Full opinion text
Opinion for the Court filed by Circuit Judge STARR. STARR, Circuit Judge: Cellular telephone service continues its slow march from the regulatory arena to the marketplace. On March 6,1984, thirty-five years after the Federal Communications Commission first allocated a small band of the radio spectrum for the development of common carrier mobile radio communications and over one year after the grant of licenses to wireline carriers, the first nonwireline cellular telephone comparative proceedings were decided by the Commission. In this case (Pittsburgh) and its companion case, Cellular Mobile Systems of Illinois, Inc. v. FCC (Chicago), unsuccessful competitors seek review of the first two of a series of FCC awards of nonwireline cellular licenses in the top thirty metropolitan markets. The principal question presented in this appeal by Cellular Mobile Services of Pennsylvania, Inc. (CMS), one of two unsuccessful competitors for the Pittsburgh nonwireline license, is whether the FCC’s award of comparative preferences and its ultimate grant of the Pittsburgh license to MCI Cellular Telephone Company were arbitrary and capricious, an abuse of discretion, or unsupported by substantial evidence. Also before us is whether the exercise of discretion by the administrative law judge, under special procedures crafted by the FCC for cellular proceedings, violated federal statutory or due process requirements. Finally, we have for determination the question whether the comparative standards announced in the FCC’s cellular rule-making, Cellular Communications Systems, 86 F.C.C.2d 469 (1981) (Report and Order), modified, 89 F.C.C.2d 58, further modified, 90 F.C.C.2d 571 (1982), petition for review dismissed sub nom. United States v. FCC, No. 82-1526 (D.C.Cir. Mar. 3, 1983) (hereinafter Cellular Rulemaking), failed to provide adequate notice of the actual comparative criteria employed by the FCC. We affirm. As to CMS’s procedural attack, we conclude that the expedited cellular procedures as applied in the Pittsburgh proceeding were lawful. We further hold that the rulemaking Report and Order provided ample notice of the bases for agency comparison of contending applicants. Finally, we are persuaded that the agency's ultimate decision, which the FCC acknowledged to be “close,” embodied reasoned decisionmaking and is supported by substantial evidence. I The technological benefits and regulatory history of cellular telephone service have already been amply rehearsed in prior opinions of this court, MCI Cellular Telephone Co. v. FCC, 738 F.2d 1322 (D.C.Cir. 1984); National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d 630 (D.C.Cir.1976), and need not be repeated here. In its 1980 cellular rulemaking, the FCC expressed concern that the traditional comparative process might cause significant delay in implementing cellular service; accordingly, the Commission invited comments on alternative procedures for streamlining the comparative process. The FCC initially proposed a “hybrid” two-stage plan, under which applicants who met strict qualification requirements would then be designated for a comparative hearing. If the applications failed to justify a comparative preference, then a tie-breaking lottery or drawing would be held. Cellular Communications Systems, 78 F.C. C.2d 984, 1000-01 (1980) (Notice of Inquiry and Notice of Proposed Rulemaking). Comments were also solicited on the comparative criteria to be employed. Observing that the traditional comparative criteria “focused on the nature and extent of the proposed service ..., the areas and populations to be served, and the need for the proposed service in these areas,” id. at 1000, the Commission sought suggestions for other possible criteria, such as plans for phased growth and marketing plans and capabilities. Id. A In 1981, the FCC issued its Report and Order, announcing that “[t]he pressing need for improved service compels us to seek a solution that will bring relief to the greatest number of people in the shortest possible time.” Cellular Rulemaking, 86 F.C.C.2d at 490. Rejecting the hybrid procedures proposed in the NOPR, as well as a lottery approach, the FCC embraced the structure of comparative proceedings for evaluating cellular applicants, concluding that “there may be significant differences among competing applications.” Id. at 499. To reduce the delays attendant upon traditional hearings, “paper” procedures were prescribed; the FCC reasoned that such streamlining would serve the public interest in expeditious disposition of these matters while safeguarding applicants’ procedural interests. Id. Under the procedures as adopted, applications would first be measured against the technical and financial basic qualifications requirements. Parties satisfying those requirements would then be designated for comparative consideration. Briefs and evidence seeking to demonstrate superiority would then be evaluated by an administrative law judge. In response to comments decrying the practice of later applicants engaging in “one-upmanship” over earlier applicants, the Commission, on reconsideration, emphasized that all applicants were to submit their direct cases along with their applications, including all evidence upon which the applicant intended to rely in a comparative hearing. Cellular Communications Systems, 89 F.C.C.2d 58, 89 n. 50, 91 (1981) (Order on Reconsideration). Moreover, the applications for all thirty markets were given a due date of June 7, 1982 in order to avoid the perceived evil of one-upmanship: We want all participants to file applications which represent their best view of a service plan for the named SMSA. To do so, we do not find it necessary for participants to consult the plans of their potential competitors. Setting up a plan which would allow applicants to revise their filings after viewing the applications of others would encourage applicants to engage in “one-upmanship,” which has harmful consequences. This would undermine our ability to compare proposals with some measure of confidence that the applicant had participated in its development. Plans based on another proposal would no longer represent the applicants’ best idea of how to. serve a given area but would, instead, represent applicants’ use of the administrative process to obtain an advantage over competitors. Furthermore, allowing opportunity for one-upmanship would needlessly encumber an administrative process which we must streamline to its essentials if the American public is to receive cellular service without unnecessary delay. Id. at 89 (footnote omitted). Further pleadings, the Commission decreed, would be limited to Petitions to Deny and Replies. In a Designation Order, the FCC would slate mutually exclusive applications for comparative hearing; additionally, any “unresolved, substantial and material questions of fact” could be designated for hearing as well. Id. at 92. After the Designation Order, a second stage of evidentiary submissions — written rebuttal and rebuttal evidence — would be permitted. Whereas the Report and Order provided for discovery, the FCC on reconsideration significantly curtailed its availability; discovery was to be permitted only “if the designation order points out an area where additional underlying data is needed.” Id.; 47 C.F.R. § 22.916(b)(6) (1984). Opportunities for cross-examination and for objections to both direct and rebuttal evidence would be provided, within the discretion of the ALJ, in a hearing format. Under the enumerated procedures, the AU was vested with discretion to permit oral testimony in the “unusual situations” requiring it, and to permit cross-examination or other procedures “upon a substantial showing that a party will be prejudiced by the submission of all the evidence in written form.” Cellular Rulemaking, 86 F.C. C.2d at 499 {citing 5 U.S.C. § 556(d)); see also 47 C.F.R. § 22.916(b)(6) (1984). The governing standard required a showing of specific reasons for the necessity of an oral hearing or cross-examination. Additional testimony might be permitted when “needed to provide a complete record for the Commission,” but the Commission warned that such further sessions were to be expeditious and efficient. Order on Reconsideration, 89 F.C.C.2d at 92. On further reconsideration, the Commission acknowledged the arguments advanced for adding a third evidentiary stage (to respond to disputes created by the rebuttal filings), but declined to extend the pleading cycle. The FCC observed that “if ... there is a need to obtain additional information from any of the parties, the Administrative Law Judge already has the discretion to require it, either in written or oral form.” Cellular Communications Systems, 90 F.C.C.2d 571, 576 (1982) (Order on Further Reconsideration). B The comparative criteria articulated by the Commission expanded upon that used in the traditional Domestic Public Land Mobile Radio Service, see Notice of Proposed Rulemaking, 78 F.C.C.2d at 1000, reflecting the goals emphasized for cellular implementation. Cellular Rulemaking, 86 F.C. C.2d at 502. Three rather general criteria were outlined. The first, and primary, criterion was a comparison of the respective applicants’ initial systems’ geographical coverage: Because nationwide availability of service is a primary goal, a major basis of comparison will be the geographic area that an applicant proposes to serve. In comparing proposed service areas, other significant factors to be considered will be the presence of densely populated regions, highways, and areas likely to have high mobile usage characteristics, as well as indications of a substantial public need for the services proposed, including the results of public need surveys. Cellular Rulemaking, 86 F.C.C.2d at 502 (emphasis added). The geographic area to be served, or “cellular geographic service area” (CGSA), was to be defined by the applicant. Id. at 509. While the size of the CGSA was not limited initially, an applicant was required to propose reliable service to 75 percent of the CGSA, that is, the land area within its aggregate 39 dBu reliable service area contours. Id. The 75 percent coverage was required to be maintained as the system evolved. Id. In keeping with this regulatory emphasis upon geographical coverage, the only system changes deemed to constitute “major applications,” which trigger new cellular licensing proceedings, were those that would alter the CGSA boundaries. Id. This procedure reflected the FCC’s policy determination that “the key to our regulatory structure is the geographic service area of a cellular system.” Id. (emphasis added). On reconsideration, the Commission clarified the 75 percent requirement, indicating that it must be met within three years. 89 F.C.C.2d at 86 n. 44. Expressing reluctance “to interfere in any way with an applicant’s discretion to frame its proposal in response to its perception of the market,” id. at 86, the Commission imposed an outer limit on applicants’ CGSA’s to be measured by the boundary of the Standard Metropolitan Statistical Area (SMSA). More precisely, while a CGSA could exceed the SMSA, the extensions could be no more than de minimis. Id. at 87. The purpose of this limitation was to prevent large comparative hearings pitting expansive yet divergent CGSA’s against each other simply because they overlapped in a common SMSA. The second major comparative factor enumerated by the FCC was the applicant’s ability to expand its system capacity in a coordinated manner within the proposed service area in order to serve an increasing number of local subscribers and roamers as demand warrants. Cellular Rulemaking, 86 F.C.C.2d at 502-OS. (emphasis added). The Commission added that expansion might take place through the addition of transmitters or cell locations and the use of smaller cells. A desirable characteristic of coordinated expansion would be “efficient frequency use,” id. at 503, as illustrated by an applicant’s plans to split cells and add channels; the ability to coordinate channel use with other cellular systems; and the system’s degree of frequency use. Id. This criterion was intended to reflect the FCC’s emphasis on the factor of flexibility which is “inherent in the cellular concept.” The third comparative factor was actually a combination of operational aspects, such as facilities, maintenance, personnel, rates, charges, and regulations. Id. However, these areas of comparison were considered insignificant in most cases. As a result, the first and second comparative factors far outweighed the third; standing above the other two, however, was the first factor, and especially the specific matter of geographic coverage. C On June 7, 1982, applications and direct case exhibits were filed for the 30 largest markets, including Pittsburgh. Petitions to Deny and Replies were filed, asserting various deficiencies in the competing proposals. The Commission’s Designation Order followed on December 6, 1982. Having satisfied the basic technical and financial requirements, all three nonwireline applicants for the Pittsburgh market, CMS, MCI Cellular Telephone Co., and Celcom Communications Corporation of Pittsburgh, were declared “qualified” to construct and operate the cellular systems proposed. Advanced Mobile Phone Service, Inc., 52 Rad.Reg.2d (P & F) 1104 (Common Carrier Bureau 1982) (Pittsburgh Designation Order). The three applications were designated for comparative hearing on the following issues: (a) to determine on a comparative basis the geographic area and population that each applicant proposes to serve, to determine and compare the relative demand for the services proposed in said area; and to determine and compare the ability of each applicant’s cellular system to accommodate the anticipated demand for both local and roamer service; (b) to determine on a comparative basis each applicant’s proposal for expanding its system capacity in a coordinated manner within its proposed CGSA in order to meet anticipated increasing demand for local and roamer service; (c) to determine on a comparative basis the nature and extent of the service proposed by each applicant, including each applicant’s proposed rates, charges, maintenance, personnel, practices, classifications, regulations and facilities (including switching capabilities); and (d) to determine, in light of the evidence adduced under the foregoing issues, what disposition of the referenced applications would best serve the public interest, convenience and necessity. Id. at 1110 (footnotes omitted). The Order directed the applicants to file their respective rebuttal cases within 45 days. Id. at 1111. Subsequently, the Commission’s then-Chief Administrative Law Judge, Lenore G. Ehrig, was designated to hear the case. CMS, joined by MCI, promptly requested a prehearing conference to alter the prescribed schedule. CMS urged the AU to permit discovery in order fully to develop the evidentiary record, while at the same time avoiding extensive use of cross-examination at the hearing itself. CMS also requested rulings on the admissibility of direct case exhibits prior to the filing of rebuttal cases; notwithstanding the FCC’s rejection of this procedure in the main, CMS additionally requested that a third stage (surrebuttal) be added to the pleading cycle, on the asserted ground that parties should enjoy an opportunity to respond to new matters presented in rebuttal exhibits. Five days later, Chief Judge Ehrig issued an order rejecting the request for discovery, on the ground that the Designation Order had not pointed to any area where additional underlying data were needed, citing the FCC’s Order on Reconsideration, 89 F.C.C.2d at 92, and the governing regulation, 47 C.F.R. § 22.916(b)(6). MCI Cellular Telephone Co., FCC 82M-4023, at 4 (Dec. 17, 1982) (Order Prior to First Hearing Session). The AU directed that memoranda of objections and requests for cross-examination be filed within 25 days. The objections were to be set forth “with particularity.” In requesting cross-examination, the parties were to (1) demonstrate that written evidence was ineffectual to develop proof; (2) specify their objectives on cross-examination; and (3) identify the evidence which cross-examination was expected to adduce and the testimony which was expected to be discredited. Similar memoranda were to follow the rebuttal case filings. No responsive pleadings were to be permitted. Id. at 2. On January 27, 1983, the applicants filed their respective rebuttal cases. Because the AU was “unable to clearly ascertain each applicant’s proposals for either the first year of operation or plans for expansion thereafter,” the parties were ordered to supplement their cases with memoranda which explained these plans with greater “particularity,” yet to rely only on evidence already proffered. MCI Cellular Telephone Co., FCC 83M-953, at 3 (Mar. 22, 1983) (Order). The sole hearing before the AU in the course of these proceedings occurred on April 9, 1983. At the hearing, rulings on evidentiary objections were announced; in addition, all requests for cross-examination were denied inasmuch as the parties’ written requests, according to the AU, had “failed to persuasively demonstrate that the written evidence is ineffectual to develop proof.” Transcript at 67. CMS again requested surrebuttal, for the stated purpose of responding to “matters [which] have been raised for the first time in rebuttal.” Id. at 68. The AU denied the request, stating that the record was sufficiently complete to permit a “considered judgment.” Id. at 72; see 47 C.F.R. § 22.916(b)(6) (1984). The record was, accordingly, closed on the day of hearing. The parties filed Proposed Findings of Fact and Conclusions of Law on May 25, 1983; the presiding judge thereafter permitted Reply Findings and Conclusions. See 47 C.F.R. § 22.916(b)(7) (1984). D The AU’s Initial Decision was rendered in July 1983. MCI Cellular Telephone Co., 96 F.C.C.2d 1040 (1983) (Pittsburgh Initial Decision). In a lengthy opinion, the Presiding Judge concluded that MCI’s proposal was comparatively superior and would best serve the public interest, convenience and necessity. Id. at 1068. 1 Under the first — and pivotal — element of Issue (a), geographic and population coverage, the AU compared the areas within the parties’ respective 39 dBu contours. MCI’s proposal covered 89.6 percent (2,610 sq. mi.) of the Pittsburgh SMSA, Celcom’s proposal covered 70.4 percent (2,197 sq. mi.), and CMS’s proposal covered 79.3 percent (2,324 sq. mi.). Their respective population coverage was 96.96 percent (2,195,-146 people) for MCI, 94.4 percent (2,136,847 people).for CMS, and 92.8 percent (2,101,-315 people) for Celcom. Id. at 1043,1060. None of the proposals covered the entire SMSA. MCI thus had the edge over its competitors in both geographic and population coverage. In comparing the presence of densely populated regions, highways, and areas likely to have high mobile usage characteristics, the judge found that the non-common areas or “pockets” served by MCI were superior by virtue of the fact that CMS and Celcom had excluded more significant pockets than MCI. Id. at 1060. Overall, MCI was awarded a slight preference on this sub-issue. MCI was also awarded a preference under the “relative demand for service” component of Issue (a), a point, as we shall presently see, which is vehemently contested by CMS. The MCI demand forecast was based upon three studies — a public need study, a selected industry survey, and “focus groups” — as well as a demographic analysis. The public need survey consisted of a telephone survey of 796 randomly selected Pittsburgh households with incomes of at least $20,000. Data on likelihood of subscription at three different cost levels were collected. MCI applied an “Intent Translation Scale” to derive realized demand from gross potential demand and then reduced the demand values by a variable which reflected the common-sense assumption that survey respondents tended to express a greater willingness to subscribe than would occur in practice. MCI also considered, among other factors, the impact of price changes over time, the introduction of new service features, and population and industrial development. Id. at 1044. This survey alone was the source of MCI’s realized demand forecast. MCI also conducted a selected industry survey — a telephone survey of 100 Pittsburgh businesses chosen from five industry sectors expected to have a need for cellular service. This survey sought information such as potential subscriber attitudes, likely usage patterns, price sensitivity, and likely business user characteristics. Id. MCI’s third study consisted of “focus group” sessions, conducted outside the Pittsburgh SMSA, which were open-ended group interviews with selected potential subscribers. These were designed to gather only information to identify consumer preferences, and had no impact on the demand or subscriber estimates. Id. at 1045. In contrast to MCI, CMS commissioned six nationwide market research studies. All six were premised on the assumption, criticized by the AU, that businesses would be the primary users of cellular services. Pivotally for what ultimately transpired, three of the studies relied on the assumption that radio pager service constituted a precursor of cellular radio, an assumption sharply faulted by the AU. Id. at 1061. The primary survey employed by CMS, the nationwide Claritas survey, was designed to estimate demand based on pager penetration in the various markets throughout the country in which CMS’s parent, Graphic Scanning Corporation, offered paging services. Two mail surveys were conducted in Pittsburgh, as well as other potential markets, one of selected businesses and the other of Graphic Scanning’s paging customers. These surveys collected information concerning monthly charges and anticipated cellular usage and habits. Rounding out this bevy of CMS studies, three telephone surveys based on the same questionnaire were conducted to verify the demand figures. One survey was of the business population, another was of paging customers, and the third was a survey of businesses by Westat Corporation. The Westat study was conducted in the top 30 cellular markets, including Pittsburgh. In that study, the calculation of Pittsburgh’s demand was not based solely on Pittsburgh’s responses; the national market data was factored in as well. Id. at 1046. The Westat survey estimated a fifth-year need of 42,300 cellular units, which CMS interpreted as reflective of interest, not of actual use. Id. at 1047. CMS did not, however, utilize any of its various survey demand figures as its final demand calculation; instead, CMS’s estimated demand reflected the results of a model employed in all thirty markets. That is, the Claritas study of paging demand yielded paging penetration data for the top thirty SMSA’s. CMS Direct Exh. II, at 12. The top thirty markets were then grouped into three categories according to the level of paging demand indicated for each city. CMS Direct Exh. II, at 14 & Figure II — 7. Then, each of the three categories was assigned a value, apparently reflecting the median paging demand for all cities in that category. Id. This value, called the “cellular penetration factor,” Pittsburgh, 96 F.C.C.2d at 1023, or “need factor,” was expressed as the projected need for cellular units per 1,000 population. CMS Direct Exh. II, at 14. Thus, Pittsburgh was assigned a need factor of 0.006, or 6 cellular units per 1,000 population, as were thirteen other SMSA’s. 96 F.C.C.2d at 1047; CMS Direct Exh. II, at Figure II-7. As the last step, the final demand estimate was achieved by multiplying this figure by the SMSA census population. 96 F.C.C.2d at 1047; CMS Direct Exh. II, at 14, 16. Based on this welter of conflicting studies, the AU concluded that CMS had failed to document the nexus between the six surveys and its final demand projections. 96 F.C.C.2d at 1061. An additional flaw discerned by the AU was CMS’s apparent failure to consider the presence of a wire-line carrier in Pittsburgh. Id. MCI was also awarded a preference under the third aspect of Issue (a), namely the ability of the applicant initially to accommodate demand. The AU found that all three applicants had designed CGSA’s with cells covering the obvious areas where need could be anticipated, such as downtown Pittsburgh, the airport, and major highways. Id. CMS’s proposal was criticized by the AU, however, for excessive cell overlap in Pittsburgh — specifically, CMS allocated eight cells to the city, compared to MCI’s four cells and Celcom’s two cells. Stating that “fundamental principles of cellular design indicate that the spacing between cells should follow as uniform a pattern as possible to achieve optimal coverage with minimal intra-system co-channel interference,” Judge Ehrig found that the record reflected “serious potential co-channel interference problems” in CMS’s plan. Id. at 1054-55 & n. 13, 1062. The AU added that the lack of uniformity evident in CMS’s proposal would result in the preclusion of rapid and inexpensive channel reallocation under its cell sectorization scheme. Id. The preference in this respect was thus awarded to MCI because its proposal “far better reflects an understanding of demand for service in the Pittsburgh SMSA,” while CMS had failed to show “any nexus whatsoever between its proposed service area and its determination of need.” Id. at 1063. Contrary to CMS’s assertion before us, the judge found that “depth of coverage” had not been established as a ground for preference by the Common Carrier Bureau, and that MCI had also accommodated the higher level of demand in downtown Pittsburgh for which CMS had sought a “depth of coverage” preference. CMS, the AU further concluded, had not demonstrated that it covered any important areas not covered by the other two applicants. CMS was further faulted for its unique initial system design, a plan deemed “not ... entirely consistent with the Commission’s mandate that applicants design their systems to guarantee rapid implementation and expansion of cellular service. Rather than being a system which evolves from the initial stages to a more mature system, CMS has designed one likely to require a substantial amount of retuning and reassessment as demand increases.” Id. In sum, Judge Ehrig concluded in this regard that MCI had proposed a geographic area “which most closely identifies, resembles, and meets the needs of the Pittsburgh [SMSA],” deserving a substantial comparative preference. Id. at 1063-64. 2 MCI was also awarded a preference under Issue (b) for its proposal for expansion of system capacity in a coordinated manner to meet the anticipated increase in demand. The AU concluded that MCI’s plan reflected the “best understanding of cellular design principles and principles of expansion.” Id. at 1065. In contrast, CMS’s proposal was extensively criticized by Judge Ehrig on the ground that it “would require significant fine-tuning before implementation of its expansion plans would be possible.” Id. at 1064. The judge found that, while CMS planned an “essentially omni-directional” system, the frequency plan was designed for a highly sectorized system. Id. Unlike CMS, the AU concluded, MCI and Celcom demonstrated “an understanding of cellular design principles and reflect[ed] bona fide cellular systems and expansion plans.” Id. Neither violated channel re-use criteria and both assigned frequencies according to a standard frequency reuse pattern. Id. Because those two applicants did not propose to build all their cells at the outset, the expansion of their respective systems could be achieved with a minimum of “costly engineering modifications” such as cell-splitting and sectorization. Such a plan was deemed to allow greater flexibility to expand and alter the system as further information about demand in the SMSA was acquired. Id. at 1064-65. The AU declined, however, to award either MCI or Celcom a preference solely on the basis of greater system flexibility, inasmuch as neither proposal was set forth with “sufficient particularity.” Id. at 1064. Instead, the factor enumerated as the basis for MCI’s Issue (b) preference was its superior proposal for monitoring and anticipating congestion. CMS and Celcom, on the other hand, were faulted for proposing to allow the grade of service to deteriorate to an unacceptable level before remedying the problem. Id. at 1065. 3 Issue (c) provided CMS with its solitary preference, by virtue of its proposed rates and charges. Id. The CMS preference was based not on its actual charges but on its rate structure, which, the AU concluded, would encourage efficient cellular use. Responding to criticisms that CMS’s rates were unrealistically low, the judge refused to impose on CMS the comparative demerit urged by its opponents. None of the other areas of consideration under Issue (c) were found to warrant preferences. Based upon this analysis, the ALT ultimately concluded that MCI’s substantial preference under Issue (a) outweighed CMS’s Issue (c) preference for rates and charges. Id. at 1068. CMS timely sought Commission review of the Initial Decision, Exceptions of CMS (Sept. 2, 1983), and also petitioned the Commission to reopen the record. E In its Final Decision, released March 6, 1984, the Commission affirmed Judge Eh-rig’s Initial Decision, but with substantial modifications. MCI Cellular Telephone Co., 96 F.C.C.2d 1015 (Pittsburgh), reconsideration denied, 56 Rad.Reg.2d (P & F) 936 (1984). Several of the preferences awarded to MCI were reduced in weight; two were eliminated entirely. Moreover, significant adverse conclusions as to the adequacy of CMS’s design and the likelihood of intra-system interference were reversed. Although the margin of difference between the candidates was thus narrowed considerably, the FCC nonetheless discerned material remaining differences “sufficient to make a choice under comparative criteria previously established.” Accordingly, the Commission affirmed the grant to MCI. Id. at 1018, 1035. 1 First, and critical to its ultimate determination, the FCC affirmed the slight preference awarded to MCI for geographic and population coverage. Because nationwide service is a primary goal of cellular service licensing, geographic coverage was deemed to be a major basis of comparison. Id. at 1019; Cellular Rulemaking, 86 F.C.C.2d at 502. The FCC found that MCI proposed to serve over 200 square miles, or 13.6% more than CMS, and would include 33,713 more people. Pittsburgh, 96 F.C.C.2d at 1019. In assessing CMS’s challenge that these differences are inconsequential, the FCC acknowledged that proper analysis required examination of more than raw numbers. In examining other factors declared relevant in Cellular Rulemaking, namely, presence of densely populated areas, highways, and areas likely to have high mobile usage characteristics, the FCC found further support for MCI’s preference in its more comprehensive highway coverage and in its “pockets” or non-common areas. Id. at 1019-20. MCI’s pockets also reflected a higher level of demand. Id. The FCC likewise affirmed MCI’s preference for its determination and analysis of demand. As the AU had concluded, the Commission deemed certain of CMS’s assumptions in its demand studies to be materially flawed. For example, CMS’s assumption that paging is a product precursor of cellular radio significantly limited its sampling; while reasons for the decision to measure paging demand were indeed advanced, CMS had failed, the FCC determined, to establish a “direct link” between paging demand and cellular demand. Id. at 1023. The FCC affirmed the AU’s finding that the record did not demonstrate that CMS employed its survey results to develop demand projections and distribution; the Commission stated that “even if we were not to find flaws in CMS’s studies, we still would not credit it with reasonable market projections.” Id. In contrast, MCI’s assumptions and methodology were found to be clearly stated and free of serious error. In response to CMS’s attack on MCI’s survey assumptions, the Commission observed generally that “any market demand study must contain certain assumptions which are not susceptible to proof in order to account for all relevant factors.” Id. at 1023-24. Nonetheless, MCI’s forecasts were deemed more reliable because the scope of its CGSA was determined on the basis of its survey data, as were its frequency and channelization plans. MCI’s demand projections also considered costs, population and industrial development, expected demographic changes, and likely usage patterns. On the other hand, CMS’s challenge to the AU’s findings with respect to its ability to accommodate demand was, to a great extent, successful. Importantly, the FCC reversed the ALJ’s conclusion regarding CMS’s design and rejected the finding of potential co-channel interference. Citing the judge’s findings that CMS would be able to accommodate first-year demand, the Commission concluded that the record failed to show CMS’s inability to accommodate demand. The Commission did not, however, reverse MCI’s preference on this issue; instead, the FCC downgraded it to a slight preference, finding that only MCI has “designed its system, distributed demand throughout the MSA, and determined its channel allocation plans based on its demand distribution forecasts.” Id. at 1026. Overall, the FCC reduced MCI’s award under Issue (a) from a substantial to a slight preference. This result was based primarily on the Commission’s finding that CMS and Celcom had been “unduly penalized” by the AU. Id. at 1027, 1036. 2 So too, CMS successfully persuaded the Commission to vacate the preference awarded MCI under Issue (b). Specifically, the FCC emphatically rejected the AU’s implication that CMS had not proposed a bona fide cellular design, emphasizing: [W]e do not favor one system design over another____ In adopting its cellular rules and policies, the Commission sought to avoid imposing any rigid system design concepts, in order to permit applicants the flexibility (within certain parameters) to design their systems in different ways____ We will not penalize CMS merely because it chooses not to follow the conventional wisdom. Nor will CMS’s system be disfavored because it may require more fine-tuning than other systems. Id. at 1029 (emphasis added). The Commission observed that any cellular system was expected to require some adjustment in response to usage patterns or availability of choice transmitter sites. Id. at 1029 & n. 21. The FCC discerned no evidence supporting the finding that intrasystem interference would plague CMS’s initial system, adding that later intra-system interference did not warrant a demerit. Id. at 1030. Moreover, the Commission vacated the finding that CMS, in accomplishing frequency reuse, might impermissibly have to reduce the coverage of its CGSA. Additionally, the Commission rejected the significant distinctions drawn by the AU as to the various proposals to monitor system traffic congestion, stating that MCI’s proposal under Issue (b) was, in the end, neither better nor worse. At the same time, the FCC rejected CMS’s boosterism-style claims that its system design was, in fact, superior to those of its two competitors. In the FCC’s view, CMS failed to demonstrate that service to portable telephones and in-building service would be inadequate without CMS’s proposed “depth of coverage” system. Id. at 1030. While the MCI and Celcom proposals appeared to be more flexible, the CMS proposal apparently offset this slight advantage by being “slightly more detailed.” Id. at 1031. Thus, all of the proposals were deemed adequate, but none contained sufficient detail to warrant a preference. Ultimately, no preference was awarded under Issue (b), because “the record [did] not establish that any single applicant’s expansion plan will be able to accommodate the expected growth in demand for service while the others will not.” Id. CMS was also denied the additional preferences which it sought under Issue (e). Although CMS retained a preference for its rate structure (because, as the AU concluded, it promoted usage-sensitive, cost-based pricing), the preference was downgraded to slight. Id. at 1033. 3 Turning to the various procedural issues raised by the two unsuccessful contenders, the FCC concluded that no demonstration had been made that the issues on which cross-examination was denied were “decisionally significant.” Id. at 1035. Moreover, the issues on which CMS was seeking surrebuttal, by way of reopening the record, were reversed by the Commission. In consequence, the FCC concluded that any prejudice suffered by CMS was thereby eliminated. Id. Ultimately, the FCC’s modifications greatly reduced the disparity discerned by the ALJ between MCI and CMS. As we have seen, MCI’s preference under Issue (a), the major issue, was diminished from substantial to slight; under Issue (b), MCI lost its preference altogether; and CMS’s preference under Issue (c), explicitly made the weakest of the three, was downgraded from a preference to a slight preference. Nonetheless, the comparative difference between MCI’s slight preference under Issue (a) and CMS’s slight preference under Issue (c) was deemed sufficient to warrant a reasoned choice. The award to MCI was therefore affirmed as modified. Id. at 1036. Celcom promptly filed a Petition for Reconsideration. CMS did not seek reconsideration, although it filed a reply to Celcom’s petition. In August 1984, the FCC released a Memorandum Opinion and Order acknowledging this to be a “close case” but affirming its Final Decision on all points. MCI Cellular Telephone Co., 56 Rad. Reg.2d (P & F) 936 (1984) (Pittsburgh Reconsideration Order). II The Commission’s proceedings and disposition have been described at some length because we are obliged carefully to insure that the comparative process employed in this “lead proceeding” complied with applicable standards of law. Our review in this respect begins with the threshold requirement of reasonable and fair administrative procedures, that is, fair notice and adequate opportunity for the parties to present their respective cases. CMS strenuously protests that the ALJ’s denial of cross-examination and surrebuttal constituted an abuse of discretion. Additionally, CMS claims that it utterly lacked notice as to the Commission’s intention to consider as a point of comparison the reliability of cellular applicants’ demand surveys (under Issue (a)). As we have previously observed, streamlined procedures were adopted by the Commission for the explicit purpose of expediting cellular proceedings. Cellular Rule-making, 86 F.C.C.2d at 501. Recognizing this, CMS contends that the specific scheduling pressures imposed by the FCC had a destructive effect on the proceeding’s fairness and rationality; the rush to judgment, CMS believes, vitiated in this proceeding fundamental precepts of procedural fairness and fatally infected the purported reasonableness of the Commission’s award to MCI. Upon analysis, however, we cannot fault the Commission for its entirely proper concern with hastening long-delayed service to the public. The intended rapid deployment of cellular radio communications has long been plagued by a glacial regulatory pace. It was thus entirely reasonable for the FCC to seek to avoid the specter of protracted administrative litigation which threatened to stall yet further the seemingly endless regulatory process. It is important to recall in this respect that Congress has expressly empowered the Commission to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” 47 U.S.C. § 154(j) (1982). The Supreme Court has previously observed that the Communications Act is a “supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940). True to the teaching of Potts-ville Broadcasting, courts have since recognized that “[a]s technology develops and the field of communications changes, procedural, as well as substantive, policy must be flexible.” Bell Telephone Co. of Pennsylvania v. FCC, 503 F.2d 1250, 1265 (3d Cir.1974), cert. denied, 422 U.S. 1026, 95 S.Ct. 2620, 45 L:Ed.2d 684 (1974); see RCA Global Communications, Inc. v. FCC, 559 F.2d 881, 885-86 (2d Cir.), on reh’g, 563 F.2d 1 (2nd Cir.1977), subsequent appeal, 574 F.2d 727 (2d Cir.1978). A The procedural standards' followed by the Commission in devising its cellular rules are spelled out both statutorily (in the Communications Act and the APA) and in the FCC’s Report and Order, Cellular Rulemaking. The Communications Act requires that mutually exclusive radio license applications receive a “full hearing.” 47 U.S.C. § 309(e) (1982). That statute elaborates on the “full hearing” requirement by mandating that all interested parties be permitted to participate and by imposing on the applicant the burdens of proof and going forward with the evidence. “Full hearing,” however, does not vouchsafe an inalienable right to cross-examination or surrebuttal. The Supreme Court has construed section 309 to mean that every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of facts. U.S. v. Storer Broadcasting Co., 351 U.S. 192, 202, 76 S.Ct. 763, 770, 100 L.Ed. 1081 (1956) (emphasis added). The Act does not, by its terms, require a traditional, trial-type evidentiary hearing at all; quite to the contrary, the Commission could, under settled law, determine that the “demands of the public interest were so urgent as to preclude the delay which would be occasioned by a hearing.” Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 333, 66 S.Ct. 148, 151, 90 L.Ed. 108 (1945). See supra p. 5. The watershed decision in Ashbacker requires a meaningful comparative hearing and a reasoned determination of the public interest; it does not inexorably require a full-blown, trial-type proceeding. Thus, in United States v. FCC, 652 F.2d 72, 88-96 (D.C.Cir.1980) (en banc), an analogous case, this court upheld FCC satellite licensing without formal-type evidentiary hearings because of the public interest in rapid institution of service. 1 In addition to the Communications Act, the APA expressly authorizes “paper hearings” in licensing cases when a party will not be prejudiced by that procedure, 5 U.S.C. § 556(d) (1982). Cross-examination is therefore not an automatic right conferred by the APA; instead, its necessity must be established under specific circumstances by the party seeking it. The APA, echoed by Storer Broadcasting, provides only for “such cross-examination as may be required for a full and true disclosure of the facts.” Id. In this case-by-case analysis, cross-examination is appropriately denied if the party fails to “point to any specific weakness in the proof which might have been explored or developed more fully by that technique than by the procedures adopted by the Commission,” or fails specifically to “suggest what questions were necessary” to explore the general issues to be examined, or fails to explain why written submissions, including rebuttal material, were ineffectual. Absent such a showing, no prejudice has been established. American Public Gas Association v. Federal Power Commission, 498 F.2d 718, 723 (D.C.Cir.1974). In exercising the broad discretion conferred by Congress, the FCC has repeatedly held that cross-examination is not essential in all cases; instead, this traditional device of truth-finding is deemed to lie within the discretion of the AU, whose decision will not be reversed by the Commission if it reflects sound discretion. Even if a party successfully argues under this standard that cross-examination should have been permitted, the second inquiry is whether the matters sought to be cross-examined bore significantly upon the Commission’s factfinding and drawing of conclusions. If not, then the party has not been prejudiced. Deep South Broadcasting Co. v. FCC, 347 F.2d 459, 463 (D.C.Cir. 1965). As we have seen, the standards established by the FCC in Cellular Rulemaking left the availability vel non of cross-examination to the “sound judicial discretion of the judge, the prevailing standard being whether the person requesting cross-examination has persuasively demonstrated that written evidence is ineffectual to develop proof.” Order on Reconsideration, 89 F.C. C.2d at 92; 47 C.F.R. § 22.916 (1984) (citations omitted). What is more, both the Designation Order and the Pre-hearing Order expressly called the parties’ attention to this requirement. MCI Cellular Telephone Co., FCC 82M-4023, at 2 (Dec. 17, 1982) (Order Prior to First Hearing Session); Pittsburgh Designation Order, 52 Rad.Reg. at 1111; see RCA Global Communications, 559 F.2d at 886; American Public Gas Association, 498 F.2d at 723; Order on Reconsideration, 89 F.C.C.2d at 92 n. 59. Under the applicable orders, moreover, surrebuttal might be permitted if the AU finds it is “needed to provide a complete record.” Order on Reconsideration, 89 F.C.C.2d at 92; MCI Cellular Telephone Co., FCC 82M-4120, at 2 (Dec. 28, 1982) (Order). In' the face of clearly articulated standards governing when cross-examination may be available, CMS failed, in our view, to satisfy these prerequisites. Indeed, CMS itself admitted that cross-examination would be an ineffective method of developing the record. CMS previously argued to the AU that the use of cross-examination “to elicit the facts necessary to complete the record ... is an inefficient means of highlighting contested areas; it is not conducive to the development of an evidentiary record adequate to support a meaningful analysis of the comparative merits of competing proposals.” CMS Request for Prehearing Conference, at 3 (Dec. 10, 1982). Thus, it cannot seriously be argued that the AU improperly closed the door on these procedures in advance of the hearing. Rather, the AU dutifully followed the Commission’s clear pronouncements in this respect. 2 CMS nonetheless challenges the denial of cross-examination as to two issues: (1) the reliability of its market demand analysis, CMS Brief at 30-32; and (2) the flexibility of its system design and intra-system interference. Id. at 63-64. The first issue is indeed significant because the award of two preferences to MCI under Issue (a), namely, the determination of demand and the ability to accommodate demand, hinged on the reliability of the parties’ market-demand analysis. Aside from its clear-cut greater geographic and population coverage, it will be recalled that MCI was preferred under Issue (a) for the stated reasons that (1) CMS had failed adequately to explain its market-research methodology, Pittsburgh, 96 F.C.C.2d at 1022-23; (2) MCI had clearly established a nexus between its demand forecasts and system design, id. at 1026; and, conversely, (3) CMS had failed to demonstrate such a nexus. Pittsburgh Reconsideration Order, 56 Rad.Reg.2d at 940. We disagree that cross-examination would likely have altered the decisionmaker’s views with respect to the AU’s first and third reasons. In the first instance, cross-examination is not the appropriate office for articulating one’s own methodology in comparative cellular proceedings, nor is it an appropriate means of explaining how one’s design is based on market research. These matters are, instead, properly the subject of an applicant’s direct case and, if inadequately fleshed out from a comparative perspective, of rebuttal. In our view, CMS failed adequately to employ the mechanisms provided under the FCC’s procedures. Moreover, cross-examination might, at best, alter the probative force of MCI’s asserted nexus, as demonstrated in its direct case, between market research and system design-planning. Yet this sort of attack, especially from a comparative focus, was precisely the purpose of the rebuttal-case procedures established by the Commission as routine in comparative proceedings. Besides these broader difficulties with its position, CMS in the heat of comparative battle did not even seek to cross-examine the MCI expert who was responsible for the latter’s market research exhibits. CMS Objections to Direct Exhibits and Requests for Cross-Examination, at 18-19 (Jan. 11, 1983). CMS also challenges the denial of cross-examination of Mr. Whitty (MCI), and Messrs. Larson and Rose (Celcom) regarding their testimony on intra-system interference and flexibility under Issue (b). CMS Brief at 63-64. The requests, however, lacked the requisite specificity and made no realistic attempt to demonstrate that written submittals were ineffectual. In any event, the issue of intra-system interference was pretermitted by the Commission’s reversal of the AU on the merits of that question; CMS thus cannot be heard to claim that denial of cross-examination on that particular issue was still prejudicial. B CMS next asserts another procedural infirmity — that the AU’s rulings denying surrebuttal precluded all opportunity to respond to the other applicants’ rebuttal criticisms of CMS’s proposal. CMS contends that surrebuttal on the issues of market research, under Issue (a), and flexibility, under Issue (b), was necessary to overcome the denial of cross-examination and the alleged lack of notice to applicants of the decisional relevance of such studies, As with cross-examination, no automatic entitlement to surrebuttal lies in comparative proceedings. Rather, the cellular rules vest discretion in the AU to permit or deny such additional submissions. The prescribed commonsensical standard authorizes surrebuttal when the AU finds it is needed to complete the record. Order on Reconsideration, 89 F.C.C.2d at 92; 47 C.F.R. § 22.916(b)(6) (1984). In this instance, CMS’s initial request for surrebuttal was tendered prior to the filing of rebuttal submissions, CMS Request for Prehearing Conference, at 3-4 (Dec. 10, 1982); indeed, the request was made prior to the parties’ objections and request for cross-examination. Given this early-bird timing, CMS’s initial request was necessarily a mere generalized request for a third round of pleadings, rather than a specifically crafted request addressed to the rebuttal submissions. As a result, the AU could not realistically have peered into the future and determined at such an early juncture that additional testimony would in fact be needed. Moreover, as with cross-examination, Judge Ehrig did not unconditionally deny all surrebuttal at this stage, see Order (Dec. 17, 1983), but instead left the question to future resolution. CMS’s first specific request for surrebuttal occurred at the hearing itself. Counsel for CMS admitted that the record was adequate to permit argument and briefing on whatever points CMS needed to make, Transcript at 68, with the exception of only one unanswered allegation, that of intrasystem interference. Id. at 69-70. The two other applicants, however, expressed reluctance to craft and be besieged with yet another round of evidentiary submissions. Id. at 70-71. Given CMS’s inadequate justifications, Judge Ehrig expressly found that the record was sufficient to permit a considered judgment without a third round. We cannot say, on this record, that this determination constituted an abuse of discretion. But at all events, we would once again be unable to find that CMS was prejudiced, inasmuch as the Commission subsequently rejected both the AU’s findings as to the purported intra-system interference and since the subject itself was one of negligible import to the evaluation under Issue (b). CMS’s next attempts to obtain surrebuttal were set forth in two motions to Reopen the Record, one filed over four months after the record closed and after the AU’s Initial Decision. Both motions sought to address only the issue of intra-system interference, which, as we have seen, was later washed out by the Commission. CMS never requested surrebuttal at any time— either before or after the Initial Decision— on the issues of market demand studies or flexibility, the gist of its complaint here. Moreover, CMS’s proffer in this respect hardly presented the sort of newly-discovered evidence or compelling circumstances warranting re-opening a record after oral argument and initial decision. The Commission has long held that, absent these unusual circumstances, a record should not be reopened “merely to permit an applicant an additional opportunity to present evidence which has been continuously available in order to make a better case for a grant of its application.” Heart of Georgia Broadcasting Co., 19 F.C.C.2d 20, 30-31 (Rev.Bd.1969). CMS now claims that, had surrebuttal been permitted, it would have shown that its system was no less flexible than the others; that it had incorporated several features designed to enhance its flexibility to accommodate future demand; and that, if anything, its system was actually more flexible than the others. CMS Brief at 64-65. We are persuaded, however, that these are precisely the showings that properly belonged in CMS’s direct case, in claiming a preference under Issue (b), or in its rebuttal case, when it comparatively critiqued the two competing systems and sought to demonstrate its own superiority. Given the myriad of opportunities the parties had to present evidence, in direct and rebuttal cases and in argumentation before the AU (in Petitions to Deny the other applications, supplemental memoranda, Proposed Findings and Conclusions, Reply Findings and Conclusions, Exceptions, and Replies to Exceptions) and before the Commission on de novo review (Opening Briefs and Replies, oral argument, Petitions for Reconsideration and responsive pleadings, two Motions to Reopen the Record and responsive pleadings, and sundry other motions), the opportunity to respond provided by the Commission appears entirely adequate under applicable legal standards. CMS vigorously took full advantage of these opportunities; indeed, it was successful in persuading the Commission to vacate many of the AU’s key findings which were allegedly derived from damaging rebuttal testimony. In sum, an observation from another proceeding seems entirely a propos to the case at hand: challenges such as the various procedural claims advanced here “reflect little more than the boundless litigiousness of disappointed claimants.” Christian Broadcasting Network, Inc. v. Copyright Royalty Tribunal, 720 F.2d 1295, 1319 (D.C.Cir.1983). C In addition to its quarrels over the lack of opportunity for cross-examination and surrebuttal, CMS claims that it was sandbagged by the award of any preference for the relative reliability of the applicants’ demand studies. CMS protests vehemently of a lack of notice that this matter would be the subject of comparative evaluation. Obviously, it is a fundamental tenent of the administrative process that parties to comparative proceedings are entitled to notice of the decisional criteria and burdens of proof. As this court has observed: It is beyond dispute that an applicant should not be placed in the position of going'forward with an application without knowledge of requirements established by the Commission, and elementary fairness requires clarity of standards sufficient to apprise an applicant of what is expected. Bamford v. FCC, 535 F.2d 78, 82 (D.C. Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 255, 50 L.Ed.2d 178 (1976). The question is whether that statutory principle was trodden asunder in the proceedings in this case. 1 To answer that question, we are obliged to return briefly to the beginning of this controversy. The Designation Order in this case, issued in December 1982, trifurcated comparative Issue (a) into separate sub-issues. The AU was first to determine and compare the geographic area and population which each applicant proposed to serve; second, the AU was “to determine and compare the relative demand for the services proposed in said area,” and third, the AU was to determine and compare the applicants’ respective abilities to accommodate anticipated demand. Pittsburgh Designation Order, 52 Rad. Reg.2d at 1110. While this order indisputably gives notice that the parties’ demand determinations were to be compared separately, it was issued five months after the direct cases were filed. CMS contends that the Designation Order departs from the comparative standards previously announced in Cellular Rulemaking by making demand studies the subject of a separate preference and by basing the evaluation of an applicant’s “ability to accommodate demand” on the extent to which system planning reflected demand. CMS Brief at 51-52. CMS suggests that the full extent of this “newly announced” burden was unknown until the Commission affirmed the Initial Decision. Id. at 54-55. Contrary to CMS’s adamant assertions, however, the Report and Order eliminated demonstration of public need only from the basic qualifications to be determined prior to the comparative proceeding. Cellular Rulemaking, 86 F.C.C.2d at 502. Instead, “the comparative criteria ... include a consideration of the public need each applicant is likely to serve.” Id. (emphasis added). The Report and Order plainly included among “other significant factors” to be considered in comparing proposed service areas “indications of a substantial public need for the services proposed, including the results of public need surveys.” Id. (emphasis added). That same document made it clear that “the public need indicated by subscriber surveys” would be relevant. Id. at 503. In the face of what appears to us to be abundantly clear language, CMS argues that these references are to be understood as treating demand studies as just one kind of evidence which would be entertained by the Commission. CMS Brief at 52. Specifically, CMS maintains that the “most reasonable reading ... is that an applicant could demonstrate need entirely by other means, without recourse to surveys at all.” Id. at 53 n. 51. At the same time, CMS admits that the rulemaking gave ample notice that applicants were to demonstrate the relative efficacy of their proposed service areas to meet demand. CMS Brief at 52. As we have seen, the second major criterion established by the rulemaking (Issue (b)) was the applicants’ prospective abilities to expand their systems “in a coordinated manner ... in order to serve an increasing number of local subscribers and roamers as demand warrants.” Cellular Rulemaking, 86 F.C. C.2d at 502-03. This criterion obviously incorporates the requirement that a system design was to be based on demand. Thus, CMS had notice — and appears to acknowledge as much — that demand was indeed to be determined by the parties and utilized, at the very least, in comparing service areas and expansion ability. 2 But if there were any lingering doubt as to CMS’s being adequately provided with notice in this respect, that doubt is dissipated by the veritable floodtide of evidence in CMS’s own pleadings and exhibits; that evidence powerfully suggests that CMS both invited and fully expected comparison of demand methodologies and an examination of the nexus between the parties’ demand surveys and their respective designs. By its own account, CMS invested “considerable resources” in no less than six demand surveys. Its voluminous treatment of demand methodology and analysis comprised over 1,000 pages in Volumes II and III of its direct case exhibits. In one exhibit, CMS introduced its “extensive” demand methodology an