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If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) SUNJET CAR SERVICE, INC. ) File No. EB-00- TS-016 Station WPKU901 ) Brooklyn, New York ) NAL/Acct. No. 015NY0001 MEMORANDUM OPINION AND ORDER Adopted: June 27, 2000 Released: June 28, 2000 By the Chief, Enforcement Bureau: 1. In this Memorandum Opinion and Order (``Order''), we deny a Motion for Leave to File Petition for Reconsideration (''Motion'') of the Forfeiture Order1 issued on March 29, 2000, for the above-referenced NAL and dismiss the appended Petition for Reconsideration (``Petition''). In the Forfeiture Order we issued a monetary forfeiture in the amount of seven thousand dollars ($7,000) against Sunjet Car Service, Inc. (``Sunjet'') for willful violation of Sections 1.903, 90.135, and 90.425(a) of the Commission's Rules (``Rules'').2 2. According to Sunjet, the post office did not deliver the certified mail copy of the Forfeiture Order to Sunjet's attorney, Robert S. Hammer, until April 17, 2000. Sunjet further asserts that Mr. Hammer was away from the United States on vacation from the evening of April 17, 2000, until May 5, 2000, and that, during his absence, no one else was available to respond to the Forfeiture Order because Mr. Hammer is a sole practitioner. 3. Section 405 of the Communications Act of 1934, as amended (``the Act'') 3 requires a petition for reconsideration to be filed within 30 days of the date from which public notice of the action is given. In this particular case, public notice of the action was given on March 29, 2000, the date the Forfeiture Order was released. Therefore, a petition for reconsideration of the Forfeiture Order had to be filed with the Commission by May 1, 2000 (the first business day following the expiration of 30 days), in order to be considered timely. Sunjet's Motion and Petition were not filed until May 17, 2000 - 16 days after the Petition was due and 12 days after Mr. Hammer returned from vacation. 4. Because the time period for filing petitions for reconsideration is prescribed by statute, the Commission may not, with one narrow exception, waive or extend the filing period. The narrow exception to the statutory filing period allows the Commission to extend or waive the 30-day filing period only in "extraordinary circumstances," such as where the late-filing is due to the Commission's failure to give a party timely notice of the action for which reconsideration is sought. See Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976). In such circumstances, the petitioner must demonstrate that the delay in filing is attributable to Commission error in giving notice and that it acted promptly upon discovering the adoption of the Commission's decision. See Richardson Independent School District, 5 FCC Rcd 3135, 3136 (1990) and Stephen E. Powell, 11 FCC Rcd 11925 (1996). 5. Sunjet has not demonstrated that its delay in filing is attributable to Commission error in giving notice. The Bureau sent copies of its Forfeiture Order to Sunjet and its counsel by Certified Mail/Return Receipt Requested on March 31, 2000. The return receipts from the post office indicate that delivery of the Forfeiture Order was received by Sunjet's counsel on April 17, 2000, and by Sunjet on April 20, 2000. While the reason for the time gap betweeen mailing and delivery of this correspondence is unknown, we conclude that it does not provide any justification for extending the time period for filing a petition for reconsideration. Sunjet itself had actual notice of the Forfeiture Order 11 days before the petition for reconsideration was due and apparently made no attempt to make a timely filing. Sunjet has not demonstrated that it acted promptly upon discovering the adoption of the Commission's decision. 6. Sunjet cannot rely on the fact that its counsel was out of town from April 17, 2000, until May 5, 2000. Counsel received notice of the Forfeiture Order before his departure, albeit the same day. Moreover, he did not file a response until 12 days after his return. We consider this delay in filing to demonstrate a lack of diligence, not ``extraordinary circumstances'' that warrant a waiver of the statutory filing period. 7. We must, therefore, dismiss Sunjet's Petition and deny its Motion. Accordingly, pursuant to Section 405 of the Act and Section 1.106 of the Rules,4 Sunjet's Motion for Leave to File Petition for Reconsideration IS DENIED and Sunjet's Petition for Reconsideration IS DISMISSED. 8. IT IS ORDERED that a copy of this Order shall be sent by certified mail, return receipt requested, to for Sunjet Car Service, Inc., 4913 Snyder Avenue, Brooklyn, New York 11203, and its counsel, Robert S. Hammer, Esq., 1164 East 21st Street, Brooklyn, New York 11210-3618. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 Notice of Forfeiture, NAL Acct. No. 015NY0001 (Enf. Bur., released March 29, 2000). 2 47 C.F.R. §§ 1.903, 90.135, and 90.425(a). 3 47 U.S.C. § 405. 4 47 C.F.R. § 1.106