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FCC Dismisses Application in Oldest NCE Comparative Case

A late filing cemented the bureau’s rejection of a petition in a case that goes back 27 years

“Parties that wait until a final deadline in reliance on third-party couriers do so at their own peril.”

That’s 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With a go-ahead from the FCC, Chico began operating under call sign KFPR(FM) in early 1996, but its license quickly was rescinded after the bureau learned that Oregon had appealed its application dismissal in court.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.

While 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 tiebreaker.

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.