Federal Communications Commission Record 11 FCC Red No

FCC 96-141 Federal Communications Commission Record 11 FCC Red No. 9

3. Subsequently, Tom-Tom submitted a petition to accept Before the late filing which asserts that Tom-Tom's counsel failed to Federal Communications Commission file within the permitted time period or seek an extension Washington, D.C. 20554 of time pursuant to 47 C.F.R. § l.46(b) because he was "understandably distracted" by the death of his father in-law on Saturday, July 22, 1995, two days before the In re Application of Monday filing deadline. According to Tom-Tom, counsel left the office on July 24, returned on July 27, and filed CRYSTAL File No. BAPH-921026GM the application for review on July 28, 1995. Tom-Tom also maintains that a waiver of the filing deadline is appropriate BROADCAST because the public notice of the grant of the assignment PARTNERS application lists the city of license as "Rapid City, Wyo Assignor, ming" rather than "Rapid City, South Dakota." 4. Ingstad reiterates its prior claim that because grant of and the assignment application is final, the Commission is "without authority" to consider the application for review. THOMAS E. INGSTAD It claims that Tom-Tom has not shown good cause for late BROADCASTING, INC. filing and that Tom-Tom's counsel should have tasked other attorneys in the same law office with the finalization Assignee. and filing of the application for review on the first business day following his father-in-law's death. Ingstad also argues For Consent to the Assignment of that the public notice was substantially correct and, there Construction Permit for Station fore, provided sufficient notice to start the filing period for KOUT(FM), Rapid City, South Dakota seeking reconsideration or review. 5. In reply, Tom-Tom argues that pursuant to 47 C.F.R. § 1.3 the Commission may waive its rules and accept the MEMORANDUM OPINION AND ORDER application for review. It renews its claim that unforeseen personal matters caused the filing delay and justify a waiver Adopted: March 29, 1996; Released: April 19, 1996 of the filing deadline. Tom-Tom argues for the first time that a reissued and corrected· public notice of the denial of By the Commission: its petition to deny, released September 12, 1995, initiates a new 30-day period for filing applications for review and 1. The Commission has before it an application for therefore, that its July 28, 1995 filing is timely. review and a petition to accept late filing, each submitted by Tom-Tom Communications, Inc. ("Tom-Tom"), the li censee of stations KTOQ(AM)/KIQK(FM), Rapid City, Discussion South Dakota.1 These pleadings seek Commission review of 6. Strict adherence to the principle of administrative a June 15, 1995 letter ruling (the "Letter Ruling") from finality in licensing matters advances the public interest. the Chief, Audio Services Division, Mass Media Bureau, This policy promotes the prompt initiation of service with which denied a Tom-Tom petition to deny the captioned out undue delay. See Radio Athens, Inc. v. FCC (WATH), application to assign the construction permit for station 401 F.2d 398, 401 (D.C. Cir. 1968); Florida Institute of KOUT(FM), Rapid City, South Dakota from Crystal Broad Technology v. FCC, 952 F.2d 549, 554 (D.C. Cir 1992). We cast Partners ("Crystal") to Thomas E. In gs tad Broadcast are sensitive to the legitimate expectation of broadcasters ing, Inc. ("Ingstad"). For the reasons set forth below we and lenders that the Commission will enforce reconsider deny the petition to accept late filing and dismiss as un ation and review deadlines, and recognize that consistent timely Tom-Tom's application for review. application of the rules establishing finality advances the orderly operation of the media transactional marketplace. Thus, on a number of occasions the Commission has dis Background missed applications for review filed one day late. See War 2. It is undisputed that the application for review was ren Price Communications, Inc., 6 FCC 4424 (1991); submitted four days late.2 However, the application for Western Connecticut Broadcasting Co., 59 FCC 2d 1249, review made no reference to the tardiness of the filing nor 1251 (1976). Reviewing courts have consistently upheld the requested waiver of the 30-day filing limitation. In their Commission's strict enforcement of its processing rules. joint opposition, Crystal and Ingstad contend that as a See, e .g., City of Los Angeles Broadcasting v. F.C.C., 745 result of Tom-Tom's failure to seek review within the F.2d 656, 663 (D.C. Cir. 1984) (cut-off rules). specified time period, the grant of the KOUT assignment 7. Time limitations on the filing of applications for application is now final and the Commission is "powerless" review, however, are established solely by Commission to alter that action. rule. See 47 C.F.R. § 1.l 15(d). Thus, contrary to Crystal's

1 Also on file are an August 14, 1995 Joint Opposition to 2 Public notice of the Bureau's June 15, 1995 action denying Application for Review filed by Crystal Broadcast Partners and the Tom-Tom petition to deny was released on June 23, 1995. Thomas E. Ingstad Broadcasting, Inc. and an August 28, 1995 See Broadcast Actions Report No. 43535. The deadline for ap Tom-Tom reply thereto. Ingstad filed a September 20, 1995 plications for review was July 24, 1995. See 47 C.F.R. §§ 1.4 and Opposition to Petition to Accept Late Filing and Tom-Tom 1.115(d). The Tom-Tom application for review was filed on July filed a September 29, 1995 reply thereto. 28, 1995.

4680 11 FCC Red No. 9 Federal Communications Commission Record FCC 96·141 and lngstad's contention, we may review the grant of the application to assign the KOUT construction permit even though this is now a "final" action. Waiver of the filing deadline is appropriate, however, only where equities so require and no party would be prejudiced thereby. See, e.g., Liability of MTD, Inc., 6 FCC Red 34, 35 n.2 (1991); Hancock Communications, Inc., 10 FCC Red 13068, 13069 (1995). This case does not meet that standard. 8. A waiver based on the error in the initial public notice of the Letter Ruling is unwarranted. This error did not create confusion about filing requirements. To the contrary, Tom-Tom concedes that it planned to submit the application for review on the filing deadline. Cf. Satellite Broadcasting Co. v. FCC, 824 F.2d 1 (D.C. Cir. 1987) (reversing Commission dismissal of application as untimely filed when agency fails to give clear notice of filing proce dures). Moreover, Tom-Tom leaves unexplained why it was impossible for counsel to utilize the resources of his law firm on the filing deadline to finalize the application for review or take the essentially ministerial step of seeking an extension of time in order to preserve Tom-Tom's review rights. Nor does Tom-Tom attempt to justify its decisions first to ignore the Section l.115(d) issue at the time it filed the application for review and then to wait more than a month after the filing deadline to request a waiver. Finally, we note that on September 26, 1995 Crystal and Ingstad consummated the assignment of the KOUT construction permit. In view of Tom-Tom's failure to demonstrate rea sonable diligence, we conclude that the equities in this case favor the interests of Crystal, Ingstad and the public, gen erally, in administrative finality. We therefore decline to waive Section 1.115(d) of the Commission's rules. 9. Nor does the issuance of the corrected public notice describing the Letter Ruling i;noot the timeliness issue. A duplicative public notice is without legal effect where the applicant cannot establish detrimental reliance. Florida In stitute of Technology v. FCC, 952 F.2d at 553; State of Oregon, FCC 95-464, 11 FCC Red 1843, para. 6 (released January 18, 1996) (appeal filed). 10.' ACCORDINGLY, IT IS ORDERED, That the Peti tion to Accept Late Filing filed by Tom-Tom Communica tions, Inc. on August 28, 1995 IS DENIED. 11. IT IS FURTHER ORDERED, That pursuant to Section 1.115(g) of the Commission's rules, 47 C.F.R. § l.115(g), the Application for Review filed by Tom-Tom Communications, Inc. on July 28, 1995 IS DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

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