FCC Dismisses Application in Oldest NCE Comparative Case
“Parties that wait until a final deadline in reliance on
third-party couriers do so at their own peril.”
one of the lessons in the outcome of a long-running dispute over an FM dial
slot near the California/Oregon border. But the lateness of a filing (by just a few hours) was not the only reason for the outcome.
The Media Bureau
of the Federal Communications Commission has dismissed a petition for
reconsideration from the state of Oregon in the commission's oldest pending noncommercial
educational comparative case.
Way back in 1988, the
University Foundation at the California State University Chico filed an
application to construct an NCE FM station in Redding, Calif. In 1990, a
mutually exclusive application was filed by Southern Oregon University, 150 miles to the north
over the state border.
Two years later, the
commission granted the Chico application as a “singleton,” conditioned on the
outcome of the Oregon application for review. With a go-ahead from the
FCC, Chico began operating under call sign KFPR(FM) in early 1996, but its license quickly was rescinded after the bureau learned that Oregon had appealed
its application dismissal in court.
In December of
1996, the Court of Appeals for the D.C. Circuit ruled that the commission
should not have dismissed the Oregon application, sending both applications
back to the drawing board; the commission reinstated the Oregon application and
returned the Chico application to pending status.
the legal back and forth was going on, the commission in 2000 introduced a new
NCE comparative process that replaced traditional evidentiary hearings with a point
system that would apply to new and pending applications. Oregon challenged
aspects of the point system in court without success. After applying the point
system to the two applications, the FCC found that the two were tied — two
points each — but the commission tentatively selected Chico in a first-round
The story moves into 2007. The bureau
decided to grant the Chico application over Oregon’s objection as part of a larger ruling that decided 76 groups of mutually exclusive NCE FM applications.
The current license for the KFPR signal in Redding was approved that fall.
Any subsequent petitions for reconsideration were due to FCC
headquarters by Nov. 8, 2007; Oregon’s petition slid in the door early the
following day. The mailman was to blame for the delay, the state argued; it had
mailed the pleading on Nov. 7, with guaranteed next-day delivery. Although the U.S.
Postal Service said that it “left notice” at the commission at 10:18 am on Nov.
8, final delivery was made at 7 a.m. on Nov. 9, 2007. The legal back and forth has continued since, and Oregon filed a petition for reconsideration in 2013.
The postal delay was no excuse, the commission has found. “Parties that wait until a final deadline
in reliance on third-party couriers do so at their own peril,” Audio Division
Chief Peter Doyle writes, and the FCC does not give waivers when it comes to filing
deadlines for reconsideration petitions.
However, the outcome of the case did not rely on the filing snafu. Doyle wrote that regardless of the date stamp concern, arguments that
Oregon made in its 2013 petition for reconsideration are “wholly without merit.” The bureau dismissed several
including that it should have been given local classification and that the new point system was misused in this case.
Late last month, the commission dismissed Oregon’s petition for
reconsideration. Whether this is the last we will see of this particular legal dispute remains to be seen.
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