November 20, 1995

Re: Redding, California: Petition for Reconsideration

I respectfully dissent from today's decision. From my examination of the record in this case, I conclude that Oregon exercised reasonable diligence in seeking to clarify conflicting application deadlines, and therefore that its application should have been accepted for filing.

This case is about whether an otherwise bona fide applicant received adequate notice of a filing deadline in circumstances where the Commission issued two conflicting public notices, specifying two different filing deadlines, and failed to clarify until after the first deadline passed that this was the "real" deadline. These actions misled Oregon and unfairly resulted in it not timely filing its application.

In response to the conflicting public notices, Oregon responsibly and diligently took reasonable steps to clarify which of the two deadlines announced by the Commission, January 10 or February 1, was correct. The information that Oregon received from the Commission, both official and unofficial, repeatedly and consistently indicated that February 1 was the deadline. Not until after January 10 had passed did the Commission clarify that it regarded January 10, and not February 1, as the correct date.

To recount the sequence of events is to demonstrate that Oregon exercised diligence:

• Oregon received a courtesy copy of a letter dated November 29, 1989, from the Mass Media Bureau to Foundation, the party who filed the original application for a noncommercial FM station in Redding, California. The letter stated that the Commission would withhold further action on Foundation's application for thirty days to permit filing of a corrective technical amendment.

• The Commission, in error, placed Foundation's application on two public notices. One was issued on December 6 and a second was issued on December 28, 1989. This mistake created two deadlines for filing competing applications, January 10 and February 1, 1990.

• On December 28, 1989, Foundation filed its technical amendment, and the second public notice was issued that same day. This second public notice was consistent with the November 29 letter withholding further Commission action pending receipt of a corrective amendment.

• Faced with the conflicting public notices, Oregon checked the filing deadline in the Commission's computer database, the Facility-Application Information Report (FAIR). FAIR, like the second public notice, showed that competing applications were due by February 1.

• Oregon states that between December 28, 1989, and January 5, 1990, it attempted several times to contact Commission staff, but received no authoritative response regarding the correct cut-off date.

• On January 2, 1990, Foundation filed a letter with the Commission requesting that its application be removed from the second public notice. Oregon stated that, although it already was a party to this proceeding and had received a copy of the Bureau letter of November 29, 1989, it did not receive a copy of Foundation's letter and had no notice of Foundation's request. Foundation does not claim to have served Oregon.

• When it was unable to obtain clarification, Oregon sought assistance from a Senatorial office on January 5, 1990. In a letter submitted for the record in this proceeding, Senator Packwood stated that the Commission informed his staff member that the correct filing deadline was February 1, and that his staff member conveyed this information to Oregon.

• January 10, the deadline created by the first public notice, passed uneventfully.

• On January 12, 1990, the Commission issued an erratum deleting Foundation's application from the second public notice. Although not explicitly addressed in the erratum, the effect was to decide -- after the fact -- that January 10 had been the filing deadline. Because the erratum was issued on January 12, it eliminated Oregon's opportunity to timely file its competing application on January 10.

• On January 15, 1990, the next business day after the erratum was issued, Oregon by letter notified the Commission of its intent to file a competing application and, if necessary, a waiver request. There was no response from the Commission.

• On January 29, 1990, Oregon filed its application and requested a waiver of the Commission's deadline.

• On June 21, 1990, the Mass Media Bureau denied the request for a waiver and returned Oregon's application. This action was later affirmed on review.

The Commission consistently has required strict adherence to its cut-off rules by applicants, and the courts have upheld the Commission's strict policies regarding filing deadlines. This policy is a reasonable means by which to balance the interests of initial applicants with the interests of competing applicants and the public, while maintaining administrative practicability and fairness. This was the Commission's goal when it adopted these strict procedural requirements, and I support our cut-off policies wholeheartedly.

While the Commission has correctly held that reliance on a single source of informal information does not necessarily justify waiver of an application deadline, both the Commission and the Court of Appeals have held that a waiver is appropriate if the applicant exercised reasonable diligence attempting to clarify a relevant ambiguity. We therefore have a duty to examine all of the circumstances in this case to determine whether Oregon exercised reasonable diligence to ascertain the correct deadline. Faced with the discrepancy between the deadlines established by the two public notices, Oregon made multiple attempts in a timely fashion to ascertain the correct filing deadline, as I have set out above.

The U.S. Court of Appeals for the D.C. Circuit has upheld Commission waiver of a filing deadline where circumstances justified the waiver. In Satellite Broadcasting Co. v. FCC, the Court held that, when the Commission failed to give clear notice of where to file applications, it was arbitrary and capricious to dismiss applications as untimely that were filed in the wrong location. Failing to give clear notice of where to file applications in that case created the same problem that failing to clarify the correct deadline, until after it had passed, caused in this case. In Florida Institute of Technology v. FCC, while the Court rejected arguments that it was reasonable to rely upon a second public notice that was issued in error, the public notice there at issue was released almost two years after the application deadline. Unlike the case before us, under those circumstances there could have been no confusion during the permissible filing period as to the correct deadline. Nevertheless, even under those circumstances, the Court explicitly acknowledged that the Commission would be arbitrary and capricious were it to reject applications based on a failure to comply with "an ambiguous cut- off provision, not clarified by FCC interpretations if the applicant made a reasonable effort to comply." The situation before us is such a case.

The Florida Institute court is not alone in stating that reasonable diligence is grounds for waiving a filing deadline where there has been legitimate confusion. The Commission itself has explicitly recognized that a waiver is appropriate if the applicant had "exercised reasonable diligence." Additional Commission precedent provides substantial support for a waiver if the cut-off notice was defective or if the petitioner exercised reasonable diligence. I am at a loss to explain what efforts would be sufficient if the persistent and varied efforts demonstrated by the petitioner before us do not meet the reasonable diligence standard articulated both in our own decisions and those of the Court of Appeals.

Finally, I disagree that Oregon's decision to file on January 29 was due to nothing more than "strictly business reasons." This conjecture is not supported by the record. Instead, the record demonstrates that Oregon continued to prepare its application for a January 10 filing throughout its attempts to clarify the deadline. It was not until the Commission's verbal and electronic confirmation of the February 1 deadline that Oregon decided that it was "prudent and reasonable to take advantage of the additional time afforded by the latter cut-off [date]." There is no evidence nor contention in the record that Oregon was not fully prepared to file its application by January 10 had the Commission provided a timely clarification of the applicable deadline.

Strict enforcement of our deadlines places all applicants on equal footing before the Commission, and is critical to fair and efficient operation. Even where mistakes are made by the applicant, the Commission must hold to its strict filing requirements. However, where the Commission itself has erred, and the applicant demonstrates that it exercised reasonable diligence by sincere and repeated efforts to clarify the resulting ambiguity, a waiver is justified. Such waivers are appropriate, and in the words of the U.S. Court of Appeals, act as a "safety valve procedure for consideration of an application for exemption based on special circumstances."

For these reasons, I dissent from the majority's decision.