$// AC Broadcasting, Inc. Lafayette, La. MM 87-449 FCC 95-90 //$ $/ 1.106 Petitions for Reconsideration /$ ///newjob/// $///FCC 95-90,3/17/95///$ Before the FCC 95-90 Federal Communications Commission Washington, D.C. 20554 In re Applications of ) MM DOCKET NO. 87-449 ) AC BROADCASTING, INC. ) File No. BPH-860506MQ ) FM LAFAYETTE LIMITED PARTNERSHIP ) File No. BPH-860507OF ) LAFAYETTE BROADCASTING FOUNDATION ) File No. BPH-860507OM ) REBECCA RADIO OF LAFAYETTE ) File No. BPH-860507OP For Construction Permit for a New FM Station at Lafayette, Louisiana MEMORANDUM OPINION AND ORDER Adopted: February 28, 1995; Released: March 22, 1995 By the Commission: 1. Before the Commission are three pleadings filed by C.R. Crisler, d/b/a Crisler Communications, who was at one time an applicant for the construction permit at issue in this proceeding. For the reasons set forth below, we deny or dismiss these pleadings. BACKGROUND 2. Crisler was among seventeen parties that filed applications to construct an FM station in Lafayette, Louisiana. Under the rules then in effect, each applicant was required to pay a processing fee within twenty days of the designation order. 47 C.F.R.  1.221(f)(1987). Failure to submit the fee was grounds for dismissal of the application. 47 C.F.R.  1.221(g)(1987). However, the rules permitted the applicant to seek a waiver of the fee if it could show "good cause" and that a waiver "would promote the public interest." 47 C.F.R.  1.1115(a)(1987). An applicant that sought a waiver and did not submit the fee at the same time could not submit the fee later if the waiver was denied; it thus ran the risk that its application would be dismissed if it did not receive a waiver. 47 C.F.R.  1.1115(c)(2)(1987). 3. One month after filing his application, Crisler filed a petition for rulemaking requesting that the channel for the Lafayette station be upgraded. When the comparative proceeding was designated for hearing and the hearing fee became due, Crisler sought a waiver of the application fee, contending that if the channel allotment were upgraded as he had requested, new applications would have to be filed for the station. Under these circumstances, Crisler contended the Commission should not collect the hearing fee. He also asserted that the fee should be waived because of ongoing settlement negotiations among the applicants. Crisler did not submit the fee with his waiver application. 4. Because the fee had not been submitted, the ALJ, acting in accordance with 47 C.F.R.  1,221 (f) and 1.1107(b)(1987), dismissed Crisler's application. Lafayette FM Group Limited Partnership, FCC 87M-3216, para. 2 (December 10, 1987). Under Section 1.301(c)(2), rulings that terminate a party's participation in a hearing must be appealed within 5 days. The request for waiver of the fee was denied by the FCC's Managing Director shortly after the ALJ had dismissed Crisler's application. The Manager Director stated that neither the pendency of the rulemaking proceeding nor of settlement negotiations justified a waiver. Letter to C.R. Crisler from Edward J. Minkel, Managing Director, December 23, 1987. Under Section 1.104(b), Crisler had 30 days to seek review of this action. Crisler did not seek timely review of either the ALJ's order dismissing him from the proceeding or the Managing Director's determination not to waive the fee within these deadlines. 5. After these decisions became final, Crisler belatedly attempted to revive his application. Specifically, on February 4, 1988, Crisler wrote to the Managing Director complaining that his application had been dismissed before the Managing Director had acted on his fee waiver request. In response, the Managing Director explained that the ALJ's decision dismissing the application necessarily had been conditioned on the resolution of the fee waiver request by the Managing Director. Thus, the Managing Director stated, the timing of the judge's decision did not abridge Crisler's procedural rights. Letter to C.R. Crisler from Edward J. Minkel, Managing Director, May 17, 1988. On June 9, 1988, Crisler filed a pleading styled "Petition for Reconsideration," in which he requested reconsideration of the Managing Director's letter of May 17. This is one of the pleadings before us today. 6. In the comparative proceeding, the ALJ approved a settlement agreement among the remaining applicants and awarded the construction permit to an entity composed of those parties, Lafayette FM Joint Venture. AC Broadcasting, Inc., FCC 88M-1567 (May 24, 1988). On June 9, 1988, Crisler filed a "Motion for Stay and Petition for Reconsideration," asking that the construction permit proceeding be stayed until the fee matter was resolved. The construction permit was formally issued on October 31, 1988 (Public Notice Report No. 20441), and Crisler thereafter filed a second "Petition for Reconsideration." Those petitions are also before us today. DISCUSSION 7. We deal first with Crisler's "Petition for Reconsideration" of the denial of his fee waiver request. The ALJ dismissed Crisler's application on December 10, 1987, and the Managing Director denied Crisler's waiver request on December 23, 1987. Crisler did not respond until February 4, 1988, well past the deadlines for seeking review or reconsideration, 47 C.F.R. 1.104(b), 1.301(c)(2), and those decisions are therefore final. 47 U.S.C.  155 (c)(7), 47 U.S.C.  405. 8. Crisler has offered no explanation or otherwise shown good cause for his failure to seek timely review. In his letter of February 4, 1988, Crisler stated that he received the Managing Director's letter of December 23 on January 10, 1988, but this bare allegation is insufficient to extend the 30-day deadline which is computed from the day after the date of release of the document at issue. See 47 C.F.R.  1.4. Even if receipt of the Managing Director's letter was somehow delayed, Crisler admits that he had actual notice of the Managing Director's ruling nearly two weeks before the deadline for filing an appeal. Nevertheless, he failed to act with appropriate diligence. 9. The Managing Director's subsequent letter of May 17, 1988, which is the subject of Crisler's June 9 petition for reconsideration, did not revitalize Crisler's waiver request or license application. It was merely an attempt by the Managing Director to assuage the concern expressed in Crisler's letter of February 4 that he had been unfairly treated. The date for computing finality is measured from the Managing Director's letter of December 23rd in which he announced his decision to deny the waiver request, not his letter of May 17. The Managing Director's letter of May 17 did not extend the deadline for seeking review of his decision. 10. In that regard, we note that following the ALJ's decision to dismiss Crisler from the licensing proceeding and the Managing Director's refusal to grant Crisler's waiver request, the remaining parties reasonably relied on the apparent finality of those decisions and entered into a settlement agreement which the ALJ approved. Restoring Crisler's status as a viable applicant would be contrary to the rights of those other parties that have properly prosecuted their applications and would further impede inauguration of long-delayed new service to Lafayette. Crisler's petition of June 9, 1988 will be dismissed as untimely. 11. While we are justified in dismissing Crisler's June 9 petition as untimely, we wish to note that there is no merit in Crisler's petition. The Managing Director's explanation was correct; the timing of the ALJ's decision dismissing Crisler's application did not deny Crisler any rights to which he was entitled. Because Crisler's request for a waiver of the fee was pending when the ALJ dismissed the application, the dismissal was necessarily subject to the outcome of the waiver request and would have been undone had the waiver request been granted. See Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 736 (D.C. Cir. 1976). 12. We note also that the Managing Director's decision of December 23 to deny the waiver request was correct: Neither the pendency of settlement negotiations nor the pendency of a petition to upgrade the channel justifies a failure to submit the hearing fee. See Establishment of a Fee Collection Program, 2 FCC Rcd 947, 966 & n.135 (1987)("the fact that there are ongoing negotiations does not justify the failure to include a fee with the Notice of Appearance.") Had the Commission upgraded the FM channel during the licensing proceeding and invited new applications, Crisler would not have been assessed another hearing fee as he apparently feared. Section 1.1112(a) provides for an exemption from the fee where changes in applications are necessitated by changes in Commission's rules. See also 47 C.F.R.  1.1111(a)(4). 13. Turning to Crisler's June 9 motion for stay and petition for reconsideration of the May 24 grant of the construction permit, Crisler asserts that the Commission should do nothing that will interfere with Crisler's right to comparative consideration so long as the challenge to his dismissal is still outstanding. Having today finally dismissed Crisler's challenge to the denial of his waiver request, which ratifies the dismissal of Crisler's application, the Commission has removed any lingering basis for doubt as to Crisler's entitlement to comparative consideration. The foundation for this June 9 petition has thus been dissolved and the petition will therefore be denied. 14. Crisler's second petition for reconsideration of the grant of the construction permit, which he filed on July 26, 1989, attempts to raise a number of procedural and substantive issues directed against the comparative licensing proceeding, the settlement process, and against Lafayette FM Joint Venture, but the petition is again untimely; indeed, it comes about a year too late. See 47 C.F.R.  1.104 (b). Although the construction permit was granted on May 24, 1988 and issued on October 31, 1988, Crisler alleges that the construction permit "would have become final on August 6, 1989, had not an appeal been filed in a related allocation matter." However, there is no self-evident basis for either the accuracy or the relevance of that assertion, and Crisler offers none. Crisler's prior appeal of our allocation decision has no bearing on the effective date of our decision to award the construction permit. This petition, too, will be dismissed as untimely. 15. We note in conclusion that Crisler had a full opportunity to raise the licensing issues referenced in this petition, but he forfeited that opportunity by failing to adhere to the Commission's procedural rules, as described herein. Moreover, to the extent that Crisler is still trying to assert his rights as a competing applicant, that effort is moot because he is no longer an applicant. 16. Accordingly, IT IS ORDERED That the petitions for reconsideration filed by C.R. Crisler on June 9, 1988 and June 26, 1989 ARE DISMISSED. 17. IT IS FURTHER ORDERED That the Motion for Stay and Petition for Reconsideration filed by C.R. Crisler on June 9, 1988, IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary