Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File No. 00-IH-0283          |
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| **CITICASTERS LICENSES, INC.**   | ** | NAL/Acct. No.                |
|                                  |    | 200132080019/MG              |
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|                                  | *) | FRN 0003-0174-23             |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** January 18, 2002 **Released:** January 28, 2002

By the Commission:

**INTRODUCTION**

1.  In this *Memorandum Opinion and Order* we deny Citicasters Licenses,
    Inc.'s[^1] ("Citicasters") petition for reconsideration of our
    dismissal of its application for review of a *Forfeiture Order*
    issued by the Chief, Enforcement Bureau.[^2] Citicasters'
    application for review challenged for the first time the Bureau's
    imposition of a \$25,000 forfeiture based upon Citicasters'
    unauthorized assumption of control of WBTJ(FM), Hubbard, Ohio, in
    violation of section 310(d) of the Communications Act of 1934, as
    amended, ("Act") and section 73.3540 of the Commission's rules
    ("rules").[^3] We dismissed Citicasters' application for review
    pursuant to section 1.115(a) of the rules because Citicasters did
    not demonstrate good cause for its failure to participate in the
    forfeiture proceeding prior to the filing of its application for
    review. Citicasters contends, on reconsideration, that it was not
    required to make a good cause showing, and thus that our dismissal
    of its application for review on procedural grounds was erroneous.
    For the reasons set forth below, we deny Citicasters' request for
    reconsideration.

2.  Citicasters argues that, as the target of the forfeiture proceeding,
    it is a party to the forfeiture proceeding, and thus is exempt from
    the good cause showing required by section 1.115(a). Citicasters
    claims that the Commission has specifically limited the good cause
    requirement of section 1.115(a) to non-parties that participate in a
    proceeding for the first time by filing an application for review of
    a decision made under delegated authority. We disagree.

    **DISCUSSION**

3.  As a preliminary matter, we note that the good cause requirement of
    section 1.115(a) applies on its face to all "persons," not just
    non-parties. The precedent cited[^4] does not support Citicasters'
    assertion that a party is exempt from the good cause requirements of
    section 1.115(a), despite the plain language of the rule. The cited
    cases all involve a non-party that sought review of an action taken
    by the delegated authority without participating earlier. Thus, this
    precedent does not specifically address the applicability of
    1.115(a) when a party fails to contest the delegated authority's
    decision prior to filing an application for review. Nor do these
    cases rule that parties are not subject to the good cause
    requirements of section 1.115(a).

4.  Citicasters also cites the language of the Commission's rule for
    dealing with petitions for reconsideration, section 1.106(b)(1),
    which requires a non-party to show good cause if it fails to
    participate prior to requesting reconsideration of the delegated
    authority's action. Section 1.106(b)(1) imposes no similar
    requirement on a party. Citicasters argues that the Commission has
    found the good cause requirement of section 1.115(a) to be "similar"
    to the good cause requirement of section 1.106, and thus that the
    good cause requirement of both rules is applicable only to
    non-parties.[^5] However, the plain language of the two rule
    sections differs -- section 1.115(a) applies to all "persons" while
    section 1.106(b)(1) applies only to non-parties. The cases cited by
    Citicasters do not address this, or specifically rule on the issue
    of whether a party is exempt from the good cause requirement of
    section 1.115(a) despite the language of the rule.[^6]

5.  Alternatively, Citicasters argues that it did previously participate
    in the proceeding. In this regard, Citicasters states that it
    responded to the Bureau's letter of inquiry and that the Bureau
    addressed this response in the *Notice of Apparent Liability*
    ("*NAL*") proposing a forfeiture based on its apparent violation of
    the statute and the Commission's rules. However, a forfeiture
    proceeding commences when a notice of apparent liability is issued,
    giving the person against whom the notice has been issued the
    opportunity to show, in writing, why no such forfeiture penalty
    should be imposed.[^7] Citicasters did not respond to the Bureau's
    *NAL*. Thus, we disagree with Citicasters' argument.

    **CONCLUSION**

6.  For reasons that are unclear, Citicasters did not respond to the
    Bureau's *NAL*. Instead, it responded in the first instance to the
    Commission in an application for review of the Bureau's default
    forfeiture order. This is not the way the Commission's rules work.
    The target of a Bureau *NAL* is supposed to give the Bureau the
    opportunity to address its arguments before raising them with the
    Commission.[^8] Citicasters did not do so. Accordingly, we affirm
    our prior dismissal of the application for review.

    **ORDERING CLAUSES**

7.  ACCORDINGLY, IT IS ORDERED That, Citicasters' Motion for Leave to
    File a supplement to its application for review IS HEREBY DENIED and
    the Supplement to Application for Review filed October 29, 2001 IS
    HEREBY DISMISSED.

8.  IT IS FURTHER ORDERED That, pursuant to section 1.106 of the rules,
    47 C.F.R. § 1.106, Citicasters Licenses, Inc.'s Petition for
    Reconsideration of the dismissal of its application for review of
    the Forfeiture Order for NAL No. 200132080019/MG IS HEREBY DENIED.

9.  IT IS FURTHER ORDERED That the Opposition to Citicasters' petition
    for reconsideration, filed September 6, 2001 by Stop 26-Riverbend,
    Inc., IS HEREBY DISMISSED, and Citicasters' reply to this opposition
    IS DISMISSED AS MOOT.

10. Payment of the forfeiture shall be made in the manner provided for
    in section 1.80 of the Commission's rules[^9] within 30 days of the
    date of the release of this *Memorandum Opinion and Order*. If the
    forfeiture is not paid within the period specified, the case may be
    referred to the Department of Justice for collection pursuant to
    section 504(a) of the Act.[^10] Payment may be made by mailing a
    check or similar instrument, payable to the order of the Federal
    Communications Commission, to the Forfeiture Collection Section,
    Finance Branch, Federal Communications Commission, P.O. Box 73482,
    Chicago, Illinois 60673-7482. The payment must include the FRN and
    the NAL/Acct. No. referenced above. Requests for full payment under
    an installment plan should be sent to: Chief, Revenue and
    Receivables Operations Group, 445 12th Street, S.W., Washington,
    D.C. 20554.[^11]

11. IT IS FURTHER ORDERED That a copy of this Memorandum Opinion and
    Order shall be sent by Certified Mail Return Receipt Requested to
    Citicasters Licenses, Inc., 50 E. RiverCenter Blvd., 12^th^ Floor,
    Covington, KY 41011 and to Citicasters' counsel, Marissa G. Repp,
    Esq., Hogan & Hartson, L.L.P., 555 13^th^ Street, N.W., Washington,
    DC 20004-1109.

    FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

> Secretary

[^1]: Formerly named Citicasters Co.

[^2]: *Citicasters Co.*, 16 FCC Rcd 14137 (2001). *See also, Citicasters
    Co.,* 16 FCC Rcd 7582 (EB 2001)(*Forfeiture Order)*; 16 FCC Rcd 3415
    (EB 2001)(*Notice of Apparent Liability).* On October 29, 2001,
    Citicasters filed a motion for leave to file a supplement to its
    application for review. Citicasters' supplement is untimely because
    it was filed outside the time period established in section 1.115 of
    the rules and well after our decision dismissing its application for
    review. 47 C.F.R. § 1.115(c). Citicasters argues that acceptance of
    the supplement will not result in administrative inconvenience or
    delay because its application for review was dismissed rather than
    considered on the merits. However, Citicasters' supplement also
    raises arguments that the Bureau did not have the opportunity to
    consider and address, in violation of section 1.115(c). Citicasters
    addresses this procedural deficiency by arguing that the Commission
    can return this matter to the Bureau to be treated as a petition for
    reconsideration. We decline to do so and will deny Citicasters'
    motion and dismiss the supplement. *See, e.g., BDPCS, Inc.*, 15 FCC
    Rcd 17590, 17596-97 (2000)(supplements to application for review
    that are not filed within 30 days of public notice of the
    Commission's action on delegated authority and which raise matters
    on which the delegated authority has not had an opportunity to
    consider are procedurally deficient and warrant dismissal on their
    face); *Greater Media Radio Company, Inc.,* 15 FCC Rcd 7090, 7102
    (1999)(dismissing a supplement to an application for review that
    advances new legal arguments on which the Mass Media Bureau did not
    have an opportunity to pass, in violation of section 1.115(c)).

[^3]: 47 U.S.C. § 310(d); 47 C.F.R. § 73.3540. In addition, we note that
    the call sign of WBTJ(FM) has been changed to WRBP(FM). The licensee
    of the station, Stop 26-Riverbend, Inc. filed an opposition to
    Citicasters' petition for reconsideration. Stop 26-Riverbend, Inc.
    was not a party to the forfeiture proceeding, and its opposition
    will be dismissed.

[^4]: *Family Stations, Inc.*, 12 FCC Rcd 11779 (1997); *Local Exchange
    Carrier Line Information Database,* 8 FCC Rcd 2957 (1993);
    *Indianapolis Telephone Company,* 2 FCC Rcd 2893 (1987); *Pan
    American Satellite Corporation,* 60 RR 2d 398 (1986); *Wayne State
    University*, 53 FCC Rcd 697 (1975).

[^5]: Citicasters cites *Wayne State University, supra*, which addresses
    a pleading filed with the Commission styled as both an application
    for review or a petition for reconsideration. The pleading was filed
    by a non-party that had not presented its arguments to the delegated
    authority. The decision states that both 1.115 and 1.106 require
    non-parties to demonstrate good cause if the non-party did not
    participate earlier. Citicasters also cites *Heritage Cablevision
    Associates of Dallas, L.P.,* 7 FCC Rcd 4192 (1992), which notes that
    both 1.115(a) and 1.106(b)(1) have similar good cause requirements
    for non-parties.

[^6]: Section 1.106(b)(1) provides:

    (b)(1) Subject to the limitations set forth in paragraph (b)(2) of
    this section \[applicable to petitions for reconsideration of the
    Commission's denial of an application for review\], any party to the
    proceeding, or any other person whose interests are adversely
    affected by any action taken by the Commission or by the designated
    authority, may file a petition requesting reconsideration of the
    action taken. If the petition is filed by a person who is not a
    party to the proceeding, it shall state with particularity the
    manner in which the person's interests are adversely affected by the
    action taken and shall show good reason why it was not possible for
    him to participate in the earlier stages of the proceeding.

    Section 1.115(a) provides:

    \(a\) Any person aggrieved by any action taken pursuant to delegated
    authority may file an application requesting review of that action
    by the Commission. Any person filing an application for review who
    has not previously participated in the proceeding shall include with
    his application a statement describing with particularity the manner
    in which he is aggrieved by the action taken and showing good reason
    why it was not possible for him to participate in the earlier stages
    of the proceeding. Any application for review which fails to make an
    adequate showing in this respect will be dismissed.

[^7]: 47 U.S.C. §503(b); 47 C.F.R. § 1.80(e)(providing that a forfeiture
    proceeding may be initiated either by issuing a notice of apparent
    liability or a notice of opportunity for hearing). *See generally
    WXTV License Partnership, G.P.*, 15 FCC Rcd 3308, 3317 ¶25 (2000)
    and *Cable Vision Systems Corporation,* 15 FCC Rcd
    3269(2000)(*Notice of Apparent Liability)* (Commission issues (1) a
    decision in a complaint proceeding and (2) a *Notice of Apparent
    Liability* growing out of the complaint as separate matters on the
    same day). Additionally, Citicasters argues that it participated in
    the forfeiture proceeding by responding to a letter filed by Stop
    26-Riverbend, Inc., the licensee of WBTJ(FM), prior to the
    expiration of the 30 day period following issuance of the *NAL*.
    That letter opposed Stop 26-Riverbend, Inc.'s request for a cease
    and desist order as an additional enforcement step. It did not,
    however, respond to the *NAL*.

[^8]: In this regard, as noted in our prior order, some of Citicasters'
    arguments in the Application for Review were different than those
    contained in its response to the inquiry letter arising from the
    complaint, in violation of section 1.115(c) of the rules. *See also*
    note 1, *supra*.

[^9]: 47 C.F.R. § 1.80.

[^10]: 47 U.S. C. § 504(a).

[^11]: *See* 47 C.F.R. § 1.1914.