FOR FCC RECORD ONLY $//ORDER, Granting Application of Meredith/New Heritage, FCC 94-260 //$ $/1.4 Computation of Time/$ $/1.115 Applications for Review of Action Taken by Delegated Authority/$ $/76.944 Commission Review of Local Rate Orders/$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 94-260 Washington, D.C. 20554 In the Matter of ) ) MEREDITH/NEW HERITAGE STRATEGIC PARTNERS, L.P. ) ) Applications for Review of Orders of ) Cable Services Bureau Denying ) Motions To Accept Late-Filed Pleadings; ) Re: Burnsville/Eagan Cable Communications Commission ) City of Columbia Heights, Minnesota ) North Central Suburban Cable Communications Commission ) North Suburban Cable Communications Commission ) Quad Cities Cable Communications Commission ) MEMORANDUM OPINION AND CONSOLIDATED ORDER Adopted: October 12, 1994 Released: November 16, 1994 By the Commission: I. Introduction 1. In this Consolidated Order, we grant the Applications for Review of Meredith/New Heritage Strategic Partners, L.P. ("Meredith"), filed on May 17, 1994, in which Meredith seeks review of the five Orders of the Cable Services Bureau ("Bureau"), released on May 13, 1994, denying Meredith's Motions to Accept Pleadings Filed One Day Late ("Motions to Accept"). Because it denied Meredith's Motions, the Bureau, by its five Orders, also dismissed, without consideration of the merits, Meredith's Emergency Petitions for a Stay of the rate orders of the local franchising authorities pending review and Meredith's Petitions for Review of those rate orders on grounds that the Petitions were late-filed. In this Consolidated Order, we also direct the Cable Services Bureau to proceed to consider and determine the Petitions for a Stay and the Petitions for Review. II. Background 2. The five local franchising authorities, whose orders are the subject of Meredith's Petitions for Review, represent 26 Minnesota municipalities served by Meredith. Each of the five local franchising authorities adopted local rate orders establishing rates for the basic service tier and an hourly service charge. Refunds to cable subscribers were ordered based on the difference between the old and new rates and charges. Meredith did not file its Petitions for Stay and Review of the local orders until April 12, 1994, which was beyond the 30-day period allowed by our rules. The Bureau dismissed Meredith's Petitions, without consideration of the merits, in the Orders denying the Motions to Accept. Subsequently, Meredith filed its Applications for Review of those rulings to this Commission. 3. Under our cable rate regulations, appeals from a decision of a local franchising authority must be filed with the Commission "within 30 days of the release of the text of the franchising authority's decision." The evidence submitted by each of the five local franchising authorities in their Oppositions to Meredith's Motions was that each of the franchising authorities adopted its local rate order between February 16, 1994 and March 9, 1994 and that Meredith was provided a copy of the text of each decision at the time each was adopted. Meredith did not file its appeals of each such local order until April 12, 1994, when it filed appeals with respect to all five. In response to the authorities' consolidated Opposition, Meredith stated that its appeals were filed after its receipt of a copy of the text of each of the local orders by letter dated March 10, 1994 and that none of the final orders was released until that date, when they were all released. 4. The Bureau concluded that Meredith had submitted its pleadings at least one day late and, arguably, between four and 25 days late, depending on the date of the local order, since it was provided with copies of orders at various times prior to March 10, 1994. The Bureau concluded that even if all five orders were deemed to have been received on March 10, Meredith had filed its appeals one day late. The Bureau further concluded that good cause had not been shown for the late filings. Accordingly, the Motions to Accept were denied, and the Petitions for Review and Stay were dismissed. Here, Meredith seeks review of the Orders of the Bureau. 5. Meredith filed its Applications for Review of each of the five Bureau Orders on May 17, 1994 and submitted Supplements to those Applications on May 19, 1994. On May 26, 1994 the five local franchising authorities submitted an Opposition to the Applications for Review. Meredith then filed a Reply to that Opposition on June 7, 1994. III. Discussion 6. As noted above, our rules provide 30 days from the date of release of the text of the franchising authority's decision for the filing of an appeal by the cable operator of that decision to the Commission. This time period is not set forth in the 1992 Cable Act, but was adopted by the Commission via rulemaking. Where the time limit is not set by statute, but is regulatory in nature, the Commission may exercise its discretion and accept late-filed materials in appropriate circumstances, upon a showing of good cause. Application of this standard varies in different circumstances. For example, with respect to the timely filing of applications, the Commission requires that applicants seeking a waiver of such filing deadlines must demonstrate "unusual or compelling circumstances" for their waiver requests to be granted. Those circumstances must involve "a calamity of a widespread nature that even the best of planning could not have avoided," such as an earthquake or a city-wide power outage which brings transportation to a halt. 7. In demonstrating good cause in connection with adjudicatory pleadings, a party before the Commission must provide a legitimate reason for not being able to file pleadings within the time specified. Those reasons may differ depending on the circumstances. Generally, however, miscalculation of days within which to file, the failure of courier services, computer and copying equipment malfunctions, and other aspects of document preparation and filing do not constitute "good cause." 9. Applicants in these proceedings have provided additional evidence in their appeals that they did not provide the Bureau in their initial appeals of the local orders. That evidence indicates that applicants did not have the texts of the final orders of the local authorities prior to March 10, 1994, despite the local authorities' initial arguments to the contrary. In its Applications for Review, Meredith has attached copies of draft orders and final orders that demonstrate that the text of the orders released between February 16 and March 9, 1994 were drafts which were changed by the local franchising authorities prior to release of the final documents on March 10, 1994. Accordingly, Meredith can not be said to have had the "text" of the local orders prior to that time. However, we find that Meredith was still one day late in submitting its appeals of the local orders. Meredith asserts that the lateness was due to a malfunction in Meredith's counsel's computer system which delayed Meredith's efforts to file its pleadings until 5:34 p.m. on the due date. The Commission's rules require submission of pleadings before 5:30 p.m. Meredith notes in its Petition for Stay that the franchising authority was timely served by mail in accordance with the Commission's rules. 10. We agree with the Bureau that, consistent with Commission precedent, Meredith has not made a showing of good cause sufficient to obtain a waiver of the deadline for filing an appeal of a local cable rate order. We have previously held that a computer malfunction which delays filing is not an adequate reason to waive a filing deadline in an adjudicatory proceeding. However, we also agree with Meredith that the Commission has on at least one occasion waived a filing deadline in circumstances similar to those in the case before us. While the decision in Ellis Thompson is clearly inconsistent with the body of case law on what constitutes good cause for waiver of a filing deadline, we understand the confusion Ellis Thompson may have engendered. In light of this possible confusion, we hereby overrule that portion of the decision in Ellis Thompson which deals with the issue of good cause for late- filed pleadings. Henceforth, we intend to strictly apply the good cause standard in connection with filing deadlines for pleadings which initiate adjudicatory proceedings, including appeals from local rate orders under the 1992 Cable Act. However, because Meredith may have relied on the decision in Ellis Thompson, we will not apply this strict good cause standard to the case before us. 11. We direct the Bureau to proceed with consideration of the issues presented in the Petitions for Stay and Petitions for Review submitted by Meredith. All interested parties are advised, however, that after the release date of this Order, the Commission will look with disfavor at petitions seeking review of local franchising authority decisions that are filed out- of-time, regardless of the degree of lateness. Any such late-filed pleadings must be accompanied by the appropriate motions demonstrating good cause why the Commission should hear the matter. In order to establish good cause, the petitioning party must cite the intervention of something beyond the control of the party which could not have been foreseen, and for which no corrective action could have been taken. We reiterate that, generally, reports of the failure of courier services, computers, and other aspects of document preparation and filing will not be considered demonstrations of good cause. 12. Accordingly, IT IS ORDERED that the Applications for Review filed by Meredith/New Heritage Strategic Partners, L.P. ARE GRANTED. 13. IT IS FURTHER ORDERED that the Orders of the Cable Services Bureau denying the Motions of Meredith to file One Day Late ARE REVERSED and that the Motions ARE GRANTED. The Cable Services Bureau is directed to proceed with its consideration of Meredith's Petitions for Stay Pending Review and Meredith's Petitions for Review in accordance with our rules. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary