WPC8 2BJ Z Courier#|x'>fx6X@`7X@HP LaserJet 4M (PCL) in Room 616HPLA4MPC.PRSx  @\D~@26>#|rCourierCourier Bold)HPLAS5.PRS 4x  @\\CZCourier]Courier Boldm2XFZ6<?xxx,>fx6X@`7X@?xxx,x `7X<R&HHH,D,H6X@`7h@2WordPerfect 5.0WordPerfect 5.1Ȁ xLaunch$// MO&O, Piketon Communications, FCC 94112 //$ $/ 1.221 Notice of hearing; appearances /$  ?<XX` ` X XXhhCXqXXpp (#p[Before the ă  ?< ` ` FEDERAL COMMUNICATIONS COMMISSION  )FCC 94 ĩ 112  ?x< %Washington, D.C. 20554 ă  ?<In The Matter of hhCq) ` ` hhCq)  ?< GERALD E. DAVIS AND JO ANN DUNN pp) FILE No. BPH910117ME  ?` < D/B/A PIKETON COMMUNICATIONSq )  ?( <` ` hhC q )  ? <For a New FM Station hhCq )  ? <at Piketon, Ohio.hhCq )  ?H < MEMORANDUM OPINION AND ORDER  ?<  Adopted: May 12, 1994; Released: By the Commission:  d(#< 1. The Commission has under consideration an Application for  d(#x<Review, filed on behalf of Gerald E. Davis and Jo Ann Dunn, d/b/a  ?P< d(#x<Piketon Communications (Piketon), seeking reinstatement, nunc pro  ?< d(#<tunc, of its application for a new FM station at Piketon, Ohio.  d(#h<The Managing Director denied Piketon's petition for reconsideration  d(#<finding that its application was properly dismissed because its  ?p<hearing fee was late filed.   d(#< 2. Piketon's application was mutually exclusive with another  d(#0<application for the station at Piketon. However, prior to  d(#h<designation of the applications for hearing, the Commission adopted  d(#<procedures that established new deadlines for tendering hearing  ? < d(#<fees. 5 ?x< d(#<ԍ See Report and Order on Proposals to Reform the  d(#h<Commission's Comparative Hearing Process to Expedite the Resolution  ? < d(#x<of Cases, 6 FCC Rcd 157 (1991), recon. granted in part, 6 FCC Rcd  d(#<3403 (1991). On reconsideration, we changed the deadline for  d(#<paying hearing fees in comparative broadcast proceedings.  d(#x<Previously, applicants were required to tender their hearing fees  d(#<by the Notice of Appearance deadline. Under the new rules,  d(#<applicants were required to submit their hearing fees by a date  ?$< d(#<certain established in the Public Notice that listed mutually  d(#<exclusive applications accepted for filing. To facilitate the  d(#@<transition to the new rules, the Commission required all  d(#<applicants, accepted for filing prior to July 1, 1991, but not yet  d(#<designated for hearing, to pay their hearing fees by July 15, 1991  ?(< d(#<or be dismissed. The Piketon applications  were not designated for  d(#h<hearing prior to July 1, 1991 and were subject to the July 15, 1991"h)0*0*0*+" deadline. According to these procedures, the Piketon applicants were" X0*0*0*!"  d(#<required to pay their hearing fees by July 15, 1991. Piketon  d(#<failed to timely submit its hearing fee, and the Mass Media Bureau dismissed its application.  d(#< 3. On review, Piketon contends that our publication in the  d(#h<Federal Register of revisions to the timing for filing hearing fees  d(#<provided inadequate notice to Piketon because, based on our  d(#x<existing practices, it should have received personal notification  d(#h<of any such revision to our rules. In support, Piketon states that  d(#<the Commission's earlier procedure for submitting hearing fees  d(#<required that the fee be filed by the time Notices of Appearance  d(#0<were due in a comparative proceeding, and that the Hearing  d(# <Designation Order, triggering the time for filing Notices of  ?( < d(#0<Appearance, was personally served. See former 47 C.F.R.   ? < d(#h<1.221(b). As a result, according to Piketon, by failing to provide  d(#x<personal notice, we failed to provide the full, fair and explicit  ? < d(#h<notice to which it and other pending applicants were entitled.  See  ?H < d(#<Salzer v. FCC, 778 F.2d 869, 87172 (D.C. Cir. 1985). Therefore,  ?<Piketon urges that its application should be reinstated.   d(#< 4. In addition, Piketon argues that its application's  d(#<dismissal was contrary to the Commission's policy of permitting as  d(#x<many qualified applicants as possible to compete for authority to  ?< d(#x<operate broadcast stations, citing Ashbacker v. FCC, 326 U.S. 327  d(#h<(1945). Moreover, Piketon contends that we should have examined the  d(#<equities surrounding its application to determine whether the  ?P< d(#x<public interest would be served by dismissal. In this connection,  d(#x<Piketon states that its application should be reinstated because,  d(#x<as the only surviving applicant for the station at Piketon, grant  d(#h<of its application would provide the public with additional service  ?p<without any burden on Commission resources.pX5 ?X< d(#;<ԍThe competing application, filed by Pike Communications, Inc.  d(#<(Pike), was returned because its proposal was within 320 km of the  ?< d(#h<Canadian border. See Memorandum Opinion and Order in Docket 88375,  d(#x<56 Fed. Reg. 27424, released May 30, 1991. Pike filed a petition for reconsideration, and the petition is now pending.   d(#< 5. We affirm the decision of the Managing Director. In  ?< d(#<accordance with the procedures established in t he Administrative  d(#<Procedure Act (APA), publication in the Federal Register affords  d(#h<sufficient notice of rule revisions, and the APA affords no special  d(#<right of personal notice of rule changes to pending applicants.  ?< d(#<See 5 U.S.C.  552(a)(1)(E). Moreover, our earlier rule governing  ?< d(#x<;NX the filing of hearing fees contained no suggestion that a pending  d(#h<applicant would receive notice other than that required by the APA.  ?@< d(#<Finally, the court in Salzer did not suggest that applicants,  d(#<pending or otherwise, were entitled to personal notice of rule  ? < d(#<changes. Rather, Salzer required that rules published in the  d(#<Federal Register be "clear and specific." Since our notice in the  ?`"< d(#x<Federal Register explicitly declared that pending applicants were"`"0*0*0*@)"  d(#<to file their hearing fee payments by July 15, 1991, we are  ?< d(#x<satisfied that Piketon received the notice that was required. See  ?< d(#<Proposals to Reform the Commission's Hearing Fee Process, 56  ?X< d(#<Fed. Reg. 25636 (1991). In this regard, it has bee n our policy  d(#<since we established the fee program to dismiss applicants for  ?< d(#K<failure to make timely fee payments.} 5 ?@< d(#<ԍ Once we had issued notice of the revised hearing fee  d(#<requirement, Piketon was obligated to comply with the new rule.  d(#x<The Commission was not required to consider the factors set forth  ?< d(#<in ComuniCentre Broadcasting, Inc. v. FCC, 856 F.2d 1551 (D.C.  d(#<Cir. 1988), before it dismissed Piketon's application for  d(#<noncompliance with a threshold requirement for designation for a  ? < d(#<comparative proceeding. Piketon's reliance on the ComuniCentre  d(#<case is misplaced because the applicant in that proceeding had  d(#h<fully complied with our predesignation requirements and was a party  d(#<to a comparative proceeding when its application was dismissed.  ?< d(#<ComuniCentre does not govern a case, such as this, where the  d(#<Commission is concerned with threshold requirements that must be  d(#<met before an applicant is even entitled to be designated for  ?h< d(#<hearing. This situation is instead governed by Salzer and its  d(#<progeny and, for reasons previously discussed, the test for a predesignation dismissal has been satisfied here. }  See Establishment of a Fee  ?< d(#x<Program to Implement the Consolidated Omnibus Budget Act of 1985,  ?x< d(#h<2 FCC Rcd 947, 957 (1987), recon denied, 3 FCC Rcd 5987 (1988). In  d(#h<this proceeding, we explicitly informed all pending applicants that  ?< d(#<"failure to make the hearing fee payment in a timely manner will  ?< d(# <result in the dismissal of the underlying application." See  ?< d(#h<Proposals to Reform the Commission's Hearing Fee Process, 6 FCC Rcd  ?` < d(#<3403, 3408 (1991). Thus, our public notice of the revised hearing fee requirements was clearly adequate under the APA.  ? <  d(#x< 6. Finally, the Bureau's dismissal of Piketon's application  ? < d(#<was not inconsistent with our policies. We are authorized to make  d(#<any rules necessary to promote the efficient conduct of our  ?< d(#<business and to bar those who     fail to meet these standards,  ?< d(#<including those who fail to comply with the fee payment  ?< d(#<requirements. See 47 U.S.C.  158(b)(2), (f); see also United  ?h< d(#<States v. Storer Broadcasting Co., 351 U.S 192, 20203 (1956).  d(#<Piketon's failure to comply with our rule concerning the timely  d(#<filing of its hearing fee rendered its application unqualified for  ?< d(#<further consideration. See 2 FCC Rcd at 95758 (1987).  We are  d(#<satisfied that the overall public interest in efficient  d(#0<administration of fee and application processing, which is  d(#x<furthered by strict adherence to our fee payment rules, outweighs  d(#<any detriment resulting from the dismissal of Piketon's application.  d(#< 7. Accordingly, IT IS ORDERED, That the Application for  d(#<Review filed by Gerald E. Davis and Jo Ann Dunn, d/b/a Piketon Communications, Inc., IS DENIED. FEDERAL COMMUNICATIONS COMMISSION"X0*0*0* "Ԍ William F. Caton Acting Secretary