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In the Matter of ) 32 Applications for Authority ) To Construct and Operate ) Multipoint Distribution ) Service Stations on the H Channels ) at Five Transmitter Sites ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: June 15, 1995 Released: July 7, 1995 By the Commission: I. INTRODUCTION 1. The Commission has before it petitions for reconsideration of the return, pursuant to delegated authority, of 32 applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on the H channels at the following five transmitter sites: Tonalia, Arizona; Angelica, New York; Burns, Oregon; Emporium, Pennsylvania; and Marfa, Texas. These applications were filed with the Commission on February 11, 1992. In their petitions, filed between October 20, and October 28, 1993, petitioners seek reconsideration of the Commission staff decision to return their applications as unacceptable for filing. 2. As these petitions raise common issues, their collective consideration is the most efficient use of Commission resources. Thus, we will consider these petitions for reconsideration in this single order, which has been referred by the staff to the Commission pursuant to  1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). II. BACKGROUND 3. Each of the returned applications proposed an MMDS station on one of the H channels, to which Part 21 of the Commission's rules apply. 4. The applications were returned by the Commission staff as unacceptable for filing for the following reasons: (1) lack of lease or option agreement as required by 47 C.F.R.  21.15(a); (2) lack of public interest statement as required by 47 C.F.R.  21.13(a)(4); (3) lack of maintenance information as required by 47 C.F.R.  21.15(e), including emergency repair response time and malfunction notification technique; and (4) lack of information on program input facilities as required by item 17 of FCC Form 494 and 47 C.F.R.  21.13(a)(3). Three of these four stated grounds for return are listed in Part 21 of our rules as "examples of common deficiencies which result in defective applications" which are subject to return. See 47 C.F.R.  21.20(b)(3), (4) and (5). III. DISCUSSION 5. Untimely Petitions for Reconsideration. Each of these 32 petitions for reconsideration were untimely filed and will be dismissed on that basis. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405, requires that petitions for reconsideration "must be filed within thirty days from the date upon which public notice is given of the order, decision, report, or action complained of." Because the time period for filing petitions for reconsideration is prescribed by statute, the Commission may not ordinarily waive or extend the filing period. Reuters Limited v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986) ("[W]e conclude that the Commission acted beyond its lawful authority when it entertained the belated petition for reconsideration."); Metromedia, Inc., 56 FCC 2d 909 (1975) (Commission may not waive 30-day filing period to accept a petition for reconsideration filed one day late ), recon. denied, 59 FCC 2d 189 (1976). Here, the untimely petitions were filed between October 20, and October 28, 1993, approximately one month after the 30-day deadline for their filing. 6. Petitioners have offered as justification for their late filing delayed receipt of the return notification letters. While petitioners admit that the return notification letters were dated either August 18 or 25, 1993, they argue that this date cannot be considered to be the date of return because the envelopes containing the return notification letters show a postmark of September 29, 1993, proving that the documents "were not mailed until" that date. They further contend that the deadline for the filing of their petitions should be 30 days from the date of the postmarks, not 30 days from the date of the letters. We disagree with petitioners' contention on both legal and factual grounds. 7. First, we note that we can only accept these petitions if they fall within the narrow exception to the statutory provision prohibiting acceptance of untimely filings, established by the Court of Appeals for the D.C. Circuit in Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976). In that case, the court found that the Commission may extend or waive the 30-day filing period only in the "extraordinary case" where the late-filing is due to the Commission's failure to give a party timely notice of the action for which reconsideration is sought. Under the holding of Gardner: A petitioner has the burden to show (a) when and how he received notice in fact, (b) that the time remaining was inadequate to allow him reasonably to meet the 30-day requirement (from date of issuance) of  405, and (c) that he moved for reconsideration promptly on receiving actual notice. Gardner, 530 F.2d at 1091-92, n.24. 8. While petitioners contend that the return notification letters were not postmarked until one month after the date of the return letters, it appears that the postmarks to which petitioners are referring were placed on the return letters after the documents were mailed by the Commission, when the letters were subsequently forwarded from petitioners' addresses of record to petitioners' new addresses. Indeed, this fact seems evident because some petitioners have submitted letters, dated October 19, 1993, with their reconsideration petitions, asking the Commission to change their addresses in our records. As to the remaining petitioners, our records show that no change of address form has been filed with the Commission. Petitioners have an obligation to provide the Commission with an updated address, as required by  1.5(b) of the Commission's rules. Under these circumstances, any delay in receipt of the return notification letters is chargeable to the petitioners, not the Commission, and consequently, these untimely petitioners do not meet the stringent burden placed on a late petitioner by Gardner. 9. In determining whether the Gardner test can be met, it has been repeatedly emphasized that the burden rests with the applicant to make arrangements to ensure that Commission documents or correspondence will promptly reach the applicant. Accordingly, the Commission previously has refused to excuse the untimely filing of petitions attributable to delays experienced in the course of forwarding mail or because of a change of address. "[T]he final day for the filing of a petition for reconsideration . . . [is] 30 days from the date of the Bureau's letter and not from the date of the receipt of the letter. A more lenient test would expose all parties concerned to the vagaries of mail deliveries and contentions of non- delivery." Public Communicators, Inc., 34 RR 2d 715, 719 (1975). See Dan J. McLean, 9 FCC Rcd 1902 (Field Oper. Bur. 1994); Multi-Point Television Distrib., Inc., 5 FCC Rcd 519 (Comm. Car. Bur. 1990); Cheyenne Corp., 8 FCC Rcd 7049 (Dom. Fac. Div. 1993); Fortuna Systems Corp., 3 FCC Rcd 5122, 5123 (Comm. Car. Bur. 1988) (substantial delay in forwarding mail insufficient justification for reconsideration and reinstatement.) Thus, the applicable law, as well as considerations of fundamental fairness, support the dismissal of these reconsideration petitions. 10. Accordingly, IT IS ORDERED that, due to these applicants' failure to comply with 47 U.S.C.  405, these untimely petitions for reconsideration ARE HEREBY DISMISSED. 11. IT IS FURTHER ORDERED that the staff of the Mass Media Bureau shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary