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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 ) AIR CABLE LIMITED PARTNERSHIP ) File Nos. 781116 - 781121 DOUG BURBECK ) File Nos. 781556 - 781557 WARREN HAVENS ) File Nos. 781104 - 781105 JOSEPH J. JAN LOIS ) File Nos. 781565 - 781567 CHANNING JONES III ) File Nos. 781560 - 781561 JAMES H. KARLS ) File Nos. 781106 - 781115 and ) 781278 - 781283 MILTON KRAMLICH ) File Nos. 781190 - 781194 JOHN LEE ) File Nos. 781100 - 781102 KENNETH MERIN ) File Nos. 781140 - 781148 and ) 781150 - 781151 HAROLD J. MYERS ) File Nos. 781162 - 781167 and ) 781169 - 781173 NAMAQUA LIMITED PARTNERSHIP ) File Nos. 781152 - 781159 NOVA COM PARTNERS ) File Nos. 781123 - 781131 and ) 781133 - 781134 JOHN PANOZZO ) File Nos. 781563 - 781564 SIERRA COM PARTNERS ) File Nos. 780272 - 780277, ) 780300 - 780302, ) 780307, ) 780309 - 780310 and ) 780312 - 780314 ARNOLD LEONG dba SOBRANTECH ) File Nos. 780319 - 780321 and ) 780323 - 780333 HELLA TSACONAS ) File No. 781562 PAULA TSACONAS ) File No. 781559 ) For Multiple Address System Station ) Authorizations in the Private Operational ) Fixed Microwave Service ) MEMORANDUM OPINION AND ORDER Adopted: April 19, 1999 Released: April 27, 1999 By the Commission: I. INTRODUCTION 1. Before us for consideration is an Application for Review jointly-filed on December 1, 1995, by 17 applicants (collectively, The Applicants) for Multiple Address System (MAS) station authorizations in the Private Operational Fixed Microwave Service (POFMS). The Applicants seek review of the November 3, 1995 letter ruling of the Licensing Division of the Wireless Telecommunications Bureau which dismissed their initial Application for Review as untimely-filed. For the reasons stated below, we deny The Applicants' instant Application for Review. II. BACKGROUND 2. By various letter rulings dated in February and March 1992, the Microwave Branch (Branch) of the Licensing Division dismissed numerous MAS license applications filed by The Applicants under former Part 94 of the Commission's Rules. The Branch determined that the subject MAS license applications were defective because of flawed engineering analyses. The Branch further noted that the applications contained photocopied blank coordination masters to which applicant names and frequencies were subsequently added. As a result, the Branch concluded that the frequencies requested in such applications had not been certified in the manner required by the Commission's Rules. 3. In May 1992, The Applicants filed petitions for reconsideration of the Branch's dismissals. By letter rulings dated December 15 and 16, 1992, the Licensing Division denied each of the reconsideration petitions on the ground that, under the Commission's Rules, the MAS license applications were defective at the time of their submission. These letters were mailed to each of The Applicants, notifying them of the decisions and the basis for those decisions. 4. On January 14, 1993, The Applicants filed an appeal of the Licensing Division's decision with the United States Court of Appeals for the District of Columbia Circuit. On June 29, 1993, the Court of Appeals granted the Commission's motion to dismiss the consolidated appeals due to The Applicants' failure to exhaust their administrative remedies prior to seeking judicial review. On January 24, 1994, the appellate litigation was concluded when the United States Supreme Court denied The Applicants' December 9, 1993 Petition for Writ of Certiorari. 5. On May 11, 1994, The Applicants filed an Application for Review of the Licensing Division's December 15 and 16, 1992 letter rulings denying their petitions for reconsideration. Subsequently, The Applicants submitted pleadings styled as "Supplement to Application for Review" on May 23, 1994, and "Further Supplement to Application for Review" on July 11, 1994. On February 14, 1995, The Applicants submitted another pleading styled as "Second Further Supplement to Application for Review" by which they sought to incorporate by reference the initial Application for Review and their additional pleadings. By letter dated November 3, 1995, the Licensing Division dismissed as untimely The Applicants' initial Application for Review. On December 1, 1995, The Applicants filed the instant Application for Review seeking Commission review of the Licensing Division's dismissal of its initial Application for Review. III. DISCUSSION 6. In the instant Application for Review, The Applicants first contend that their initial Application for Review was timely filed in that they did not receive proper public notice pursuant to Section 1.104 of the Commission's Rules. Thus, The Applicants argue that the 30-day period for the filing of an Application for Review set forth in the Commission's Rules was not triggered. Consequently, they argue, the Licensing Division erred in dismissing their initial Application for Review on the basis of untimeliness. The Applicants premise their argument on a "Note" appended to Section 1.104(b), which states: In those cases where the Commission does not intend to release a document containing the full text of its action, it will state that fact in the public notice announcing its action. The Applicants contend that this "Note" is applicable to the Licensing Division's letters of December 15 and 16, 1992, which denied The Applicants' various petitions for reconsideration, and that, because those letters failed to state that the Commission did not intend to release a document containing the full text of its action, public notice of the Licensing Division's decisions denying The Applicants' petitions was not given. Consequently, they argue, the 30-day period for filing an Application for Review was not and has not been triggered. 7. We find that The Applicants' arguments regarding the timeliness of their initial Application for Review lack merit. As explained in the November 3, 1995 letter dismissing The Applicants' initial Application for Review, Section 1.115(d) of the Commission's Rules requires the filing of an Application for Review within 30 days of the public notice of final action, as defined by 47 C.F.R.  1.4(b). In cases where a Commission decision is neither published in the Federal Register nor released, the Commission's Rules define "public notice" as "the date appearing on the document sent to persons affected by an action." Thus, the date indicated on a letter ruling mailed directly to the parties in interest, stating the Commission's action and the basis of such action, is the relevant benchmark for determining public notice under Section 1.4 of the Commission's Rules. Notably, Section 1.4 of the Commission's Rules does not require any further action for public notice to be given to the affected parties under such circumstances. Here we find that the date of the letter dismissing The Applicants' petitions for reconsideration is the date certain on which public notice of the dismissal of the subject MAS license applications was given. Accordingly, we find that public notice of the Licensing Division's actions occurred on December 15 and 16, 1992 -- the dates of the Licensing Division's letter rulings. As a result, a request for further reconsideration of that action was due 30 days after such date. We agree with the Licensing Division's finding that The Applicants' failure to file their initial Application for Review within such timeframe constituted a substantial procedural defect. The Applicants' reliance on the "Note" to Section 1.104(b) is inapposite here because that provision, by its plain meaning, only applies where the Commission does not intend to release a document containing the full text of its action. Here, the letter rulings provided the full texts of the decisions. Moreover, contrary to The Applicants' assertions, there is nothing in the Commission's Rules which requires the converse, i.e., that the Commission announce in a letter containing the full text of its decision that it does not intend to issue a further public notice of its decision. 8. In addition, we find The Applicants' contention that they had not received public notice of the Licensing Division's decisions to be unpersuasive given their appeal of those decisions to the United States Court of Appeals for the District of Columbia Circuit within 30 days of the date of the letter rulings. In this connection, we note that The Applicants filed their Notice of Appeal pursuant to Section 402(c) of the Communications Act on January 14, 1993, which was within 30 days of the date of the Licensing Division's decisions. Because the time period for filing a Notice of Appeal pursuant to Section 402 also is triggered by "public notice" of a Commission action, it is disingenuous for The Applicants, after having lost their challenge in court, to argue now that there was never any public notice of the Licensing Division's decisions. 9. The Applicants concluded their appellate litigation on January 24, 1994, but filed their initial Application for Review on May 11, 1994, nearly four months after the United States Supreme Court had denied their Petition for Writ of Certiorari. The Applicants have failed to explain or offer any justification for their lengthy delay in filing the Application for Review. Even if one were to assume arguendo that The Applicants could file their initial Application for Review at the conclusion of the litigation, The Applicants still would not be entitled to an additional four months in which to exhaust their administrative remedies. Given that The Applicants did not file their initial Application for Review in a timely manner, the Licensing Division's decisions became final pursuant to the Commission's Rules. Commission actions become final unless a timely request for stay, a petition for reconsideration, or an application for review is filed. While engaged in the judicial review process, however, The Applicants failed to seek a stay of the Commission's proceedings pending completion of the litigation. Under the circumstances, such failure constitutes a fatal procedural flaw. 10. Because we conclude that the Application for Review was untimely, we need not reach the merits of their argument. We note, however, that The Applicants next contend that the Licensing Division's dismissal of their initial Application for Review exceeded its delegated authority because under the Commission's Rules, only the Commission may act upon an Application for Review. Section 0.331(c) of the Commission's Rules provides that, under authority delegated by the Commission, the Bureau "may dismiss any such application [for review] that does not comply with the filing requirements of  1.115(d) and (f) of this chapter." The Licensing Division, in turn, operated on authority delegated by the Bureau. Section 1.115(d) requires that Applications for Review be filed within 30 days after public notice of the action taken on delegated authority. Because the Licensing Division found that The Applicants' initial Application for Review did not comply with those requirements in that it was not filed within 30 days from the date of public notice of the Licensing Division's denials of The Applicants' petitions for reconsideration, the Bureau had the requisite delegated authority to dismiss the Application for Review. 11. The Applicants also contend that, in wrongfully dismissing their initial Application for Review and supplemental filings, the Licensing Division failed to consider their arguments and evidence proving that The Applicants' MAS license applications fully complied with the Commission's Rules and, therefore, that the Licensing Division's denials of their petitions for reconsideration were in error. Because we have decided that The Applicants' initial Application for Review was untimely and that the Licensing Division properly exercised its delegated authority in dismissing that Application for Review, we decline to address the substantive issues also raised in the instant Application for Review. Such decisions have become final actions under the Commission's Rules due to The Applicants' failure to seek full Commission review of such decisions in a timely manner. IV. CONCLUSIONS 12. For the foregoing reasons, we conclude that the Licensing Division correctly determined that The Applicants had received public notice of the denials of their petitions for reconsideration, and failed to file an Application for Review within the requisite 30-day time period. Accordingly, we dismiss the instant Application for Review and affirm the decisions of the Bureau's Licensing Division. V. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that, pursuant to the authority of Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 303(r), and Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, the Application for Review filed by the above-captioned Applicants IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary j:\pspwd\ferndz\havnsafr.m12 (05/13/98; Rev. 09/04, 11/04, 11/09, 11/10/98, 2/25 & (OGC) 3/30/99) Adopted unanimously w/o edits 04/19/99 cc: PWD/Chron Subject File D. Terry H. Zeiler R. Melson J. Borkowski M. Shultz S. Linn K. Hosford J. Fern ndez