199 F.3d 527 (D.C. Cir. 2000)
Heidi Damsky, Appellantv.Federal Communications Commission, AppelleeHomewood Radio Co. LLC, Intervenor
No. 99-1018
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 23, 1999Decided January 7, 2000

[Copyrighted Material Omitted]
Appeal of an Order of the Federal Communications Commission
Lauren A. Colby argued the cause and filed the briefs for  appellant.
Pamela L. Smith, Counsel, Federal Communications Commission, argued the cause for appellee. On the brief were  Christopher J. Wright, General Counsel, Daniel M. Arm-strong, Associate General Counsel, and Gregory M. Christopher, Counsel.
Stephen Diaz Gavin and Janet Fitzpatrick were on the  brief for intervenor.
Before:  Williams, Sentelle and Randolph, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
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 misrepresentations 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 Commission 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

2
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, Alabama.  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 establish 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").


3
By the time of the 1992 hearing, the applicant pool had  narrowed to include Damsky and two others.  The two remaining 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 permit to the resulting entity, intervenor Homewood Radio Company ("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 Commission rejected Damsky's claim that HPI had made disqualifying 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 participate.  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  Reconsideration").

A. Background on Financial Qualifications

4
At the time the parties filed their applications, the Commission resolved competing applications though an evidentiary  hearing process that assessed applicants' basic and comparative 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.  § 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 obtainable from committed sources sufficient to construct and operate the requested facilities for three months without revenues.  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 qualifications, the applicant had to demonstrate its "reasonable assurance" by showing that, "prior to certification, it engaged in  serious and reasonable efforts to ascertain predictable construction 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 Northampton 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 establish a "reasonable assurance."


5
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 Decision, 7 F.C.C.R. 5244 pp 6-9, 181.  The Commission affirmed  the ALJ's findings and conclusions.  See Memorandum Opinion 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

6
In the order affirming Damsky's disqualification, the Commission also accepted the Homewood Radio settlement agreement.  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 findings.  See Memorandum Opinion and Order, 13 F.C.C.R.  11688 pp 13-23.

C. Background on Auction Provisions

7
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 capricious 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 regulatory 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 receipt of the construction permit constituted such a settlement.


8
However, while the parties here were negotiating for settlement, Congress amended § 309(j) of the Communications Act  to require the Commission to grant construction permits  through a competitive bidding system.  See 47 U.S.C. § 309(j)  (Supp. III 1997).  Since the mandatory competitive bidding  system applied to applications filed after July 1, 1997, newlyenacted § 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) 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 the 180-day period beginning on the date of August  15, 1997."  Here, the settlement agreement fell within the  180-day window.


9
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 Commission 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) ("Auction 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 which stated:


10
Where the Commission has denied or dismissed an application 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 qualifications of a particular applicant.


11
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 participate despite any unresolved qualification issues.  The Commission rejected her claim because the settling parties  reached an agreement in accordance with § 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 settlements filed within the 180-day waiver period which were  thereafter approved contingent upon the Commission resolving 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).


12
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 Commission's approval of the Homewood Radio settlement agreement in lieu of an auction.

II. Discussion
A. Scope of Review

13
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 reconsideration in which the Commission first addressed the auction  provisions in dispute.  See Further Petition for Reconsideration, 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.


14
The sufficiency of notice concerning the financial qualification and misrepresentation issues requires a more extended  discussion.  In Southwestern Bell, we held that when an  agency has denied the reconsideration of a substantive underlying 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 denying her reconsideration and further reconsideration.  Therefore, 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 references 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 misrepresentation issues in addition to the auction issue.


15
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 Memorandum Opinion and Order.  Moreover, Damsky briefly addresses 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.


16
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 specification 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 examination to infer the petitioner's intent and decide if the respondent 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 challenged the Commission's denial of her application on financial  qualification grounds and its dismissal of the misrepresentation 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 qualification 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 reach the misrepresentation issue.

B. Financial Qualifications

17
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 discretion, 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. § 706(2)(A)).  In this task, we "do not  'substitute [our] judgment for that of the agency' [but] [r]ather 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 qualification.  More specifically, we hold that the Commission's  conclusion that Damsky did not certify funding with a "reasonable assurance" because she did not engage in "serious  and reasonable efforts" to obtain construction and operating  cost figures is not arbitrary or capricious.


18
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 certification context:


19
[T]he certification procedure was designed "to spare[ ][applicants] the time and effort necessary to prepare and submit the documentation previously required to demonstrate their qualifications." ...  [R]easonable  assurance does not necessarily require that an applicant have the written documentation [previously required] when it certifies its financial qualifications.  Although the supporting documentation must be produced upon the Commission'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.


20
Id. p 14 (quoting In re Certification of Financial Qualifications by Applicants for Broadcast Station Construction Permits, 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. Partnership, 7 F.C.C.R. 4394 pp 7-10 (Rev. Bd. 1992) (finding  "bits of information" on costs insufficient for financial qualification 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 9, 1994).


21
Damsky incorrectly relies on Northampton as support for  her position.  In Northampton, the Commission found financially qualified an applicant--a three-person corporation including 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 consulting engineer to prepare the technical portion of the application 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" estimate 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 certification 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 lackadaisical cost inquiry efforts.

C. The Auction

22
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 erroneous 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 between the § 309(l) auction and settlement provisions as described 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.


23
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. § 309(l).  Here, two  applicants, not including Damsky, filed a settlement agreement within the 180-day period.  The agreement was contingent 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 interpretation.  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 reasonable and consistent with the statute's purpose.  See id.  Given the statutory language in issue, we hold that the Commission reasonably interpreted § 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 Reconsideration, 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 qualification as a condition to approving the settlement agreement  is consistent with the statute.  See also 47 U.S.C.  § 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 ... threshold qualifications ... in order to avoid mutual exclusivity in  application and licensing proceedings").


24
In reaching our decision, we reject Damsky's contention  that § 309(l)(3) only governs global settlements.  The Commission reasonably interpreted the statute when it determined that partial settlements could be approved under  § 309(l)(3).  See Auction Order, 13 F.C.C.R. 15920 pp 73, 93;  In re Implementation of Section 309(j) of the Communications Act, 14 F.C.C.R. 8724 p 18.  Nothing in the statute  dictates that § 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 approving 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).


25
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 § 309(l)(3) settlement  from auction rules and guidelines.  See id. p 13.  Moreover,  the Commission adequately established on the record that a  proper § 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 Commission'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 pursuant to § 309(l)(3).


26
To recap, we hold that Damsky provided sufficient notice to  entitle her to review of her claims stemming from the Memorandum Opinion and Order in addition to review of the  auction issue.  However, we uphold the Commission's determination that Damsky was financially disqualified from receiving the Homewood FM station construction permit.  We  also hold that the Commission reasonably interpreted § 309(l)  and its Auction Order as not providing Damsky with the  opportunity to participate in an auction.

III. Conclusion

27
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 dismissed 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 findings regarding Damsky's financial qualifications and the Commission's interpretation and application of the relevant settlement and auction provisions are reasonable, we affirm the  Commission's determinations challenged on appeal.

