$// MO&O, Piketon Communications, FCC 94-112 //$ $/ 1.221 Notice of hearing; appearances /$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 94-112 Washington, D.C. 20554 In The Matter of ) ) GERALD E. DAVIS AND JO ANN DUNN )FILE No. BPH-910117ME D/B/A PIKETON COMMUNICATIONS ) ) For a New FM Station ) at Piketon, Ohio. ) MEMORANDUM OPINION AND ORDER Adopted: May 12, 1994; Released: By the Commission: 1. The Commission has under consideration an Application for Review, filed on behalf of Gerald E. Davis and Jo Ann Dunn, d/b/a Piketon Communications (Piketon), seeking reinstatement, nunc pro tunc, of its application for a new FM station at Piketon, Ohio. The Managing Director denied Piketon's petition for reconsideration finding that its application was properly dismissed because its hearing fee was late filed. 2. Piketon's application was mutually exclusive with another application for the station at Piketon. However, prior to designation of the applications for hearing, the Commission adopted procedures that established new deadlines for tendering hearing fees. According to these procedures, the Piketon applicants were required to pay their hearing fees by July 15, 1991. Piketon failed to timely submit its hearing fee, and the Mass Media Bureau dismissed its application. 3. On review, Piketon contends that our publication in the Federal Register of revisions to the timing for filing hearing fees provided inadequate notice to Piketon because, based on our existing practices, it should have received personal notification of any such revision to our rules. In support, Piketon states that the Commission's earlier procedure for submitting hearing fees required that the fee be filed by the time Notices of Appearance were due in a comparative proceeding, and that the Hearing Designation Order, triggering the time for filing Notices of Appearance, was personally served. See former 47 C.F.R.  1.221(b). As a result, according to Piketon, by failing to provide personal notice, we failed to provide the full, fair and explicit notice to which it and other pending applicants were entitled. See Salzer v. FCC, 778 F.2d 869, 871-72 (D.C. Cir. 1985). Therefore, Piketon urges that its application should be reinstated. 4. In addition, Piketon argues that its application's dismissal was contrary to the Commission's policy of permitting as many qualified applicants as possible to compete for authority to operate broadcast stations, citing Ashbacker v. FCC, 326 U.S. 327 (1945). Moreover, Piketon contends that we should have examined the equities surrounding its application to determine whether the public interest would be served by dismissal. In this connection, Piketon states that its application should be reinstated because, as the only surviving applicant for the station at Piketon, grant of its application would provide the public with additional service without any burden on Commission resources. 5. We affirm the decision of the Managing Director. In accordance with the procedures established in the Administrative Procedure Act (APA), publication in the Federal Register affords sufficient notice of rule revisions, and the APA affords no special right of personal notice of rule changes to pending applicants. See 5 U.S.C.  552(a)(1)(E). Moreover, our earlier rule governing the filing of hearing fees contained no suggestion that a pending applicant would receive notice other than that required by the APA. Finally, the court in Salzer did not suggest that applicants, pending or otherwise, were entitled to personal notice of rule changes. Rather, Salzer required that rules published in the Federal Register be "clear and specific." Since our notice in the Federal Register explicitly declared that pending applicants were to file their hearing fee payments by July 15, 1991, we are satisfied that Piketon received the notice that was required. See Proposals to Reform the Commission's Hearing Fee Process, 56 Fed. Reg. 25636 (1991). In this regard, it has been our policy since we established the fee program to dismiss applicants for failure to make timely fee payments. See Establishment of a Fee Program to Implement the Consolidated Omnibus Budget Act of 1985, 2 FCC Rcd 947, 957 (1987), recon denied, 3 FCC Rcd 5987 (1988). In this proceeding, we explicitly informed all pending applicants that "failure to make the hearing fee payment in a timely manner will result in the dismissal of the underlying application." See Proposals to Reform the Commission's Hearing Fee Process, 6 FCC Rcd 3403, 3408 (1991). Thus, our public notice of the revised hearing fee requirements was clearly adequate under the APA. 6. Finally, the Bureau's dismissal of Piketon's application was not inconsistent with our policies. We are authorized to make any rules necessary to promote the efficient conduct of our business and to bar those who fail to meet these standards, including those who fail to comply with the fee payment requirements. See 47 U.S.C.  158(b)(2), (f); see also United States v. Storer Broadcasting Co., 351 U.S 192, 202-03 (1956). Piketon's failure to comply with our rule concerning the timely filing of its hearing fee rendered its application unqualified for further consideration. See 2 FCC Rcd at 957-58 (1987). We are satisfied that the overall public interest in efficient administration of fee and application processing, which is furthered by strict adherence to our fee payment rules, outweighs any detriment resulting from the dismissal of Piketon's application. 7. Accordingly, IT IS ORDERED, That the Application for Review filed by Gerald E. Davis and Jo Ann Dunn, d/b/a Piketon Communications, Inc., IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary