$//Paulos, Lucinda, (Sebastopol, CA), FM, 90-298, FCC 94-354//$
$/1.106(f) Petitions for reconsideration/$
$/1.115(d) Applications for review/$
$/500.3068 Failure to prosecute/$ 

///newjob///
$///FCC 94-354  12-30-94///$
                                Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D. C. 20554

                                                  FCC 94-354
                           MM Docket No. 90-298

In re Applications of         )
                              )
LUCINDA                       )  File No. BPH-880518MB
FELICIA PAULOS                )
                              )
JOHN A. CAROLLO, JR.          )  File No. BPH-880519MX
                              )
For Construction Permit for   )
New FM Station, Channel       )
229A, Sebastopol, California  )


                       MEMORANDUM OPINION AND ORDER

Adopted: December 28, 1994;  Released: January 6, 1995

By the Commission:

     1.  We have before us an application for review filed on
June 28, 1994 by Manzanita Media, Inc. (MMI).  MMI asks us to
reverse the Review Board's ruling that its prior denial of MMI's
application has become final by operation of law.  9 FCC Rcd 2530
(Rev. Bd. 1994).

     2.  In the memorandum opinion and order that MMI complains
of, the Board noted that it had held in a decision released on
November 26, 1993, 8 FCC Rcd 8237, that the captioned application
of John A. Carollo should be granted and hence that the competing
applications of MMI and Lucinda Felicia Paulos should be denied,
having concluded that Carollo's was superior on comparative
grounds.  The Board further noted that MMI had neither filed a
petition for reconsideration of that decision pursuant to 47
C.F.R. 1.106(f) nor an application for review thereof pursuant
to 47 C.F.R. 1.115(d).  The Board then declared that because
MMI had not sought reconsideration or review within the time
limits specified in those rule provisions the denial of its
application had become "final by operation of law" and therefore
that MMI was no longer entitled to consideration as a party to
this case.

     3.  MMI denies that the denial of its application became res
judicata upon expiration of the 30-day deadline for filing for
reconsideration or review of the Board's decision of November 26. 
It argues that the issuance of Bechtel v. FCC, 10 F.3d 875 (D.C.
Cir. 1993), on December 17, 1993 effectively stayed the closing
of the filing period because, according to MMI, Bechtel
implicitly barred the Commission from upholding the denial of
MMI's application on comparative grounds until such time as it
adopts a revised comparative policy free of the deficiencies that
the court noted in its decision.  MMI says that it has therefore
refrained from filing for reconsideration or review of the
Board's comparative decision pending reformation of the
Commission's comparative policy, contending that to have done
otherwise would have been a pointless and costly waste of effort. 
Furthermore, it contends that the Review Board's "dismissal" of
its application was at odds with the Commission's announcement in
a public notice released on February 25, 1994 that comparative
cases would be held in abeyance pending resolution of the policy
issues raised by Bechtel and its announcement that in the
meanwhile the Commission, the Board, and the FCC's ALJs would
"issue decisions only in cases in which consideration of . . .
comparative qualifications is unnecessary."  Hence, MMI asserts
that it is entitled to remain a party to this proceeding and
eventually to have its application judged according to new
comparative criteria in keeping with Bechtel.

     4.  We are not persuaded.  Even if viewed as a dismissal
order, as MMI describes it, rather than as a merely ministerial
action, as the Board characterized it, the Board's order of June
3 was not inconsistent with the Commission's freeze notice, which
was issued long after MMI's deadline for requesting review.  The
notice did not say that no application would be disposed of in a
comparative case during the freeze.  It said, rather, that
"preparation of decisions involving analysis of applicants'
comparative proposals" (emphasis added) would be held in abeyance
and, likewise, that comparative hearing procedures would be
suspended "except those aspects of hearing proceedings not
involving comparative analysis of new applicants' proposals"
(emphasis added).  The order in question was not a decision of
the kind subject to the freeze because it did not turn on
analysis of the comparative merits of any application.

     5.  The other leg of MMI's argument is also lacking in
merit.  Contrary to MMI's assertion, the holding in Bechtel did
not legally bar the Commission from ruling on the merits of
appeals from the Board's comparative determination in this case
pending revision of the comparative criteria pursuant to a
rulemaking.  The ruling in Bechtel in no way prevented MMI from
arguing for reversal of the denial of its application in a
timely-filed application for review or petition for
reconsideration, nor did it preclude the Commission from
considering such arguments.  Having let the deadline pass without
filing for reconsideration or review or showing good cause for
extending the deadline for review, MMI cannot point to any valid
equitable reason for relieving it from the appropriate
consequences of its failure to prosecute.

     6.  We thus agree with the Board that the denial of MMI's
application is no longer open to review on the merits and that
its proposal is entitled to no further consideration in this
proceeding.

     7.  ACCORDINGLY, IT IS ORDERED that the application for
review filed by Manzanita Media, Inc. on June 28, 1994 IS DENIED.

                         FEDERAL COMMUNICATIONS COMMISSION



                         William F. Caton
                         Acting Secretary