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. 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 1 of 15
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. 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 2 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 3 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 4 of 15
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 cut-
off 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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 5 of 15
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-
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 6 of 15
7 
 
spaced station.”  J.A. 261 n.3.  It therefore deemed the WZBZ-
WJBR 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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 7 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 8 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 9 of 15
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 short spaced 
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. Ark-
Best 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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 10 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 11 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 12 of 15
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 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 13 of 15
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, late-
filed 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.  
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 14 of 15
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 license-
renewal practices, which have in any event been superseded by 
the new policy.   
So ordered. 
USCA Case #16-1290      Document #1705371            Filed: 11/21/2017      Page 15 of 15