8 FCC Red. No. 13 Federal Communications Commission Record FCC 93-294 
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
In re Application of 
SACRAMENTO 
COMMUNITY 
RADIO. INC. 
For a Construction Permit for 
A New Noncommercial 
Educational FM Station 
Sacramento, California 
File No. BPED-8703 l 7MD 
MEMORANDUM OPINION AND ORDER 
Adopted: June 2, 1993; Released: June 15, 1993 
By the Commission: 
I. INTRODUCTION 
L The Commission has before it a Petition for Reconsi­
deration. filed on June 23. 1989, by Sacramento Commu­
nity Radio. Inc. ("SCR"). 1 SCR seeks review of an action 
by the Chief, Audio Services Division. denying SCR's Janu­
arv 28. 1988 Petition for Reconsideration of the return of 
its~ application as unacceptable for filin_g, affirming the 
return of SCR"s application. and designating for compara­
tive hearing five other applications for a construction per­
mit for a new noncommercial educational FM 
("NCE-FM") station at Sacramento, Ione. or West High­
lands. California. Yolo County Public Radio, 4 FCC Red 
4482 (MM Bur. 1989). 
II. BACKGROUND 
2. On December 17. 1985. Yolo County Public Radio 
("Yolo 11 ) filed an application to provide NCE-FM service to 
West Sacramento. California, on Channel 205. Subsequent­
ly, on February 26, 1986. Sacramento City Unified School 
District ("SCUSD") filed an application to serve Sacra­
mento. California. on Channel 209. The SCUSD applica­
tion was not in conflict with the previously filed Yolo 
application. SCUSD's application was placed on an "A" 
cut-off list in Public 1Votice, Report No. A-119. released 
September 22. 1986. establishing October 23, 1986, as .the 
cut-off date for the filing of mutually exclusive apphca­
tions.2 The Public ,Vo1ice specifically stated that "any ap­
plication seeking to be considered with any application 
1 The Petition for Reconsideration ostensibly seeks 
reconsideration of the staff's denial of SCR 's earlier Pe ti ti on for 
Reconsideration, filed January 28, 1988. This second Petition for 
Reconsideration will therefore be treated as an application for 
Commission review of the staff's action. 
2 Linder the cut-off procedure, NCE-Ffvl applications accepted 
for filing are placed on an "A" cut-a.ff public n_oti~e which 
provides a thirty-day period for the filing of applications that 
are in conflict with those listed. This procedure is designed to 
4067 
appearing on the attached list. or with any 01her application 
on file by the close of business on the cut-off date which 
involves a confl.ict necessitaiing a hearing wi1h any applica­
tion on rhis list, must be substantially complete and 
tendered for filing at the Office of the Commission in 
Washington, D.C .. not later than the close of business on 
the cut-of! date." (Emphasis added). On October 23, 1986, 
the last day for the filing of conflicting applications, Family 
Stations. Inc. ("Family") filed an application to serve North 
Highlands. California on Channel 207 which was mutually 
exclusive with SCUSD's application and with Yolo's prior~ 
filed application. 
3. Thereafter. on February 13, 1987, Yolo's application 
was inadvertently placed on an "A" cut-off list establishing 
March 17, l 987 as the last date for filing applications 
mutually exclusive with Yoto·s. In fact, however, Yolo's 
application was Jinked to SCUSD's application by way of a 
"daisy chain" occasioned by the filing of Family's October 
23, 1986 application. Yolo's application, having been on 
file at the Commission since December 17. 1985, was 
timely filed with respect to the SCUSO application, the 
"A" applicant. or the lead application which established 
the pertinent "A" cut-off date. Thus, the Yolo application 
was also governed by the SCUSD October 23, 1986 11 A" 
cut-off date. and the Yolo application should not have been 
placed on a separate "A" cut-off list. Accordingly, by an 
Erratum released March 12, 1987, Report No. A~l22A, 
Yolo's application was deleted from the second "A" cut-off 
list. 
4. I-Iowever. on March 17. 1987. in response to the 
erroneous listing of the Yolo application on the second 
"A" cut-off list, SCR tendered the above-captioned applica­
tion to provide NCE-FM service to Sacramento. California, 
on Channel 205. SCR's application was mutua11y exclusive 
\vith the Yolo application and the Family application. Be­
cause the cut-off-date for the filing of applications mutually 
exclusive with Yolo's application was October 23. 1986, as 
established bv the lead SCUSD application. SCR's March 
17. 1987 apPlication was not timely filed. and it was re­
turned as unacceptable for filing by staff letter dated De­
cember 29. 1987. 
III. THE PLEADINGS 
5. In its first petition for reconsideration. SCR argued 
that 'it was impossible to determine that the filing of Fam­
ily's application \vould link SCR in a "daisy-chain" to 
SCUSD's application. Therefore, SCR maintained, the staff 
unfairly applied the October 23, 1986 cut-off date to its 
application. Further. SCR argued that the staff erred by 
failing to place Yolo·s application on an "A" cut-off list 
first, because that application was the first filed application 
in the group. SCR asserted that had Yolo's application 
been placed on an "A" cut-off list first, it would have 
timely filed a competing application. In its second petition, 
SCR argues that its application should be accepted because 
permit the Commission to cease accepting applications from 
new parties so that a choice can be made between timely filed 
applicants. After any such competing applications are filed, 
these applications are placed on a "B" cut~off public notice 
which provides for a 30-day period for the filing of petitions to 
deny. See 47 C.F.R. § 73.3573(e) 
FCC 93-294 Federal Communications Commission Record 8 FCC Red. No. 13 
it was materially misled by the staffs series of actions. 
culminating in the erroneous inclusion of Yolo's applica­
tion on an "A" cut-off list released February 13, 1987. 
IV. DISCUSSION 
6. We deny SCR's petition for the reasons which follow. 
Regarding SCR's contention that the first-filed Yolo ap­
plication should have been the first cut ofL we note that 
Section 73.3573(e) states that applications in the reserved 
band \vi!! be processed as nearly as possible in the order in 
which they are filed. such applications being placed in the 
processing line in numerical sequence. and drawn by the 
staff for study. the lowest file number first. While applica­
tions are generally assigned to the staff for study in the 
same order as filed, it does not always follow that the firsf 
assigned NCE-FM application is the first cut off, nor is it 
required to be. More difficult and complex applications 
take longer to process than easier cases. Additionally, pro­
cessing times differ because of the nature of the cases 
assigned and the varying priorities given to individual staff 
engineers. Moreover. unlike the processing of applications 
for commercial stations where communities and frequen­
cies are preallotted and mutually exclusive cases can be 
easily identified and grouped for processing. applications in 
the reserved band are not preallotted as to frequencies and 
communities. Accordingly, mutually exclusive applications 
cannot be identified until after engineering study. As a 
result. noncommercial educational applications are gen­
erally processed independently and mutually exclusive ap­
plications are grouped only after a cut-off date has passed. 
7. The Commission's cut-off rule serves two purposes. 
First, it advances the interest of administrative finality by 
permitting the Commission to fix a date certain by which 
mutually exclusive applications must be filed. Secondly. it 
aids timely filed broadcast applicants by granting them a 
protected status that allows them to prepare for what often 
will be an expensive and time-consuming contest. fully 
aware of the competitors they will be facing. City of Angels 
Broadcas1ing, Inc. v. FCC, 745 F.2d 656. 663 (D.C. Cir. 
1984 ). The Kiuyhawk corollary holds that an application 
wi!l be considered timely only when filed prior to the 
cut-off date for the lead application of a group of 
conflicting applications. Kiuyhawk Broadcasting Corp., 7 
FCC 2d 153 (1967), appeal dismissed sub nom. Cook, Inc. v. 
Uni1ed Slates, 394 F.2d 84 (7th Cir. l 968) 3 This policy 
balances the rights of applicants and potential applicants. 
while taking into account the public interest in the expedi­
tious provision of new service. It allows applications to be 
processed without interruption and without the necessity of 
reprocessing when new applications are filed or pending 
applications are amended. See Florida lnstiiute of Technol­
ogy, 4 FCC Red 1549 (1989). aff'd 952 F.2d 549 (D.C. Cir. 
1992): Bill R. Wright, 102 FCC 2ct 1142 (1985). 
8. The return of SCR's application was mandated by the 
"Kiuyhawk doctrine." In Kittyhawk, as in the instant case. 
the mutual exclusivity arose from a linkage occasioned by 
3 In the Kiuyhawk case the Commission addressed the factual 
situation where an applicant's proposal is not mutually exclu­
sive with the first filed application. but is mutually exclusive 
with one or more applications fited on or before the "A" cut-off 
date. Jn this so-called "daisy chain" circumstance, the proposal 
4068 
the tendering of an application not listed on the "A" 
cut-off list. The fact that SCR is linked to the SCUSD 
application through its mutual exclusivity with the timely­
filed Family application and that SCR did not file its 
application by the cut-off date for the SCUSD application 
renders its application untimely. The Court of Appeals for 
the District of Columbia Circuit has emphasized the im­
portance of a potential applicant diligently and responsibly 
pursuing an authorization. "[T]he burden is, and prop­
erly should be. upon an interested person to act affir­
matively to protect himself." Red River Broadcasting Co. v. 
FCC, 98 F. 2d 282. 286 (D.C. Cir. 1938). cert denied, 305 
U.S. 625 (1938): Spanish International Broadcasting Com­
pany v. FCC, 385 F.2d 615 (D.C. Cir. 1967). Applicants 
who ignore or fail to understand the cut-off procedures 
assume the risk that they will be prevented from filing 
competing applications. Bill R. VVright, supra, at 1147. 
9. SCR's argument that it was misled by the staff's ac­
tions relating to the Yolo application is unavailing. The 
staff's actions regarding Yolo are immaterial since it is 
SCR 's link to the SCUSD application that rendered it 
untimely. Whatever action the staff took or might have 
taken \vith regard to the Yolo application does not change 
that fact. IF SCR intended its application to compete with 
the Yolo application. we note that it could have filed at 
any time between Yo!o's filing date of December 17. 1985 
and SCUSD's cut-off date of October 23, 1986. There is no 
legal requirement for a potential applicant to await the 
appearance of a mutually exclusive proposal on a cut-off 
list. SCR admits that it had actual knowledge that the Yolo 
application had been filed and was pending before the 
Commission. Thus, while it v,ras clearly aware of the pen­
dency of the Yolo application, SCR chose to await the 
appearance of the Yolo application on an "A" cut-off list, 
and purposely deferred the filing of its mutually exclusive 
application until that time. 4 
10. Concerning the erroneous cut-off list. it is well set­
tled that the cut-off dates therein have no legal effect. As 
stated by the Court in Florida lnslitute: 
The core of the [appellant's] case. however. is its 
contention that the FCC staffs mistaken issuance in 
September 1986 of the new "A" list. rather than the 
"B" list appropriate under the cut-off rules. gave the 
[appellant] rights it would not otherwise enjoy. This 
new "official notice." the lappellantj argues. effec­
tively started the cut-off process over again. and this 
time the fappellant] applied on time. We do not 
agree. The new "A" cut-off date could not supplant 
the earlier one because the September 1986 notice 
was without legal effect: u[i jt is a well-settled rule that 
an agency's failure to follow its ov;rn regulations is 
fatal to the deviant action.'" Way of Life Television 
Network, Inc. v. FCC, 593 F.2d 1356. 1359 (D.C. Cir. 
1979) (quoting Union of Concerned Scientists v. Atom­
ic Energy Comm'n, 499 F.2d 1069. l082 ( 1974). 
must still be filed by the "A" cut-off date in order for the 
Commission to consider at one time all mutuallv exclusive 
applications. , 
4 Furthermore, the Commission issued an Erratum five days 
prior to the actual SCR filing, providing notification that the 
Yolo application had been inadvertently placed on the second 
"A" cut-off list released February 13. 1987. 
FCC 93-294 Federal Communications Commission Record 8 FCC Red. No. 13 
it was materially misled by the staffs series of actions, 
culn1inating in the erroneous inclusion of Yoto·s applica­
tion on an "A" cut-off list released February 13, 1987. 
IV. DISCUSSION 
6. We deny SCR's petition for the reasons which follow. 
Regarding SCR's contention that the first-filed Yolo ap­
plication should have been the first cut off. we note that 
Section 73.3573(e) states that applications in the reserved 
band will be processed as nearly as possible in the order in 
which they are filed. such applications being placed in the 
processing line in numerical sequence. and drawn by the 
staff for study, the lowest file number first. While applica­
tions are generally assigned to the staff for study in the 
same order as filed. it does not always follow that the first 
assigned NCE-FM application is the first cut off, nor is it 
required to be. More difficult and complex applications 
take longer to process than easier cases. Additionally. pro­
cessing times differ because of the nature of the cases 
assigned and the varying priorities given to individual staff 
engineers. Moreover. unlike the processing of applications 
for commercial stations where communities and frequen­
cies are preallotted and mutually exclusive cases can be 
easily identified and grouped for processing. applications in 
the reserved band are not preallotted as to frequencies and 
communities. Accordingly. mutually exclusive applications 
cannot be identified until after engineering study. As a 
result. noncommercial educational applications are gen­
erally processed independently and mutually exclusive ap­
plications are grouped only after a cut-off date has passed. 
7. The Commission's cut-off rule serves two purposes. 
First. it advances the interest of administrative finality by 
permitting the Commission to fix a date certain by which 
mutually exclusive applications must be filed. Secondly. it 
aids timely filed broadcast applicants by granting them a 
protected status that allows them to prepare for what often 
will be an expensive and time-consuming contest. fully 
aware of the competitors they will be facing. City of Angels 
Broadcas1ing, Inc. v. FCC. 745 F.2d 656. 663 (D.C. Cir. 
1984). The Kiuyhawk corollary holds that an application 
will be considered timely only when filed prior to the 
cut-off date for the lead application of a group of 
conflicting applications. Kittyha ... vk Broadcasting Corp., 7 
FCC 2d 153 (1967). appeal dismissed sub nom. Cook, Inc. v. 
Uniied S1aies, 394 F.2d 84 (7th Cir. 1968). 3 This policy 
balances the rights of applicants and potential applicants. 
\vh!le taking into account the public interest in the expedi­
tious provision of new service. It allows applications to be 
processed without interruption and without the necessity of 
reprocessing when new applications are filed or pending 
applications are amended. See Florida lnstitu1e of Technol­
ogy, 4 FCC Red 1549 (1989). aff'd 952 F.2d 549 (D.C. Cir. 
1992); Bill R. Wright. 102 FCC 2d 1142 (1985). 
8. The return of SCR's application was mandated by the 
"Kiuyhawk doctrine." In Kiuyhawk, as in the instant case. 
the mutual exclusivity arose from a linkage occasioned by 
3 [n the Kitryhawk case the Commission addressed the factuai 
situation where an applicant's proposal is not mutually exclu­
sive with the first filed application. but is mutually exclusive 
with one or more applications filed on or before the "A" cut-off 
date. In this so-called ''daisy chain" circumstance, the proposal 
4068 
the tendering of an application not listed on the "A" 
cut-off list. The fact that SCR is linked to the SCUSD 
application through its mutual exclusivity with the timely­
filed Family application and that SCR did not file its 
application by the cut-off date for the SCUSD application 
renders its application untimely. The Court of Appeals for 
the District of Columbia Circuit has emphasized the im­
portance of a potential applicant diligently and responsibly 
pursuing an authorization. "[T]he burden is. and prop­
erly should be. upon an interested person to act affir­
matively to protect himself," Red River Broadcasting Co. v. 
FCC. 98 F. 2d 282 .. 286 (D.C. Cir. 1938). cert denied, 305 
U.S. 625 ( 1938): Spanish !nrernational Broadcasring Com­
pany v. FCC. 385 F.2d 615 (D.C. Cir. 1967). Applicants 
who ignore or fail to understand the cut-off procedures 
assume the risk that they will be prevented from filing 
competing applications. Bill R. µ/right, supra, at 114 7. 
9. SCR's argument that it was misled by the staffs ac­
tions relating to the Yolo application is unavailing. The 
staff's actions regarding Yolo are immaterial since it is 
SCR·s link to the SCUSD application that rendered it 
untimely. Whatever action the staff took or might have 
taken with regard to the Yolo application does not change 
that fact. IF SCR intended its application to compete with 
the Yolo application, \Ve note that it could have filed at 
any time between Yolo's filing date of December 17, 1985 
and SCUSD's cut-off date of October 23, 1986. There is no 
legal requirement for a potential applicant to await the 
appearance of a mutually exclusive proposal on a cut-off 
list. SCR admits that it had actual knowledge that the Yolo 
application had been filed and was pending before the 
Commission. Thus. while it was clearly aware of the pen­
dency of the Yolo application, SCR chose to await the 
appearance of the Yolo application on an "A" cut-off list. 
and purposely deferred the filing of its mutually exclusive 
application until that time.~ 
10. Concerning the erroneous cut-off list. it is well set­
tled that the cut-off dates therein have no legal effect. As 
stated by the Court in Florida Inslilute: 
The core of the [appellant's! case. however. is its 
contention that the FCC staffs mistaken issuance in 
September 1986 of the new "A" list. rather than the 
"B" list appropriate under the cut-off rules. gave the 
[appellant] rights it would not otherwise enjoy. This 
new "official notice." the lappellant] argues, effec~ 
tively started the cut-off process over again. and this 
time the !appellant] applied on time. We do not 
agree. The new "A" cut-off date could not supplant 
the earlier one because the September 1986 notice 
was \\rithout legal effect: 11 [i]t is a well-settled rule that 
an agency's failure to follow its own regulations is 
fatal to the deviant action.'" Way of Life Television 
Ne1work, Inc. v. FCC, 593 F.2d 1356. 1359 (D.C. Cir. 
1979) (quoting Union of Concerned Scientiszs v. Alom­
ic Energy Comm'n, 499 F.2d 1069. 1082 (1974). 
must still be flied by the "A" cut-off date in order for the 
Commission to consider at one time all mutually exclusive 
applications. 
4 Furthermore. the Commission issued an Erratutn five days 
prior to the actual SCR filing, providing notification that the 
Yolo application had been inadvertently placed on the second 
"A" cut-off list released February 13, 1987. 
8 FCC Red. No. 13 Federal Communications Commission Record 
952 F2d at 553. In the instant case, the deviant action was 
clearly the placement of Yolo·s application on a second 
";\." cut-off list and the action was. consequently. \"''ithout 
legal effect. Contrary to SCR's assertions. that erroneous 
action rendered the placement of Yolo's application on the 
second "A" cut-off list of February 13. 1987 null and void, 
and certainly did not create or establish new filing op­
portunities. 
11. SCR cites only one case for the proposition that the 
Commission has allowed an applicant who had been mis­
led by staff error to resubmit its application. SCR contends 
that the Commission has found compelling circumstances 
warranting waiver of the cut-off rule to have occurred 
when an applicant files late in reliance upon bad informa­
tion supplied by the Commission via ambiguous or erro­
neous language in Commission documents. In support of 
this contention. SCR cites Ramon Rodriguez & Associates, 3 
FCC Red 407 (1988). However, this case did not involve 
the issuance of a second, erroneous cutwoff list. Ramon 
Rodriguez & Associates involved the disparate treatment 
and dismissal of an application which had been filed in 
response to erroneous data contained in an FM allocation 
order for a commercial channeL SCR has failed to dem­
onstrate the existence of similarly unusual and competling 
circumstances and. tl1us. failed to successfully meet the 
substantial burden warranting waiver of the cut~off rule. 
V. CONCLUSION 
12. Accordingly. for the reasons stated above, IT IS OR­
DERED That SCR's Petition for Reconsideration, when 
treated as an Application for Review. IS DENIED. 
FEDERAL COMMUNICATIONS COMMISSION 
Donna R. Searcy 
Secretary 
4069 
FCC 93-294