$//Spain, Frank, (Temecula, CA), FM, 91-309, FCC 94-334//$ $/1.276(f) Appeal and review of initial decision/$ $/500.3068 Failure to prosecute/$ ///newjob/// $///FCC 94-334 12-30-94///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 FCC 94-334 In re Applications of ) MM DOCKET NO. 91-309 ) FRANK K. SPAIN ) File No. BPH-900119MN ) LOS AMIGOS MEDIA, A LIMITED ) File No. BPH-900122MM PARTNERSHIP ) ) KIMLER BROADCASTING, INC. ) File No. BPH-900122MN ) ARTISTIC AIRWAVE BROADCASTERS ) File No. BPH-900122MP ) LAURA WILKINSON HERRON ) File No. BPH-900122MY ) AVID COMMUNICATIONS, INC. ) File No. BPH-900122NF ) NATALIE LEDERER ROGERS ) File No. BPH-900122NN ) For Construction Permit for ) New FM Station, Channel 233A, ) Temecula, California ) MEMORANDUM OPINION AND ORDER Adopted: December 22, 1994; Released: January 6, 1995 By the Commission: 1. We have before us an application for review filed on July 5, 1994 by Avid Communications, Inc. (Avid) and an opposition and an erratum filed by Artistic Airwave Broadcasters (AAB) on July 22 and August 1. Avid asks us to reverse the Review Board's memorandum opinion and order dismissing its application for non-prosecution. Frank K. Spain, 9 FCC Rcd 2528 (Rev. Bd. 1994). The Board noted in its opinion that Avid had neither filed exceptions to ALJ Frysiak's July 19, 1993 initial decision, 8 FCC Rcd 4831, which held that Avid's application should be denied because its qualifications were inferior to those of several rival applicants, nor requested an extension of the thirty-day deadline specified by 47 C.F.R. 1.276(a), which had long since expired. The Board pointed out, moreover, that Subsection (f) of 1.276 provides that when a party "fails to file exceptions within the specified time to an initial decision which proposes to deny its application, such party shall be deemed to have no interest in further prosecution of its application, and its application may be dismissed for failure to prosecute," and asserted that it had, in accordance with that rule provision, consistently dismissed the applications of parties that have not filed timely exceptions to adverse initial decisions. 2. Avid stresses, to begin with, that 1.276(f) says that when a party fails to file timely exceptions to an initial decision denying its application the application "may" (not "shall") be dismissed for failure to prosecute. Hence, according to Avid, the rule leaves discretion for leniency, and it contends that leniency is warranted here in light of circumstances that the Board declined to take into consideration. It maintains that the pertinent circumstances are that James Fakas, Avid's sole owner, took the initiative in prompting the FCC to allot Channel 233A to Temecula after its deletion of another FM assignment for which he had previously petitioned and applied, only to find himself in competition with seventeen rival applicants for the Temecula assignment; that after spending a large sum of money in prosecution of his Temecula application, Mr. Fakas decided to refrain from filing exceptions to the initial decision because he was convinced from consultation with counsel that his comparative position under the integration criterion was such that he had no hope of prevailing on appeal; and that after the time-period for filing exceptions had expired, but before the Review Board was able to consider this case, the Court of Appeals issued its decision in Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993), holding that the Commission's comparative integration policy was arbitrary and capricious. 3. Avid asserts that it was without notice prior to the filing deadline that the criterion on which the initial decision was chiefly predicated was invalid and that the applications in this proceeding would ultimately be judged under a different comparative policy, and it argues that it should therefore be allowed to remain as a party and have its application assessed against the others according to whatever new comparative policy the Commission shall devise in deference to Bechtel. It contends, moreover, that the initiative that its principal displayed in instigating the allotment of the channel assignment at issue indicates that his motive for prosecuting the application was bona fide and that his decision against filing exceptions is further proof that he did not intend to pursue it merely in order to obtain concessions via a settlement. 4. We are not persuaded that Avid's application should be reinstated. Although the last clause of 1.276(f) is permissive, the provision as a whole conveys an intention to establish a bright-line rule of finality to be upheld except in extraordinary circumstances. We see nothing in this case to cause us to reverse the decision below. There is no basis for retroactively waiving the deadline because recently released case decisions give new hope to applicants that declined to file timely exceptions. As AAB correctly asserts, to follow so lax a policy would make for an administrative quagmire. 5. Moreover, Avid should have known, when it elected to refrain from filing exceptions within the time allowed, that the Bechtel challenge to the validity of the integration criterion was pending and very much at issue. See Bechtel v. FCC, 957 F.2d 873 (D.C. Cir. 1992), and Flagstaff Broadcasting Foundation v. FCC, 979 F.2d 1566 (D.C. Cir. 1992). More fundamentally, Avid had reason to know that the validity of any policy of this agency is open to challenge in adjudicatory proceedings by parties against whom it has been invoked. Avid could have disputed the legal validity of the erstwhile integration policy in timely- filed exceptions, and had it done so it would have been entitled to a ruling on the merits of its argument. Having chosen, instead, to let the filing deadline pass without filing exceptions or requesting an extension of time and having failed to show good cause for postponing the deadline, Avid is not entitled to have its application considered any further in this proceeding. 6. ACCORDINGLY, IT IS ORDERED That the application for review filed on July 5, 1994 by Avid Communications, Inc. IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary