CCI’s license ‘‘subject to the outcome of [CCI’s] pending petitions
for the facility.’’ D.A. 222 (capitalization altered). In May 2002,
 6

The Commission also offered a two-fold response to CCI’s
contention that it was entitled to an opportunity to correct the
error on its application. Id. at 5433, ¶13. The Commission
first deemed CCI’s argument ‘‘irrelevant,’’ stating that the
‘‘burden is on the applicant to provide accurate site informa-
tion in its application.’’ Id. The Commission then noted
that, even if CCI’s original application had contained the
correct coordinates, CCI would not have been licensed be-
cause CCI’s application would have been ‘‘mutually exclusive’’
with ComTech’s application and the latter, based on its higher
filing priority, would have been granted the only license. Id.
Further, the Commission rejected CCI’s argument that it
should have been able to modify its application under the
procedures outlined in the Commission’s Second Report &
Order in the Amendment of Part 90 of the Commission’s
Rules to Provide for the Use of the 220–222 MHz Band by the
Private Land Mobile Radio Service docket.5 Id. at 5433, ¶14.
This procedure was unavailable to CCI, the Commission said,
because the right to relocate was available only to an appli-
cant holding a valid 220 MHz license and CCI, as the Com-
mission earlier concluded, had none. Id. As the Commission
put it, ‘‘because CCI’s initial license was void, CCI was
effectively seeking a new license and this procedure was
unavailable.’’ Id. The Commission also iterated an earlier
point: CCI would not have been authorized to operate from
Mount Allison even had it initially applied to do so given its
lower filing priority. Id. The Commission concluded, there-
fore, that the Branch ‘‘proper[ly] TTT reject[ed] a modification
application for a site that could not have been initially granted
to the applicant.’’ Id.
The Commission’s order did not end the matter. CCI
thereafter petitioned for reconsideration, which petition the
however, after denying CCI’s second application for review, the
Commission cancelled the license.
5 In that order, the Commission announced a procedure allowing
a 220 MHz licensee to modify its license by relocating to a nearby
location. See Amendment of Part 90 of the Commission’s Rules to
Provide for the Use of the 220–222 MHz Band by the Private Land
Mobile Radio Service, Second Report & Order, 11 FCC Rcd 3668,
3668–71, ¶¶1, 8–10 (1996) (codified in 47 C.F.R. pt. 90).
 7

Chief of the Commercial Wireless Division of the WTB
dismissed as repetitious because CCI presented no facts or
circumstances the Commission had not already considered.
Communications & Control, Inc., Request for Extension of
Special Temporary Authority & Modification of Authoriza-
tion of 220 MHz System WPCX448, Memorandum Opinion &
Order, 15 FCC Rcd 14,969 (Commercial Wireless Div. 2000).
CCI then applied for review a second time with the Commis-
sion and it denied the application as repetitious. Communi-
cations & Control, Inc., Request for Extension of Special
Temporary Authority & Modification of Authorization of 220
MHz System WPCX448, Memorandum Opinion & Order, 16
FCC Rcd 19,155 (2001) [hereinafter Second Order]. The
Commission concluded that the Commercial Wireless Divi-
sion’s Ann Leggett decision,6 which CCI had called to the
Commission’s attention, did not constitute new evidence or
changed circumstances meriting reconsideration because it ‘‘is
distinguishable and does not support a different result in
CCI’s case.’’7 Id. at 19,156, ¶6.
CCI then petitioned for reconsideration of this Commission
order, also unsuccessfully. This time the Commercial Wire-
less Division’s Deputy Chief denied the petition as repetitious,
explaining that ‘‘CCI’s present petition for reconsideration
relies on no new facts or circumstances, but repeats–once
again–claims that have been repeatedly rejected.’’ Commu-
6 Ann Leggett, Request for Modification of Phase I Non–Nation-

wide 220 MHz License Station WPCV789, New London, Conn.,
Order, 15 FCC Rcd 2574 (Commercial Wireless Div. 2000) [herein-
after Ann Leggett].
7 In distinguishing the Ann Leggett decision, the Commission
explained that, in Ann Leggett, ‘‘unlike CCI’s case, the incorrect
coordinates specified in the original application were for a grantable
site, and therefore the license was not void ab initio.’’ 15 FCC Rcd
at 19,156, ¶6. The Commission also noted that ‘‘the modified site in
Ann Leggett was also grantable because it did not conflict with any
other application or license.’’ Id. at 19,156–57, ¶6. Because CCI’s
case did not involve the same circumstances, the Commission
concluded that ‘‘no issues were raised by CCI’s petition that war-
rant further review.’’ Id. at 19,157, ¶6.
 8

nications & Control, Inc., Request for Extension of Special
Temporary Authority & Modification of Authorization of 220
MHz System WPCX448, Order, 17 FCC Rcd 9359, 9361, ¶7
(Commercial Wireless Div. 2002). CCI once more applied for
review of this decision with the Commission, which it once
more denied as repetitious, finding that ‘‘[w]ith each succes-
sive pleading, CCI has essentially reiterated the same basic
points in support of its request for relief, and those claims
have already been rejected twice by the Commission.’’ Com-
munications & Control, Inc., Request for Extension of Spe-
cial Temporary Authority & Modification of Authorization
of 220 MHz System WPCX448, Memorandum Opinion &
Order, 18 FCC Rcd 13,448, 13,451, ¶10 (2003) [hereinafter
Third Order]. CCI now appeals all three Commission or-
ders—First Order, 15 FCC Rcd 5428; Second Order, 16 FCC
Rcd 19,155; Third Order, 18 FCC Rcd 13,448—to us.

II.
Under the Administrative Procedure Act (APA), we set
aside a Commission action if it is ‘‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’’
5 U.S.C. § 706(2)(A); see, e.g., Ca. Metro Mobile Communi-
cations, Inc. v. FCC, 365 F.3d 38, 43 (D.C. Cir. 2004) [herein-
after CMMC]. The scope of our APA review, however, is
narrow. See Motor Vehicle Mfrs. Ass’n of United States, Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
‘‘We do not prefer our judgment to that of the Commission
and require only that it examine the relevant data and
articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice
made.’’ CMMC, 365 F.3d at 43 (internal quotation marks
omitted).
The Commission gave two reasons for canceling CCI’s
license rather than allowing its technical modification, neither
of which adequately supports its decision. The Commission’s
simple ipse dixit that CCI’s typographical error rendered its
license void ab initio does not do it, especially in light of the
 9

Commission’s practice of correcting, without much ado, typo-
graphical errors such as this one.8 The Commission’s depar-
ture from this practice, with no explanation, renders its void
ab initio rationale arbitrary and capricious. See, e.g., Motor
8 The Commission routinely allows license applicants in other
services to correct typographical errors. See, e.g., Porta–Phone
Paging Licensee Corp. for Modification of License For Paging
Serv. Station KNKD661 to Establish an Additional 158.10 MHz
Base Station at Thomasville, Ga., Order on Reconsideration, 13
FCC Rcd 5229, 5231, ¶¶6–7 (Commercial Wireless Div. 1998) (rein-
stating license application because Commission allows ‘‘applicants to
make minor modifications to dismissed applications if inconsistent
information was previously supplied, the correct information is
found within the four corners of the application, and the correct
information can be easily determined’’); Peter J. Rinaldi, Luther
Jackson Lazarus, James Washington D/B/A Washington Broad.,
Cloud Nine, Inc., for Construction Permit For a New FM Station
in Natchez, Miss. Channel 247A (97.3 MHz), Hearing Designation
Order, 5 FCC Rcd 5649, 5649, ¶¶3–4 (Audio Servs. Div. 1990)
(allowing amendment to clarify station’s geographic coordinates);
Milledgeville Mobilefone, Inc., For Authority to Construct an Addi-
tional Facility in the Public Land Mobile Serv. for Station
KUC919 to Operate of Frequency 158.70 MHz at Macon, Ga., Order
on Reconsideration, 3 FCC Rcd 1998, 1998, ¶4 (Mobile Servs. Div.
1988) (reinstating application containing ‘‘an extremely minor typo-
graphical error which involves the mis-typing of a single digit’’);
Paging Network of Los Angeles, Inc., For Reconsideration of
Authorizations for Facilities in the 931 MHz Band in the Paging
and Radiotelephone Serv., 15 FCC Rcd 6720, 6720, ¶2 (Policy &
Rules Branch 1999) (granting petition for reconsideration of dis-
missal of application for failure to pay applicable fee because
coordinate correction constituted ‘‘minor amendment’’); cf. Coachel-
la Valley Wireless Corp., For a Construction Permit for a New FM
Station on Channel 249A in Mecca, Ca., 7 FCC Rcd 4252, 4252–53,
¶5 (1992) (dismissing application because staff unable to determine
‘‘which set of coordinates was correct’’ but noting ‘‘[a]lthough a
coordinate discrepancy is considered an acceptability defect, the
staff will, within reason, nonetheless attempt to resolve any discrep-
ancies found in an application’’). Furthermore, as discussed above,
the Commission allowed another licensee in the 220–222 service to
correct a typographical error before denying CCI’s similar request.
See Ann Leggett, 15 FCC Rcd at 2575, ¶4.
 10

Vehicles Mfrs. Ass’n, 463 U.S. at 57 (‘‘[A]n agency changing
its course must supply a reasoned analysis.’’ (internal quota-
tion marks omitted)).
Moreover, the Commission’s void ab initio rationale makes
no sense. The license the Commission granted CCI specified
Mount Allison as the transmitter site, a fact later confirmed
by CCI itself when it notified the Commission that it had built
its transmitter and was operating from Mount Allison. For
the Commission seven years later to pronounce CCI’s license
void ab initio because the geographic coordinates provided
specify a point in the Pacific Ocean is, politely speaking,
unreasonable. The Commission must have known—from
CCI’s license and CCI’s notice—that CCI was operating from
a mountain, not the ocean; with minimal effort the Commis-
sion staff could have determined the precise location.
The Commission is of course entitled to demand strict
adherence to its rules, see Salzer v. FCC, 778 F.2d 869, 871,
875 (D.C. Cir. 1985), but it cannot so proclaim on the fly, as it
did here. See Salzer, 778 F.2d at 871 (‘‘[F]undamental fair-
ness TTT requires that an exacting application standard, en-
forced by the severe sanction of dismissal without consider-
ation on the merits, be accompanied by full and explicit notice
of all prerequisites for such consideration.’’); Bamford v.
FCC, 535 F.2d 78, 82 (D.C. Cir.) (‘‘elementary fairness re-
quires clarity of standards sufficient to apprise an applicant of
what is expected’’), cert. denied, 429 U.S. 895 (1976). The
Commission likewise may require an applicant to bear the full
cost of its own mistake, see RKO Gen., Inc. v. FCC, 670 F.2d
215, 232 (D.C. Cir. 1981), cert. denied, 456 U.S. 927 (1982),
but, again, to do so here, it had to explain why it imposed that
requirement on CCI while regularly allowing others to bear
no cost. See slip op. supra note 8.
The Commission’s second rationale fares no better. It
offers only a partial, and ultimately inadequate, explanation of
the inevitable dismissal of CCI’s application—even had it
contained the correct coordinates at the outset—because CCI
requested a transmitter site less than 120 kilometers from
ComTech’s site. The sites would have been deemed ‘‘mutual-
ly exclusive,’’ the Commission says, because section 90.723 of
 11

the Commission rules provides that ‘‘the separation of co-
channel base stations shall be 120 kilometers.’’ 47 C.F.R.
§ 90.723(f) (1991 version); see also id. § 90.711(a) (1991 ver-
sion). This general requirement, however, is significantly
qualified by the rule’s second sentence, which states that a
station separation of less than 120 kilometers ‘‘will be consid-
ered on a case-by-case basis upon submission of a technical
analysis indicating that at least 10 dB protection will be
provided to an existing station’s 38 dBu signal level contour.’’
See id. § 90.723(f) (1991 version). While the Branch and the
Division acknowledged this qualifier but nonetheless conclud-
ed that CCI was ineligible, see slip op. supra pp. 3–5, the
Commission did not mention the provision or, more signifi-
cantly, why it was unavailable to CCI. It did not even
endorse the Branch’s and the Division’s rejection of its appli-
cability to CCI. The Commission counsel now insists that the
Commission’s apparent oversight is not an oversight at all but
instead an implicit, and to its mind reasonable, interpretation
of its rule to the effect that CCI could not fit the exception.
See Appellee’s Br. at 31–32. But we cannot evaluate the
reasonableness of an interpretation the Commission did not
set forth. See PanAmSat Corp. v. FCC, 198 F.3d 890, 897
(D.C. Cir. 1999) (‘‘We do not ordinarily consider agency
reasoning that ‘appears nowhere in the [agency’s] order.’ ’’
(quoting Graceba Total Communications, Inc. v. FCC, 115
F.3d 1038, 1041 (D.C. Cir. 1997))); see also SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). Although the Commission
counsel—before us—proffers a detailed explication of the
Commission’s sub silentio interpretation, we cannot consider
it because it comes too late.9 See Appellee’s Br. at 32–33. In
any event, such an implied interpretation would conflict with
the regulation’s plain language which calls for ‘‘case-by-case’’
consideration, 47 C.F.R. § 90.723(f) (1991 version). See S.A.
9 See Chenery Corp., 332 U.S. at 196 (‘‘[A] simple but fundamental
rule of administrative law TTT is to the effect that a reviewing court,
in dealing with a determination or judgment which an administra-
tive agency alone is authorized to make, must judge the propriety of
such action solely by the grounds invoked by the agency’’ and ‘‘that
basis must be set forth with such clarity as to be understandable.’’).
 12

Storer & Sons Co. v. Sec’y of Labor, 360 F.3d 1363, 1368 (D.C.
Cir. 2004) (‘‘An agency’s interpretation of its own regulations
is entitled to substantial deference and even receives control-
ling weight unless it is plainly erroneous or inconsistent with
the regulation.’’ (internal quotation marks omitted)); id. at
1369 (holding Secretary’s inversion of regulation’s plain lan-
guage unreasonable).

* * *
For the foregoing reasons, we reverse the Commission’s
order, see First Order, 15 FCC Rcd 5428, denying review of
CCI’s application for review, see First Application for Review,
reprinted in D.A. 111–29, and remand the matter for further
consideration in accordance with this opinion.
So ordered.