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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) Eight Applications for Authority ) File Nos. 50180-CM-P-90; To Construct and Operate ) 50668-CM-P-90; 53152-CM-P-90; Multipoint Distribution ) 62013-CM-P-91; 183-CM-P-92; Service Stations on the Channel 1 and 2,) 1211-CM-P-92; 1213-CM-P-92; E, F and H Group Channels at ) and 2389-CM-P-92 Various Transmitter Sites ) ORDER ON RECONSIDERATION Adopted: June 7, 1996 Released: June 12, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it petitions for reconsideration of the return or dismissal without prejudice, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of eight applications to construct and operate Multipoint Distribution Service ("MDS") stations on the E, F, H1, H2 and H3, and channels 1 and 2 at various transmitter sites. These applications were filed with the Commission between January 30, 1990, and March 2, 1992. Each application was returned by individual return notification letter, and, in some cases, the return was also announced by issuance of a public notice. In petitions filed between November 16, 1990, and December 16, 1994, petitioners seek reconsideration of Commission staff decisions to return these applications as unacceptable for filing or to dismiss them without prejudice. Each petition was untimely filed as follows: North Florida MMDS Partners, Application File No. 50180-CM-P-90 at Chico, California, filed 1 day late; Tim C. Head, Application File No. 50668-CM-P-90 at Albany, Georgia, filed 3 years 10 months 17 days late; De Anza Microwave, Application File No. 53152- CM-P-90 at Lewiston, Idaho, filed 3 days late; Sierra Enterprises, Application File No. 62013- CM-P-91 at Port Angeles, Washington filed 3 days late; Cindy Barnes, Application File No. 183- CM-P-92 at Charleston, South Carolina, filed 55 days late; Shoals Management Systems Inc., Application File Nos. 1211-CM-P-92 and 1213-CM-P-92 at Florence, Alabama, each filed 112 days late; and Onondaga Wireless Inc., Application File No. 2389-CM-P-92 at Syracuse, New York, filed 11 days late. 2. As these reconsideration petitions are untimely filed and dispositive on that basis, their collective consideration is the most efficient use of Commission resources. Thus, we will consider these petitions for reconsideration in this single order. II. PETITIONS FOR RECONSIDERATION 3. The Commission staff returned or dismissed each of the above referenced applications as defective and unacceptable for filing. Each of the returned or dismissed applications proposed an MMDS station on the E, F, H, and channels 1 and 2, to which Part 21 of the Commission rules apply. 4. The applications returned or dismissed by the Commission staff as unacceptable for filing were returned for the following reasons: (1) filing in an area not open for filing pursuant to 47 C.F.R.  21.901(d)(4) and the criteria established in Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988); (2) inadequate interference analyses pursuant to  21.902, due to failure to serve all affected parties pursuant to  21.902(g) and/or failure to consider all previously-proposed or authorized Instructional Television Fixed Service ("ITFS") or MMDS stations pursuant to  21.902(c) and/or 21.902(i); (3) failure to demonstrate site availability pursuant to  21.15(a);(4) failure to provide specific maintenance information in item 18 of FCC Form 494, pursuant to  21.15(e); (5) filing past the cut-off period established in  21.31 or 21.914; (6) failure to file a separate FCC Form 494 and submit separate fees for each channel and service area as required by  21.901(d)(3) and 21.6(e); and/or (7) failure to engineer station to provide at least 45 dB of co-channel interference protection pursuant to  21.902(b)(3) and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4). III. DISCUSSION 5. Untimely Petitions for Reconsideration. Each of these eight petitions for reconsideration were untimely filed and are therefore dismissed on that basis. Because we find dispositive the failure of petitioners to submit their reconsideration petitions in a timely manner consistent with our statute, we find it unnecessary to address petitioners' other arguments. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405 (1996), provides 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." See 47 C.F.R.  1.106(f). Section 1.4(b) of the Commission's rules defines the date of public notice of the final Commission action. 47 C.F.R.  1.4(b). Section 1.4(b)(4) provides that if "a descriptive document entitled Public Notice' describing the action is released, the date on which the descriptive Public Notice' is released" establishes the commencement of public notice. Thus, if a return action is announced in a public notice document, petitions for reconsideration must be filed within thirty days from the date of public notice. Section 1.4(b)(5) specifies that "[i]f a document is neither published in the FEDERAL REGISTER nor released, and if a descriptive document entitled Public Notice' is not released, the date appearing on the document (e.g., mailed, telegraphed, etc.) to persons affected by the action" establishes the commencement of public notice. Hence, if a return action is not announced in a public notice document, petitions for reconsideration must be filed within thirty days from the date of the return notification letter. 6. Because the time 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."); see also 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); Fortuna Systems Corp., 3 FCC Rcd 5122, 5123 (Comm. Car. Bur. 1988). The courts have held that the Commission may not accept untimely reconsideration petitions in the absence of extremely unusual circumstances. See, e.g., Virginia Islands Tel. Corp. v. FCC, 989 F.2d 1231, 1237 (D.C. Cir. 1993). 7. A narrow exception to this rule was created by the United States Court of Appeals for the D.C. Circuit in Gardner v. FCC, 530 F.2d 1086, 1090-91 (D.C. Cir. 1976). In that case, the court held that in the case of "extraordinary" circumstances, the Commission may extend or waive the 30-day filing period of a petition for reconsideration where the late-filing is due to the Commission's failure to give customary notice of the action for which reconsideration is sought. See Reuters Ltd. v. FCC, 781 F.2d at 952. The court held that a defect in notice will only be of legal consequence where such delay in notice will make it impossible for the petitioning party to comply with the statutory deadline. If such defective notice is alleged, the petitioner has the burden to prove: (a) when and how he received the notice in fact and the action complained of; (b) that the time remaining was inadequate to allow him reasonably to meet the 30-day statutory deadline; and (c) that he moved for consideration promptly after receiving actual notice. Gardner, 530 F.2d at 1091-92 n. 24. The Court of Appeals recognized, because interested parties often receive actual notice of decisions or rulings before the official letter arrives from the agency secretary, "it will be an extraordinary case . . . where a petitioner can meet that burden." Id. 8. Four of the eight petitioners proffered no argument as to why their petitions were filed past the statutory deadline of thirty days. They were simply untimely and will be dismissed on that basis. Four of the eight petitioners have submitted arguments as to why their petitions were not filed in a timely manner in compliance with the rules. Each of these petitioners' arguments will be considered in turn. 9. Cindy Barnes ("Barnes") applied to construct and operate an MMDS station on the H-2 channel in Charleston, South Carolina. Barnes' application was received by the Commission on January 2, 1992, and was deemed by the Commission staff as unacceptable for filing in a November 3, 1993, Public Notice. The Commission staff also sent Barnes a Return Notification letter on October 26, 1993. Barnes filed a Petition for Reconsideration and Reinstatement; Request for Waiver of Section 1.106(f) of the Commission's Rules; and Request for Acceptance of Late-filed Petition for Reconsideration on January 27, 1994, 55 days past the statutory deadline for filing reconsideration petitions, pursuant to  1.106(f). In her petition Barnes alleges that the Commission staff sent the return notification letter to an incorrect address; thus, she was not appropriately notified by the Commission of the return of her application and requires a waiver of the 30-day filing deadline for reconsideration petitions. However, Barnes' argument for the request of waiver is rendered moot by the fact that the return action appeared on public notice on November 3, 1993. As described above, see  5, according to 47 C.F.R.  1.106(f) a petitioner has 30 days from the date of public notice in which to file a petition for reconsideration. Barnes filed her petition 55 days after the 30-day statutory deadline. The Barnes petition for reconsideration was late-filed and her request for waiver of the statutory deadline is not justified. Accordingly, Barnes' petition is dismissed. 10. Shoals Management Systems ("SMS") applied to construct and operate MMDS stations on the H1 and H3 channels in Florence, Alabama. The SMS applications were received by the Commission on January 30, 1992, and returned to the applicant as unacceptable for filing in a return action appearing in a public notice dated July 27, 1994. The Commission concurrently sent SMS a Return Notification letter also dated July 27, 1994, informing the applicant of the return action. SMS petitioned the Commission for reconsideration on December 16, 1994, 112 days past the statutory deadline for filing of reconsideration petitions, established by  1.106(f). SMS argues that it notified the Commission of its change of address on January 25, 1994, and the Commission incorrectly sent the return letter to SMS's original address as indicated in its applications. SMS further argues that it did not learn of the return notification until November 17, 1994, and therefore  1.106 of the Commission's rules should be waived. The SMS argument is unpersuasive. The Commission's rules in this situation are clear. Pursuant to  1.106(f) of the Commission's rules, a petitioner has 30 days from the date of public notice to petition the Commission for reconsideration. Here petitioner failed to comply with this rule by filing its petition 112 days after the statutory deadline for filing reconsideration petitions. The SMS argument, similar to the above Barnes argument, is rendered moot by the fact that the return action appeared on public notice on July 27, 1994. The SMS petition for reconsideration was late filed and its request for waiver of the statutory deadline is not justified. The SMS petition is therefore dismissed. 11. Onondaga Wireless, Inc. ("Onondaga") applied to construct and operate an MMDS service station utilizing the H1 channel in Syracuse, New York. Onondaga's application was received by the Commission on March 2, 1992 and was returned by the Commission staff as unacceptable for filing by return letter notification on September 29, 1993. Onondaga filed a petition for reconsideration and request for waiver of section 1.106(f) of the Commission's rules on November 9, 1993, 11 days past the statutory deadline. Onondaga argues that it should be granted leave for the late-filing because it was attempting to determine which applications for the H1 channel filed prior to its application. Onondaga's argument is unpersuasive. Onondaga does not meet the Gardner narrow exception of an "extraordinary case" in which the Commission may extend or waive the 30-day filing period of a petition for reconsideration where the late-filing is due to the Commission's failure to give customary notice of the action for which reconsideration is sought. The Commission clearly provided Onondaga with proper notice and Onondaga makes no claims to the contrary. Onondaga had more than ample time to make its determination, and it simply did not use its allotment of time wisely. Thus, the Commission will not waive its filing period. The Onondaga petition is late-filed and therefore dismissed pursuant to  1.106(f) of the Commission's rules. IV. CONCLUSION 12. In view of all of the foregoing, we find that reconsideration of the eight above- referenced applications is not justified and that reinstatement of these applications is not warranted. 13. Accordingly, IT IS ORDERED, that these eight Petitions for Reconsideration ARE DISMISSED and the requests for waiver of Section 1.106 by Barnes, SMS and Onondaga ARE DISMISSED. 14. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau