UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DAMSKY, HEIDI

v.

FCC


99-1018a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: Appellant Heidi Damsky appeals  from an order
of the Federal Communications Commission  ("FCC" or "Commission")
finding her financially unqualified  to receive an FM station
construction permit and finding that  an applicant that subsequently
obtained the permit as part of  a settlement agreement did not make
disqualifying misrepre- sentations to the Commission. Damsky also
argues that an  intervening change in law entitled her to participate
in an  auction for the already-issued permit. Upon review of the 
relevant law and the record, we hold that the Commission did  not err
in affirming the Administrative Law Judge's financial  qualification
findings. We also hold that Damsky is not  entitled to an auction
because the Commission adequately  explained why the statutory
settlement provisions and Com- mission policy permitted the negotiated
outcome obtained  here. Therefore, we affirm the Commission's decision
based  on the aforementioned considerations and do not need to  reach
the misrepresentation issue raised by Damsky.


I. Background


In 1988, Heidi Damsky, the appellant, and twelve other  applicants
filed mutually exclusive applications for a permit to  construct a new
FM broadcast station in Homewood, Ala- bama. The Mass Media Bureau
designated all applications  for comparative hearing. As a result of a
1992 hearing, an  Administrative Law Judge found that Damsky failed to
estab- lish her financial qualifications and dismissed her
application.  See In re Heidi Damsky, 7 F.C.C.R. 5244 pp 180-83 (1992)
 ("Initial Decision"). The Commission affirmed the ALJ's 


determination. See In re Heidi Damsky, 13 F.C.C.R. 11688  pp 24-32
(1998) ("Memorandum Opinion and Order").


By the time of the 1992 hearing, the applicant pool had  narrowed to
include Damsky and two others. The two re- maining applicants, WEDA,
Ltd. ("WEDA") and Homewood  Partners, Inc. ("HPI"), entered into a
settlement agreement  contingent on Damsky's disqualification. Upon
affirming  Damsky's disqualification, the Commission granted the per-
mit to the resulting entity, intervenor Homewood Radio Com- pany
("Homewood Radio"). See Memorandum Opinion and  Order, 13 F.C.C.R.
11688 pp 4, 7, 24-32. In addition to  affirming the ALJ's financial
disqualification findings, the  Commission addressed two other
challenges now properly  raised and argued by Damsky on appeal. First,
the Commis- sion rejected Damsky's claim that HPI had made disqualify-
ing misrepresentations to the Commission. See id.pp 12-23.  Second,
the Commission rejected Damsky's claim that a  recent Commission order
required it to award the permit  through a competitive auction in
which Damsky could partici- pate. See In re Heidi Damsky, 14 F.C.C.R.
370 pp 9-14  (1999) ("Further Petition for Reconsideration"); see also
In  re Heidi Damsky, 13 F.C.C.R. 16352 (1998) ("Petition for 


A. Background on Financial Qualifications


At the time the parties filed their applications, the Commis- sion
resolved competing applications though an evidentiary  hearing process
that assessed applicants' basic and compara- tive qualifications. Each
broadcast applicant had to establish,  among other things, that it was
financially qualified to cover  certain construction and operating
costs. See 47 U.S.C.  s 308(b) (1994); CHM Broad. Ltd. Partnership v.
FCC, 24  F.3d 1453, 1455 (D.C. Cir. 1994). The financial qualification
 form in effect when the parties here made their filings  required
each applicant to certify with "reasonable assurance"  that it had net
liquid assets on hand or had funding obtain- able from committed
sources sufficient to construct and oper- ate the requested facilities
for three months without reve-


nues. See In re Revision of Application for Construction  Permit for
Commercial Broadcast Station (FCC Form 301),  50 Rad. Reg. 2d 381 (P &
F) (1981) ("Form 301"). The form  clearly indicated that an applicant
had to be prepared to  document certification compliance upon request.
See id. If  the Commission questioned an applicant's financial
qualifica- tions, the applicant had to demonstrate its "reasonable
assur- ance" by showing that, "prior to certification, it engaged in 
serious and reasonable efforts to ascertain predictable con- struction
and operation costs" and that it confirmed the  availability of net
liquid assets, either on hand or from  committed sources, sufficient
to construct and operate the  station for three months without
revenue. In re Northamp- ton Media Assocs., 4 F.C.C.R. 5517 pp 13-15
(1989), aff'd sub  nom. Northampton Media Assocs. v. FCC, 941 F.2d
1214,  1217 (D.C. Cir. 1991). After questioning and investigating 
Damsky's financial qualifications, the ALJ found that Damsky  failed
to make either of the two showings required to estab- lish a


Specifically, the ALJ found that Damsky failed to show  prior to the
certification that she engaged in "serious and  reasonable efforts" to
formulate cost figures because she only  offered a general $300,000
"ballpark" cost estimate based on a  conversation with her consulting
engineer. See Initial Deci- sion, 7 F.C.C.R. 5244 pp 6-9, 181. The
Commission affirmed  the ALJ's findings and conclusions. See
Memorandum Opin- ion and Order, 13 F.C.C.R. 11688 pp 1, 30. Likewise,
the  ALJ and Commission both agreed that Damsky failed to  show that
she had sufficient committed funding available  since she based her
financial backing on a casual assurance  from her husband that the
couple had the assets to cover the  $300,000 project. See Initial
Decision, 7 F.C.C.R. 5244  pp 10-24, 182-83; Memorandum Opinion and
Order, 13  F.C.C.R. 11688 p 31. The ALJ and Commission found that 
while the record showed that Damsky's husband preferred to  obtain a
loan rather than liquidate, neither Damsky nor her  husband provided
any assurance about the availability of such  a loan contemporaneous
with the certification. See Initial 


Decision, 7 F.C.C.R. 5244 pp 182-83; Memorandum Opinion  and Order, 13
F.C.C.R. 11688 p 32.


B. Challenge with Regard to HPI


In the order affirming Damsky's disqualification, the Com- mission also
accepted the Homewood Radio settlement agree- ment. Throughout the
permit application process, Damsky  challenged the corporate structure
of HPI, one of the settling  parties, as violating FCC rules and
alleged that HPI had  made various disqualifying misrepresentations to
the FCC.  The resulting inquiry primarily focused on whether two of
the  five HPI principals impermissibly acquired their ownership 
interests prior to the filing of HPI's amended application.  Two
checks formed the heart of the debate. Apparently, two  "investors"
gave the three original partners two $1200 checks  marked respectively
"20% Interest Radio" and "Ownership  20% of Homewood Partners." The
agency inquiry focused on  whether the checks constituted an ownership
interest or a  loan. Although conflicting documentary evidence
existed, the  ALJ evaluated all of the evidence and resolved the issue
in  HPI's favor by deeming the payments loans. See In re Heidi 
Damsky, 9 F.C.C.R. 4011 pp 61-68 (1994) ("Supplementary  Initial
Decision"). The Commission affirmed the ALJ's find- ings. See
Memorandum Opinion and Order, 13 F.C.C.R.  11688 pp 13-23.


C. Background on Auction Provisions


While exceptions to the ALJ's decision were pending, this  court held
in Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993),  that the
"integration of ownership with management" criteria  used in FCC
comparative hearings was arbitrary and capri- cious and therefore
unlawful. See id. at 878. In response to  Bechtel, the Commission
froze all ongoing comparative cases,  including this case, pending the
development of a new regula- tory structure. See Memorandum Opinion
and Order, 13  F.C.C.R. 11688 p 3. However, the Commission also
created  an exception to the freeze policy. The exception allowed a 
frozen case to be adjudicated to completion if the parties to 


the comparative proceeding reached a settlement agreement  even if the
settlement were contingent on the resolution of  specific basic
qualifying issues. See Modification of FCC  Comparative Proceedings
Freeze Policy, 9 F.C.C.R. 6689  (1994). The agreement resulting in
Homewood Radio's re- ceipt of the construction permit constituted such
a settlement.


However, while the parties here were negotiating for settle- ment,
Congress amended s 309(j) of the Communications Act  to require the
Commission to grant construction permits  through a competitive
bidding system. See 47 U.S.C. s 309(j)  (Supp. III 1997). Since the
mandatory competitive bidding  system applied to applications filed
after July 1, 1997, newly- enacted s 309(l) covered the applications
filed in this case  because the filings occurred before July 1, 1997.
Subsection  309(l)(1) states that the Commission "shall ... have the 
authority" to resolve the pre-July 1, 1997 filings through 
competitive bidding. In addition, subsection 309(l)(3) re- quired the
Commission to "waive any provisions of its regula- tions necessary to
permit such persons to enter an agreement  to procure the removal of a
conflict between their applications  during the 180-day period
beginning on the date of August  15, 1997." Here, the settlement
agreement fell within the  180-day window.


Subsequent to the Commission's approval of the Homewood  Radio
settlement agreement but prior to the Commission's  denial of Damsky's
Petition for Reconsideration, the Commis- sion adopted rules to
implement its new auction authority. In  an order, the Commission
announced its decision to resolve  the pre-July 1, 1997 filings by
auction because "auctions will  generally be fairer and more
expeditious than deciding [the  pre-July 1, 1997 filings] through the
comparative hearing  process." In re Implementation of Section 309(j)
of the  Communications Act, 13 F.C.C.R. 15920 p 34 (1998) ("Auc- tion
Order"). In response to the Auction Order, Damsky  sought further
administrative remedy and asserted that the  Auction Order required
the Commission to hold an auction  for the Homewood Radio permit.
Specifically, Damsky relied  upon paragraph 89 of the Auction Order


Where the Commission has denied or dismissed an appli- cation and such
denial or dismissal has become final (e.g.,  when an applicant failed
to seek further administrative or  judicial review of that ruling),
such an entity is not  entitled to participate in the auction. Among
those  remaining in the proceeding, we will permit all pending 
applicants to participate in the auction, without regard to  any
unresolved hearing issues ... as to the basic qualifi- cations of a
particular applicant.


Id. p 89. Thus, Damsky argued that the intervening Auction  Order
entitled her to participate in an auction for the permit  because the
original order disqualifying her was still under  review and the "new"
auction system allowed her to partici- pate despite any unresolved
qualification issues. The Com- mission rejected her claim because the
settling parties  reached an agreement in accordance with s 309(l) of
the  amended statute, the provision ordering the Commission to  waive
its rules and policies when necessary to permit 180-day  window
applicants to enter into settlement agreements, and  because paragraph
89 did not address cases involving settle- ments filed within the
180-day waiver period which were  thereafter approved contingent upon
the Commission resolv- ing specified basic qualification issues. See
Further Petition  for Reconsideration, 14 F.C.C.R. 370 pp 9-13; see
also In re  Implementation of Section 309(j) of the Communications
Act,  14 F.C.C.R. 8724 p 18 (1999).


On appeal, Damsky challenges the Commission's adverse  financial
qualification determination resulting in the dismissal  of her
application, the Commission's determination that HPI  did not make
disqualifying misrepresentations, and the Com- mission's approval of
the Homewood Radio settlement agree- ment in lieu of an auction.


II. Discussion


A. Scope of Review


As an initial matter, we must establish the extent of our  review since
the FCC challenges the sufficiency of Damsky's 


notice concerning the issues she currently argues on appeal.  With
regard to the auction issue, we hold that Damsky  properly raised that
issue in her Notice of Appeal ("Notice")  by expressly appealing the
order denying further reconsider- ation in which the Commission first
addressed the auction  provisions in dispute. See Further Petition for
Reconsidera- tion, 14 F.C.C.R. 370 pp 9-13. Although "a petition
seeking  review of an agency's decision not to reopen a proceeding is 
not reviewable unless the petition is based upon new evidence  or
changed circumstances," Southwestern Bell Telephone Co.  v. FCC, 180
F.3d 307, 311 (D.C. Cir. 1999), the FCC concedes  and we agree that
the auction issue pertains to changed  circumstances in the law and is
therefore reviewable by this  court.


The sufficiency of notice concerning the financial qualifica- tion and
misrepresentation issues requires a more extended  discussion. In
Southwestern Bell, we held that when an  agency has denied the
reconsideration of a substantive under- lying decision and a party
appeals only the order denying  reconsideration, the appeal does not
suffice to bring the  earlier substantive decision's merits before the
court. See  Southwestern Bell, 180 F.3d at 309. The FCC argues that 
Damsky sought review only of the Commission orders deny- ing her
reconsideration and further reconsideration. There- fore, the FCC
asserts, Damsky cannot raise the financial  qualification or
misrepresentation issues on appeal since the  Commission only
substantively addressed those issues in the  unchallenged underlying
Memorandum Opinion and Order.  However, for the reasons set forth
below, we reject the  FCC's argument and hold that Damsky made
sufficient refer- ences to the underlying substantive Memorandum
Opinion  and Order in her Notice of Appeal and accompanying Concise 
Statement of Reasons to put the Commission on notice that  she
intended to challenge the financial qualification and mis-


On the face of her Notice of Appeal, Damsky clearly states  that she is
appealing the Commission order denying further  reconsideration.
However, the Notice also references the  order denying reconsideration
and the underlying Memoran-


dum Opinion and Order. Moreover, Damsky briefly ad- dresses the merits
of the Memorandum Opinion and Order  in the Concise Statement of
Reasons attached to the Notice.  Given the ambiguity surrounding the
existence of actual  notice, we analyze Damsky's notice predicament
under the  "test for determining whether a filing that names one order
 suffices to bring a different order before the court" set out in 
Southwestern Bell, 180 F.3d at 313.


To determine whether an applicant sufficiently raised an  order or an
issue contained in a particular order, we first  examine the notice to
see whether it contains "the specifica- tion of [other] orders and
hearing dates [or] fail[ed] to  mention the [disputed] order in either
the notice of appeal or  the docketing statement" and also review
other relevant filing  information. Brookens v. White, 795 F.2d 178,
181 (D.C. Cir.  1986) (per curiam). We then use the results of this
examina- tion to infer the petitioner's intent and decide if the
respon- dent has been misled by the filings. See Brookens, 795 F.2d 
at 181; see also Southwestern Bell, 180 F.3d at 313. Here,  Damsky, in
passing, cited to the order dealing with her  disqualification and the
HPI misrepresentation issues in her  Notice of Appeal. However, she
also substantively chal- lenged the Commission's denial of her
application on financial  qualification grounds and its dismissal of
the misrepresenta- tion issue in the Concise Statement of Reasons
attached to  her Notice of Appeal. Thus, the Commission cannot claim 
that any notice defects surprised or misled it with regard to  the
issues Damsky intended to raise on appeal. Given the  circumstances,
we conclude that Damsky adequately brought  the Memorandum Opinion and
Order before this court for  review. Therefore, we will address both
the financial qualifi- cation issue analyzed in the Memorandum Opinion
and  Order and the auction issue analyzed in the order denying 
further reconsideration. For the reasons set forth below, we  do not


B. Financial Qualifications


We review FCC orders "under the deferential standard  mandated by
section 706 of the Administrative Procedure Act, 


which provides that a court must uphold the Commission's  decision
unless it is 'arbitrary, capricious, an abuse of discre- tion, or
otherwise not in accordance with law.' " Achernar  Broad. Co. v. FCC,
62 F.3d 1441, 1445 (D.C. Cir. 1995)  (quoting 5 U.S.C. s 706(2)(A)).
In this task, we "do not  'substitute [our] judgment for that of the
agency' [but] [r]ath- er we look to see 'whether the decision was
based on a  consideration of the relevant factors and whether there
has  been a clear error of judgment.' " Freeman Eng'g Assocs.,  Inc.
v. FCC, 103 F.3d 169, 178 (D.C. Cir. 1997) (quoting Motor  Vehicle
Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co.,  463 U.S. 29, 43
(1983)). We also review the FCC's factual  findings for support by
substantial evidence. See, e.g., Millar  v. FCC, 707 F.2d 1530, 1540
(D.C. Cir. 1983). Given the  relevant standards of review, we hold
that the Commission  did not act arbitrarily in affirming the ALJ's
finding Damsky  financially disqualified since the law and substantial
evidence  in the record support the ALJ and Commission's decisions 
regarding Damsky's failure to substantiate her financial quali-
fication. More specifically, we hold that the Commission's  conclusion
that Damsky did not certify funding with a "rea- sonable assurance"
because she did not engage in "serious  and reasonable efforts" to
obtain construction and operating  cost figures is not arbitrary or


In In re Northampton Media Assocs., 4 F.C.C.R. 5517  (1989), aff'd sub
nom. Northampton Media Assocs. v. FCC,  941 F.2d 1214 (D.C. Cir.
1991), the Commission provided  some guidance regarding "reasonable
assurance" in the certi- fication context:


[T]he certification procedure was designed "to spare[ ]  [applicants]
the time and effort necessary to prepare and  submit the documentation
previously required to demon- strate their qualifications." ...
[R]easonable assurance  does not necessarily require that an applicant
have the  written documentation [previously required] when it cer-
tifies its financial qualifications. Although the support- ing
documentation must be produced upon the Commis- sion's request, the
applicant may prepare and submit it  after certification, provided
that the applicant actually 


had a reasonable assurance of adequate funds at the time  of
certification.


Id. p 14 (quoting In re Certification of Financial Qualifica- tions by
Applicants for Broadcast Station Construction Per- mits, 2 F.C.C.R.
2122 (1987) (emphasis added)). Specifically,  the law required Damsky
to establish, upon request, two pre- certification inquiries in order
to demonstrate "reasonable  assurance." First, she had to "adduce
probative evidence  that, prior to certification, [she] engaged in
serious and  reasonable efforts to ascertain predictable construction
and  operation costs." Id. p 15; see also Mission Broad. Corp. v. 
FCC, 113 F.3d 254, 260 (D.C. Cir. 1997) (noting that applicant  must
first determine how much money is required). Second,  she had "[t]o
establish the availability of funds to meet these  estimated expenses,
[by] provid[ing] substantial and reliable  evidence showing
'sufficient net liquid assets on hand, or  committed sources of funds
to construct and operate for three  months without revenue.' "
Northampton, 4 F.C.C.R. 5517  p 15 (quoting Form 301, 50 Rad. Reg. 2d
at 388); see also  CHM Broad., 24 F.3d at 1458. Here, Damsky's
reliance on a  vague "ballpark" cost estimate does not get her over
the  initial "serious and reasonable efforts" hurdle. Cf. In re 
Victorson Group, Inc., 6 F.C.C.R. 1697 pp 18-19 (Rev. Bd.  1991)
(finding "general sense" of estimated costs insufficient  for
financial qualification purposes); In re Sunbelt Ltd. Part- nership, 7
F.C.C.R. 4394 pp 7-10 (Rev. Bd. 1992) (finding  "bits of information"
on costs insufficient for financial qualifi- cation purposes), aff'd,
8 F.C.C.R. 753 (1993), rev'd and  remanded on other grounds sub nom.
Sunbelt v. FCC, Nos.  93-1184 & 93-1708, 1994 WL 191656 (D.C. Cir. May


Damsky incorrectly relies on Northampton as support for  her position.
In Northampton, the Commission found finan- cially qualified an
applicant--a three-person corporation in- cluding a principal with
experience in radio--that had relied  on an oral cost estimate which
included an itemization of  equipment, construction, and salary and
other operating costs  necessary to cover a low-cost "mom and pop"
operation  ($38,800). See In re Northampton Media Associates, 3 
F.C.C.R. 570 pp 31, 51-56, 63, 68 (1988); Northampton, 4 


F.C.C.R. 5517 pp 5, 17. The applicant had relied on a consult- ing
engineer to prepare the technical portion of the applica- tion and to
give advice regarding potential construction and  operation costs. See
3 F.C.C.R. 570 p 53. Here, unlike in  Northampton, Damsky, a person
relatively unfamiliar with  the radio industry, relied on a
consultant's "ballpark" esti- mate indicating that the relevant costs
would be around  $300,000. While Damsky's figure came from an
engineer,  perhaps even an engineer with experience in radio station 
management, Damsky could not verify that the figure took  into account
basic and fundamental expenses. Given the  potential magnitude of
construction and operation costs at  stake, the Commission reasonably
concluded that Damsky did  not have enough supporting detail at the
time of her certifica- tion to make her reliance on the $300,000
figure reasonable.  The evidence offered by Damsky did not establish
that she  had made "serious and reasonable efforts" to secure a cost 
figure at the time of certification. Thus, the Commission 
legitimately rejected Damsky's application due to her lacka- daisical


C. The Auction


In reviewing the interpretation and application of the FCC  auction
rules challenged here, we afford the deference due  the FCC's
interpretation of its own rules and policies, and will  uphold the
FCC's interpretation unless it is "plainly errone- ous or inconsistent
with the regulation." E.g., Freeman  Eng'g, 103 F.3d at 178 (citations
and quotations omitted).  Considering the ambiguity surrounding the
interaction be- tween the s 309(l) auction and settlement provisions
as de- scribed by the Commission in the Auction Order, we conclude 
that the Commission adequately explained why it did not  regard
paragraph 89 of the Auction Order as requiring that  Damsky be allowed
to participate in an auction for the  construction permit.


In addition to giving the Commission the ability to resolve 
transitional competing comparative permit applications  though a
competitive auction mechanism, Congress required 


the Commission to "waive any provisions of its regulations  necessary
to permit such persons to enter an agreement to  procure the removal
of a conflict between their applications"  during a 180-day window. 47
U.S.C. s 309(l). Here, two  applicants, not including Damsky, filed a
settlement agree- ment within the 180-day period. The agreement was
contin- gent upon the Commission's affirming the ALJ's finding that 
Damsky was disqualified on financial qualification grounds.  Since the
auction issue involves, in part, the Commission's  interpretation of a
statute committed to its administration, we  employ the Chevron
analysis in reviewing the agency's inter- pretation. Pursuant to
Chevron, we will give effect to any  unambiguously expressed intent of
Congress as contained in  the statutory provision under review. See
Nuclear Info.  Resource Serv. v. Nuclear Regulatory Comm'n, 969 F.2d 
1169, 1173 (D.C. Cir. 1992) (en banc). However, if the  statutory
provision is silent or ambiguous, we will defer to the  agency's
interpretation assuming its interpretation is reason- able and
consistent with the statute's purpose. See id. Giv- en the statutory
language in issue, we hold that the Commis- sion reasonably
interpreted s 309(l) as affording applicants  falling in the window
period, upon the resolution of any basic  qualification disputes, the
opportunity to settle instead of  participating in an auction. See
Further Petition for Recon- sideration, 14 F.C.C.R. 370 pp 11-12; In
re Implementation  of Section 309(j) of the Communications Act, 14
F.C.C.R.  8724 p 18. The Commission's use of Damsky's financial quali-
fication as a condition to approving the settlement agreement  is
consistent with the statute. See also 47 U.S.C.  s 309(j)(6)(E) (1994)
(indicating that the grant of auction  authority not "be construed to
relieve the Commission of the  obligation in the public interest to
continue to use ... thresh- old qualifications ... in order to avoid
mutual exclusivity in  application and licensing proceedings").


In reaching our decision, we reject Damsky's contention  that s
309(l)(3) only governs global settlements. The Com- mission reasonably
interpreted the statute when it deter- mined that partial settlements
could be approved under  s 309(l)(3). See Auction Order, 13 F.C.C.R.
15920 pp 73, 93; 


In re Implementation of Section 309(j) of the Communica- tions Act, 14
F.C.C.R. 8724 p 18. Nothing in the statute  dictates that s 309(l)(3)
only permits universal settlement.  Since settlements are private
contractual arrangements, an  applicant such as Damsky has no general
legal right to be  included in a settlement. See In re Anax Broad.
Inc., 88  F.C.C.2d 607 p 10 (1981). Thus, nothing in the statute or 
other law appears to preclude the Commission from approv- ing a
settlement that includes only qualified parties. The  Commission has
acted consistent with this interpretation.  See In re Global
Information Tech., Inc., 12 F.C.C.R. 11808  pp 1, 3, 6 (1997), aff'd
on other grounds sub nom. Frontier  Broad., Inc. v. FCC, No. 97-1530,
1998 WL 704510 (D.C. Cir.  Sept. 4, 1998); In re Gonzales Broad.,
Inc., 12 F.C.C.R. 12253  pp 4, 19 (1997), aff'd on other grounds sub
nom. Jelks v. FCC,  146 F.3d 878 (D.C. Cir. 1998), cert. denied, 199
S. Ct. 1045  (1999); In re Pensacola Radio Partners, 13 F.C.C.R. 11681
 p 1 (1998), aff'd on other grounds sub nom. Floyd v. FCC, No. 
98-1269, 1999 WL 236879 (D.C. Cir. Mar. 29, 1999).


The Commission's interpretation of paragraph 89 of the  Auction Order
comports with its interpretation of the statute  and its prior
practice. The Commission reasonably interprets  paragraph 89 as only
applying to cases "where an auction  would otherwise be held because
no settlements were  reached." Memorandum Opinion and Order, 14
F.C.C.R.  370 p 12. As the Commission points out, the Auction Order 
and supporting notices separate out s 309(l)(3) settlement  from
auction rules and guidelines. See id. p 13. Moreover,  the Commission
adequately established on the record that a  proper s 309(l)(3)
settlement would obviate the need for an  auction. See id.; In re
Implementation of Section 309(j) of  the Communications Act, 14
F.C.C.R. 8724 p 18. The Com- mission's reading of paragraph 89 makes
sense when the  provision is analyzed in context. Thus, paragraph 89
does not  undo the Commission's approval of the settlement agreement 
in this case since the Commission reasonably interpreted  paragraph 89
as not pertaining to permissible settlement  agreements reached


To recap, we hold that Damsky provided sufficient notice to  entitle
her to review of her claims stemming from the Memo- randum Opinion and
Order in addition to review of the  auction issue. However, we uphold
the Commission's deter- mination that Damsky was financially
disqualified from re- ceiving the Homewood FM station construction
permit. We  also hold that the Commission reasonably interpreted s
309(l)  and its Auction Order as not providing Damsky with the 
opportunity to participate in an auction.


III. Conclusion


We conclude that the Commission did not err in finding  Damsky
financially disqualified from receiving a construction  permit and in
interpreting the auction provisions as being  inapplicable to her.
Thus, the Commission correctly dis- missed Damsky's application. Since
Damsky has no claim to  the construction permit, we need not reach her
challenge  concerning the alleged misrepresentations made by HPI. 
Because the law and record support the Commission's find- ings
regarding Damsky's financial qualifications and the Com- mission's
interpretation and application of the relevant settle- ment and
auction provisions are reasonable, we affirm the  Commission's
determinations challenged on appeal.