11 FCC Red No. 4 Federal Communications Commission Record FCC 95-464 Before the Federal Communications Commission Washington, D.C. 20554 In re: Application of THE STATE BPED-900129MH OF OREGON ACTING BY AND THROUGH THE STATE BOARD OF HIGHER EDUCATION FOR THE BENEFIT .OF SOUTHERN OREGON STATE COLLEGE For Construction Permit For A New Noncommercial Educational FM Station on Channel 205Cl in Redding, California MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995; Released: January 18, 1996 By the Commission: Commissioner Ness dissenting and issuing a statement. 1. In State of Oregon Acting By and Through The State Board of Higher Education, 8 FCC Red 3558 ( 1993), the Commission denied an application for review filed on Au­ gust 13, 1990 by the State of Oregon Acting By and Through The State Board of Higher Education ("Oregon"). Now before the Commission is a petition for reconsider­ ation ("petition") of that denial filed by Oregon on June 17, f993, and responsive pleadings.' BACKGROUND 2. On June 10, 1988, Foundation filed an application for a new noncommercial station on Channel 205Cl in Redding, California (BPED-880610ML). On December 6, 1989, Foundation's application appeared on a Commission Public Notice, Report A-186, entitled "Noncommercial Educational FM Broadcast Applications Accepted for Fil­ ing and Notification of Cut-Off Date." The Public Notice specified January 10, 1990 as the date by which any ap­ plication seeking to be considered mutual!~ exclusive with Foundation's application was to be filed . T hrough staff error. Foundation's application also appeared on a subse­ quent Public Notice, released December 28, 1989, Report A-188. The Public Notice specified a cut-off date of Feb­ ruary 1, 1990. On January 12, 1990, the FM · Branch re- 1 The pleadings include (i) a motion for acceptance of late filed pleading filed by The University Foundation, California State University, Chico ("Foundation"), (ii) an opposition to petition for reconsideration filed by Foundation and (iii) a contingent reply to opposition to petition for reconsideration filed by Or­ egon. 2 Under the cut-off procedure, applications accepted for filing are placed on an "A" cut-off public notice which provides a leased an erratum which notified the public that the Foundation application had been inadverte ntly listed on the cut-off list released December 28, 1989 and deleted the application from that list. 3. On January 29, 1990, in response to the second cut-off list, Oregon filed its mutually exclusive application for a new noncommercial FM station for Redding, California on Channel 205Cl. Oregon sought a waiver of 47 C.F.R. §§ 1.2.27(b)(l), 73.3564(c) and 73.3573(d) (currently Section 73.3573(e)), requesting acceptance of its late-filed applica­ tion and consolidation with the Foundation application. It argued that, though it was aware of the initial cut-off notice, it believed that notice had been issued in error. By letter dated June 21, 1990, the Chief, Audio Services Di­ vision, Mass Media Bureau ("Bureau") returned Oregon's application as untimely filed pursuant to 47 C.F.R. § 73.3573(e) and denied its request for waiver of this rule. The Bureau concluded that Oregon had failed to exercise reasonable diligence in the preparation and filing of its application, that the tardy filing was not attributable to circumstances beyond Oregon's control, and that Oregon had failed to make the requisite showing for waiver of the cut-off rule. On August 13, 1990, O regon filed an applica­ tion for review of the Bureau's action. The Commission denied the application for review in the 1993 Memorandum Opinion and Order ("MO&O") at issue here. 4. l n its petition for reconsideration of the MO&O, Or­ egon reiterates the arguments raised in its application fo r review. Specifically, Oregon claims that its efforts to as­ certain the correct cut-off date, taken as a whole, reveal that Oregon acted reasonably and diligently, and the Com­ mission therefore should have waived the cut-off rule to permit the filing of Oregon's application. Oregon also con­ tends that it is entitled to reconsideration based on the decision of the United States Court . of Appeals for the District of Columbia Circuit in Mc£lrov Electronics Cor­ poration v. Federal Communications Conimission, 990 F.2d 1351 (D.C. Cir. 1993) (subsequent history omitted). which was decided two weeks prior to adoption of the .\10&0. Oregon argues "t hat by issuing a second cut-off list in this case, the Commission failed to state its directives with a level of clarity "sufficient to apprise an applicant of what is expected." 990 F.2d at 1358. DISCUSSION 5. With the possible exception of Oregon's reliance on the decision in Mc£lroy, Oregon has advanced no new arguments or changed circumstances since our last decision in this case . In addition to addressing the .\1c£lroy ar­ gument. however, we take this opportunity to reaffirm our agreement with the Bureau's decision in this case. 6. First. as we have already stated. the December 28 cut-off notice was without legal effect. The Commission's rules provide for the release of a puhlic notice listing applications that have been accepted for filing and an- thirty-day period for the filing of applications that are directly in conflict with those listed. This procedure is designed to permit the Commission to cea.se accepting applications from new parties so that a choice can he made between timely filed applicants. See -'1 C.F.R. § 73.3573(e). ---------------------- FCC 95-464 Federal.Communications Commission Record 11 FCC Red No. 4 nouncing a date by which all mutually exclusive applica­ tions must be filed. 47 C.F.R. § 73.3573(e). Prior to the December 28 notice, such a notice had already been issued. Thus, the December 28 notlce could not supplant the earlier one. It "was without tegal effect: '(ilt is a "well­ settled rule that an agency's failure to follow its own regu­ lations is fatal to the deviant action.""' Florida lns1i1ute of Technology v. FCC, 952 F.2d 549, 553 (D.C. Cir. 1992) (rejecting the argument that an inadvertently issued second cut-off date supplanted the original cut-off date) (quoting Way of Life Television Network, Inc. v. FCC, 593 F.2d 1356, 1359 (D.C. Cir. 1979) (quoting Union of Concerned Scien­ lislS v. A1omic Energy Comm'n, 499 F.2d, 1069, 1082 (D.C. Cir. 1974))). The January 10 cut-off date was the only validly-issued cut-<>ff date. 7. Having failed to file by the relevant cut-off date, Oregon argues that it should have been granted a waiver of the cut-off rules. Oregon asserts that it exercised due d ili­ gence in attempting to determine the correct cut-off date, and that its failure to file on time was due to circumstances beyond its control. We remain unpersuaded. Oregon was presented with two plainly conflicting public notices. The second of the notices established a different cut-off date than the first, but made no reference whatsoever to the first cut-off date, much less rescind it as would be expected if the second public notice were intended to control. A rea­ sonable party at that point, particularly one experienced in Commission practices (and represented by experienced counsel} as Oregon was. would have taken the obvious and logical step of requesting that the Commission issue an erratum or other written clarification to remove any uncer­ tainty about the correct cut-off date. Alternatively, a rea­ sonable party might have simply filed by the first cut-<>ff date, in order to be sure of protecting its rights. Oregon, however, did neither of these things. Instead, it decided that the first cut-<>ff date was in error. and that the second must have been intended to replace it. Then. having lost its filing opportunity when its decision proved incorrect, it asked for a waiver of the filing date. 8. At various stages of the proceeding. Oregon has of­ fered a variet,Y of explanations for the circumstances in which it found itself. Oregon has contenued in some plead­ ings that it was misled by a staff ueficiency letter aduressed to Founff list during the pendency of this thirty-ff date. None of those explanations, however, is adequate to justify a waiver of our strictly­ applied cut-<>ff rules, as fu lly discussed in our earlier de­ cision in this case. 9. In fact, however, we believe the record indicates that, despite all of Oregon's protestations, its decision not to file on the first cut-off date was a conscious choice made for strictly business reasons and with full knowledge of the consequences of fi ling late. Ronald Kramer, Director of Broadcasting at Oregon State College, has indicated in a January 19, 1992 Supplement to its August 13, 1990 ap­ plication for review3 that even after it received a copy of the staffs deficiency letter to Foundation, Oregon "treated the (January 10, 1990) cut-<>ff date as valid" and proceeded "with the clear intention of filing [an) application prior to January 10, 1990." Kramer indicates that the subsequent issuance of the second cut-off date "seemed unusual to me." Thus when Oregon's attorney failed to reach Com­ mission staff during the holiday season for clarification, Kramer notes that he "was extremely uneasy regarding .... imprecision over the cut-<>ff dates," especially since "I am fu lly aware of the importance of cut-off dates and the nearly insurmountable difficulty presented to any party which seeks to file on an untimely basis," and that he "was determined that [Oregon) would file on a timely basis." But O regon apparently abandoned its plan to fi le on the January 10 cut-off date after consulting engineers informed Kramer that, if they had additional time, they could pre­ pare an application using a directional antenna pattern which would permit Oregon to "optimize signal coverage" for the Redding station. It was at that point - sometime in early January -- that Kramer decided to contact Senator Packwood's office for assistance. Kramer reports that Sena.: tor Packwood's staff aid spoke on approximately January 8, 1990 with a Commission staff member, though Kramer is "not totally certain of the identity of the staff member ." Based on that conversation and despite all of Kramer's earlier misgivings, Oregon determined that it could file on the second published cut-off date and use the auditional days "to complete the preparation of a directional pattern." 10. While it is always extremely unfortunate when a Commission staff person gives incorrect information over the phone -- especially in a case such as this one where much is at stake -- precedent is clear that the informal advice is not binding. Mary Ann Salvatoriello, 6 FCC Red 4705, 4708 (199l)(citing Texas Media Group, 5 FCC Red 2851, 2852 (1990), affd sub nom. Malkan FM Associates v. FCC, 935 F. 2d 1313 (D.C. Cir. 199l)("A person relying on informal advice given by the Commission staff does so at their own risk."); see also Office of Personnel Management v. Richmond, 496 U.S. 414, 433-34 (1990); livings1on Radio Co., 10 FCC Red 574, 515 ( 1995). Given Kramer's undisputed understanding of the Commission and its pro­ cesses. and especially of the dire consequences inherent in missing a cut-<>ff date, Oregon ·s last minute decision to act according to such advice appears to be a matter of an applicant reacting to words that, for business reasons, it has been hoping to hear, even though it is aware that so doing is risky. We cannot conclude that such circumstances are sufficient to justify a waiver of our strictly enforced cut-off rules. -------------------------- 11 FCC Red No. 4 Federal Communications Commission Record FCC 95-464 11. The Court of Appeals has consistently upheld the Commission's cut-off rules as advancing administrative fi­ nality, aiding timely filed broadcast applicants by giving them a protected status, and furthering the public interest objective of providing expeditious new service. See, e.g., City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656, 660 (D.C. Cir. 1984). The Florida Institute Court emphasized that a key objective of the cut-off rule was to afford pro­ tected status to timely filed applicants and indicated that the Commission must balance the equities and assess the fairness to a timely filed applicant of accepting an untimely filed application in its decision to waive the cut-off rule. In denying waiver of the cut-off rule for Oregon, we followed that path. Foundation timely filed its application with the legitimate expectation that it would be protected from com­ peting applications once its established cut-off date had passed. It would have been inequitable to Foundation, and further delayed the establishment of broadcasting service, to waive the cut-off rule, accept Oregon's untimely applica­ tion and commence a hearing in the instant proceeding based upon Oregon's misinterpretation of our established cut-off procedures. "The Commission has granted waivers from compliance with the cut-off rules ... only in extreme cases involving extraordinary circumstances,' and only when the untimely applicant has demonstrated that it acted with reasonable diligence and thus that its tardiness was attributable to circumstances beyond its control." Florida Institute of Technology, 952 F.2d at 553 (quoting Nazarene Theological Seminary Radio Corp., 52 R.R.2d 539, 563 (1982)). Oregon has failed to demonstrate compelling cir­ cumstances surrounding its situation or that circumstances beyond its control prevented it from filing a timely applica­ tion. 12. The cases previously cited by Oregon in support of waiving the rules here arc, as explained in our earlier decision, distinguishable from this case. See MO&O at paras. 14-15. The McElroy case. cited by Oregon in the instant Petition for Reconsideration. is also inapposite and does not change our conclusion that a waiver is not appro­ priate here. Oregon claims that the flaws in the Commis­ sion's order at issue in McElroy are analogous to its erroneous placement of an application on a second cut-off list. We disagree. In McElroy the Court found the Co'mmis­ sion 's Order establishing filing instructions for applicants in the evolving cellular radio service so lacking in clarity "that even a careful reader of the order ... could not have been expected to understand !the proper procedure!." 990 F.2d at 1353. It therefore ordered the reinstatement nunc pro lune of several applications dismissed pursuant to the Order. ld. at 1367. In this case, by contrast. the Commis­ sion's cut-off rules are well-established and the procedures are clear. See, inter alia, 47 C.F.R. § 73.3564; 47 C.F.R. § 73.3573. The Court of Appeals has consistently . upheld them as advancing administrative finality, aiding timely filed broadcast applicants by giving them a protected status. and furthering the public interest objective of providing expeditious new service. See, e.g., City of Angels Broadcast­ ing, Inc. v. FCC, supra, 745 F.2d at 660. Likewise, the Court of Appeals has clearly held that the placement of an application on duplicative cut-off lists does not constitute lack of adequate notice of the correct cut-off date and therefore does not start the cut-off.process over again. See Florida Institute of Technology, Inc., supra, 952 F.2d at 549. The policy enunciated by Florida lnstitute was in no way altered by the decision in McElroy, and is controlling here. The argument that a waiver of cut-off procedures is war- 1845 ranted when a duplicative cut-off list has been issued is particularly unavailing here, where Oregon does not claim it was unaware of the first list. CONCLUSION 13. Accordingly, IT IS ORDERED, That the petition for reconsideration filed by Oregon on June 17, 1993 IS DE­ NIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary FCC 95-464 Federal Communications Commission Record DISSENTING ST A TEMENT OF COMMISSIONER SUSAN NESS 11 FCC Red No. 4 Re: Redding, California: Petition for Reconsideration I respectfully dissent from today's decision. From my examination of the record in this case, I conclude that Oregon exercised reasonable diligence in seeking to clarify conflicting application deadlines, and therefore that its application should have been accepted ·for filing. This case is about whether an otherwise bona fide applicant received adequate notice of a filing deadline in circumstances where the Commission issued two conflicting public notices, specifying two different filing dea9lines, and failed to clarify until after the first · deadline passed that this was the "real" deadline. These actions misled Oregon and unfairly resulted in it not timely filing its application. In response to the conflicting public notices, Oregon responsibly and diligently took reasonable steps to clarify which of the two deadlines announced by the Commission, January 10 or February l , was correct. The information that Oregon received from the Commission, both official and unofficial, repeatedly and consistently indicated that February 1 was the deadline. Not until after January 10 had passed did the Commission clarify that it regarded January 10, and not February 1, as the correct date. To recount the sequence of events is to demonstrate that Oregon exercised diligence: Oregon received a courtesy copy of a letter dated November 29, 1989, from the Mass Media Bureau to Foundation, the party who filed the original application for a noncommercial FM station in Redding. California. The letter stated that the Commission would withhold further action on Foundation• s application for thirty days to permit filing_ of a corrective technical amendment. The Commission, in error, placed Foundation's application on two public notices. One was issued on December 6 and a second was issued on December 28, 1989. This mistake created two deadlines for filing competing applications, January 10 and February 1, 1990. On December 28, 1989, Foundation filed its technical amendment, and the second public notice was issued that same day. This second public notice was consistent with the November 29 letter withholding further Commission action pending receipt of a corrective amendment. 1846 11 FCC Red No. 4 Federal Communications Commission Record Faced with the conflicting public notices, Oregon checked the filing deadline in the Commission's computer database, the Facility-Application Infonnation Report (FAIR). FAIR, like the second public notice, showed that competing applications were due by February l . Oregon states that between December 28, 1989, and January 5, 1990. it attempted several times to contact Commission staff, but received no authoritative response regarding the correct cut-off date. On January 2, 1990, Foundation filed a letter with the Commission requesting that its application be removed from the second public notice. Oregon stated that, although it already was a party to this proceeding and had received a copy of the Bureau letter of November 29, 1989, it did not receive a copy of Foundation's letter and had no notice of Foundation's request. Foundation does not claim to have served Oregon. When it was unable to obtain clarification, Oregon sought assistance from a Senatorial office on January S, 1990. In a letter submitted for the record in this proceeding, Senator Packwood stated that the Commission infonned his staff member that the correct filing deadline was February 1, and that his staff member conveyed this infonnation to Oregon. ~anuary 10, the deadline created by the first public notice, passed uneventfully. On January 12, 1990, the Cortllajssion issued an erratum deleting Foundation's application from the second public notice. Although not explicitly addressed in the erratum, the effect was to decide -- after the fact -- that January 10 had been the filing deadline. Because the erratum was issued on January 12, it eliminated Oregon's opportunity to timely file its competing application on January 10. On January 15, 1990, the next business day after the erratum was issued, Oregon by letter notified the Commission of its intent to file a competing application and, if necessary, a waiver request There was no response from the Commission. On January 29, 1990, Oregon filed its application and requested a waiver of the Commission's deadline. On June 21, 1990, the Mass Media Bureau denied the request for a waiver and returned Oregon's application. This action was later affinned on review. lll47 FCC 95-464 • ----------------------- FCC 95-464 Federal Communications Commission Record 11 FCC Red No. 4 The Commission consistently has required strict adherence to its cut-off rules by applicants, and the courts have upheld the Commission' s strict policies regarding filing deadlines. This policy is a reasonable means by which to balance the interests of initial applicants with the interests of competing applicants and the public, while maintaining administrative practicability and fairness. This was the Commission's goal when it adopted these strict procedural requirements, and I support our cut-off policies wholeheartedly. While the Commission has C