Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 02-87          |
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| Amendment of Section 1.937 of    | ) |                              |
| the Commission's Rules           | * |                              |
| Concerning Repetitious or        | * |                              |
| Conflicting Applications         |   |                              |
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NOTICE OF PROPOSED RULE MAKING

**Adopted:** **March 14, 2002 Released: March 20, 2002**

**Comment Date:** \[30 days after Federal Register Publication\]

**Reply Comment Date:** \[45 days after Federal Register Publication\]

By the Commission:

# iNTRODUCTION AND EXECUTIVE SUMMARY

1.  In this *Notice of* *Proposed Rule Making* (*Notice*), we propose to
    amend Section 1.937 of our Rules[^1] 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 propose to streamline our
    Rules barring repetitious applications by combining Sections
    1.937(a)[^2] and (b)[^3] into one simplified rule. Our goal is to
    simplify and clarify our rules against repetitious applications.
    This will promote the most efficient use of the Commission's
    resources by preventing the filing of such applications and barring
    applicants from immediately re-litigating decided matters.

# 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 wireless service.[^4] 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.[^5] In 1998, the Commission consolidated its
    licensing rules for all wireless radio services,[^6] and enacted
    Section 1.937 to replace its prior rules on the filing of
    repetitious or conflicting applications.[^7] 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.[^8]

Section 1.937 and its antecedents were adopted to achieve sound
administrative process by barring applicants from immediately
re-litigating matters already decided.[^9]

# discussion

3.  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 can 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,[^10] 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.[^11] Such cases can consume significant resources to
    re-litigate identical issues involving the same applicants very
    close in time.

4.  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.[^12] 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.[^13] 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."[^14]

5.  We see no reason to treat applications repeating renewal
    applications differently from and more favorably than applications
    repeating applications for new service. Indeed, we believe that all
    applications in the Wireless Radio Services should be subject to the
    same limitations. Relitigating recently decided matters does not
    constitute an efficient use of Commission resources, and diverts
    attention from important matters needing resolution. Therefore, we
    hereby propose to 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.[^15] The language of the new subsection (a)[^16] will
    be 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 applications. We
    seek comment on this proposed amendment of Section 1.937.
    Conversely, we also seek comment on whether there is any sound basis
    to differentiate amongst any type of application in the wireless
    radio services, including renewal applications, applications for new
    licenses, modification applications, assignment applications, and
    applications for facilities the license for which was revoked. We
    further ask commenters to discuss whether there are any instances
    where repetitious applications should be permitted, and if so,
    whether doing so would be consistent with our goal of promoting the
    most efficient use of the Commission's resource. Finally, we ask
    commenters to address whether there is any reason to differentiate
    amongst denied applications, dismissed applications, or cases where
    a license is revoked.

6.  We also believe that Sections 1.937(a) and (b) can be streamlined
    into a single, simplified rule. 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 a hearing. Thus, we tentatively conclude that Sections (a)
    and (b) are sufficiently similar to combine into a single rule. We
    seek comment on this conclusion. We ask commenters to address
    whether any regulatory goals would be achieved by retaining the two
    separate sections. Commenters are also asked to review the proposed
    rule, set forth in Appendix A, and indicate whether the revised rule
    achieves the goals discussed herein.

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

## A. Ex Parte Rules - Permit-But-Disclose Proceeding {#a.-ex-parte-rules---permit-but-disclose-proceeding .unnumbered}

7.  This is a permit-but-disclose notice and comment rule making
    proceeding. *Ex parte* presentations are permitted, except during
    the Sunshine Agenda period, provided they are disclosed as provided
    in our Rules.[^17]

## Regulatory Flexibility Act 

8.  The Regulatory Flexibility Act (RFA)[^18] requires that an agency
    prepare a regulatory flexibility analysis for notice and comment
    rulemakings, unless the agency certifies that \"the rule will not,
    if promulgated, have a significant economic impact on a substantial
    number of small entities.[^19] The purpose of this *Notice* 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 proposed to promote the most efficient
    use of the Commission's resources by preventing the immediate filing
    of repetitious applications. 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 RFA, that the rule proposed in this *Notice* 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 *Notice*, 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. With
    respect to the proposed rules, we shall analyze the information
    submitted during the comment period and, if we determine at the time
    we issue a final rule that such final rule changes will have a
    significant economic impact on a significant number of small
    entities, we shall prepare a Final Regulatory Flexibility Analysis.

## Paperwork Reduction Act

## This *Notice* does not contain either a proposed or modified information collection. {#this-notice-does-not-contain-either-a-proposed-or-modified-information-collection. .unnumbered}

## Comment Dates 

9.  Pursuant to Sections 1.415 and 1.419 of the Commission's Rules,
    interested parties may file comments on or before \[30 days after
    Federal Register publication\] and reply comments on or before \[45
    days after Federal Register publication\].[^20] Comments may be
    filed using the Commission\'s Electronic Filing System (ECFS) or by
    filing paper copies.[^21]

10. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, however, then commenters must transmit one
    electronic copy of the comments to each docket or rulemaking number
    referenced in the caption. In completing the transmittal screen,
    commenters should include their full name, Postal Service mailing
    address, and the applicable docket or rulemaking number. Parties may
    also submit an electronic comment by Internet e-mail. To obtain
    filing instructions for e-mail comments, commenters should send an
    e-mail to ecfs@fcc.gov, and should include the following words in
    the body of the message, \"get form \<your e-mail address\>.\" A
    sample form and directions will be sent in reply.

11. Parties who choose to file by paper must file an original and four
    copies of each filing. If more than one docket or rulemaking number
    appears in the caption of this proceeding, commenters must submit
    two additional copies for each additional docket or rulemaking
    number. All filings must be sent to the Commission\'s Acting
    Secretary, William F. Caton, Office of the Secretary, Federal
    Communications Commission, 445 12th St., S.W., Washington,
    D.C. 20554. Filings can be sent first class by the US Postal
    Service, by an overnight courier or hand and messenger-delivered.
    Hand and message-delivered paper filings must be delivered to 236
    Massachusetts Avenue, N.E., Suite 110, Washington, DC 20002.
    Overnight courier (other than U.S. Postal Service Express Mail and
    Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
    Heights, MD 20743.

12. Parties who choose to file by paper should also submit their
    comments on diskette. These diskettes should be submitted to:
    Genevieve Augustin, Public Safety and Private Wireless Division,
    Wireless Telecommunications Bureau, 445 12th St., S.W., Room 3-A431,
    Washington, D.C. 20554. Such a submission should be on a 3.5-inch
    diskette formatted in an IBM compatible format using Microsoft Word
    97 or compatible software. The diskette should be accompanied by a
    cover letter and should be submitted in \"read only\" mode. The
    diskette should be clearly labeled with the commenter\'s name,
    proceeding (including the lead docket number in this case, WT Docket
    No. 02-87), type of pleading (comment or reply comment), date of
    submission, and the name of the electronic file on the diskette. The
    label should also include the following phrase \"Disk Copy - Not an
    Original.\" Each diskette should contain only one party\'s
    pleadings, preferably in a single electronic file. In addition,
    commenters should send diskette copies to the Commission\'s copy
    contractor, Qualex International, Inc., 445 12th St., S.W., Room
    CY-B402, Washington, D.C. 20554.

> **E. Ordering Clauses**

13. 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 *Notice of Proposed Rule Making* IS HEREBY
    ADOPTED, and NOTICE IS HEREBY GIVEN of the proposed regulatory
    changes described in the *Notice of Proposed of Rule Making* and
    contained in Appendix A.

14. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    *Notice of Proposed Rule Making*, including the Regulatory
    Flexibility Certification, to the Chief Counsel for Advocacy of the
    Small Business Administration.

> **F. Further Information**

15. For further information, contact Genevieve Augustin, Esq.,
    gaugusti@fcc.gov, Policy and Rules Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau, (202)
    418-0680, or TTY (202) 418-7233.

16. Alternative formats (computer diskette, large print, audiocassette
    and Braille) are available to persons with disabilities by
    contacting Brian Millin at (202) 418-0260, TTY (202) 418-2555, or at
    bmillin@fcc.gov. This *Notice of Proposed Rule Making* can also be
    downloaded at: http://www.fcc.gov/dtf/.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

**APPENDIX A**

**PROPOSED 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]: 47 C.F.R. § 1.937.

[^2]: 47 C.F.R. § 1.937(a).

[^3]: 47 C.F.R. § 1.937(b).

[^4]: *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).

[^5]: *See, e.g.,* 47 C.F.R. §§ 1.916, 101.27 (1998).

[^6]: *See* In the Matter of 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).

[^7]: *See* 47 C.F.R. § 1.937.

[^8]: *Id.*

[^9]: *See* In Re Applications of Salter Broadcasting, *Memorandum
    Opinion and Order*, 6 FCC 2d 809, 814 ¶ 10 (1967) (*Salter MO&O)*.

[^10]: *Id.*

[^11]: *See, e.g.,* In the Matter of Application of Herbert L.
    Schoenbohm for a Station License in the Amateur Radio Service and
    Application of Herbert L. Schoenbohm for a General Class Operator
    License in the Amateur Radio Service, WT Docket No. 01-352, *Hearing
    Designation Order,* FCC 01-392 (rel. Jan. 9, 2002).

[^12]: *Salter MO&O,* 6 FCC 2d at 814 ¶ 10.

[^13]: *Id.*

[^14]: In Re Applications of Lorain Community Broadcasting Co., Lorain,
    Ohio, *Memorandum Opinion and Order*, 5 FCC 2d 55, 57 ¶ 6 (1966).

[^15]: We do not propose to 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.

[^16]: *See* ¶ 6, *infra.*

[^17]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^18]: 5 U.S.C. § 603.

[^19]: 5 U.S.C. § 605(b).

[^20]: 47 C.F.R. §§ 1.415, 1.419

[^21]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order,* GC Docket No. 97-113, 13 FCC Rcd 11322 (1998).