Federal Communications Commission Washington, D.C. 20554 August 26, 2009 DA 09-1881 In Reply Refer to: 1800B3-BSH/LAS Released: August 26, 2009 George M. Arroyo 150 East 56th Street, Apt 4E New York, NY 10021 Dennis J. Kelly, Esq. P.O. Box 41177 Washington, D.C. 20018 Re: AM Broadcast Auction 84 MX Group 84-46 Southchase, Florida Facility ID No. 161190 File No. BNP-20040130APP Tangelo Park, Florida Facility ID No. 160347 File No. BNP-20040126ALH Rincon, Georgia Facility ID No. 161545 File No. BNP-20040130BNC Applications for New AM Station Construction Permit Petition for Reconsideration Dear Mr. Arroyo and Counsel: This letter refers to the Petition for Reconsideration (“Petition”) filed May 1, 2008, by Mediatrix SC, Inc. (“Mediatrix”), one of three mutually exclusive (“MX”) applicants in AM Broadcast Auction 84 MX Group 84-46.1 Mediatrix’s Petition was directed against the action taken in the April 1, 2008, Audio Division letter finding a dispositive preference for the above-referenced application of George M. Arroyo (“Arroyo”) under Section 307(b) of the Communications Act of 1934, as amended (the “Act”).2 For the 1 George M. Arroyo filed an Opposition to Mediatrix’s Petition for Reconsideration on May 27, 2008, and Mediatrix filed a Reply to Opposition to Petition for Reconsideration on June 4, 2008. 2 47 U.S.C. § 307(b). George M. Arroyo, Cleo Broadcasting, LLC, and Mediatrix SC, Inc., Letter, Ref. No. 1800B3-LAS/JP (MB Apr. 1, 2008) (the “Letter Order”). 2 reasons set forth below, we dismiss the Petition as an interlocutory appeal under Section 1.106(a)(1) of the Commission’s Rules (the “Rules”).3 Background. Mediatrix, Arroyo, and Cleo Broadcasting, LLC filed mutually exclusive applications during the filing window for AM Broadcast Auction 84.4 The mutual exclusivity would normally be resolved by a competitive bidding process.5 However, in the Broadcast First Report and Order, the Commission determined that the competitive bidding procedures should be consistent with its statutory mandate under Section 307(b) of the Act to provide a “fair, efficient, and equitable” distribution of radio services across the nation. To this end, the Commission directed the staff to undertake a traditional Section 307(b) analysis prior to conducting an auction for mutually exclusive AM applications.6 The Commission also noted that the FM allotment priorities fulfill its obligation under Section 307(b), and would apply in making a Section 307(b) determination regarding mutually exclusive AM applications before auction.7 In this case, the Letter Order awarded a dispositive preference under Section 307(b) to Arroyo, under priority (4) of the applicable allotment priorities. The Petition contends that the Letter Order erred in failing to determine that Mediatrix was entitled to a Section 307(b) preference for its proposal to bring a “second competitive local aural broadcast service to Rincon, Georgia, vis a vis Arroyo’s proposal to bring a fifth local aural broadcast service to the Southchase/Kissimmee Urbanized Area.”8 The Letter Order explained that Arroyo would continue in the application process by filing a complete FCC Form 301 application within 60 days, pursuant to the procedures set forth in the Rules,9 and that the staff would then conduct a complete legal and technical analysis of the application. Further, the Letter Order indicated that the staff would issue a Consolidated Database System (CDBS)-generated Public Notice announcing the acceptance for filing of the Arroyo application, and petitions to deny the application would be due within 10 days after the release of the relevant Public Notice. The Letter Order 3 47 C.F.R. §1.106(a)(1). 4 See AM New Station and Major Modification Filing Window; Minor Modification Application Freeze, Public Notice, 18 FCC Rcd 23016 (MB/WTB 2003). 5 See Implementation of Section 309(j) of the Communications Act-Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Services Licenses, First Report and Order, 13 FCC Rcd 15920 (1998) (“Broadcast First Report and Order”); recon. denied, Memorandum Opinion and Order, 14 FCC Rcd 8724 (1999); modified, Memorandum Opinion and Order, 14 FCC Rcd 12541 (1999). 6 Broadcast First Report and Order, 13 FCC Rcd at 15964-65. 7 See Revision of FM Assignment Policies and Procedures, Second Report and Order, 90 FCC 2d 88 (1982). The FM allotment priorities are as follows: (1) First fulltime aural service, (2) Second fulltime aural service, (3) First local transmission service, and (4) Other public interest matters. Co-equal weight is given to Priorities (2) and (3). The FM allotment priorities were first applied to Section 307(b) determinations in mutually exclusive AM proceedings in Alessandro Broadcasting Co., Decision, 56 RR 2d 1568 (Rev. Bd. 1984). 8 Petition at 3. 9 See 47 C.F.R. §§ 0.401(b), 1.1104, 1.1109, 73.5005(d), and 73.3512. 3 also noted that the staff would dismiss the application filed by Mediatrix only upon action taken on the Arroyo application. Mediatrix sought reconsideration of the Letter Order and the preference awarded to the Arroyo application. Arroyo filed a complete Form 301 application (“Long Form 301”) on June 2, 2008.10 As discussed below, Arroyo’s Long Form 301 has not yet been placed on Public Notice as accepted for filing. Discussion. We find that Mediatrix’s Petition is procedurally improper. We believe that determinations such as the Letter Order are more appropriately characterized as interlocutory rulings, against which reconsideration petitions do no lie.11 Section 1.106(a)(1) of the Rules specifically prohibits petitions for reconsideration of interlocutory actions.12 An interlocutory action is an interim determination on a matter involving an application; it does not grant or deny the application.13 The Letter Order was an interlocutory action, not a final ruling on the Arroyo application or on the conflicting applications in MX Group 84-46. No action was taken on the mutually exclusive applications, nor was either application granted or dismissed upon the release of the Letter Order. From a procedural standpoint, this particular AM application proceeding was far from final when the Letter Order was issued. At that point, the preferred applicant still needed to file a complete Form 301 application; the staff then needed to perform a technical and legal analysis; the application needed to be placed on a public notice of acceptance in accordance with Section 309(b) of the Act,14 and, importantly, a 10-day petition to deny period pursuant to Section 309(d)(1) of the Act15 would ensue. By expressly describing both the prospective filing period for petitions to deny, as well as all other procedures that must occur before any ultimate action will be taken on the pending applications, the staff underscored the interlocutory nature of the Letter Order. Moreover, the Letter Order does not involve an adverse ruling with respect to Mediatrix’s further participation in the proceeding. In this regard, we note that Arroyo’s Long Form 301 has not yet been placed on Public Notice as accepted for filing. If, and when, such Public Notice is issued, Mediatrix will have an opportunity to raise the objections contained in its instant Petition in a timely petition to deny Arroyo’s Long Form 301. In keeping with the Commission’s efforts to reduce the administrative burdens at the initial stages of the auction process, while balancing the goals of public participation and the expeditious institution of new broadcast service, in the Broadcast First Report and Order, the 10 File No. BNP-20080602ABO. 11 See Elvis L. Moody, Letter, 24 FCC Rcd 3209 (MB 2009) (no countervailing public interest sufficient to warrant processing procedures that are not in keeping with Section 1.106(a)(1) and the standards enunciated by the Commission in the Broadcast First Report and Order). 12 47 C.F.R. § 1.106(a)(1). The rule is clear that, with one noted exception that is clearly inapposite, the Commission or delegated authority will only entertain petitions requesting reconsideration of a final action. The rule exception is that “a petition for reconsideration of an order designating a case for hearing will be entertained if, and insofar as, the petition relates to an adverse ruling with respect to petitioner’s participation in the proceeding. Petitions for reconsideration of other interlocutory actions will not be entertained.” Id. 13 See Iridium 2GHz LLC, 18 FCC Rcd 18121, 18122 (IB 2003). 14 47 U.S.C. § 309(b). 15 47 U.S.C. § 309(d)(1). 4 Commission clearly defined the time frame in which it would entertain pleadings in the auctions environment. No pre-auction pleadings were contemplated.16 Allowing the filing of both petitions for reconsideration of Section 307(b) determinations and petitions to deny will result in the duplication of efforts on the part of all participating parties, including Commission staff. We find that requiring that all arguments be advanced in one pleading is more efficient than a bifurcated procedure.17 We are mindful that Section 4(j) of the Act states that the Commission may conduct its proceedings in such a manner as will best conduce to the proper dispatch of business and to the ends of justice.18 Applying this policy in the present case will expedite the initiation of service to the public and conserve resources, without prejudice to Mediatrix. Its arguments will receive full and fair consideration in the analysis of its petition to deny. Conclusion/Action. Accordingly, Mediatrix SC Inc.’s May 1, 2008, Petition for Reconsideration of the Letter Order IS DISMISSED pursuant to Section 1.106(a)(1) of the Commission’s Rules. Sincerely, Peter H. Doyle Chief, Audio Division Media Bureau cc: Richard J. Hayes, Jr., Esq. Howard Mintz, Esq. Lee J. Peltzman, Esq. 16 The Bureau follows similar procedures in the noncommercial educational (“NCE”) application processing context. See, e.g., Comparative Consideration of 76 Groups of Mutually Exclusive Applications for Permits to Construct New or Modified Noncommercial Educational FM Stations, Memorandum Opinion and Order, 22 FCC Rcd 6101, 6102 (“our selection is ‘tentative’ because petitions to deny may be filed against the applicant tentatively selected pursuant to these point system determinations”) and n.227 (“The staff's practice, in NCE comparative cases decided on Section 307(b), has been to require that any petitioner or objector resubmit its objection within the 30- day period established for the filing of petitions against the tentative selectee. See, e.g., Jacqueline Dearing, Letter, 21 FCC Rcd 6211 n.8 (MB 2006).”). Citing this precedent, the staff recently dismissed a petition for reconsideration of an NCE Section 307(b) determination as a procedurally improper appeal of an interlocutory determination. State of Oregon, Letter, 23 FCC Rcd 11576 (MB 2008). 17 Under the comparative hearing system, in modifying its rules to strictly limit appeals from interlocutory rulings to those categories specifically authorized in 47 C.F.R. § 1.301(a), the Commission explained, “[the new rules] will expedite the conduct of hearing proceedings, . . . by cutting down on hearing delays occasioned by appeals which should be deferred pending action on the merits, and by freeing the Review Board to spend its resources on the other matters coming before it.” Practice and Procedure, 20 RR 2d 1613, 1615 (1970). In prior auction proceedings, our experience bears out the inefficiency in considering multiple pleadings, and confirms that such a practice has not been conducive to the effective transaction of Commission business, and has imposed unnecessary delays on successful applicants. 18 47 U.S.C. § 4(j).