FAHY, Circuit Judge.
The Federal Communications Commission denied the request of Ridge Radio Corporation, herein referred to as Ridge, that its application for a new standard broadcasting station to operate on 1350 kilocycles at Windber, Pennsylvania, be consolidated for hearing with other mutually exclusive applications. At the same time the Commission dismissed Ridge's application. Petition for reconsideration was also denied and Ridge then appealed to this court.
The question is whether Ridge was validly denied the consolidated hearing it sought because its application was filed after a cut-off date had been set by the Commission in circumstances now to be stated.
The Commission's rule regarding consolidations, section 1.106(b) (1), reads as follows:
On July 30, 1959, the Commission issued a public notice in which it listed fifty applications that would be considered ready and available for processing by September 5, 1959. The notice advised that,
"[A]n application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing at the offices of the Commission in Washington, D. C., no later than the close of business on September 4, 1959, or, if action is taken by the Commission on any listed application prior to September 4, 1959, no later than the close of business on the day preceding the day on which action is taken."
As September 4, 1959 arrived before action was taken on any listed application that date became the cut-off date under the notice.
Ridge's application was filed November 23, 1959. There were then on file, among others later to be mentioned, the following applications for a new station on 1350 kilocycles at Windber:
Ridge had no interest in any application included in the list published July 30, 1959, but, as above indicated, it did have an interest in the applications of Gosco and Community. As stated, the latter were included in the consolidated hearing because Connellsville, which filed August 25, 1959, created a possible interference with station WKRZ, and Connellsville was also in possible conflict with Gosco and Community. Of these, all except Ridge had filed by September 4, 1959, though only WKRZ was listed in the notice of July 30, 1959, and Ridge had no conflict with WKRZ.
Since the Commission's denial of Ridge's request for inclusion in the comparative hearing referred to in the letter of January 7, 1960, was based on the filing of its application after September 4, 1959, we do not consider any other basis which might have been but was not advanced by the Commission for its decision.
It is not questioned that Ridge would have been entitled under the Ashbacker doctrine
The Commission construes the rule to mean that unless filed before the cut-off date an application may not be consolidated for hearing with any application previously filed, which included WKRZ in this case, with which Ridge had no conflict, and Gosco and Community with which Ridge did have a conflict, but which were not on the list of July 30, 1959. The Commission explains that this meaning of the rule was made clear when the present text of the rule was adopted, though the Commission then recognized that it might exclude from consideration applications filed before the date of hearing itself. The Commission deemed this result to be in the public interest after weighing the rights of the excluded appplicant with the need for expeditious disposition of applications.
We do not in this case question the authority of the Commission to enforce the rule it has adopted, or to give it the construction above set forth. But in carrying out the rule so construed the Commission may not, however inadvertently, give public notice of a cut-off date which does not fairly advise prospective applicants of what is being cut off by the notice. In the present case the Commission published a list of fifty applications that would be considered ready and available for processing by September 5, 1959, and advised potential applicants that "an application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing * * * no later than the close of business September 4, 1959 * * *." In reading this notice one would reasonably conclude that it was directed only to applications having a possible conflict with some application on the list. It was not a warning that an application filed after September 4 would be precluded from Ashbacker consideration with an unlisted mutually exclusive application filed before that date and which in some way was in conflict with another unlisted application also filed before September 4, which in turn was in conflict with a listed application. To make the amended rule have that effect in a particular case the notice under the rule must be clearer as to the effect intended.
It is difficult enough to read section 1.106(b) (1) itself as the Commission interprets it, but we accept that interpretation in light of the history of the provision. Nevertheless, when a particular cut-off date is fixed by public notice a potential applicant is entitled to rely upon the terms of the notice. The Commission is not required in a notice to phrase its cut-off provision so broadly as to encompass all the rule itself permits. It may validly do less by the notice. In this case we think it did less. As phrased the notice was not fair warning that to be considered with Gosco and Community, not on the list, Ridge must file by September 4. Since, therefore, the notice did not deprive Ridge of its right to an Ashbacker hearing with other Windber-area applications, and since the rule was restricted in this case by the scope of the notice, the order of the Commission will be reversed and the case remanded to the Commission for further proceedings not inconsistent with this opinion.
We need hardly add that the question as to the adequacy of the notice
It is so ordered.