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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 Application of ) ) Burlington Cablevision, Inc. ) File No. 50301-CM-R-96 ) For Renewal of License of WKR62 ) A Multipoint Distribution Service Station) at Burlington, Iowa ) ORDER ON RECONSIDERATION Adopted: January 21, 1998 Released: January 21, 1998 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it an Application for Review pursuant to 47 C.F.R.  1.115, filed by Burlington Cablevision, Inc. ("Burlington"), seeking review of a July 8, 1996 Letter Ruling ("ruling") from the Assistant Chief, Video Services Division, Mass Media Bureau. The ruling dismissed Burlington's application for renewal and petition for reinstatement and denied its request for waiver. For the reasons discussed below, we will treat the application for review as a petition for reconsideration and deny it. II. BACKGROUND 2. On March 18, 1987, the Commission approved the assignment of WKR62, a Multipoint Distribution Service ("MDS") channel 1 station at Burlington, Iowa, from Winegard Company to Burlington. On May 1, 1991, the authorization for WKR62 expired pursuant to its express terms and 47 C.F.R.  21.44. Subsequently, on October 31, 1995, Burlington filed an Application for Consent to Transfer of Control of Radio Station Construction Authorization or License. A Letter Ruling by the MDS Section, Video Services Division, Mass Media Bureau, on December 5, 1995, dismissed Burlington's transfer application since Commission records revealed that WKR62's license expired on May 1, 1991, and was automatically forfeited pursuant to 47 C.F.R.  21.44. The December 5, 1995 ruling also advised that Burlington could choose to file a late renewal application and petition for reinstatement pursuant to 47 C.F.R.  21.44(b); and request a waiver of the 30-day deadline. 3. On January 11, 1996, Burlington filed a late renewal application and a late petition for reinstatement of its forfeited license with a request for waiver of the 30-day deadline. Burlington argued that it was not represented by FCC counsel at the time it purchased the license. To justify a waiver, Burlington asserted that its counsel inquired about the status of the license on May 13, 1993, and was advised by Commission staff that a renewal application would not be due until 2001. Commission staff, in a letter dated March 7, 1996, requested further information concerning the renewal application. On April 12, 1996, petitioner filed a response. After a de novo review, a July 8, 1996 ruling from the Assistant Chief, Video Services Division, Mass Media Bureau, found that Burlington failed to justify a waiver of 47 C.F.R.  21.44(b) and dismissed its application for renewal and petition for reinstatement as untimely. 4. On August 7, 1996, Burlington filed an Application for Review of the Division's July 8, 1996 ruling. Burlington, in its Application for Review, reiterated its arguments from the petition for reinstatement and presented several new arguments. See infra  5. The Commission's rules provide: No application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass. NOTE: Subject to the requirements of  1.106, new questions of fact or law may be presented to the designated authority in a petition for reconsideration. 47 C.F.R.  1.115(c). The Commission has issued a series of cases dismissing applications for review due to the failure to comply with 47 C.F.R.  1.115(c). See, e.g., Philadelphia MDS Company, 8 FCC Rcd 3147 (1993) ("Philadelphia presented several questions of law and fact which the Division, as the delegated authority . . . has not been afforded an opportunity to consider. The proper procedure . . . would have been for Philadelphia to file a petition for reconsideration with the Division. Therefore, Philadelphia's application for review is dismissed as procedurally defective.") (footnotes and citations omitted); see also Sherry Rullman, 8 FCC Rcd 4012 (1993); Kevin Johnson, 9 FCC Rcd 2471 (1993). 5. Burlington, raises several new questions of law that were not previously presented to the Division. Specifically, petitioner for the first time argues that: (1) the Commission did not provide sufficient notice of the station license expiration; (2) the Commission should apply broadcasting renewal procedures to MDS licensees; (3) there is no public interest benefit to denying the reinstatement request; and (4) the Commission's recent waiver of the license renewal cycle for MDS auction winners supports petitioner's contention that its failure to file a timely renewal application lacks substantive significance. See infra  9, 13, 15, 17. Consequently, in light of the above new questions of law, Burlington's application for review could be dismissed by the Commission pursuant to 47 C.F.R  1.115(c). However, in the interests of equity and in order to fully develop the record, we will treat petitioner's application for review as the petition for reconsideration Burlington should have filed. III. DISCUSSION 6. Notice of MDS License Expiration Date. Part 21 rules provide that applications for renewal of an MDS station license must be filed between 30 and 60 days prior to the expiration of the license. See 47 C.F.R.  21.11(c). Section 21.45(a) states that MDS station licenses "will be issued for a period not to exceed 10 years." 47 C.F.R.  21.45(a). "Unless otherwise specified by the Commission" MDS station licenses, as a class, expire in the year of expiration on May 1 (i.e. the year which is ten years from the last expiration date of the class of MDS licenses). Id. In 1983, the Commission adopted the ten year term and extended then-current licenses, such as WKR62's, from five years to ten years. See Common Carrier and Satellite Licensing Procedures, 48 Fed. Reg. 27,251 (1983) (1983 Report and Order). When the ten year rule was enacted, the last previous date and year of expiration for MDS station licenses, including WKR62's, was May 1, 1981. In a 1987 Report and Order, the Commission set forth a list of dates at which licenses would expire so that there would be no confusion. The list explicitly stated that MDS station licenses expired on May 1, 1991. See In the Matter of Revision of Part 21 of The Commission's Rules, 2 FCC Rcd 5713, 5728 (1987) (1987 Report and Order). 7. If a timely application for renewal is not filed, the MDS station license is automatically forfeited on its expiration date. Section 21.44(a)(2) states that "A license shall be automatically forfeited in whole or in part without further notice to the licensee . . . ." 47 C.F.R.  21.44(a) (emphasis added). Petitions for reinstatement of a forfeited license will be considered only if the petition is filed within 30 days of the license expiration date, it adequately explains the failure to timely file the renewal application, and it specifies procedures which have been established to ensure timely filings in the future. 47 C.F.R.  21.44(b)(1)-(3). Petitions for reinstatement which do not meet the above criteria may request, pursuant to 47 C.F.R.  21.19, a waiver of 47 C.F.R.  21.44(b). 8. Burlington was required to file an application for renewal of WKR62's station license between March 2 and April 1, 1991. 47 C.F.R.  21.11(c). Petitioner failed to file a timely renewal application which resulted in the expiration and automatic forfeiture of its MDS license on May 1, 1991. 47 C.F.R.  21.44(a)(2), 21.45(a). Additionally, Burlington did not petition to have its license reinstated on or before May 31, 1991, which was within 30 days of WKR62's automatic forfeiture. 47 C.F.R.  21.44(b)(1). Burlington, instead, filed its renewal application and petition for reinstatement on January 11, 1996, over four and a half years after the required filing dates. 9. Petitioner, in an attempt to excuse its untimeliness, contends that sufficient notice was not provided to Burlington regarding the expiration date and procedures. Petitioner quotes Salzer v. FCC, 778 F.2d 869 (D.C. Cir. 1985) as holding the Commission to a "rigorous" standard of notice to support an action as drastic as revocation. In Salzer, the Commission dismissed several low power television ("LPTV") applications, under the applicable "complete and sufficient" standard, for failing to file the then newly required certifications and preference information. Id. at 871. The D.C. Circuit held that the Salzer applicants, who filed LPTV applications after the relevant Commission order, had adequate notice of what information had to be filed, but did not receive adequate notice of when and how the required information was to be submitted. Id. at 875. The court noted that the unavailability of the official form combined with the ambiguity of the pertinent order failed to properly inform the applicants with regard to the timing and form of the required submissions. Id. The court also observed that although the use of an "unofficial" supplementary form was suggested by the Commission, the vast majority of the applicants in question failed to file the unofficial form. Id. 10. We find that Burlington's reliance on Salzer is misplaced. As the D.C. Circuit opined in Malkan FM Associates v. FCC, 935 F.2d 1313, 1319 (D.C. Cir. 1991), "Salzer's full and explicit notice' phrasing, we think it critical, must be appraised in the context of the highly confusing situation that case presented." Id. (emphasis added). In contrast to the confusion in Salzer, the Commission through its regulations, orders, and information available in the Federal Register, provided adequate notice of when MDS licenses, including WKR62's, expired and the appropriate procedures to avoid automatic forfeiture. Four years before Burlington's acquisition of WKR62 was approved, the Commission announced in the 1983 Report and Order which was published in the Federal Register, the adoption of the ten year term for MDS station licenses and the extension of existing licenses to ten years. 48 Fed. Reg. 27,251, 27,252-53 (1983). The 1983 Report and Order amended Section 21.45(a) of the Commission's rules to include the new ten year station license period; all MDS licensees are charged with being familiar with Part 21 rules that are relevant to MDS. Almost four years prior to WKR62's expiration date, in the 1987 Report and Order, the Commission adopted a number of significant changes to Part 21, and set forth a list explicitly stating that MDS station licenses expired on May 1, 1991. 2 FCC Rcd at 5728. A summary of the 1987 Report and Order appeared in the Federal Register. See 52 Fed. Reg. 37,775 (1987). Moreover, contrary to petitioner's assertions that no indication of the expiration date existed on the license, WKR62's expiration date could be easily ascertained, pursuant to the 1983 Report and Order, by adding five years to its renewal license stated expiration date of May 1, 1986, which was granted in 1981. Therefore, we conclude that the Commission provided adequate notice of when the required renewal application was due. 11. In addition, we note, Burlington was subject to a more lenient filing standard, under Part 21 rules, than the LPTV applicants in Salzer were required to meet. Specifically, the Salzer applicants were subject to a letter perfect standard. See n.12, supra. Whereas, in MDS, an application is unacceptable for filing, pursuant to 47 C.F.R.  21.20(a), if it is deficient with respect to completeness of answers, informal showings, execution or other formal matters; or "does not substantially comply with the Commission rules, regulations, specific requests for additional information, or other requirements." 47 C.F.R.  21.20(a)(1)-(2) (emphasis added). See also Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 571 (Dom. Fac. Div. 1994) ("While Hopkins argues that the Commission has adopted a letter perfect' standard for determining the acceptability of an application for filing, Section 21.902 clearly outlines the demonstration required to be filed by an MMDS applicant . . . . This requirement is not inconsistent with or a contradiction of the substantial compliance' standard."). Since Burlington filed a renewal application over four and a half years after its renewal was due, we do not find that petitioner substantially complied with Commission rules. 12. It is well established that any applicant who "either ignores or fails to understand clear and valid rules of the Commission respecting the requirements for an application assumes the risk that the application will not be acceptable for filing." Ranger v. FCC, 294 F.2d 240, 242 (D.C. Cir. 1961). As discussed, supra at  6, 10, the Commission provided adequate notice of when Burlington's license for WKR62 expired and how to timely file for renewal of the license. See Florida Cellular Mobil Communications Corporation v. FCC, 28 F.3d 191, 198 (D.C. Cir. 1994), cert. denied, 514 U.S. 1016 (1995), ("The Commission's rules and orders put the applicants on notice that their applications would be subject to dismissal for failure to comply with the FCC . . . rules."). Thus, we conclude that it was Burlington's responsibility to file the renewal application in compliance with the Commission's rules. 13. We also reject, as inapplicable, petitioner's assertion that we should apply Commission rules and procedures for other Mass Media services, such as radio and television, to MDS. Broadcast station licenses, unlike MDS stations which as a class have a common expiration date, expire on different dates and years depending upon the type of station and its geographical location. See 47 C.F.R.  73.1020. Broadcast station licensees, pursuant to the Commission's rules, are required to file several months prior to the license expiration date; submit a variety of information to ensure consideration of the renewal application; and, when granted, are awarded shorter license periods than MDS licensees. See 47 C.F.R.  73.1020(a), 73.3539(a)-(b). Hence, MDS renewal applicants are not similarly situated to broadcast renewal applicants. In the 1987 Report and Order, at 5723, the Commission stated that "different treatment for different services has always existed in our rules . . . ." Here at bar, the different renewal procedures are justified. Cf. Salzer, 778. F.2d at 876 n.27 ("These applicants were not similarly situated, and the FCC provided a rational explanation for their disparate treatment."). 14. Waiver Request. Burlington maintains that the Commission should grant a waiver of the 30-day reinstatement petition filing deadline specified in 47 C.F.R.  21.44(b). The Commission's rules require that a request for waiver contain a statement of reasons sufficient to justify a waiver. 47 C.F.R.  21.19. A waiver will only be granted upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. 47 C.F.R.  21.19. Burlington has made neither of the above-referenced showings. Citing Cheyenne Corporation, 8 FCC Rcd 7049 (Dom. Fac. Div. 1993), petitioner asserts that the Commission has broad discretion to grant Burlington's requested waiver. In Cheyenne, however, petitioner's request for waiver of 47 C.F.R.  21.44(b) was denied because the petitioner did not present a sufficient showing under 47 C.F.R.  21.19 to justify a waiver. 8 FCC Rcd at 7049. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver of a rule, it must plead with particularity the facts and circumstances which warrant such action.'" WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)). 15. Petitioner contends that no public interest is served if WKR62's license is not reinstated. Burlington, citing Superior Broadcasting Corporation, 7 FCC Rcd 7543 (Dom. Fac. Div. 1992), argues that application of 47 C.F.R.  21.44(b) would not serve the rule's purpose which is to ensure a date certain which other applicants can use to file for the forfeited station license. Here, petitioner notes, no other applicant is seeking a competing facility or opposed its petition for reinstatement. Moreover, Burlington maintains, since the Commission subsequently waived the license renewal cycle set forth in 47 C.F.R.  21.45 for auction winners, it would be arbitrary to revoke WKR62's license for failing to comply with the renewal regulations. See In the Matter of Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act - Competitive Bidding, 10 FCC Rcd 9589, 9657-58 (1995) (MDS Competitive Bidding Order). Furthermore, petitioner asserts, the absence of any public interest benefit is demonstrated by the fact that nothing of consequence happened as a result of its license expiration. 16. Burlington's arguments misconstrue the purposes of 47 C.F.R.  21.44(b). In Superior, the underlying purposes of 47 C.F.R.  21.44(b) were explained: First, a purpose of the rule is to ensure that parties will have a date certain after which they may file applications for an area covered by an expired license. Superior's late filing even of its reinstatement petition makes certainty impossible. Second, the rule ensures uninterrupted, authorized service to the public. 7 FCC Rcd at 7543. The Commission has a strong interest in preserving the clarity of when other applicants may permissibly file for expired stations. To grant Burlington's waiver request and reinstate its forfeited license, under the circumstances presented here, would frustrate the goal of providing a date certain upon which one may file an application for an area covered by an expired license and the goal of ensuring uninterrupted, authorized service to the public. As the D.C. Circuit ruled in 1969, the Commission neither "must or should tolerate evisceration of a rule by waivers." WAIT Radio, 418 F.2d at 1159. 17. We also reject petitioner's contention that inequity exists between auction winners and incumbent MDS stations concerning license terms and procedures. In 1995 when the auction winners were exempted from the license renewal cycle contained in 47 C.F.R.  21.45, the Commission noted that such licensees would receive a station license with only approximately five years since the next class expiration date is May 1, 2001. MDS Competitive Bidding Order at 9658. Therefore, in order to place auction winners in the same position as incumbent station holders, the Commission provided that auction winners would have a ten year license term which commenced from the closing date of the MDS auction. Id. 18. Petitioner, in describing the circumstances surrounding its late filing, contends that it was not represented by FCC counsel at the time it acquired WKR62 and it relied on the seller's counsel for suggestions regarding the license. In Salzer, the D.C. Circuit explicitly stated "we do not rely on the fortuity that appellants filed their applications without the assistance of counsel; the FCC need not take this circumstance into consideration." 778 F.2d at 875 n.27. Thus, regardless of petitioner's legal representation or lack of, as the licensee of WKR62 at the time the license expired, Burlington was solely responsible for ensuring compliance with the Commission's rules. 19. Burlington further asserts that it relied on erroneous advice provided to its counsel by Commission staff. Specifically, on May 13, 1993, petitioner contends its attorney inquired about its license status and was informed by Commission staff that WKR62's license would not expire until 2001. In Hinton Telephone Company, 10 FCC Rcd 11625, 11638 (1995), aff'd sub nom. Knollwood, Ltd. v. FCC, 84 F.3d 1452, 1996 WL 250370 (D.C. Cir., April 29, 1996) (per curiam), the Commission stated: [Petitioners] claim that they contacted Commission staff after the return of their applications to learn the deficiencies in their returned applications. As these alleged conversations with Commission staff took place after the applications were returned, there could not have been any detrimental reliance on Commission staff statements by the applicants when they submitted their applications. The alleged discussions thus are irrelevant to our analysis of the applications, which were unacceptable when submitted. Similarly, the alleged conversation between Burlington's attorney and Commission staff took place two years after petitioner's renewal application and petition for reinstatement were due. Hence, petitioner could not have suffered detrimental reliance as these statements, allegedly made in 1993, could not have possibly caused Burlington's failure, in 1991, to file a timely renewal or petition for reinstatement. Moreover, even if Commission staff had made such a statement prior to WKR62's expiration date, we have "specifically held that parties who rely on staff advice or interpretations do so at their own risk." Hinton, 10 FCC Rcd at 11637. The D.C. Circuit in Malkan, affirmed the Commission's decision to enforce our rules despite a prior erroneous staff interpretation of the rules made at an official seminar. 935 F.2d at 1319. The court noted "[i]n the real world of agency practice . . . slips of this kind are not rare and should not engender reliance." Id. With respect to Burlington, the Commission's regulations for filing applications for renewal and petitions for reinstatement are clear and it is expected that licensees will turn to these regulations for guidance. 47 C.F.R.  21.11(c), 21.44(b), 21.45(a). Burlington has not demonstrated that unique facts and circumstances existed to cause its late filings. Accordingly, we find that Burlington has failed to justify a waiver under 47 C.F.R.  21.19(a) or (b). IV. CONCLUSION 20. In view of all of the foregoing considerations, we affirm the staff's dismissal of Burlington Cablevision's renewal application for station WKR62, under consideration in this order. Reinstatement of the license renewal application is not warranted. 21. Accordingly, IT IS ORDERED, that the Application for Review filed by Burlington Cablevision, Inc. IS DENIED. 22. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send a copy of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau