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Y-____________________________________________________________________#Xw P7[hXP# _______________P   S  #&m P7#{&P#    [[2d Before the    [[2Federal Communications Commission    [[2dWashington, D.C. 20554  T-  T8- S In the Matter of ,hh^) ` `  ,hh^)  T- Abundant Life, Inc. for a,hh^)pp&   Xxx  T-Construction Permit for a ,hh^)  T-New FM Station ,hh^)  Tp-Hattiesburg, Mississippi,hh^)pp&  SI -  S! -` `  MEMORANDUM OPINION AND ORDER  T - Adopted: May 21, 1997; Released: August 5, 1997 By the Commission:     T2-` `  ,hh^I. Introduction  T -  T- (#J 1. The Commission has before it an Application for Review, filed on behalf of Abundant Life,  T- &!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  TB-below, we grant the Application for Review and reinstate ABI's application nunc pro tunc.  T-` `  ,hh^II. Background  T-  (#2. ABI's application was dismissed by the Chief, FM Branch, for failure to submit its hearing  &V"fee in accordance with the deadline established by the May 14, 1993, Public Notice. That public notice  &I announced that ABI's application was mutually exclusive with the applications filed by Unity and  T*- &u!Community Broadcasting Company,*Y xP- &ԍ #Xw PE37[hXP##c P7 P#Community Broadcasting Company decided not to prosecute its application, did not submit a hearing fee, and thus was dismissed for failure to pay its fee.  and established July 19, 1993, as the hearing fee deadline. The  &9!Managing Director affirmed ABI's dismissal, and denied its petition for reconsideration. ABI seeks  &v reversal of the Managing Director's decision, acceptance of its hearing fee and reinstatement of its  T-application nunc pro tunc.  (#v 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  T - &X procedures. In support of its position, ABI cites to language in the Report and Order that initially  &G"adopted the Commission's FM "hard look" window processing procedures, which stated that Notices of"! 0*8&8&99%"  T- &V"Acceptance would be released following the passage of the amendment of right period. See Amendment  T- &!of Sections 73.3572 and 73.3573 relating to Processing of FM and TV Broadcast Applications ("Hard  T- &V"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"  &Jprocessing guidelines, which was adopted before ABI filed its application, "did not change the  T8- &W!requirement that the acceptance notice be issued after the close of the amendment as of right period."  T- &e"See Amendment of Part 73 of the Commission's Rules to Modify Processing Procedures for Commercial  T- &!Broadcast Applications, 7 FCC Rcd 5074 (1992), recon. denied, 8 FCC Rcd 7572 (1993)("Soft Look  T- &!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  Tp-amendment of right period ended) through July 6, 1993.1 pY xP - &<ԍ #Xw PE37[hXP##c P7 P#In addition, ABI argues that the doctrine of equitable estoppel should be invoked to bar the Commission's  &enforcement of the hearing fee deadline, because ABI's counsel received misinformation concerning the hearing fee  &deadline from the Commission's staff, as well as the Commission's publicly available database. Given our disposition herein, we need not address ABI's estoppel argument.1  (#,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  &V"official Public Notices. Unity states that the Managing Director correctly found that release of the May  T - &W!14, 1993, Public Notice "was neither defective nor inconsistent with the Commission's procedures." Y xP-ԍ #Xw PE37[hXP##c P7 P#Unity's Opposition at 5.  &"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.  T-` `  ,hh^III. Discussion  T- (#5. The sanction for a late filed fee is immediate dismissal of the subject application. See  T- &!Establishment of a Fee Collection Program, 2 FCC Rcd 947, 95657 (1987); see also 47 U.S.C. Section  Th- &"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 noncomplying applications  T- &W!ԩ clearly has been recognized. See, e.g., Hispanic Information and Telecommunications Network v.  T- &8"FCC, 865 F.2d 1289, 1295 (D.C.Cir. 1989); Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 34 (1987);  T- &Salzer v. FCC, 778 F.2d 869, 87172 (D.C. Cir. 1985). Where, as here, the sanction for non &!compliance is dismissal, fundamental fairness requires that the Commission afford applicants advance,  Tx- &!clear and adequate notice of its requirements.  In other words, "the Commission through its regulatory  &G"power cannot, in effect, punish a member of the regulated class for reasonably interpreting Commission  T(- &!rules. Otherwise the practice of administrative law would come to resemble 'Russian Roulette.'" See  T- &"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,  T- &"in particular, was reasonable, given the language of both the Hard Look Order and the Soft Look Order.  &hThus, we find that ABI should not be penalized for its reasonable reliance on the Commission's  T`- &(#pronouncements regarding its procedures, and we will therefore reinstate ABI's application nunc pro tunc."`@0*8&8&99!"  (#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  T`- &!amendment of right period. Rather, section 73.3573(g) of the Commission's rules, 47 C.F.R. Section  T8- &t"73.3573(g), merely states that such Notices will be released "periodically." f( 8Y xP-ԍ #Xw PE37[hXP##c P7 P#Section 73.3573(g) provides in pertinent part:  :  `  (2) All applications received during the appropriate filing period or "window" which are found   : to be mutually exclusive will be designated for hearing . . . The FCC will periodically release a   : #Public Notice listing applications pending hearings or grant and announcing a date (not less than 30 days after issuance) by which petitions to deny must be filed.  : (i) In addition to announcing the acceptance of mutually exclusive applications and establishing   : %a date for the filing of petitions to deny such applications, the public notice referred to in   : paragraph (g)(2) will also announce the date on which all mutually exclusive applicants will be   : required to pay the hearing fee . . . The date for fee payment shall be at least 30 days after the date established for petitions to deny.  `  f However, as ABI correctly  T- &!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.  T- (#X 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  TH -staff's engineering review of the application(s). Specifically, the Hard Look Order provided that: (#(#  T - ~ t"  Following the passage of the 30day amendment period, the application and any amendments  ~ t"ywill be studied for acceptability, i.e., compliance with the technical requirements for FM  ~ t"facilities. If the application is found acceptable, it will be placed on a publiclyreleased "Notice of Acceptability" inviting the filings of petitions to deny.  s&  e 58 RR 2d at 785 (emphasis added). In 1990, a Public Notice modified that procedure, by explicitly  s&"authorizing the staff to issue the Notices of Acceptance "prior to the staff's engineering study" in order  T- s& #to expedite the processing of applications.A  xP`- &-ԍ #Xw PE37[hXP##c P7 P#See Public Notice, "The Commission Announces Four Policy Changes in Processing of Commercial FM Construction Permit Applications for New Facilities," 5 FCC Rcd 990, 990 (1990). A Although the Commission stated in that Public Notice that the  s&G"issuance of a Notice of Acceptance may precede the staff engineering review, it did not purport nor did  T- s&!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).  T@- a#8. In the 1992 Soft Look Order, which was in effect at the time ABI filed its application, the  s& Commission again described its practice of releasing Public Notices of Acceptance after the close of  T- s& "amendment of right periods. Specifically, the Commission stated that, although it was relaxing the FM"0*8&8&99~"  T- s&G"hard look processing guidelines and the handling of defective applications, xPh- &ԍ #Xw PE37[hXP##c P7 P#The Commission's relaxation of the "hard look" rules established minimum tenderability requirements and  &expanded applicants' opportunities to correct defective applications, such that the Commission acknowledged that  &Notices of Tenderability and Acceptance no longer signified compliance with the tenderability or acceptance  xP- &criteria. See Soft Look Order, 7 FCC Rcd at 5076, n.13. Indeed, the Commission described the Notice of  xP-Acceptance as merely serving as "the mechanism for permitting petitions to deny." Id. it did "not intend to change  T- s&G"the overall filing procedures and policies applicable to the commercial FM service,"x xP-ԍ #Xw PE37[hXP##c P7 P#Soft Look Order, Id. at 5075, and n. 8. as described in the  T- s&Junderlying Notice of Proposed Rulemaking, 6 FCC Rcd 7265 (1992). The Notice of Proposed  T-Rulemaking described the Commission's procedures as follows:  $ " eS Applications free of tender defects are placed on a publicly released "Notice of Tenderability."  $ " This Notice triggers a 30day period in which applicants with substantially complete applications  T- $ "may submit amendments as a matter of right . . . After the amendment of right period,  T- $ "Yapplications proceed to the second stage of review. Applications that were found "tenderable"  $ "hare placed on a publicly released "Notice of Acceptance," which triggers the time for filing of  $ "KPetitions to Deny pursuant to Section 309 of the Communications Act. Thereafter, the staff  $ "jstudies the applications for "acceptability," i.e., compliance with core technical and legal requirements for FM facilities.  S   T -Id. at 7267 (emphasis added).  $ "SS9. The Managing Director characterized the Commission's pronouncements as merely  6%"representing a generalized description of its processing procedures, which neither mandated nor governed  6%the particular timing of public notice releases. We find, however, that ABI's reliance upon, and  T0- 6%!interpretation of, the unambiguous language of both the Hard Look Order and the Soft Look Order, as  T- 6%!well as the underlying Notice of Proposed Rulemaking, was reasonable. Given the Commission's past  6%!pronouncements describing the Commission's procedures pursuant to section 73.3573(g), we find that  6%"ABI lacked adequate notice that the Notice of Acceptance that established the hearing fee deadline might  6%!be issued prior to end of the amendment of right period. Therefore, we do not find ABI dilatory in  6%!restricting its search of the daily releases of the Commission's Public Notices from May 17, 1993, the  6%date the amendment of right period expired, onward. Rather, ABI reasonably relied upon the  6%f!Commission's pronouncements in so restricting its search, and unfortunately missed and consequently  6%"failed to file its fee payment in accordance with the deadline established by the applicable May 14, 1993,  6%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.  TP-SS   [[2dIV. Conclusion  $ "SS10. Accordingly, based on all of the foregoing reasons, IT IS ORDERED, That the decision of  6%!the Managing Director is REVERSED, That the Application for Review, filed by ABI, IS GRANTED,  T-and that ABI's Application for a new FM station is REINSTATED NUNC PRO TUNC. "0*8&8&99 "Ԍ $ "SS11. IT IS FURTHER ORDERED, That the Chief, Mass Media Bureau SHALL TAKE appropriate steps to implement this decision.  T`-SS    [[2FEDERAL COMMUNICATIONS COMMISSION  T-SS   [[2William F. Catoncc  T-SS   [[2Acting Secretary #Xw P7[hXP#