NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) STEPHEN E. POWELL ) ) For Construction Permit ) For a New Commercial FM Station )File No. BPH - 880714MJ on Channel 293A, 106.5 MHz ) WRHF(FM), Farmington, New Hampshire) ) For Reinstatement of ) Expired Construction Permit )File No. BPH - 931216JD MEMORANDUM OPINION AND ORDER Adopted: August 29, 1996Released: September 26, 1996 By the Commission: 1. The Commission has under consideration: (1) a letter of November 13, 1995 by the Chief, Audio Services Division, Mass Media Bureau ("Staff Decision"), denying a petition for reconsideration filed by Stephen E. Powell ("Powell"), former permittee of new FM broadcast station WRHF(FM), Farmington, New Hampshire; and (2) an application for review of the Staff Decision filed by Powell on December 13, 1995. Powell seeks review of the staff's action canceling the above-captioned construction permit, deleting the call sign WRHF(FM), and dismissing the above- captioned application to replace the expired permit. As set forth more fully below, we deny the application for review because Powell failed to file his petition for reconsideration within the thirty- day period required by statute, and because Powell has not demonstrated that his failure to do so was due to extraordinary circumstances. See 47 U.S.C. Section 405. 2. Background. Powell was awarded a permit on April 25, 1991 to construct a new FM broadcast station on Channel 293A (106.5 MHz) in Farmington, New Hampshire. Powell's first request for an extension of time in which to construct the station was granted on December 16, 1992 for a six-month period ending June 16, 1993. Powell filed his second request for an extension of time on December 16, 1993, six months after the permit had expired. The Mass Media Bureau staff sent a letter to Powell on January 17, 1995 requesting information regarding Powell's construction efforts. After receiving no response from Powell, the staff sent a second letter to Powell on June 12, 1995, notifying him that his application to replace the expired construction permit was dismissed, that the original permit was declared forfeit and canceled, and that the call letters WRHF(FM) were deleted. The staff noted that in the two years following grant of the original permit, Powell had not received and installed the equipment necessary to initiate station operations. The staff found that Powell had failed to demonstrate that his lack of construction progress was due to reasons beyond his control. See 47 C.F.R. Section 73.3534(b)(3). In its June 12, 1995 letter, the staff also noted that Powell had failed to reply to the staff's January 17, 1995 request for additional information. 3. The staff's June 12, 1995 letter was placed on public notice June 16, 1995. The thirty-day period in which petitioners are required by statute to file petitions for reconsideration expired on July 17, 1995. See 47 U.S.C. Section 405. Powell filed a petition for reconsideration of the June 12, 1995 staff actions on August 2, 1995. The staff denied Powell's petition in the Staff Decision, noting that the Commission lacks authority to extend or waive the statutory 30-day filing period for petitions for reconsideration unless the petitioner shows that its failure to file for reconsideration in a timely manner resulted from "extraordinary circumstances," a test that Powell failed to meet. 4. In his application for review, Powell raises two major challenges to the Staff Decision: (1) that the staff failed to provide notice to him of the June 12, 1995 letter; and (2) that the staff did not provide a reasoned analysis supporting denial of his petition for reconsideration. Powell asserts that he "does not recall receiving any mail from the Commission in January or June of 1995 when the [January 17, 1995 and June 12, 1995] letters were sent." He contends therefore that it was unfair to base cancellation of his permit on his failure to respond to the January 17, 1995 letter, and that he was unaware of the existence of the June 12, 1995 letter until the thirty-day period for filing a petition for reconsideration had expired. Powell states that he first learned of the June 12, 1995 actions when he read about them in a trade publication, the M Street Journal, on July 19, 1995, two days after the statutory deadline for filing a petition for reconsideration. 5. Discussion. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C. Section 405, requires that a petition for reconsideration be filed within 30 days from the date of public notice of the Commission's action. Because the time period for filing petitions for reconsideration is prescribed by statute, the Commission may not, with one narrow exception, waive or extend the filing period. See Reuters Ltd. v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986). The narrow exception to this statutory filing period allows the Commission to extend or waive the 30-day filing period only in an "extraordinary case," such as 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. See Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976). In such circumstances, the petitioner must demonstrate that the delay in filing is attributable to Commission error in giving notice and that it acted promptly upon discovering the adoption of the Commission's decision. See Fortuna Systems Corp., 3 FCC Rcd 5122, 5123 (1988). See also Richardson Independent School District, 5 FCC Rcd 3135, 3136 (1990). 6. Powell has not demonstrated that his delay in filing is attributable to Commission error in giving notice. Powell does not dispute that the Commission mailed the January 17, 1995 and June 12, 1995 letters to his New Hampshire mailing address. He merely states that he does not recall receiving them, which is insufficient to raise an issue of Commission error. See Juan Galiano, 5 FCC Rcd 6442, 6443 (1990) ("[I]f the Commission were to entertain and accept unsupported arguments that letters mailed in Commission proceedings were not delivered . . . procedural havoc and abuse would result."). Defective notice is not present in the instant case. By sending a copy of its decision to Powell's New Hampshire mailing address, the staff did exactly what the Gardner court required; it gave notice of its decision to the petitioner. See Gardner, 530 F.2d at 1091. In addition, notice of the Commission's actions was included in Broadcast Applications, Public Notice, Report No. 23530 (released June 16, 1995). The Commission made every reasonable effort to contact Powell and to apprise Powell of its actions in connection with his permit. See 47 C.F.R. Section 1.5(b) (A Commission "licensee is responsible for making any arrangements which may be necessary in his particular circumstances to assure that Commission documents or correspondence delivered to [an address furnished by the licensee] will promptly reach him or some person authorized by him to act in his behalf."). The Commission is not required to send each of its letters by certified mail or to place each decision concerning a particular licensee or permittee on the Internet or in the Federal Register, as Powell suggests. See 47 C.F.R. Section 0.445(a) (orders are "mailed to the parties"). 7. Powell's second related argument is that the staff failed to provide a reasoned analysis of his arguments before denying his petition for reconsideration. We disagree. The staff pointed out that Powell had not met his burden of establishing that his failure to file for reconsideration in a timely manner resulted from "extraordinary circumstances," citing Gardner, 530 F.2d at 1091-92. In Gardner, the extraordinary circumstances were that the Commission never gave notice to a party of its underlying decision, the petitioner did not actually learn of the Commission's action in time to meet the statutory 30-day deadline for filing a petition for reconsideration, and the petitioner moved for reconsideration promptly after he procured a copy of the Commission decision. Powell has not met his burden of establishing that similar extraordinary circumstances prevented him from filing a petition for reconsideration by July 17, 1995. Powell has not shown, as the petitioner did in Gardner, that the Commission failed to give him notice of its action affecting his legal rights. Therefore, the staff was correct in concluding that in the instant case the Commission was required by law to deny Powell's late-filed petition for reconsideration. See 47 U.S.C. Section 405. 8. Accordingly, IT IS ORDERED that pursuant to Section 1.115(g) of the Commission's Rules, 47 C.F.R. Section 1.115(g), the Application for Review filed by Stephen E. Powell on December 13, 1995 IS HEREBY DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary