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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of) ) Abundant Life, Inc. for a) Construction Permit for a ) New FM Station) Hattiesburg, Mississippi) MEMORANDUM OPINION AND ORDER Adopted: May 21, 1997; Released: August 5, 1997 By the Commission: I. Introduction 1. The Commission has before it an Application for Review, filed on behalf of Abundant Life, Inc. ("ABI"), a former applicant for a new FM station at Hattiesburg, Mississippi, an Opposition filed on behalf of Unity Broadcasters ("Unity"), the remaining applicant for the new FM Hattiesburg construction permit, ABI's Reply to the Opposition, and related pleadings. For the reasons discussed below, we grant the Application for Review and reinstate ABI's application nunc pro tunc. II. Background 2. ABI's application was dismissed by the Chief, FM Branch, for failure to submit its hearing fee in accordance with the deadline established by the May 14, 1993, Public Notice. That public notice announced that ABI's application was mutually exclusive with the applications filed by Unity and Community Broadcasting Company, and established July 19, 1993, as the hearing fee deadline. The Managing Director affirmed ABI's dismissal, and denied its petition for reconsideration. ABI seeks reversal of the Managing Director's decision, acceptance of its hearing fee and reinstatement of its application nunc pro tunc. 3. ABI states that the Notice of Acceptance, which established the applicable hearing fee deadline, was released three days before the amendment of right period expired on May 17, 1993. ABI contends that release of the Notice of Acceptance was premature, and thus inconsistent with Commission procedures. In support of its position, ABI cites to language in the Report and Order that initially adopted the Commission's FM "hard look" window processing procedures, which stated that Notices of Acceptance would be released following the passage of the amendment of right period. See Amendment of Sections 73.3572 and 73.3573 relating to Processing of FM and TV Broadcast Applications ("Hard Look" Order), 58 RR 2d 776, 785, recon. denied, 59 RR 2d 100 (1985), aff'd, Hilding v. FCC, 835 F.d 1435 (9th Cir. 1985). ABI further contends that the Commission's decision to relax the FM "hard look" processing guidelines, which was adopted before ABI filed its application, "did not change the requirement that the acceptance notice be issued after the close of the amendment as of right period." See Amendment of Part 73 of the Commission's Rules to Modify Processing Procedures for Commercial Broadcast Applications, 7 FCC Rcd 5074 (1992), recon. denied, 8 FCC Rcd 7572 (1993)("Soft Look Order"). ABI maintains that it exercised reasonable diligence in its attempts to ascertain, and comply with, the hearing fee deadline by checking all the FCC Public Notices from May 17, 1993 (the date the amendment of right period ended) through July 6, 1993. 4. Unity opposes ABI's application. Unity characterizes ABI's assertions merely as an attempt to excuse ABI's inaccurate interpretation of Commission procedures and limited search of the FCC's official Public Notices. Unity states that the Managing Director correctly found that release of the May 14, 1993, Public Notice "was neither defective nor inconsistent with the Commission's procedures." Unity further states that it is not unusual for the FCC to release Public Notices announcing the acceptance of applications prior to the expiration of the amendment of right period. III. Discussion 5. The sanction for a late filed fee is immediate dismissal of the subject application. See Establishment of a Fee Collection Program, 2 FCC Rcd 947, 956-57 (1987); see also 47 U.S.C. Section 158(c)(2); 47 C.F.R. Section 1.1116. The Commission's authority to adopt exacting procedural standards and deadlines -- and to enforce such standards and deadlines by dismissing non-complying applications -- clearly has been recognized. See, e.g., Hispanic Information and Telecommunications Network v. FCC, 865 F.2d 1289, 1295 (D.C.Cir. 1989); Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3-4 (1987); Salzer v. FCC, 778 F.2d 869, 871-72 (D.C. Cir. 1985). Where, as here, the sanction for non-compliance is dismissal, fundamental fairness requires that the Commission afford applicants advance, clear and adequate notice of its requirements. In other words, "the Commission through its regulatory power cannot, in effect, punish a member of the regulated class for reasonably interpreting Commission rules. Otherwise the practice of administrative law would come to resemble 'Russian Roulette.'" See Satellite Broadcasting Co. v. FCC, 824 F.2d at 4. As discussed below, we find that ABI's interpretation of the Commission's procedures, in general, and the timing of the release of the Notices of Acceptance, in particular, was reasonable, given the language of both the Hard Look Order and the Soft Look Order. Thus, we find that ABI should not be penalized for its reasonable reliance on the Commission's pronouncements regarding its procedures, and we will therefore reinstate ABI's application nunc pro tunc. 6. At the outset, we note that the Commission's rules do not require that Notices of Acceptance of FM applications be issued with reference to any specific time, including after the close of the amendment of right period. Rather, section 73.3573(g) of the Commission's rules, 47 C.F.R. Section 73.3573(g), merely states that such Notices will be released "periodically." However, as ABI correctly notes, the Commission, in the 1985 Hard Look Order, as well as the 1992 Soft Look Order, stated that Notices of Acceptance of FM applications will issue after close the amendment of right period. 7. In the 1985 Hard Look Order, the Commission unequivocally stated that Notices of Acceptance of FM applications would be issued following the conclusion of the amendment of right period and the staff's engineering review of the application(s). Specifically, the Hard Look Order provided that: Following the passage of the 30-day amendment period, the application and any amendments will be studied for acceptability, i.e., compliance with the technical requirements for FM facilities. If the application is found acceptable, it will be placed on a publicly-released "Notice of Acceptability" inviting the filings of petitions to deny. 58 RR 2d at 785 (emphasis added). In 1990, a Public Notice modified that procedure, by explicitly authorizing the staff to issue the Notices of Acceptance "prior to the staff's engineering study" in order to expedite the processing of applications. Although the Commission stated in that Public Notice that the issuance of a Notice of Acceptance may precede the staff engineering review, it did not purport nor did it intend to effect any other changes regarding the timing of such Notices (i.e., it did not state that the Notices additionally may precede the close of the amendment of right period). 8. In the 1992 Soft Look Order, which was in effect at the time ABI filed its application, the Commission again described its practice of releasing Public Notices of Acceptance after the close of amendment of right periods. Specifically, the Commission stated that, although it was relaxing the FM hard look processing guidelines and the handling of defective applications, it did "not intend to change the overall filing procedures and policies applicable to the commercial FM service," as described in the underlying Notice of Proposed Rulemaking, 6 FCC Rcd 7265 (1992). The Notice of Proposed Rulemaking described the Commission's procedures as follows: Applications free of tender defects are placed on a publicly released "Notice of Tenderability." This Notice triggers a 30-day period in which applicants with substantially complete applications may submit amendments as a matter of right . . . After the amendment of right period, applications proceed to the second stage of review. Applications that were found "tenderable" are placed on a publicly released "Notice of Acceptance," which triggers the time for filing of Petitions to Deny pursuant to Section 309 of the Communications Act. Thereafter, the staff studies the applications for "acceptability," i.e., compliance with core technical and legal requirements for FM facilities. Id. at 7267 (emphasis added). 9. The Managing Director characterized the Commission's pronouncements as merely representing a generalized description of its processing procedures, which neither mandated nor governed the particular timing of public notice releases. We find, however, that ABI's reliance upon, and interpretation of, the unambiguous language of both the Hard Look Order and the Soft Look Order, as well as the underlying Notice of Proposed Rulemaking, was reasonable. Given the Commission's past pronouncements describing the Commission's procedures pursuant to section 73.3573(g), we find that ABI lacked adequate notice that the Notice of Acceptance that established the hearing fee deadline might be issued prior to end of the amendment of right period. Therefore, we do not find ABI dilatory in restricting its search of the daily releases of the Commission's Public Notices from May 17, 1993, the date the amendment of right period expired, onward. Rather, ABI reasonably relied upon the Commission's pronouncements in so restricting its search, and unfortunately missed and consequently failed to file its fee payment in accordance with the deadline established by the applicable May 14, 1993, Public Notice. We cannot penalize ABI for reasonably relying upon, nor can we disavow, the Commission's own pronouncements regarding the release of Notices of Acceptance. IV. Conclusion 10. Accordingly, based on all of the foregoing reasons, IT IS ORDERED, That the decision of the Managing Director is REVERSED, That the Application for Review, filed by ABI, IS GRANTED, and that ABI's Application for a new FM station is REINSTATED NUNC PRO TUNC. 11. IT IS FURTHER ORDERED, That the Chief, Mass Media Bureau SHALL TAKE appropriate steps to implement this decision. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary