**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Time Warner Entertainment/Advance- ) File No. PA 98-002

Newhouse Partnership, et al., Complainants )

)

v\. )

)

Florida Power & Light Company, Respondent )

)

Petition for Reconsideration )

**ORDER ON RECONSIDERATION**

**Adopted: October 22, 1999** **Released: October 26, 1999**

By the Deputy Chief, Cable Services Bureau:

1\. In this Order, we consider a petition for reconsideration
("Petition") of our Order, DA 99-1886 ("Second Order"),[^1] filed with
the Federal Communications Commission (\"Commission") by the
above-referenced respondent ("Respondent") on September 21, 1999. On
June 9, 1999, we released an order ("First Order")[^2] which resolved a
pole attachment complaint filed by the above-referenced complainants
(\"Complainants\") pursuant to Part 1, Subpart J of the Commission\'s
rules.[^3] On July 14, 1999, Respondent filed an application for review
("Application") of our First Order. In our Second Order, we dismissed
Respondent's Application because it was not filed in a timely manner
pursuant to the Commission\'s rules. We also dismissed Respondent's
request for stay as moot. In this order, we address Respondent's
Petition of our Second Order and any supplemental filings as well the
opposition to petition for reconsideration ("Opposition") filed by the
Complainants.

2\. On April 13, 1998, the Complainants filed a complaint alleging that
the rates charged by Respondent for pole attachments were unjust and
unreasonable. Our First Order found the rates charged by Respondent to
be unreasonable, established a maximum pole attachment rate and ordered
a refund of all payments made in excess of the maximum pole attachment
rate. The Commission\'s rules state that \"\[a\]ny person aggrieved by
any action taken pursuant to delegated authority may file an application
requesting review of that action by the Commission.\"[^4] The
application for review must be filed within 30 days of public notice of
the action, which in this case was the release date, June 9, 1999.[^5]
Documents are considered filed when they are received by the
Commission.[^6]

3\. Respondent's Application was received by the Commission on July 14,
1999.[^7] The 30 day period from the release of our Prior Order expired
at the end of July 9, 1999. The Application was filed five days late.
The Application was not accompanied by a request for a waiver of the
filing time limits nor did it include any explanation for the lateness
or plead extenuating circumstances. In our Second Order, we stated that

> \[c\]ompliance with procedural requirements is essential to the
> orderly and expeditious conduct of Commission business and to fairness
> to all parties. The Commission has dismissed applications for review
> as procedurally defective when they were filed one day late.[^8] This
> is a routine pole attachment rate complaint and the Complainants would
> be adversely affected if the filing deadline was waived. Therefore, we
> will dismiss the Application.[^9] (footnotes in original) [^10]

4\. In its Petition,[^11] Respondent argues that the reason the
Application was filed late was because the courier service, Federal
Express, failed to deliver the Application on July 9, 1999 because it
was incorrectly addressed. Respondent further explains that Federal
Express will generally deliver a misaddressed package on the required
delivery day and that Respondent reasonably relied on Federal Express to
timely deliver the Application. In the Opposition, Complainants argue
that the Commission does not consider the failure of courier services to
be good cause for missing a filing deadline.

5\. We agree that the failure of courier services does not constitute
good cause for missing a filing deadline.[^12] In *Meredith/New Heritage
Strategic Partners*,[^13] the Commission stated that "we intend to
strictly apply the good cause standard in connection with filing
deadlines for pleadings which initiate adjudicatory proceedings . .
."[^14] Respondent's claim that it addressed the Application incorrectly
because the Commission has not reprinted all of its forms to include the
current address does not constitute good cause to waive the filing
deadline. The Commission issued a Public Notice in February 1999 stating
the current address of the Commission and requiring that all filings be
delivered to the current address.[^15] The failure of courier services,
even the failure to address the filing correctly are foreseeable
circumstances which could have been overcome had Respondent allowed
enough time to account for such delays.[^16] Indeed, had Respondent
diligently followed up on its filing, it could have corrected the
address with Federal Express and still met the filing deadline. For all
of these reasons, we deny Respondent's Petition.

6\. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the
Commission\'s rules, 47

C.F.R. §1.106, that Florida Power & Light Company\'s Petition for
Reconsideration of In the Matter of Time Warner Entertainment/Advance
Newhouse Partnership, et al., v. Florida Power & Light Company, DA
99-1886 (released September 16, 1999), IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson

Deputy Chief

Cable Services Bureau

[^1]: In the Matter of Time Warner Entertainment/Advance Newhouse
    Partnership, et al., v. Florida Power & Light Company, DA 99-1886
    (released September 16, 1999).

[^2]: ^?^ *See* In the Matter of Time Warner Entertainment/Advance
    Newhouse Partnership, et al., v. Florida Power & Light Company, DA
    99-1120 (released June 9, 1999).

[^3]: ^?^ 47 C.F.R. §§1.1401--1.1418. Pursuant to Section 224 of the
    Communications Act of 1934, as amended, 47 U.S.C. §224, the
    Commission adjudicates disputes between utilities and cable
    operators concerning allegedly unjust and unreasonable pole
    attachment rates, terms, and conditions.

[^4]: ^?^ 47 C.F.R. §1.115(a).

[^5]: ^?^ *See* 47 C.F.R. §1.115(d) (\"the application . . . shall be
    filed within 30 days of public notice of such action, as that date
    is defined in section 1.4(b)\"). 47 C.F.R. §1.4(b)(2) states that
    public notice means the release date for non-rulemaking documents.

[^6]: ^?^ 47 C.F.R. §1.7.

[^7]: ^?^ The Federal Express shipping label indicated that the shipment
    was for delivery on July 14, 1999. The stamp placed on the box when
    it was scanned by Commission security staff is dated July 14, 1999.
    The Commission mailroom indicated its receipt of the shipment by
    stamping the original with a mailroom stamp dated July 14, 1999.

[^8]: ^?^ *See, e.g.,* In re: Application of Board of Education of the
    City of Atlanta, 11 FCC Rcd 7763 (1996); *see also*, In the Matter
    of Michael C. Olson, 13 FCC Rcd 20593 (1998).

[^9]: ^?^ The Bureau Chief has delegated authority to dismiss
    applications for review which do not meet the requirements of 47
    C.F.R. section 1.115 of the Commission\'s rules, 47 C.F.R. §1.115.
    See 47 C.F.R. §§0.101(l) (the Bureau \"carries out the functions of
    the Commission . . . except as reserved to the Commission under
    §0.321.\") and 47 C.F.R. §0.321(c) (the Bureau may not act upon an
    application for review which complies with 47 C.F.R. §1.115).
    Because the Application did not comply with 47 C.F.R. section
    1.115(d), the Bureau Chief has delegated authority to dismiss the
    Application. See also In re Applications of Air Cable Limited
    Partnership, et al., FCC 99-77 (released April 27, 1999).

[^10]: ^?^ *See* Second Order at ¶5.

[^11]: Lorenzo

    ^?^ The Respondent supplemented its Petition twice, once to include
    an FCC Form 208 dated July 1992 which still had the FCC's former
    address on it which respondent received in September 1999; secondly
    to include a letter from Federal Express which indicated that an
    attempt was made to deliver the Application on July 9 at 8:09 AM to
    the Commission's former address.

[^12]: ^?^ *See* In the Matter of Meredith/New Heritage Strategic
    Partners, L.P., FCC 94-260, 9 FCC Rcd 6841 (1994).

[^13]: ^?^ Id.

[^14]: ^?^ *Id.* at ¶10.

[^15]: ^?^ *See* Public Notice, FCC Office of the Secretary Closes
    Temporary Filing Facility at 1919 M Street, N.W. (released February
    18, 1999).

[^16]: ^?^ *See* Public Notice, FCC Overrules Caldwell Television
    Associates, Ltd., FCC 85-534, 58 RR 2d 1706 (1985).