WPC<4 2BJ ZCourier3|aTimes New Roman Italic6G;XPTimes New Romanlpt2HPLAS5SI.PRSx  @\*% sX@HP LaserJet 5Si lpt2HPLAS5SI.PRSXN\  P\*% sXP@Њ#Xj\  P6G;ynXP#2  K<1mes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDdDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxdTimes New RomanTimes New Roman ItalicTimes New Roman Bold2a=5,u&a\  P6G;&Pk(N1+,N\  P6G;P2a=5,u&a\  P6G;&P Grey PashGrey Pash .2ZR 0XXXN\  PXPЫXN\  PXP(9 Z 6Times New Roman RegularX&G\  P&P\ `&3|x2)KHK K /q"i~'^5>I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\"i~'^+2;II{r222IR&2&)IIIIIIIIII))RRRAjaaj[Rjj28j[jjRjaR[jjjj[2)2CI2AIAIA2II))I)rIIII28)IIjIIAFFO2&OC222&222222I2I)jAjAjAjAjA_aA[A[A[A[A2)2)2)2)jIjIjIjIjIjIjIjIjIjIjAjIjHjIjIjIRIjAjAjAaAaAaOaAj\[A[A[A[AjIjIjIjOjIjOjI2)2I222IgROOjI[)[;[2[2[)jIWjIjIjIjIja2a2a2R8R8R8RO[>[)[CjIjIjIjIjIjIjjO[A[A[AjI[2jIR8[2jI\&II11WggggggggggggggggggggggggggggggggggggggggggggggggxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN5XX5CI2AIIIII)/ooI,/ooIo,22AAI22XIIXo5XX5WxxRR2AI{,"aaaaooIoXUOIRXXI"i~'^5>I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>jaaj[Rjj28j[jjRjaR[jjjj[X%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\2K[KKKK"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\nBnnBb\\>g\7"yyyy\njc\}nn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%7%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lBTn(nBB(AZZ>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^+2>II{r222Id&2&)IIIIIIIIII22dddI[[aj[[jj2AaR{aj[j[IRj[{[RR8)8>I2IIAIA)II))A)jIIII88)IAaAA8;);O2&O>222&222222I2I)[I[I[I[I[IaaA[A[A[A[A2)2)2)2)aIjIjIjIjIjIjIjIjIRA[IjIjIjIRAjI[I[I[I[IaAaAaOaAjX[A[A[A[AjIjIjIjOjIjOjI2)2I222IoIOOaAR)R5R2R/R)aIUaIaIjIjIa[8[8[8I8I8I8OOR5R)R>jIjIjIjIjIjI{aROR8R8R8jIR2aII8R2RIX&II1 1WggggggggggggggggggggggggggggggggggggggggggggggggddddddddddddddddddddddddddddddddddddddddN5XX5LI8IIIIII)/ooI,/ooIo,22RRI22XIIXo5XX5OooII2RI{,"aaaaooIoXUOIdXXI"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>[[aj[[jj2AaR{aj[j[IRj[{[RRI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\nBnnBb\\>g\7"yyyy\njc\}nn\2 K K Ko"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\nBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^.6@PP}666PZ*6*-PPPPPPPPPP--ZZZFsjjscZss6=scssZsjZcssssc6-6JP6FPFPF6PP--P-}PPPP6=-PPsPPFM MV6*VJ666*666666P6P-sFsFsFsFsFhjFcFcFcFcF6-6-6-6-sPsPsPsPsPsPsPsPsPsPsFsPsNsPsPsPZPsFsFsFjFjFjVjFsecFcFcFcFsPsPsPsVsPsVsP6-6P666PpZVVsPc-c@c6c6c-sP^sPsPsPsPsj6j6j6Z=Z=Z=ZVcCc-cJsPsPsPsPsPsPssVcFcFcFsPc6sPZ=c6sPe*PP55WppppppppppppppppppppppppppppppppppppppppppppppppxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN:``:JP6FPPPPP-3zzP03zzPz066FFP77`PP`y:``:_ZZ6FP0"jjjjzzPz`]VPZ``P2e=5,'&e4  pG;&P:% ,J:\  P6G;JPW!@(#,h@\  P6G;hP"i~'^#)0<not dispute the discrepancy, but noted that the street address was correct. On May 11, 1995, the   Bureau denied the requests for finder's preferences, concluding that a discrepancy of 639 feet was  X*de minimis. See J.A. at 196.  L\Cassell, Kelley Communications, and Vaughn all filed applications for review with the  X!*  Commission. Each argued that the decision in Lott had established one second or 60 feet as the"!80*((aa "   &definition of "substantial accordance," and that under this definition the target licensee was not in substantial accordance with its authorized coordinates.  X* LOn December 4, 1996, the FCC denied the three applications for review. See In re James  X*  A. Cassell, 11 F.C.C.R. 16,720 (1996). The Commission noted that the Report and Order  X*  indicated frequencies would be recovered from licensees only if their stations were not  Xz*  ^constructed in "substantial accordance" with their authorized parameters. See id. at 16,723. It   had never previously defined "substantial accordance," the Commission said, but instead had  XN*  4determined its meaning on a case-by-case basis. See id. Contrary to petitioners' contention, it   said the Bureau also had not previously defined "substantial accordance." The one-second  X" *  Pstandard in Lott, the FCC held, "describes a situation where exact accordance with a licensee's  X *authorization is not met, rather than defining substantial accordance." Id.  LThe FCC agreed that some benchmark definition of "substantial accordance" would  X *  "enhance the overall effectiveness and efficiency of our finder's program." Id. at 16,725. It  X *  zrejected the one-second definition advocated by petitioners as "unnecessarily restrictive." Id. at   16,724. As the FCC explained, the principal motivation for the finder's preference program was  X*  "to facilitate capturing unused channels so that licensing opportunities could be provided in those  Xt*  areas where there is limited available spectrum." Id. (emphasis added). The program should not   jbe used "as a means to disrupt service being provided to the public by alleging license  XH*cancellation based on minor variations from authorized parameters." Id.  LAfter rejecting petitioners' one-second standard, the FCC concluded that it should instead  X*  zadopt the 1.6kilometer definition used by the Bureau in the Vaughn case. "[T]his benchmark,"   the Commission determined, "is consistent with a variety of relevant factors including: the range   of private land mobile radio systems, our experience with the accuracy of systems currently   2licensed, and the type of violation which evidences an inappropriate disregard for the  X*  Brequirements of our rules." Id. The FCC also noted that "a 1.6 kilometer benchmark has been  X*  Pused successfully in the context of geographic coordinates near certain mountain peaks," id. at   16,724 n.21"that is, under one FCC regulation, a station within 1.6 kilometers of a mountain  Xj*peak is considered to be at the peak. See 47 C.F.R.  90.621(b).  LfFinally, the FCC said that it would regard the 1.6kilometer measure as a benchmark and   not an absolute. It recognized that there may be situations where variances below 1.6 kilometers   Fare not "minor," for example when they jeopardize air safety or when a licensee "knowingly  X*  constructed at another site for purposes of changing its station's coverage footprint." See 11   F.C.C.R. at 16,724. The 1.6kilometer benchmark, the Commission said, would "provide  X!*  ^potential filers of finder's preference requests guidance regarding their burden of proof." Id. at   416,725. For variations of less than 1.6 kilometers, finder's preferences still would be possible,   4but applicants would have the burden of demonstrating why a particular variance is not minor.   The FCC concluded that the benchmark, together with this qualifier, would provide "a rational   standard that fosters continued provision of service to the public rather than requiring disruption  X\&*  Tof service through cancellation of licenses for minor errors in location of stations...." Id. at 16,724."G'0*((aa%"Ԍ LԙApplying its new benchmark, the Commission concluded petitioners had failed to establish   Bthat the target licensees were not in "substantial accordance" with their authorized coordinates. Accordingly, it denied their applications for review.  X* II ă  L\Petitioners contend that the FCC's denial of their finder's preference requests violated   fundamental principles of administrative law, in four ways. They argue that the FCC: (1) failed   fto follow its own precedents and rules; (2) failed to provide a rational explanation for its   "decision; (3) adopted what amounts to a substantive rule without providing notice or opportunity  X *  for comment; and (4) unlawfully applied its new benchmark retroactively. L y% X *ԍ Although petitioners do not say so expressly, their first, second, and fourth arguments ultimately are founded upon the requirement of the Administrative Procedure Act ("APA") that agency action not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.  706(2)(A). Their third argument is based on the APA's requirement that, with certain exceptions (including an exception for interpretive rules),  X *agencies must provide "[g]eneral notice of proposed rulemaking," id.  553(b), and an opportunity for interested persons "to participate in the rulemaking through submission of  X*written data, views, or arguments," id.  553(c).  We consider these arguments in turn.  X * A ă  LPetitioners contend that the 1.6kilometer benchmark announced by the FCC departs from  X*  fthe one-second standard announced in Lott. They also contend that the new benchmark   contradicts 47 C.F.R.  90.173(k), the regulation governing the finder's preference program, and   47 C.F.R.  90.631(f), the underlying regulation that mandates cancellation of a license "[i]f a  XM*  lstation is not placed in permanent operation, in accordance with the technical parameters of the  X8*  Lauthorization...." Id. (emphasis added). Citing our opinion in Reuters, Ltd. v. FCC, 781 F.2d 946   (D.C. Cir. 1986), petitioners contend this failure to follow the agency's own precedents and rules violates a basic requirement of rational decision-making.  LAs noted above, the FCC does not regard its decision as departing from the one-second  X*  Pstandard for "substantial accordance" set in Lott, because it does not regard Lott as setting any  X*  4such standard. Instead, the FCC reads Lott as setting one second as a standard defining exact   "accordance" for purposes of license applications and authorizations, "rather than defining  X*  ^substantial accordance" for purposes of the finder's preference program. Cassell, 11 F.C.C.R. at 16,723.  XC* LtAn agency's interpretation of its own precedent is entitled to deference, see Inland Lakes  X.*  Management, Inc. v. NLRB, 987 F.2d 799, 805 (D.C. Cir. 1993), and the FCC's reading of Lott,  X*  hwhich distinguishes between "accordance" and "substantial accordance," is a reasonable one. Lott"0*((aa4"   itself used these two verbal formulations. It referred to the one-second standard as a rule of   ^thumb for determining when a station is located in "accordance" with its authorization, but said   that a station deviating by more than five miles was not in "substantial accordance" with its  X*  xauthorization. The FCC's reading is further supported by the way in which Lott itself   .distinguished an earlier Bureau decision to tolerate a station's one-fifth mile deviation. If  X*  Fpetitioners' reading of Lott were correct, the one-fifth of a mile deviation should have led to  Xz*  *license cancellation because the location was not in "substantial accordance." Instead, Lott   indicated it would tolerate such a deviation, a result consistent with the FCC's view that although   znot in "accordance," a deviation of one-fifth of a mile remains in "substantial accordance." The  X7*  lthree situations Lott considered describe a continuum that is consistent with the FCC's reading:   a one-second deviation is in "accordance" with parameters, a one-fifth of a mile deviation is in   "substantial accordance," and a five-mile deviation is in neither "accordance" nor "substantial  X *accordance." e y% Xm *ԍ In their brief, FCC counsel also contended that even if the Commission had departed  XV*from Lott, such a departure would be of no consequence because the Commission is not constrained "in any way" by the decisions of a subordinate division. FCC Brief at 29. As the Commission itself did not rely on such a contention in its opinion below, we will not consider  X*it here. See Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962); Securities &  X*Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947). In any event, FCC counsel abandoned this contention during oral argument.  X * LIn addition to Lott, petitioners rely on 47 C.F.R.  90.173(k) and 90.631(f) to argue that   Zthe Commission contravened its own regulations by adopting a 1.6kilometer benchmark. Section   90.173(k), petitioners point out, states that a person may seek a finder's preference by providing   information "regarding the failure of existing licensees to comply with the provisions" of    z90.631(f). And  90.631(f) provides that "[i]f a station is not placed in permanent operation, in  XU*  paccordance with the technical parameters of the station authorization, within one year, ... its   license cancels automatically and must be returned to the Commission." Since section 90.631(f)   0refers to "accordance" rather than "substantial accordance," and since the technical parameters of   a station's authorization include geographical coordinates listed to the second, petitioners insist   there is no room for a reading that permits a target licensee to defeat a finder's preference by merely being in "substantial accordance."  LIn its opinion below, the FCC interpreted its own regulations differently than petitioners   @do, and we are bound to defer to that interpretation unless it is " 'plainly erroneous or  X*  inconsistent with the regulation.' " Auer v. Robbins, 117 S. Ct. 905, 911 (1997); see also  Xs*  Freeman Eng'g Assocs. v. FCC, 103 F.3d 169, 178 (D.C. Cir. 1997). The FCC read the Report  X^*  and Order that established the finder's program as indicating that stations would be recovered   from their licensees only if they were not "in 'substantial accordance' with the parameters  X2*  0specified in the station authorization." Cassell, 11 F.C.C.R. at 16,723 (quoting Report and Order,  X*  ^6 F.C.C.R. at 7299). This is the same conclusion the Bureau reached in Lott, the opinion upon  X*  Twhich petitioners rely. There, citing the Report and Order, the Bureau noted that "failure to"0*((aa"  X*  construct in substantial accordance with licensed parameters results in automatic cancellation of  X*a license...." Lott, 9 F.C.C.R. at 225 (emphasis added).  X* LThe FCC's interpretation follows logically from the language of the Report and Order.  X*  PIn the Report, the FCC declared that it would "continue to apply"  90.631(f), but would do so   subject to a new standard of enforcement: "Construction of the base station must be in  X~*  substantial accordance with the parameters specified in the station authorization.... All channels  Xi*  >not so 'constructed' will be recovered from the licensee." Id. (emphasis added). That declaration   supports the FCC's view that a finder's preference is unwarranted unless a station is not in   *"substantial accordance" with its licensed parameters, and that the "substantial accordance"   enforcement standard describes a larger margin of error than the exact "accordance" required by the underlying rule.  LBecause the FCC's interpretation of its own regulations is reasonable, we defer to it. And   because under that interpretation the decision below does not depart from those regulations, we find no inconsistency in the Commission's actions.  X* B ă  LPetitioners' second contention is that the FCC adopted the 1.6kilometer standard without   pproviding a reasoned explanation that rationally relates the standard to the finder's program's   purposes and the agency's statutory obligations. We agree that a rational explanation is required  X*  to support agency decision-making, see, e.g., Motor Vehicles Mfrs. Ass'n v. State Farm Mut.  X*  Auto. Ins. Co., 463 U.S. 29, 43 (1983), but find the explanation offered by the FCC to be perfectly reasonable.  LFirst, the FCC concluded that deciding on a benchmark definition of "substantial   Laccordance," rather than continuing to apply the term on a case-by-case basis, would enhance the  X*  overall effectiveness of the finder's program. See Cassell, 11 F.C.C.R. at 16,724. Petitioners   do not dispute the reason-ableness of that conclusion; to the contrary, they tout their own   preferred benchmark and disparage the alternative of case-by-case adjudication as inappropriately "subjective." Petitioners' Br. at 17.  L\Second, the FCC concluded that petitioners' proposed one-second standard would be  X*  "unnecessarily restrictive." Cassell, 11 F.C.C.R. at 16,724. That threshold, the FCC predicted,   would "disrupt service being provided to the public ... based on minor variations from authorized  X *  hparameters." Id. Such a result would be inconsistent with the program's purpose of "enhanc[ing]  X!*  Pspectrum efficiency by identifying more unused channels...." Report and Order, 6 F.C.C.R. at   87309 (emphasis added). Indeed, unlike the revocation of a license for failing to construct a   station, revocation for operating at a slight variance does little to fulfill the program's underlying purpose of mitigating the problem of spectrum scarcity.  LThird, the FCC concluded that a 1.6kilometer benchmark would serve the program's goal   Bof motivating finders, without needlessly disrupting ongoing service for minor deviations. The";'0*((aa%"   ~petitioners charge that there is no "rational basis" for choosing 1.6 kilometers over any other   distance. But the FCC did offer plausible reasons. It found the 1.6kilometer benchmark   reasonable in relation to the normal range of private land mobile radio systems, which is  X*  generally at least 20 miles. See 47 C.F.R.  90.635. It found the benchmark consistent with the   *Commission's own experience with the accuracy of systems currently in operation. And it   concluded that a 1.6kilometer benchmark was large enough to "evi-dence[ ] an inappropriate   disregard for the requirements of our rules""for example, an intention to change the station's   coverage footprint from that which was authorized"rather than a mere inadvertent error.  XJ*  bCassell, at 16,724. Finally, the Commission noted that the same benchmark had been "used  X5*  successfully in the context of geographic coordinates near mountain peaks." Id. at 16,724 n.21 (citing 47 C.F.R.  90.621(b)).  LXWe are generally "unwilling to review line-drawing performed by the Commission unless   a petitioner can demonstrate that lines drawn ... are patently unreasonable, having no relationship  X *  "to the underlying regulatory problem." Home Box Office, Inc. v. FCC, 567 F.2d 9, 60 (D.C. Cir.   1977). Here, the FCC has provided a reasonable explanation for the line it has drawn, and   demonstrated that line's relationship to the underlying regulatory problem addressed by the   ^finder's preference program. It is also a line that is consistent with the Commission's statutory   obligation to "manage the spectrum to be made available for use by the private land mobile   services" in a manner that will "improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum users." 47 U.S.C.  332(a)(2).  X* C ă  L`Petitioners' third contention is that, by defining "substantial accordance" through a   benchmark, the FCC effectively adopted a substantive rule. Under the Administrative Procedure   <Act, an agency may adopt such a rule only after providing notice and an opportunity for  X*  interested parties to comment. See 5 U.S.C.  553. Since the FCC did not follow such rulemaking procedures here, petitioners contend the FCC's decision should be invalidated.  LThis argument, however, comes too late. Section 405(a) of the Federal Communications   Act requires that the Commission be given an "opportunity to pass" on a question of fact or law  X**  before a petitioner may bring it to this court. 47 U.S.C.  405(a); see Time Warner  X*  Entertainment Co. v. FCC, 144 F.3d 75, 79 (D.C. Cir. 1998); Bartholdi Cable Co. v. FCC, 114   zF.3d 274, 279 (D.C. Cir. 1997). Petitioners knew full well that the Commission would address   the 1.6kilometer benchmark, since the Bureau had adopted that benchmark in the proceeding   below. Nonetheless, they failed to argue before the Commission that a benchmark could not be   adopted without notice and comment rulemaking. To the contrary, petitioners argued that the  X"*  Commission had already adopted a valid benchmark through the decision in Lott which, like this   case, was an adjudication rather than a rulemaking. By failing to give the Commission an opportunity to consider this argument, petitioners have precluded review in this court.  LPetitioners' argument is, in any event, without merit. The FCC's interpretation of   "substantial accordance" arose in the context of an adjudication of petitioners' applications for"3' 0*((aa%"   finder's preferences. It is well settled that an agency "is not precluded from announcing new  X*  principles in an adjudicative proceeding...." NLRB v. Bell Aerospace Co., 416 U.S. 267, 294   (1974). Rather, "the choice between rulemaking and adjudication lies in the first instance within  X*  the [agency's] discretion." Id.; see also Securities & Exchange Comm'n v. Chenery Corp., 332  X*  BU.S. 194, 203 (1947); City of Orrville v. FERC, No. 971352, 1998 WL 343439, at *11 n.11 (D.C. Cir. June 30, 1998).  Xe* D ă  LFinally, petitioners contend that the FCC acted unlawfully by applying the 1.6kilometer   benchmark retroactively to their finder's preference requests. They urge us to analyze that  X *  hretroactive application under the five-factor test set forth in ClarkCowlitz Joint Operating Agency  X *  v. FERC, which we have used as the "framework for evaluating retroactive application of rules  X *  .announced in agency adjudications." 826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc).c y% XX*ԍ Quoting our earlier opinion in Retail, Wholesale & Department Store Union v. NLRB,  XC*466 F.2d 380, 390 (D.C. Cir. 1972), ClarkCowlitz set forth the following, non-exhaustive list of relevant factors: XX` ` (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.x` X(#  X1*ClarkCowlitz, 826 F.2d at 1081.c   0Petitioners contend that the retroactive application of the 1.6kilometer benchmark fails to survive that test.  X* LThere is no need to plow laboriously through the ClarkCowlitz factors here. As we said   in that case, the test's factors "boil down ... to a question of concerns grounded in notions of  XW*  equity and fairness." Id. at 1082 n.6. Indeed, that is the gravamen of petitioners' complaint:   it is unfair, they say, to apply the new 1.6kilometer benchmark to their requests when the   Zpreexisting one-second benchmark is one they readily meet. But since we already have concluded   that there was no such preexisting benchmark, most of the force has gone out of petitioners' appeal to fairness.  X* L$To flesh it out, petitioners' fairness argument is that, in reasonable reliance on Lott 's   one-second rule, they hired surveyors to identify target licensees and lawyers to file their finder's   hpreference requests. Under the one-second rule, petitioners contend, they were entitled to finder's" T0*((aa"   zpreferences. If the FCC is permitted to apply the new 1.6kilometer benchmark, they will have borne the burden of those expenses for nothing.  LIf the petitioners truly did rely on a one-second benchmark, that reliance was badly  X*  >misplaced and hence inappropriate for consideration under ClarkCowlitz. See id. at 1084 (noting   Xthat reliance must be reasonable). There was no "well established practice" supporting a  Xx*  tone-second benchmark. See id. at 1083. To the contrary, the status quo ante was not a  Xc*  &benchmark at all, but rather a case-by-case assessment with a highly uncertain outcome. See,  XN*  e.g., Lott, 9 F.C.C.R. at 225; Cassell, 11 F.C.C.R. at 16,72324 & nn. 1517. Indeed, Lott was  X9*  the first finder's preference case to involve a deviation from geographic coordinates, and the Lott  X$ *  Popinion was released only two months before petitioner Vaughn filed his preference application   and only four months before petitioners Cassell and Kelley Communications filed theirs.  X *  Moreover, as the Report and Order made clear, the FCC always retained the "right to review   preference requests to assure that the awarding of the preference [was] in the public interest...."  X *  Report and Order, 6 F.C.C.R. at 7303 n.64. In short, petitioners' expenditure of funds on  X *  Zlawyers and surveyors was a gamble; it was not a sure bet. See ClarkCowlitz, 826 F.2d at 1084 ("Although hope springs eternal, hope is no surrogate for reliance.").  L<If there were any parties in these cases who did have a reasonable reliance interest, they   were the existing licensees rather than the petitioners. As the Commission's opinion suggests,   the licensees had been operating their stations for years at what they thought, apparently in good   faith, were the correct geographic coordinates. As far as the record reflects, no operator had ever   before lost a license based on a deviation as small as those at issue here. Moreover, while   4petitioners' investment in surveyors and legal fees was minor, the burden the existing licensees  X*  would bear if the FCC revoked their licenses would be great. See id. As the Bureau's Licensing   Division noted in making a similar point, "construction costs associated with a trunked  X*  4Specialized Mobile Radio Station can amount to hundreds of thousands of dollars." Vaughn, 9 F.C.C.R. at 4439.  LIn sum, because there is no evidence of the kind of "manifest injustice" that would counsel  Xb*  against retroactive application of the 1.6kilometer benchmark, ClarkCowlitz, 826 F.2d at 1081, petitioners' final attack on the denial of their preference requests falls short of the mark.  X*z} III ă  X*For the foregoing reasons, the petitions for review ?y% Xj"*ԍSee supra note 1.? are denied.