**DA 08-1693**

*In Reply Refer To:*

1800B3-SS

Released: July 18, 2008

Matthew H. McCormick, Esq.

Fletcher, Heald & Hildreth, PLC

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

Stuart W. Nolan, Jr., Esq.

Wood, Maines & Nolan, PC

4121 Wilson Blvd., Suite 101

Arlington, VA 22203

In Re: Holy Family Oratory of

St. Philip Neri

Bedford, Michigan

Facility ID No. 172329

File No. BNPED-20071022AXL

**Emergency Petition to Rescind**

**Construction Permit**

Dear Counsel:

We have before us a June 23, 2008, Emergency Petition to Rescind
Construction Permit Grant ("Petition") filed by First Pentecostal Church
of God in Christ ("FPC"), seeking rescission of the staff's May 14,
2008, action granting Holy Family Oratory of St. Philip Neri's ("HFO")
captioned application (the "HFO Application") for a construction permit
for a new noncommercial education ("NCE") station at Bedford, Michigan
(the "Station"). Also before the staff are an Opposition to Emergency
Petition to Rescind Construction Permit ("Opposition") filed June 25,
2008, by HFO, and a Reply to Opposition to Emergency Petition to Rescind
Construction Permit Grant ("Reply") filed on June 26, 2008, by FPC.

We also have before us FPC's October 22, 2007, request for waiver of the
requirements that applications for new NCE stations filed during the
pertinent filing window be filed electronically and by 2:00 p.m. on
October 22, 2007 ("Waiver Request"). For the reasons set forth below, we
dismiss the Petition and deny the Waiver Request.

**Background.** By Public Notice,[^1] the Commission announced an
application filing window from October 12 to October 19, 2007, for both
new NCE stations and major changes to existing NCE stations. The Public
Notice barred all but electronic applications tendered for filing via
CDBS, the Commission's electronic database and filing system. On October
19, 2007, CDBS suffered an outage lasting from approximately 1:30 a.m.
until 8:00 a.m. Consequently, the Commission extended the filing
deadline until 2:00 p.m. on October 22, 2007.[^2] FPC states that,
through counsel, it attempted to submit an electronic application for a
construction permit for a new NCE station at Battle Creek, Michigan (the
"FPC Submission"), to CDBS at 1:56 p.m., in advance of the October 22,
2007, 2:00 p.m. deadline.[^3] FPC claims, however, that CDBS apparently
failed to properly process the submission.[^4] FPC states that later
that same day: (1) it immediately alerted the Media Bureau's Audio
Division; (2) it filed both the Waiver Request and a paper version of
the FPC Submission; and (3) it requested expedited action to remedy the
technical difficulty it encountered.[^5] Had the FPC Submission been
accepted for filing, FPC claims, there would have been a resulting
mutual exclusivity between the HFO Application and FPC Submission. On
January 11, 2008, the Media Bureau accepted the HFO Application.[^6] FPC
did not file a petition to deny or informal objection to the HFO
Application. On May 14, 2008, the staff granted the unopposed HFO
Application.[^7] FPC did not seek reconsideration of this action within
the 30-day period permitted under the Commission's Rules (the
"Rules").[^8]

In its Petition, FPC asserts that its October 22, 2007, filing continued
the pendency of the FPC Submission as well as a resultant mutual
exclusivity with the HFO Application.[^9] Therefore, FPC argues that the
staff's grant of the HFO Application is contrary to the comparative
procedures demanded by the U.S. Supreme Court in *Ashbacker Radio Corp.
v. FCC.*[^10] FPC urges the Commission, on its own motion, to rescind
the grant of the HFO Application.[^11]

In its Opposition, HFO argues that the Petition should be dismissed
because FPC has not shown good cause for failing to participate in the
HFO Application proceeding. It notes that FPC has failed to show that it
took any steps to safeguard its interests.[^12] For instance, the
Petition, HFO notes, makes no mention of any engineering study
commissioned by FPC that might have identified applications mutually
exclusive with its proposal.[^13] In addition, HFO asserts that the
Petition fails to indicate any reason why the Commission's public
notices did not alert FPC as to its obligation to file a petition to
deny or petition for reconsideration.[^14] Noting that the FPC Petition
was filed on June 23, 2008, HFO indicates that petitions for
reconsideration of the grant of the HFO Application "became untimely as
of 7 p.m. on June 18, 2008."[^15] Because FPC failed to timely file a
petition to deny the HFO Application, HFO asserts that absent any
allegations of good cause for failing to participate earlier in the
process, even a timely petition for reconsideration would not have been
acceptable in this case.[^16] HFO concludes that the Commission should
dismiss the Petition as an untimely petition for reconsideration.[^17]

In its Reply, FPC argues that the reconsideration process is irrelevant
in that FPC's *Ashbacker* rights attached when it submitted its
application and pleading on paper after CDBS failed to accept its
timely, electronically-filed application.[^18] Finally, FPC restates its
view that rescinding HFO's construction permit and restoring the *status
quo* is in the public interest.[^19]

**Discussion.** Initially, we note that neither the Communications Act
of 1934, as amended (the "Act"), nor Section 1.113(a) of the Rules
create a right for third parties to file petitions to rescind an
authorization. Rather, such filings are treated as petitions for
reconsideration when timely filed.[^20]

When treated as a petition for reconsideration, however, FPC's pleading
is untimely. Section 405 of the Act[^21] and Section 1.106(f) of the
Rules[^22] mandate that petitions for reconsideration must be filed no
later than 30 days after public notice of the action for which
reconsideration is sought. Public notice of the grant the HFO
Application was issued on May 19, 2008, yet FPC did not file its
Petition until 35 days after the public notice was released. The
Commission generally lacks the authority to extend or waive the
statutory 30-day filing period for petitions for reconsideration set
forth in Section 405 of the Act. Although the Commission may not refuse
to consider a late-filed petition for reconsideration if the petitioner
shows that its failure to file for reconsideration in a timely manner
resulted from "extraordinary circumstances,"[^23] no such showing has
been made here. Because the Petition was untimely, it is procedurally
defective and will be dismissed.

Even if we were to consider FPC's Petition on its merits, we would deny
it. FPC states that the staff's grant of the HFO Application violates
*Ashbacker.* FPC is incorrect. [^24] The *Ashbacker* decision holds that
"where two *bona fide* applications are mutually exclusive the grant of
one without a hearing to both deprives the loser of the opportunity \[to
a hearing\] which [Congress chose to give
him."[^25]](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1945113429&fn=_top&sv=Split&referenceposition=333&findtype=Y&tc=-1&ordoc=2013601214&db=780&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
The decision does not prevent the Commission from establishing
eligibility requirements, including filing deadlines. All potential
applicants had an equal opportunity during the filing window to file NCE
FM new station applications, and no party was deprived of the right to
consideration of a timely-filed application subject to the acceptability
criteria that we adopted.[^26] FPC had an opportunity to timely file its
application in the window. It did not do so, and as discussed in more
detail below, FPC did not present good cause why it could not do so.
Accordingly, the FPC Submission is not a "*bona fide* application" and,
accordingly, is not entitled to comparative consideration.

*Waiver Request*. A waiver is appropriate only if special circumstances
warrant a deviation from the general rule and such deviation will serve
the public interest.[^27] Moreover, when the Commission waives a filing
requirement rule, as with any rule, it must explain why the waiver would
not undermine the policy served by the rule.[^28]

The Commission announced the October filing window six months in
advance, affording applicants considerable time to prepare their
applications and supporting documents. Applicants were free to initiate
and complete applications during this six-month period. The filing
window was to remain open for seven days, from Friday, October 12, 2007
through 11:59 p.m., Friday, October 19, 2007. The electronic filing
system became temporarily unavailable, however, between approximately
1:30 a.m. and 8:00 a.m. on October 19. The Commission responded to this
outage by extending the filing window until Monday, October 22, 2007, at
2 p.m., *i.e*., for a period substantially longer than the outage
itself. FPC first tried to file an electronic application in the final
minutes of the last day of the extended 10-day filing window and states
that it failed to complete the filing process because it experienced
stoppage problems with the Commission's electronic filing system,[^29]
which was uploading information from many applications filed that day.

We determine that the additional two and one-half days that we extended
the filing window, amply compensated for any time FPC lost to the less
than seven-hour, early-morning outage on October 19, and the alleged
stoppage problems minutes from the 2:00 p.m. deadline on October 22.
Applicants that wait until the last minute before submitting their
applications risk untimely filing.[^30] Applicants were specifically
cautioned not to wait until the end of the window to file
applications.[^31] Here, FPC fails to show good cause why it could not
timely file the FPC Submission. Moreover, acceptance of late-filed
applications, such as the FPC Submission, would prejudice timely
applicants.[^32] For these reasons, we find unpersuasive the arguments
set forth in FPC's Waiver Request.

**Conclusions/Actions.** Accordingly, IT IS ORDERED that the Emergency
Petition to Rescind Construction Permit Grant filed by First Pentecostal
Church of God in Christ on June 23, 2008, IS

DISMISSED. IT IS FURTHER ORDERED that the Waiver Request filed by First
Pentecostal Church of God in Christ on October 22, 2007, IS DISMISSED as
moot.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: First Pentecostal Church of God in Christ

Holy Family Oratory of St. Philip Neri

[^1]: *See NCE FM New Station and Major Change Filing Procedures,*
    Public Notice, 22 FCC Rcd 15050 (MB 2007).

[^2]: *See Media Bureau to Extend Window,* Public Notice, 22 FCC Rcd
    18680 (MB 2007).

[^3]: Petition at 2.

[^4]: *Id.*

[^5]: *Id.*

[^6]: *See Broadcast Applications,* Public Notice, Report No. 26653 (MB
    rel. Jan. 16, 2008).

[^7]: *See Broadcast Actions,* Public Notice, Report No. 46739 (MB rel.
    May 19, 2008).

[^8]: *See* 47 C.F.R. § 1.106.

[^9]: Petition at 3.

[^10]: *Ashbacker Radio Corp. v. FCC,* 326 U.S. 327, 330 (1945)
    ("*Ashbacker*").

[^11]: Petition at 3.

[^12]: Opposition at 3.

[^13]: *Id.*

[^14]: *Id.*

[^15]: Opposition at 2.

[^16]: Opposition at 3, citing 47 C.F.R. § 1.106(b)(1).

[^17]: Opposition at 4.

[^18]: Reply at 3.

[^19]: ^?^ Reply at 4.

[^20]: *See, e.g., Anderson Radio Broadcasting, Inc.,* Memorandum
    Opinion and Order, 22 FCC Rcd 578 n.8 (2008) (petition to rescind
    treated as timely petition for reconsideration).

[^21]: [47 U.S.C. §
    405](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&fn=_top&sv=Split&tc=-1&docname=47USCAS405&ordoc=2015647258&findtype=L&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^22]: [47 C.F.R. §
    1.106(f)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=T&referenceposition=SP%3Bae0d0000c5150&fn=_top&sv=Split&tc=-1&docname=47CFRS1.106&ordoc=2015647258&findtype=L&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^23]: *Gardner v. FCC*, 530 F.2d 1085, 1091-92 (D.C. Cir. 1976);
    *Richardson Independent School District*, Memorandum Opinion and
    Order, [5 FCC Rcd 3135, 3136
    (1990)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1990195621&fn=_top&sv=Split&referenceposition=3136&findtype=Y&tc=-1&ordoc=2015647258&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw);
    *Pueblo Radio Broadcasting Service,* Memorandum Opinion and Order,
    [6 FCC Rcd 1416
    (1991)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&serialnum=1991223195&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2015647258&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    (the fact that petition for reconsideration was filed only one day
    late does not constitute "extraordinary circumstances" for which
    filing deadline may be extended).

[^24]: Statutory right to a hearing applies to "mutually exclusive
    applications." *See Ashbacker,* 326 U.S. at 330 (1945).

    After the October 2007 filing window closed, HFO submitted a minor
    amendment on January 8, 2008 (that appeared on Public Notice on
    January 11, 2008), indicating that the HFO Application was, in fact,
    a singleton. FPC received ample notice of the HFO Application's
    "singleton" status and did not timely contest it.

[^25]: *See Ashbacker*, 326 U.S. at 333 (1945).

[^26]: *See* [*Glazer v. FCC*, 20 F.3d 1184, 1186 (D.C. Cir.
    1994)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1994078425&fn=_top&sv=Split&referenceposition=1186&findtype=Y&tc=-1&ordoc=2013601214&db=506&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    ("There can be no doubt of the FCC\'s authority to impose strict
    procedural rules in order to cope with the flood of applications it
    receives or expects to receive.").

[^27]: [*Northeast Cellular Telephone Co. v. FCC,* 897 F.2d 1164, 1166
    (D.C. Cir.
    1990)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1990047144&fn=_top&sv=Split&referenceposition=1166&findtype=Y&tc=-1&ordoc=2010232805&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    (citing [*WAIT Radio v. FCC,* 418 F.2d 1153, 1157-59 (D.C. Cir.
    1969)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1969121124&fn=_top&sv=Split&referenceposition=1157&findtype=Y&tc=-1&ordoc=2010232805&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw);
    *see also* [*Industrial Broadcasting Co. v. FCC,* 437 F.2d 680 (D.C.
    Cir.
    1970)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&serialnum=1970121800&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2010232805&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^28]: *See* [*WAIT Radio v. FCC,* 418 F.2d at
    1157](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1969121124&fn=_top&sv=Split&referenceposition=1157&findtype=Y&tc=-1&ordoc=2010232805&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^29]: *See* Petition at 2.

[^30]: *See, e.g., Scottsdale Horizons School,* Order, 17 FCC Rcd 16872,
    16874-75 (WCB 2002).

[^31]: *See Media Bureau Announces NCE FM New Station and Major Change
    Filing Procedures for October 12 --October19, 2007 Window; Limited
    Applications Filing Freeze to Commence on September 8, 2007,* Public
    Notice, 22 FCC Rcd 15050, 15054 (2007)("Applicants are also
    encouraged to submit their applications early during the window to
    ensure proper submission.").

[^32]: *See, e.g., Groups of Mutually Exclusive Applications for Permits
    to Construct New or Modified Noncommercial Educational FM Stations,*
    Memorandum Opinion and Order, 22 FCC Rcd 6101, 6107 (2007)
    (Commission rejects waiver request argument that no one would be
    prejudiced by acceptance of late-filed supplements).