**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                  | * | WT Docket No. 02-57[^1]      |
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| Amendment of Section 1.937 of the | ) |                              |
| Commission's Rules Concerning     | * |                              |
| Repetitious or Conflicting        | * |                              |
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**REPORT AND ORDER**

**Adopted: April 9, 2003 Released: April 16, 2003**

By the Commission:

# introduction and executive summary

1.  In this *Report and Order*, we amend Section 1.937 of our Rules[^2]
    to prohibit the filing of any repetitious license application in the
    Wireless Radio Services within twelve months of the denial or
    dismissal with prejudice of a substantially similar application. We
    also streamline our rule barring repetitious applications by
    combining Sections 1.937(a)[^3] and (b).[^4] Our amendment of
    Section 1.937 will simplify and clarify our prohibition against
    repetitious applications. We believe that this action will promote
    the most efficient use of the Commission's resources by preventing
    the filing of such applications and barring applicants from
    initiating reexamination of such matters within a short time after
    our final decision thereon.

# BACKGROUND

2.  The Commission's Rules have long prevented the filing of repetitious
    license applications. Prior to 1998, the rules barring repetitious
    license applications were set forth in separate rule parts
    pertaining to each of the Wireless Radio Services.[^5] These rules
    generally prohibited the filing of a repetitious application within
    twelve months of the denial or dismissal with prejudice of a
    substantially similar application.[^6] In 1998, the Commission
    consolidated its licensing rules for all Wireless Radio
    Services,[^7] and enacted Section 1.937 to replace its prior
    service-specific rules on the filing of repetitious or conflicting
    applications.[^8] Section 1.937 provides,

> \(a\) Where the Commission has, for any reason, dismissed an
> application for a new station or for any modification of services or
> facilities with prejudice, or revoked the license for a radio station
> in the Wireless Radio Services, the Commission will not consider a
> like or new application involving service of the same kind to
> substantially the same area by substantially the same applicant, its
> successor or assignee, or on behalf of or for the benefit of the
> original parties in interest, until after the lapse of 12 months from
> the effective date of final Commission action.
>
> \(b\) If an applicant has been afforded an opportunity for a hearing
> with respect to an application for a new station or an enlargement of
> service area, and the Commission has, after hearing or default, denied
> the application or dismissed it with prejudice, the Commission will
> not consider a like application for service of the same type to the
> same area by that applicant, or by its successor or assignee, or on
> behalf of or for the benefit of the parties in interest to the
> original application, until after the lapse of 12 months from the
> effective date of final Commission action on the original application.
>
> \(c\) If an appeal has been taken from the action of the Commission
> denying a particular application, a like application for service of
> the same type to the same area, in whole or in part, filed by that
> applicant or by its successor or assignee, or on behalf or for the
> benefit of the parties in interest to the original application, will
> not be considered until the final disposition of such appeal.
>
> \(d\) While an application is pending, any subsequent inconsistent or
> conflicting application submitted by, on behalf of, or for the benefit
> of the same applicant, its successor or assignee will not be accepted
> for filing.[^9]

Section 1.937 and its antecedents were adopted to achieve sound
administrative process by barring applicants from immediately
re-litigating matters already decided.[^10]

3.  On March 20, 2002, the Commission released a *Notice of Proposed
    Rule Making* in which it proposed to amend Section 1.937 to clarify
    that the prohibition on repetitive applications applies to all types
    of license applications (*i.e.*, new applications and renewal
    applications), and applies equally to all dispositive actions,
    including dismissals with prejudice, denials, and revocations.[^11]
    Comments were filed by the American Mobile Telecommunications
    Association, Inc. (AMTA). AMTA supports the Commission's effort to
    simplify its rules, but cautions the Commission to do so carefully
    so as not to apply the sanction to applications dismissed without
    prejudice.[^12]

# discussion

4.  As currently written, Sections 1.937(a) and (b) detail specific
    applications that may not be repeated within twelve months of the
    denial or dismissal with prejudice of a substantially similar
    application. Specifically, applicants may not repeat applications
    for new stations, or for modification of services or facilities, or
    for licenses that have been revoked. Because they bar specific types
    of applications, these provisions could be interpreted as permitting
    the filing of other repetitious applications that are not specified
    in the rule. For example, although the Commission generally does not
    distinguish between applications for new service and applications
    for renewal,[^13] Section 1.937 does not specifically bar
    repetitious renewal applications. As a result, in at least one
    instance, a licensee has filed a repetitious application for the
    same service less than twelve months after the denial of his renewal
    application.[^14] Such cases can consume significant resources to
    re-litigate identical issues involving the same applicants very
    close in time.

5.  In drafting Section 1.937, the Commission did not intend to permit
    repetitious renewal applications, or any other type of repetitious
    application. In fact, the Commission has previously held that
    dismissal of a renewal application is tantamount to denial or
    dismissal of a new application, thereby triggering the bar against
    repetitious applications.[^15] The Commission reasoned that the
    rule's goal\--the attainment of sound administrative process by
    preventing the relitigation of decided matters\--would be easily
    circumvented if applicants were free to refile for the same relief
    immediately after being denied such relief.[^16] Further, the
    Commission opined "that the same salutary principal\--conducive to
    orderly administrative procedure\--should apply equally in the case
    where an application for a renewal of license has been denied after
    a full hearing."[^17]

6.  The Commission, in the *NPRM*, saw no reason to treat applications
    repeating renewal applications differently from and more favorably
    than applications repeating applications for new service, and the
    record does not present any such reason.[^18] Indeed, we believe
    that all applications in the Wireless Radio Services should be
    subject to the same limitations. We also conclude that relitigating
    recently decided matters does not constitute an efficient use of
    Commission resources, and diverts attention from important matters
    needing resolution. Therefore, we hereby amend Section 1.937 to
    prohibit any repetitious application in the Wireless Radio Services
    within twelve months of the denial or dismissal with prejudice of a
    substantially similar application.[^19] The language of the new
    subsection (a) is hereby amended to reflect its applicability to all
    types of license applications, and applies equally to all actions
    including dismissals with prejudice, denials and revocations.
    Likewise, subsection (c) will be amended to include dismissed with
    prejudice applications. Finally, we believe that the rule as
    proposed to be modified sufficiently distinguishes applications
    dismissed without prejudice from those either dismissed with
    prejudice or denied, thus addressing AMTA's concern. We therefore
    conclude, for the above stated reasons, that it is in the public
    interest to modify Section 1.973 of the Commission's Rules as set
    forth in the Appendix to this *Report and Order.*

7.  We also believe that Sections 1.937(a) and (b) can be streamlined
    into a single, simplified paragraph. Both sections generally
    prohibit repetitious applications. Both forbid repetitious
    applications upon the dismissal with prejudice of a substantially
    similar application. Furthermore, although hearings are only
    mentioned in Section 1.937(b), both sections are applicable to
    denials after the applicant has been afforded an opportunity for a
    hearing, because Section 1.937(a) covers license revocations, which
    are only possible after an opportunity for a hearing.[^20] Thus, we
    conclude that Sections (a) and (b) are sufficiently similar to
    combine into a single paragraph.

    **IV. CONCLUSION**

8.  As there is no opposition to the proposed rule changes to Section
    1.937, and the proposed changes will clarify the Commission's
    prohibition against filing repetitious applications within twelve
    months of the denial or dismissal with prejudice of a substantially
    similar application, we find the proposed amendments to be in
    furtherance of the public interest. We also find it significant that
    such rule change will streamline the Commission's Rules.
    Accordingly, we hereby adopt the changes as reflected in the
    Appendix to this *Report and Order*.

## V. PROCEDURAL MATTERS {#v.-procedural-matters .unnumbered}

## A. Regulatory Flexibility Act {#a.-regulatory-flexibility-act .unnumbered}

9.  The Commission, pursuant to 5 U.S.C. § 605(b) certifies that the
    rule will not have a significant economic impact on a substantial
    number of small entities.[^21] The purpose of this *Report and
    Order* is to prohibit the filing of applications for radio station
    licenses within twelve months of the denial of a substantially
    similar application. This change is made to promote the most
    efficient use of the Commission's resources by preventing the
    immediate filing of repetitious applications. We have analyzed the
    information submitted during the comment period and the proposed
    rule change does not impose any additional compliance burden on
    small entities regulated by the Commission. Accordingly, we certify,
    pursuant to Section 605(b) of the Regulatory Flexibility Act (RFA),
    that the rule change established in this *Report and Order* will not
    have a significant economic impact upon a substantial number of
    small entities, as that term is defined by the RFA. The
    Commission\'s Office of Public Affairs, Reference Operations
    Division, shall send a copy of this *Report and Order*, including
    this certification, to the Chief Counsel for Advocacy of the Small
    Business Administration in accordance with the RFA. We shall also
    publish a copy of this certification in the Federal Register.

    **B. Paperwork Reduction Act**

10. This *Report and Order* does not contain either a proposed or
    modified information collection.

    **C. Ordering Clauses**

11. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 403 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 403, this *Report and Order* IS HEREBY ADOPTED.

12. IT IS FURTHER ORDERED that the rules set forth in the Appendix WILL
    BECOME EFFECTIVE 30 DAYS after publication in the Federal Register.

13. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this *Report and Order* including the Regulatory
    Flexibility Certification, to the Chief Counsel for Advocacy of the
    Small Business Administration.

    **D. Further Information**

14. For further information concerning the rulemaking proceeding contact
    Peter Waltonen, Esq., at (202) 418-0097 or TTY (202) 418-7233,
    <pwaltone@fcc.gov>, Wireless Telecommunications Bureau, Public
    Safety and Private Wireless Division.

15. Alternative formats (computer diskette, large print, audiocassette
    and Braille) are available to persons with disabilities by
    contacting Jenifer Simpson at (202) 418-0008, TTY (202) 418-2555.
    This *Report and Order* can also be downloaded at:
    http://wireless.fcc.gov/releases.html#orders.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

**APPENDIX**

**FINAL RULE**

Chapter I of Title 47 of the Code of Federal Regulations, Part 1, is
amended as follows:

1\. The authority citation for Part 1 continues to read as follows:

Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and
325(e).

2\. Section 1.937 is amended by removing and reserving paragraph (b) and
revising paragraphs (a) and (c) to read as follows:

**§ 1.937 Repetitious or conflicting applications.**

\(a\) Where the Commission has, for any reason, dismissed with prejudice
or denied any license application in the Wireless Radio Services, or
revoked any such license, the Commission will not consider a like or new
application involving service of the same kind to substantially the same
area by substantially the same applicant, its successor or assignee, or
on behalf of or for the benefit of the original parties in interest,
until after the lapse of 12 months from the effective date of final
Commission action.

\(b\) \[Reserved.\]

\(c\) If an appeal has been taken from the action of the Commission
dismissing with prejudice or denying any application in the Wireless
Radio Services, or if the application is subsequently designated for
hearing, a like application for service of the same type to the same
area, in whole or in part, filed by that applicant or by its successor
or assignee, or on behalf or for the benefit of the parties in interest
to the original application, will not be considered until the final
disposition of such appeal.

\* \* \* \* \*

[^1]: The *Notice of Proposed Rule Making* in this proceeding
    erroneously listed the docket number as WT Docket No. 02-87. This
    was subsequently corrected by an *Erratum.* *See* Amendment of
    Section 1.937 of the Commission's Rules Concerning Repetitious or
    Conflicting Applications, *Erratum*, WT Docket No. 02-57, DA 02-3590
    (WTB PSPWD rel. Dec. 27, 2002).

[^2]: 47 C.F.R. § 1.937.

[^3]: 47 C.F.R. § 1.937(a). The current language of Section 1.937(a) is
    set forth in paragraph 2, *infra.*

[^4]: 47 C.F.R. § 1.937(b). The current language of Section 1.937(b) is
    set forth in paragraph 2, *infra.*

[^5]: *See, e.g.,* 47 C.F.R. § 1.916 (1998) (barring repetitious
    applications in the private radio services); 47 C.F.R. § 22.121
    (1998) (barring repetitious, inconsistent or conflicting
    applications in the public mobile services); 47 C.F.R. § 24.421
    (1998) (barring inconsistent or conflicting applications in the
    personal communications services); 47 C.F.R. § 26.312 (1998)
    (barring inconsistent or conflicting applications in the general
    wireless communications services); 47 C.F.R. § 101.27 (1998)
    (barring repetitious applications in the fixed microwave services).

[^6]: *See, e.g.,* 47 C.F.R. §§ 1.916, 101.27 (1998).

[^7]: *See* Biennial Regulatory Review - Amendment of Parts 0, 1, 13,
    22, 24, 26, 27, 80, 87, 90, 95, 97 and 101 of the Commission\'s
    Rules to Facilitate the Development and Use of the Universal
    Licensing System in the Wireless Telecommunications Services,
    *Report and Order*, WT Docket No. 98-20, 13 FCC Rcd 21027 (1998).

[^8]: *See* 47 C.F.R. § 1.937.

[^9]: *Id.*

[^10]: *See* Salter Broadcasting, *Memorandum Opinion and Order*, 6 FCC
    2d 809, 814 ¶ 10 (1967) (*Salter*).

[^11]: Amendment of Section 1.937 of the Commission's Rules Concerning
    Repetitious or Conflicting Applications, *Notice of Proposed Rule
    Making*, 17 FCC Rcd 5628, 5630 ¶ 5 (2002) (*NPRM*).

[^12]: AMTA Comments at 2.

[^13]: *NPRM*, 17 FCC Rcd at 5629 ¶ 3 (citing *Salter*, 6 FCC 2d at 814
    ¶ 10).

[^14]: *NPRM*, 17 FCC Rcd at 5630 ¶ 3.

[^15]: *See* *Salter,* 6 FCC 2d at 814 ¶ 10.

[^16]: *Id.*

[^17]: Lorain Community Broadcasting Co., *Memorandum Opinion and
    Order*, 5 FCC 2d 55, 57 ¶ 6 (1966).

[^18]: *NPRM*, 17 FCC Rcd at 5630 ¶ 5.

[^19]: We do not expand the language of Section 1.937 to prohibit
    applications repeating renewal applications that were dismissed
    without prejudice, as this would bar a licensee whose renewal
    application was dismissed as late-filed, *see* 47 C.F.R. § 1.949(a),
    from seeking a new license to replace the expired license.

[^20]: *See* 47 C.F.R. §§ 1.91, 1.92.

[^21]: 5 U.S.C. § 605(b).