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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 re Applications of ) MM Docket No. 88-400 ) GONZALES BROADCASTING, INC. ) File No. BPH-870707MJ ) BOLTON BROADCASTING, LIMITED ) File No. BPH-870710MD ) VOTH BROADCASTING COMPANY ) File No. BPH-870710MF ) METROPOLITAN MANAGEMENT ) File No. BPH-870710MY CORPORATION ) ) LORENZO JELKS ) File No. BPH-870710MZ ) QRW PARTNERS LIMITED ) File No. BPH-870710NF PARTNERSHIP ) ) MABLETON COMMUNICATIONS, ) File No. BPH-870710NQ LIMITED ) For a Construction Permit for a New FM Broadcast Station on Channel 273A at Mableton Georgia O R D E R Adopted: May 12, 1999; Released: May 20, 1999 By the Commission: 1. This order dismisses a Motion, filed February 5, 1999, by Lorenzo Jelks requesting the nunc pro tunc reinstatement of its above-captioned application, which the Commission previously denied for lack of financial qualifications in connection with its 1997 approval of a settlement agreement among the other applicants. Citing the Commission's determination in August 1998 to decide all pending comparative broadcast cases by competitive bidding procedures, Jelks also requests that the Commission issue an order indicating that it will use an auction to resolve this case and identifying Jelks as one of the pending applicants eligible to participate in that auction. In a Joint Opposition, filed February 18, 1999, the other applicants oppose Jelks's motion, urging that the Commission lacks the power to grant Jelks's Motion under 47 U.S.C.  402(c), since the D.C. Circuit has already affirmed the denial of Jelks's application and the termination of this proceeding, and, moreover, has also denied Jelks's subsequent motion to remand this case to the Commission. In a reply, filed March 2, 1999, Jelks acknowledges that the D.C. Circuit's decision is now final but nevertheless maintains that the Commission retains the discretion to consider the merits of Jelks's request for reinstatement in light of revised Commission rules under which a non-final disqualification on a financial certification issue would not preclude a pending applicant from participating in the auction. 2. Jelks's Motion will be dismissed. Under the circumstances of this case, the Commission has no authority to grant the requested relief, without first seeking a recall of the court's mandate. It is well established that in an adjudicatory proceeding "[o]nce a petition for review has been filed in court, the FCC has no authority to conduct further proceedings without the court's approval. The reviewing court must order a remand if there is to be provision for further administrative consideration." See also 47 U.S.C.  402(c), providing that "[u]pon filing of such notice [of appeal], the court shall have jurisdiction of the proceeding and of the questions determined therein." Jelks filed a notice of appeal with the court, which affirmed the Commission's disqualification of Jelks on the financial certification issue and also affirmed the Commission's approval of a settlement agreement providing for the grant of Gonzales's application. The Supreme Court has denied Jelks's petition for writ of certiorari. The denial of Jelks's application is therefore final and, in the absence of evidence that the decision was obtained fraudulently or as a result of other misconduct affecting the integrity of the judicial process, we are not persuaded that there is a basis for the Commission to ask the court to recall the mandate in this case, or to support a further motion filed by Jelks with the court. 3. To the extent Jelks believes that the adoption of auction rules constitutes a change in circumstances warranting reopening this proceeding, Jelks has already requested that the court remand this proceeding for further processing in accordance with the newly adopted auction procedures. Significantly, Jelks appears to be making in the motion for reinstatement virtually the same argument that previously was addressed to the court in the motion for remand -- that is, that the denial of the application based on a financial issue that would not be considered against an auction winner is unfair. As the Commission advised the court in opposing the motion for remand, however, the approval of the settlement agreement in this proceeding was consistent with congressional policies underlying the enactment of the Balanced Budget Act of 1997, and auction procedures governing what parties are eligible to participate in an auction and what basic qualifying issues shall be considered against an auction winner do not apply to cases in which a settlement agreement obviates the need for an auction. 4. Finally, and contrary to Jelks's assertion, neither Richardson v. Wright, 405 U.S. 208 (1972), nor Crosthwait v. FCC, 584 F.2d 550 (D.C. Cir.1978), authorizes the Commission to reopen this proceeding in the absence of explicit direction from the reviewing court. In both cases, a court, during the pendency of a court appeal, remanded a proceeding to the administrative agency. In contrast, the court has refused to remand the proceeding in this case. 5. ACCORDINGLY, IT IS ORDERED That the Motion for Nunc Pro Tunc Reinstatement of Application and Issuance of Order Identifying Bidders, filed February 5, 1999, by Lorenzo Jelks IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary