**DA 08-386** *In Reply Refer to:*

1800B3-KAW

Released: February 15, 2008

Jeffery M. Jennings

693 North 400 West

St. George, UT 84777

Re: K276DA, Cedar City, UT

Jeffery M. Jennings

Facility ID \# 40851

File No. BRFT-20050531AFW

BRFT-20070912ABR

Dear Mr. Jennings:

The staff has under consideration the referenced applications of Jeffery
M. Jennings (the "Licensee") for renewal of license for FM translator
Station K276DA, Cedar City, Utah. For the reasons set forth below, we
deem filed the renewal application filed on May 31, 2005 (the "Renewal
Application"), dismiss as moot the renewal application filed on
September 12, 2007, and assess the Licensee a 25 percent late-fee
penalty charge. Furthermore, we grant, contingent on the timely payment
of the requisite filing fee and penalty, the Renewal Application

*Background.* Section 73.3539(a) of the Commission's Rules (the "Rules")
requires that applications for renewal of license for broadcast stations
must be filed "not later than the first day of the fourth full calendar
month prior to the expiration date of the license sought to be
renewed."[^1] An application for renewal of K276DA's license should have
been filed by June 1, 2005. No such application was successfully filed,
and the Station's license expired on October 1, 2005. In fact, the
Licensee did not properly file a license renewal application for K276DA
until September 12, 2007. It also filed a request for special temporary
authorization ("STA") to continue station operation pending
consideration of this ostensibly untimely license renewal application on
September 19, 2007.[^2] The staff granted the STA Request on November
29, 2007.[^3]

In the STA Request, the Licensee explains that it originally filed the
license renewal application on May 31, 2005. However, the renewal
application appeared as "Ready" but had not been "Filed" in the
Commission's CDBS filing system, because the Licensee did not associate
the proper filing fee with the application.[^4] The Licensee states that
it then filed a second license renewal application -- with the
appropriate filing fee -- and the STA Request.

*Discussion.* We have reviewed the record in this case and the
Commission's data bases, and we find that the Licensee did in fact
tender a license renewal application for K276DA on May 31, 2005, but
failed to pay the requisite filing fee. Section 1.1116(b) of the
Rules[^5] sets forth the procedures for processing applications
submitted without required fees. Specifically, a filer is billed the fee
amount due plus a 25 percent penalty if the application is inadvertently
forwarded to Commission staff for substantive review and the discrepancy
is not discovered until after 30 calendar days from receipt of the
filing. Section 1.1116(b) antedates electronic application filing, when
fee processing and substantive review were performed by separate
Commission staff. Thus, under current electronic application filing
procedures, the January 2005 submission was never "forwarded to
Commission staff for substantive review." To the extent that Section
1.1116(b), both as written and as originally conceived, provides that
the Commission's recourse, once 30 days have elapsed from the date an
application is submitted with no fee, is to retroactively bill the
applicant and impose the 25 percent penalty,[^6] we will do so here.

*Conclusion/Actions.* In evaluating an application for license renewal,
the Commission's decision is governed by Section 309(k) of the Act.[^7]
That section provides that if, upon consideration of the application and
pleadings, we find that (1) the station has served the public interest,
convenience, and necessity; (2) there have been no serious violations of
the Act or the Rules; and (3) there have been no other violations which,
taken together, constitute a pattern of abuse, we are to grant the
renewal application.[^8] Apart from the filing irregularities discussed
above, we have no record of operational violations by Licensee. Further,
we find that FM translator Station K276DA served the public interest,
convenience, and necessity during the subject license term.

As discussed above, the \$150.00 fee required for a license renewal
application was not submitted with the May 31, 2005, application.
Accordingly, pursuant to Section 1.1116(b) of the Rules, Jeffery M.
Jennings will be assessed a penalty charge equal to 25 percent of the
filing fee. Therefore, Jeffery M. Jennings will be billed a total of
\$187.50 under separate cover.

Accordingly, pursuant to Section 309(k) of the Communications Act of
1934, as amended, IT IS ORDERED, that the license renewal application of
Jeffery M. Jennings for FM translator Station K276DA, Cedar City, Utah
filed on May 31, 2005, (File No. BRFT-20050531AFW) IS DEEMED FILED. IT
IS FURTHER ORDERED, that the license renewal application filed on
September 12, 2007 (File No. BRFT-20070912ABR) IS DISMISSED AS MOOT. IT
IS FURTHER ORDERED, that the May 31, 2005, license renewal application
IS GRANTED contingent on timely payment of the application fee and
assessed penalty charge and IS SUBJECT to rescission for failure to make
a timely payment.[^9]

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: 47 C.F.R. § 73.3539(a).

[^2]: *See* File No. BLSTA-20070919AAB (the "STA Request").

[^3]: *Letter to Mr. Jeffery M. Jennings.,* Ref. 1800B3 (Chief, Audio
    Division, Media Bureau, Nov. 29, 2007).

[^4]: ^?^ CDBS assigned this submission the number "20050531AFW." The
    filing fee for license renewal applications for commercial FM
    stations when the Renewal Application was filed was \$150.00. *See*
    47 C.F.R. § 1.1104 (2005).

[^5]: 47 C.F.R. § 1.1116(b).

[^6]: *See Establishment of a Fee Collection Program to Implement the
    Provisions of the Consolidated Omnibus Budget Reconciliation Act of
    1985*, Report and Order, 2 FCC Rcd 947, 957, *supplemental order*, 2
    FCC Rcd 1882 (1987), *recon. granted in part*, 3 FCC Rcd 5987
    (1988), *aff'd sub nom. Brown v. FCC*, 888 F.2d 898 (D.C. Cir. 1989)
    ("On further review, we believe that a clearer demarcation point is
    necessary to avoid industry confusion and uncertainty as to the
    consequences of an insufficient fee payment. Generally, when
    applications are received, tracking information is put into a data
    base. Although some bureaus and offices may enter data fast than
    others \[sic\], the process generally takes approximately 30 days.
    During this same 30 day period we will expect bureau and office
    staff to take a second review of the fee and enter identifying codes
    into the fee system. Thus, this timeframe allows the Commission to
    complete its initial review of fees and return unprocessable
    applications before authorizations are granted. Therefore, fee
    underpayments identified by Commission staff in 30 calendar days or
    less from the time of receipt of the application at the Commission
    or Treasury lockbox bank will result in dismissal of the application
    and its return to the applicant. . . . Underpayments identified
    after this time will result in a bill to the applicant that includes
    a penalty charge of 25 percent of the amount due."). *See also Leon
    F. Petterson*, Letter, 22 FCC Rcd 14021 (MB 2007) (after 30 days,
    recourse when application is submitted without appropriate filing
    fee is to bill the applicant retroactively for a 25% penalty).

[^7]: 47 U.S.C. § 309(k).

[^8]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read as
    described by Section 204(a) of the Telecommunications Act of 1996,
    Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation of
    Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^9]: *See* 47 C.F.R. § 1.1116(b) ("Any Commission action taken prior to
    timely payment of these charges is contingent and subject to
    rescission.")