PUBLIC NOTICE Federal Communications Commission 445 12th St., S.W. Washington, D.C. 20554 News Media Information 202 / 418-0500 Internet: http://www.fcc.gov TTY: 1-888-835-5322 DA 10-1724 September 13, 2010 NCE FM NEW STATION AND MAJOR CHANGE APPLICATIONS DISMISSED FOR FAILURE TO TIMELY FILE By this Public Notice, the Media Bureau (“Bureau”) announces the dismissal of the pending noncommercial educational (“NCE”) reserved band1 FM new station and major modification applications listed in Attachment A (“Applications”). Each of the listed applicants (“Petitioners”) failed to timely file a complete FCC Form 340 application or failed to electronically amend its pending application by the close of the October 2007 NCE filing window. Petitioners instead submitted new and major change applications on paper after the close of the filing window, along with petitions for waiver of the Bureau’s filing deadline. On April 4, 2007, the Bureau released a Public Notice announcing a filing window for applications for NCE FM new station and major modification construction permits.2 The Announcement Notice specified an October 19, 2007, deadline for electronically filing a complete FCC Form 340 application. Following an outage of the Bureau’s electronic filing system, the Consolidated Database System (“CDBS”), for a period of six and one-half hours on October 19, 2007, the Bureau promptly extended the filing window until October 22, 2007 at 2 p.m. EDT.3 Petitioners claim that they continued to experience technical problems with CDBS during the extended window, including slow performance and, according to many Petitioners, an outage lasting 1 Channels 201-220 are reserved for noncommercial educational FM broadcasting. See 47 C.F.R. § 73.501. 2 See Media Bureau Announces NCE FM New Station and Major Modification Application Filing Window for New and Certain Pending Proposals; Window to Open on October 12, 2007, Public Notice, 22 FCC Rcd 6726 (MB 2007) (“Announcement Notice”). 3 Media Bureau to Extend Window for NCE FM New Station and Major Change Applications; Window Will Close on October 22, 2007, Public Notice, 22 FCC Rcd 18680 (MB 2007). Contrary to one Petitioner's claim that the Bureau had no authority to impose a deadline other than 11:59 p.m. (See Petition for Extraordinary Relief and for Leave to File Applications, filed by Concordia Ministries, Inc., Picayune, Mississippi (Nov. 21, 2007)), the Bureau has delegated authority to establish and limit the dates and times of the relevant filing window as it sees fit. See, e.g., Auction of FM Broadcast Construction Permits Scheduled for November 1, 2005, Public Notice, 20 FCC Rcd 10492, 10504 (MB/WTB 2005) (closing the filing window at 6:00 p.m. ET). 2 approximately two hours in the early morning of October 22, 2007.4 Petitioners request that the Commission waive the filing deadline and accept their late-filed applications nunc pro tunc.5 The Commission may waive its rules for good cause.6 A waiver is appropriate if (1) special circumstances warrant a deviation from the general rule, and (2) such deviation would better serve the public interest than would strict adherence to the rule.7 Generally, a waiver is warranted in a particular case only if the relief requested would not undermine the policy objective of the rule in question, and would otherwise serve the public interest.8 For the reasons described below, we find that Petitioners have failed to demonstrate that good cause exists to waive the filing deadline. Petitioners fail to provide any compelling explanation for their failure to timely file or amend their Applications. Petitioners’ attempts to place the entire blame for their late filings on CDBS are unavailing. In the Announcement Notice and the NCE Window Public Notice, the Bureau explicitly warned Petitioners several times that late-filed new station applications would be returned without further consideration.9 Moreover, the Bureau specifically cautioned applicants to file early in the window to ensure proper submission10 and afforded applicants considerable time to prepare and submit their applications. Specifically, the Bureau announced the October filing window six months in advance, and applicants were free to initiate and complete applications during this six-month period.11 Petitioners are ultimately responsible for taking precautions to ensure that their applications are complete and timely submitted, and they must bear the consequences of their actions.12 4 See, e.g., Petition for Waiver and Acceptance of Application, filed by Mountaintop Ministries, Inc., Midvale, Idaho at 1-2 (Oct. 31, 2007) (“Mountaintop Ministries Petition”) (citing “chronic under-performance” of CDBS and a total outage from approximately 1:00 a.m. to 3 a.m. on October 22); Petition for Leave to File, filed by St. Francis University, Loretto, Pennsylvania at 2 (Oct. 25, 2007) (citing “erratic functionality” of CDBS in the final ten minutes of the extended filing window and an outage from approximately 1:45 a.m. to 4 a.m on October 22). 5 Alternatively, some Petitioners requested that the Commission open an additional two-hour filing window to replace the time lost due to CDBS’s alleged malfunctioning during the window extension. 6 47 C.F.R. § 1.3. See also WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) (“WAIT Radio”); Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1166 (D.C. Cir. 1990) (“Northeast Cellular”). 7 See Northeast Cellular, 897 F.2d at 1166. 8 WAIT Radio, 418 F.2d at 1157. 9 See Media Bureau Announces NCE FM New Station and Major Change Filing Procedures for October 12 – October 19, 2007 Window, Public Notice, 22 FCC Rcd 15050, 15053-54 (“NCE Window Public Notice”). Announcement Notice, 22 FCC Rcd at 6726. See also Dr. James J. McCluskey, Letter, 23 FCC Rcd 867, 868-69 (2008) (rejecting applicant’s claim that the NCE Window Public Notice was unclear). 10 See NCE Window Public Notice, 22 FCC Rcd at 15054 (“Applicants are encouraged to access the system and prepare their applications and amendments at their earliest convenience.... Applicants are also encouraged to submit their applications early during the window to ensure proper submission.”). 11 In these circumstances, applicants must bear the risks of filing procrastination. For example, Bishop Wilfret Johnson Ministries International, Inc. (“BWJM”) complains that its attempt to file an application for a new station at Poite A La Hoche, Lousianna, “was thwarted by the chronic underperformance and occasional non-performance of the Commission’s online application filing mechanism.” Petition for Waiver and Acceptance of Application at 1. However, an October 23, 2007, email from BWJM’s counsel discloses that he did not see application information sent by BWJM on the afternoon of October 22, 2007, until after the close of the window because the information was routed to a spam folder and counsel “was much occupied with other applications.” Email from Donald Martin to Bishop Johnson, Oct. 23, 2007 at 7:16 p.m. 12 See, e.g., Request for Waiver by Center City Schools, Order, 17 FCC Rcd 22424 (2003) (“[I]t is the applicant who has responsibility ultimately for the timely submission of the application.”). Catholic Radio Association (“CRA”) 3 We find that a waiver based on alleged applicant filing difficulties is unwarranted. Although CDBS became temporarily unavailable in the early morning of October 19, the Bureau promptly extended the filing window until October 22, 2007, at 2 p.m., i.e., for a period substantially longer than the outage itself, to avoid any hardship. Notwithstanding Petitioners’ claims of degraded CDBS performance shortly before the close of the extended filing window, more than 830 applications were successfully filed during the last seven hours of the window. We conclude that the Bureau’s extension of the window amply compensated all applicants for any time lost due to technical problems during the filing period.13 Finally, several Petitioners assert that waiver of the filing deadline is appropriate in this case because strict adherence to the deadline would be contrary to the public interest and because the underlying purpose of the deadline has already been met.14 We disagree. Filing deadlines provide significant benefits to the public as a whole, and particularly to the vast majority of timely applicants. Strict enforcement of filing deadlines promotes consistency, predictability, and treats fairly all parties that are similarly situated. The Commission has repeatedly stated that strict adherence to filing deadlines is required to permit the Commission to begin processing a defined group of applications at a specific time without the specter of facing numerous waiver requests.15 Moreover, the Commission has repeatedly disallowed the late submission of requested information in comparative cases, finding that such an allowance would “inevitably lead to abuse of the Commission's processes, applicant gamesmanship, and unfair advantage.”16 Similarly, we find that argues that CDBS malfunctions disproportionately harm those applicants that have entrusted the preparation and submission of their applications to a third party, like CRA, which is charged with filing hundreds of applications. See Petition for Leave and Waiver Request, filed by CRA on behalf of fifteen of its members (Nov. 2, 2007). However, whether an applicant files an application on its own or accepts assistance from a third party, the applicant itself must ultimately bear the consequences of a late-filed application. 13 See Educational Media Foundation, Letter, 23 FCC Rcd 15366 (2008) (rejecting applicant’s argument that the October 22, 2007, NCE FM window deadline should be waived due to CDBS’s technical malfunctions during the extension). Many Petitioners cite the Commission’s previous decision in Roamer One in support of their waiver requests. See Roamer One, Inc., Order, 17 FCC Rcd 3287 (2002) (“Roamer One”). In that case, the Commission granted waivers of a filing window because “the Commission appear[ed] to be at least partially responsible for technical difficulties associated with the filing of applications….” Roamer One, 17 FCC Rcd at 3291. Here, in contrast, the Bureau amply corrected for any technical difficulties by extending the filing window two and one-half days. 14 Specifically, many Petitioners assert that, if granted a construction permit, they would provide first and/or second NCE service to their communities and that denial of their waiver requests would deprive NCE service to numerous communities for years. See, e.g., Mountaintop Ministries Petition at 5-6. 15 See Roamer One, 17 FCC Rcd at 3290 n.22, quoting First Auction of Interactive Video and Data Service (IVDS) Licenses, Memorandum Opinion and Order, 11 FCC Rcd 1134 (1996) (“[t]his strict standard is necessary to ensure that applicants are treated fairly and equally ...”). See also Roamer One, 17 FCC Rcd at 3290 n.22, quoting Mary R. Kurpis and WLOS TV, Inc., Memorandum Opinion and Order, 5 FCC Rcd 5142, 5142 (1990) (“Although we understand that difficulties are sometimes encountered by parties trying to meet those deadlines, a strict policy as to the official close of business avoids confusion, establishes consistency and treats fairly all parties that are similarly situated.”). Accord Pathfinder Communications Corp., Memorandum Opinion and Order, 3 FCC Rcd 4146, 4146 (1988) (“The importance of enforcing the Commission's rules governing filing periods and procedures cannot be overstated….‘[f]ailure to enforce the rules with respect to timeliness poses a grave danger of the staff being overwhelmed by a seemingly never-ending flow of pleadings.’”), quoting Pathfinder Communications Corp., Memorandum Opinion and Order, Mimeo No. 7157 (1985). 16 Silver Springs Communications, Memorandum Opinion and Order, 3 FCC Rcd 5049, 5050 (1988), rev. denied, 4 FCC Rcd 4917 (1989) (concluding that the rejection of an untimely filed notice of appearance in a comparative case 4 accepting late-filed applications would be prejudicial to NCE applicants that properly adhered to the deadline, and would undermine the integrity of the window filing process.17 Allowing late-filed applications in this case could induce applicants in future filing windows to gain an unfair advantage by submitting applications after the deadline. Accordingly, for the foregoing reasons, the Bureau hereby denies Petitioners’ requests for waiver of the October 22, 2007, filing deadline and dismisses the Applications.18 For additional information, contact James Bradshaw or Rudy Bonacci (engineering), Irene Bleiweiss, Amy Van de Kerckhove, or Peter H. Doyle (legal) of the Audio Division at (202) 418-2700. This Public Notice contains the following Attachment: Attachment A: NCE FM New Station and Major Change Applications Dismissed for Failure to Timely File By: Chief, Audio Division, Media Bureau FCC is necessary in order to maintain the integrity of the Commission's processes and to ensure that an applicant's gamesmanship does not result in an unfair advantage). See also 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 (2007) (finding that the consideration of late-filed point supplements could potentially prejudice the comparative positions of mutually exclusive applicants that timely filed supplements); LRB Broadcasting, Memorandum Opinion and Order, 8 FCC Rcd 3076 (1993) (finding that allowing the late filing of a post-designation notice in a comparative hearing would provide an unfair advantage over applicants that timely filed). 17 See Community Religious Broadcasting, Inc., Letter, 23 FCC Rcd 15363 (2008) (finding that waiving the October 22, 2007, NCE FM filing deadline would give applicant an unfair advantage vis a vis applicants that filed on time). 18 47 C.F.R. § 73.3568(a)(1). 5 Attachment A NCE FM Window October 2007 Applications Dismissed for Failure to Timely File or Amend APPLICANT FACILITY ID CITY STATE Alaska Educational Radio System 173250 Girdwood AK American Educational Broadcasting, Inc. 177333 Jericho VT Arcade Christian Broadcasting Corporation 176435 Stillwater OK Ardmore Community Health and Education Org., Inc. 176078 Arcade NY Ardmore Community Health and Education Org., Inc. 176276 Ardmore OK Baker Valley Unified School Dist. 177468 Baker CA Bedford Columbian Home Ass'n 173361 Shoals IN Better Life Television, Inc. 173596 Selma OR Bishop Wilfret Johnson Ministries Int'l, Inc. 174973 Pointe A La Hache LA Bonners Ferry Seventh-Day Adventist Church 174779 Bonners Ferry ID Chehalis Valley Educational Foundation 177503 Chehalis WA Colleges of the Seneca* 175275 Macedon NY Community Wireless of Park City, Inc. 175156 Cedar City UT Community Wireless of Park City, Inc. 175155 Coalville UT Community Wireless of Park City, Inc. 175161 Moab UT Community Wireless of Park City, Inc. 174182 Nephi UT Community Wireless of Park City, Inc. Not listed Price UT Community Wireless of Park City, Inc. 175157 Richfield UT Concordia Ministries, Inc. 176789 Picayune MS Corning Christian Radio Corporation 174461 Corning NY Cross to Crown Int'l, Inc. 175690 Dayton TN Divina Misericordia 171738 Del Rio TX Educational Media Foundation* 94220 Gallup NM First Pentecostal Church of God in Christ 177404 Battle Creek MI Haw River Seventh-Day Adventist Church 174664 Burlington NC Howell Mountain Broadcasting Co. 175818 Napa CA I Work for God 174542 California MD Indiana Ass'n of Seventh-Day Adventists 176340 Bloomington IN Indiana Ass'n of Seventh-Day Adventists 176434 Greensburg IN Inspirational Media, Inc. 174776 Allardt TN La Vida Missions, Inc. 176225 White Rock NM Lean on Me Foundation 177456 St. Thomas VI Lisa Sansone Not listed Norfolk VA Manhattan Catholic Schools 176888 Manhattan KS Marquette Columbus Home Corp. 172345 Marquette MI Mater Angelica 173852 Westhampton NY Mountaintop Ministries, Inc. 176101 Midvale ID Orosi Seventh-Day Adventist Church 175180 London CA Rolla Columbian Home Ass'n, Inc. 172332 St. James MO Roswell Seventh-Day Adventists 174464 Roswell NM Sacred Heart JR/SR High School 171777 Salina KS St. Clare Productions 171898 Cuero TX St. Francis University 173849 Loretto PA 6 St. John Evangelist Roman Catholic Parish 176817 McAlester OK St. Joseph Educational Radio Ass'n 174555 Stevensville MT St. Lawrence Roman Catholic Church 172373 Brookston IN St. Michael Radio, Inc. 177433 Conrad MT St. Michael Radio, Inc. 177437 Ft. Benton MT St. Michael Radio, Inc. 177486 Vaughn MT St. Stephen's Charitable Fund* 173969 Hot Springs AR St. Thomas Educational Society 171897 Huntsville TX Temple University of the Commonwealth System of Higher Education 177350 Reading PA The College of Charleston Not listed Charleston SC Totally Jesus Network, Inc. 175729 Gold Beach OR Tuba City High School Board, Inc. Not listed Tuba City AZ Upper Columbia Media Ass'n 175474 Dover ID Walla Walla University 175273 Wasco OR WGTS/Columbia Union College Broadcasting, Inc. 175044 Chincoteague VA * Seeking to file a major-change amendment