Federal Register, Volume 81 Issue 166 (Friday, August 26, 2016)
[Federal Register Volume 81, Number 166 (Friday, August 26, 2016)]
[Rules and Regulations]
[Pages 58858-58859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20504]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 09-230; FCC 16-105]
Television Broadcasting Services; Seaford, Delaware
AGENCY: Federal Communications Commission.
ACTION: Final rule; application for review.
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SUMMARY: In this Memorandum Opinion and Order, the Commission denies
the application for review of the Media Bureau's dismissal of a
petition for reconsideration of decisions that allotted VHF television
channel 5 to Seaford, Delaware. The Media Bureau had dismissed the
petition for reconsideration challenging the Seaford allotment because
it was untimely filed and the Commission concludes that there is no
basis to waive the statutory deadline for the filing of petitions for
reconsideration.
DATES: August 26, 2016.
ADDRESSES: Federal Communications Commission, 445 12th Street SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Jeremy Miller, Media Bureau, (202)
418-1507, or by email at Jeremy.Miller@fcc.gov.
SUPPLEMENTARY INFORMATION: Pursuant to sections 331(a) and 307(b) of
the Communications Act, this is a synopsis of the Commission's
Memorandum Opinion and Order, MB Docket No. 09-230, adopted August 3,
2016, and released August 4, 2016. The full text of this document is
available for public inspection and copying during normal business
hours in the FCC's Reference Information Center at Portals II, CY-A257,
445 12th Street SW., Washington, DC 20554. This document will also be
available via ECFS (http://fjallfoss.fcc.gov/ecfs/). To request
materials in accessible formats for people with disabilities (braille,
large print, electronic files, audio format), send an email to
fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at
202-418-0530 (voice), 202-418-0432 (tty).
Synopsis of Memorandum Opinion and Order
The Commission has before it for consideration an Application for
Review filed by PMCM TV, LLC (``PMCM''), seeking review of three
decisions by the Video Division of the Media Bureau (the ``Division''):
(1) The Seaford Report and Order that allotted very high frequency
(``VHF'') television channel 5 to Seaford, Delaware; (2) the Seaford
MO&O on Reconsideration rejecting a petition for reconsideration of the
Seaford Report and Order and (3) the Seaford MO&O on Further
Reconsideration dismissing PMCM's petition for reconsideration of the
prior Seaford decisions as untimely. For the reasons set forth below,
we deny the AFR and affirm the Division's dismissal of the PMCM
Petition.\1\
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\1\ An Application for Review must establish that the actions of
the delegated authority: (i) Conflicted with statute, regulation,
case precedent or Commission policy; (ii) involved a question of law
or policy not previously resolved by the Commission; (iii) involved
precedent or policy that should be overturned or revised; (iv) made
an erroneous finding as to an important fact; or (v) made a
prejudicial procedural error.
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In ordering the Seaford allotment, the Commission concluded that
the outcome of PMCM's Reallocation Request was not relevant. PMCM did
not seek reconsideration of that finding until nearly three years later
when, for the first time, it opposed the new Seaford allotment that it
had previously ``strongly'' supported. In hindsight, PMCM now argues
that the Commission should have postponed allocating a new channel to
Delaware while its efforts to reallocate channel 2 played out at the
Commission and in court, even though the pendency of that litigation
did not prevent PMCM from raising other concerns premised on a
favorable outcome regarding its Reallocation Request, and the Seaford
allotment is consistent with that request.\2\ In short, it appears that
PMCM simply changed its strategy as developments unfolded.
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\2\ PMCM now attempts to excuse its failure to object to the
Seaford allotment earlier on the grounds that it had no reason to
object to the proposal to place the allotment in Seaford, in
Southern Delaware, which lacked robust broadcast service, but its
interests changed when Western Pacific applied to change the
community of license to Dover. PMCM even sought to bid in the
auction for channel 5. As to its objection to an allotment in Dover,
WMDE's application for a change in community of license is the
proper proceeding for the airing of this grievance, and in fact,
PMCM has sought reconsideration of the Bureau's decision in that
proceeding.
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The staff was correct in determining that PMCM's Petition for
Reconsideration of the Seaford Report and Order was untimely. Section
405 of the Act provides that ``petitions for reconsideration must be
filed within thirty days from the date upon which public notice is
given of the action . . . complained of.'' Public notice of the Seaford
Report and Order was given on May 7, 2010. The Petition for
Reconsideration was filed on March 15, 2013, on the basis that
allotment of a new channel to Seaford was improper. PMCM's claim that
its Petition was timely because it was filed within 30 days after
issuance of the Seaford MO&O on Further Reconsideration is entirely
without merit. PMCM's Petition challenged the allocation adopted in the
Seaford Report and Order, not the Commission's rejection of BMC's
argument that the Commission should have placed the new allocation at
channel 2 or 3. As to its request for reconsideration of the Seaford
MO&O on Reconsideration, the Petition therefore was an impermissible
collateral challenge to the Seaford Report and Order. The deadline for
filing the Petition therefore was 30 days after public notice of the
Seaford Report and Order, not 30 days after public
[[Page 58859]]
notice of the Seaford MO&O on Reconsideration. Accordingly, PMCM filed
its Petition for Reconsideration approximately three years late.
The Commission can only accept late-filed petitions for
reconsideration if the petitioner shows that extraordinary
circumstances warrant overriding the statutory filing deadline. As the
D.C. Circuit has explained, ``[a]lthough section 405 does not
absolutely prohibit FCC consideration of untimely petitions for
reconsideration, we have discouraged the Commission from accepting such
petitions in the absence of extremely unusual circumstances.''
Consistent with the D.C. Circuit's decisions, the Commission in
applying that standard has focused on whether the Commission has failed
to adhere to its procedural rules for providing notice of its
decisions. PMCM has not even attempted to show that it has met this
standard, much less demonstrated that the extraordinary circumstances
required under this precedent are present here.
The assertion that the Court's decision in PMCM TV constituted
``changed circumstances'' warranting an extension of the deadline for
reconsideration of the Seaford Report and Order is also without merit.
This contention presumes incorrectly that a showing of ``changed
circumstances'' under section 1.429(b) warrants an extension of the
statutory deadline for the filing of petitions for reconsideration.
Thus, PMCM claims that ``[i]t is hornbook law that `changed
circumstances' provide an adequate legal basis for reconsideration''
and that the ``relevant test is whether the petitioner has raised the
changed circumstance at the first opportunity to do so.'' Rather than
supporting its theory that changed circumstances can support a request
for reconsideration filed after the applicable statutory deadline, the
single case PMCM cites, a 1979 Commission order, relates not to the
filing of petitions for reconsideration after the statutory deadline
but instead to the circumstances under which parties may seek
reconsideration of a Commission order denying an application for
review. Section 1.429(b)(1) sets forth the limited circumstances in
which new matter raised in a timely petition for reconsideration will
be considered. It does not and cannot supersede the statutorily
established deadline for the filing of petitions for reconsideration,
which is set forth in Section 405 of the Act and reflected in Section
1.429(d) of the Commission's rules.\3\
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\3\ There is no exception in section 1.429(d) for late-filed
petitions based on new information nor any other exception.
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For the foregoing reasons, PMCM's argument that the Petition was
timely filed because of its submission within 30 days of the release of
the Seaford MO&O on Further Reconsideration is without merit. We
therefore affirm the Bureau's dismissal of the Petition and deny the
AFR. In light of our denial of the AFR, the Motion to Dismiss and
associated pleadings are moot. We therefore dismiss these filings.
Accordingly, it is ordered That, pursuant to section 5(c)(5) of the
Communications Act of 1934, as amended, 47 U.S.C. 155(c)(5), and Sec.
1.115(g) of the Commission's rules, 47 CFR 1.115(g), the Application
for Review IS DENIED.
It is further ordered That, pursuant to section 4(i)-(j) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i)-(j), and Sec.
1.41 of the Commission's rules, 47 CFR 1.41, the Motion to Dismiss,
Request for Leave to File Motion to Dismiss, and Reply to Opposition to
Motion to Dismiss of Western Pacific Broadcast, LLC, and the Opposition
to Motion to Dismiss, Comments in Response to Reply to Opposition to
Motion to Dismiss, and Request for Leave to File Comments in Response
to Reply to Opposition to Motion to Dismiss of PMCM TV, LLC, ARE
DISMISSED as moot.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2016-20504 Filed 8-25-16; 8:45 am]
BILLING CODE 6712-01-P
