dissenting:
In Salzer v. FCC, 778 F.2d 869 (D.C.Cir.1985), we addressed the problem of peculiarly unforgiving license schemes, where one false move is fatal to an applicant. Troubled by the potential for unfairness, but acknowledging the FCC’s need for dispatch, we approved the general approach but held that “fundamental fairness” required that it “be accompanied by full and explicit notice of all prerequisites” for consideration. Id. at 871-72. Thus the issue here is not whether the Commission’s after-the-fact readings of its rules are permissible. Compare United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977) (exceptional deference due an agency’s interpretation of its own rules). The question is whether the rules, in light of the Commission’s after-the-fact interpretation, afforded “full and explicit notice” within the meaning of Salzer. Although the majority acknowledges the confusion sown by the FCC in this case, it finds the Salzer requirement satisfied, thereby, in my view, diluting Salzer beyond recognition.
When the Commission “went metric” in 1983, adopting 100 meters rather than 300 feet as the maximum antenna height for Class A FM stations, it failed to note in its new regulations that the 1972 U.S.-Mexico Agreement1 would thereafter provide an independent, lower constraint (300 feet) on antenna height for stations within 320 kilometers of the U.S.-Mexico border. As the Commission had incorporated into its rules the specific treaty requirements for distance separation between FM stations near the Mexican border, see 47 CFR § 73.207(b)(3) (1985), the combination (incorporation for one set, not for another) laid something of a false trail.
The Commission’s non-incorporation also created confusion in relation to the key issue here — what criteria went to “grantability” of an application, and thus could be cured on notice from the Commission, and what criteria went to “acceptability”, and could not. The Commission’s sole guidance on that subject is Appendix D, a policy statement attached to its 1985 FM Rules, Processing of FM and TV Broadcast Applications, Report and Order, 50 Fed.Reg. 19,936 (1985). Appendix D, titled “Statement of New Policy Regarding Commercial FM Applications That Are Not Substantially Complete or Are Otherwise Defective,” 50 Fed.Reg. at 19,945, gives this terse explanation of “acceptability”: “An application found to be sufficient for tender will be studied to determine its acceptability for filing, that is, to determine whether it is in compliance with applicable Commission rules. ” Id. at 19,946/2 (emphasis added); *202see also id. at 19,945/3 (“Compliance with the Commission’s technical rules is evaluated in the course of an acceptability study.”) (emphasis added).
But the height limits of the U.S.-Mexico Agreement are not part of the Commission’s rules. It is precisely on this basis that the court quite properly finds that the FCC’s failure to publish them in the Federal Register was not a violation of Administrative Procedure Act’s publication requirement. See 5 U.S.C. § 552(a)(1) (1988); Maj. Op. at 9. Although Appendix D notes that “[ajntenna height is also limited in certain cases by international treaty”, 50 Fed.Reg. at 19,946/1, nothing in either the Commission’s substantive rules or in Appendix D incorporates the treaty limitations into the Commission’s “rules”. Thus Appendix D made conformity to the Commission’s “rules” the condition of “acceptability”, but nothing made the treaty a part of the rules.
Petitioners are not the only ones confused. Malkan points to evidence that nine other applicants for new FM stations in South Padre Island, Texas, proposed antenna heights that violated the treaty provisions, whereas only five complied. See Brief for Appellant Malkan at 10 n. 9, 23-24 & n. 15. In the FM licensing case that first revealed the FCC’s present reading of Appendix D, eight of the eleven applicants proposed antenna heights above the treaty limit. Kerrville Radio, 2 FCC Red. 3441 (1987). If these figures are representative, the Commission was managing to strike out nearly seven of every ten applicants — very impressive, if one were to grade the Commission by its ability to throw out applications.
Nor was confusion limited to aspirants for the Commission’s favor. In a public seminar touted by the Commission as devised to “educate” the public about the new procedures, and attended by the Chiefs of the FCC’s Mass Media Bureau, Audio Services Division and FM Branch, the staff member conducting the seminar described compliance with international treaty obligations as a “grantability” issue, i.e., one not subject to the “sudden death” of an “acceptability” foul-up. See Transcript of “How to Apply for Construction Permits for FM Commercial Broadcast Stations”, Joint Appendix at 186-88, 218; see also Maj.Op. at 1317. Of course, this presentation does not bind the agency, see Maj.Op. at 1319, but it is surely evidence that even for experts, responsible for carrying out the Commission’s regulations day in and day out, the Commission’s rules and policy statement lacked the clarity that the Commission now claims and the court discerns.
I would reverse the Commission’s decisions denying Malkan and Trey leave to amend their applications.
. Agreement on Radio Broadcasting in the Standard Broadcast Band, Nov. 9, 1972, United States-Mexico, art. 5, § A(6)(a), 24 U.S.T. 1815, 1830, T.I.A.S. No. 7697, at 16.