Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

The Bon-Tele Network, Inc.

Download Options

Released: May 23, 2013
Federal Communications Commission
Washington, D.C. 20554
May 23, 2013

DA 13-1180


Released: May 23, 2013

The Bon-Tele Network, Inc.
168 Canterbury Lane
McMurray, Pennsylvania 15317
Re:
Petition for Reconsideration,
License Cancellation of W63AU
Pittsburgh, Pennsylvania
Facility ID No. 65469
Dear Petitioner:
This is with respect to a Petition for Reconsideration1 filed by The Bon-Tele Network, Inc.
(“Bon-Tele”), seeking review of a letter decision released by the Video Division on February 1, 2013
cancelling the license of Station W63AU pursuant to 47 U.S.C. § 312 (g).2 For the following reasons, we
dismiss the Petition for Reconsideration.

Background.

In 2011, the Commission formally notified all low power television stations
operating on out-of-core channels 52-69, including Bon-Tele which was operating on Channel 63, that
they must cease operations on those channels by December 31, 2011.3 The Commission further informed
the displaced stations that their failure to transmit a broadcast signal for 12 consecutive months would
result in automatic cancellation of the station’s license under Section 312(g) of the Communications Act.4
Thus, by December 31, 2011 at the latest, Bon-Tele was required to cease out-of-core operations on
Channel 63, and by December 31, 2012 at the latest, Bon-Tele was required to resume broadcast
operations on a new in-core facility.
Although Bon-Tele held a construction permit for an in-core facility on channel 39,5 it did not
construct and operate the facility within 12 months of terminating its out-of-core operations.
Accordingly, in its February 1, 2013 letter decision, the Video Division informed Bon-Tele that because
the station failed to transmit a broadcast signal since at least December 31, 2011, the license was


1 The Bon-Tele Network, Inc., Petition for Reconsideration (“Bon-Tele Petition for Reconsideration”) (received
March 12, 2012).
2 Letter from Hossein Hashemzadeh to The Bon-Tele Network, Inc. (Feb. 1, 2013) (“Cancellation Order”).
3 See Amendment of Parts 73 and 74 of the Commission’s Rules to Establish Rules for Digital Low Power
Television, Television Translator, and Television Booster Stations and to Amend Rules for Digital Class A
Television Stations
, MB Docket No. 03-185, Second Report and Order, 26 FCC Rcd 10732, 10743 (2011). Low
power licensees had first been notified in 1997 that they would eventually need to clear this band. Id. at 10743-44.
4 Id. at 10749, n. 103. Section 312(g) of the Communications Act of 1934, as amended, provides that “[i]f a
broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license
granted for the operation of that broadcast station expires at the end of that period, notwithstanding any provision,
term or condition of the license to the contrary except that the Commission may extend or reinstate such station
license if the holder of the station license prevails in an administrative or judicial appeal, the applicable law changes,
or for any other reason to promote equity and fairness.”
5 File No. BDISDTL-20110818AAS.

determined to be expired under Section 312(g) of the Communications Act. Cancellation of the license
appeared on public notice on February 11, 2013.
On March 12, 2013, Bon-Tele’s Petition for Reconsideration was received in the FCC mailroom.
In its petition, Bon-Tele does not dispute that it received adequate notice of the applicability of Section
312(g) or that its failure to broadcast a signal for 12 consecutive months triggered the automatic
expiration provision of Section 312(g) of the Act. Instead, Bon-Tele relies on the provision of Section
312(g) which states that the Commission may extend or reinstate a license expired under that section “to
promote equity and fairness.”6 The Licensee recounts its service to the community and efforts in
promoting and advancing low power television service as the bases for requesting that the Commission
invoke this provision.7

Discussion.

We dismiss the petition for reconsideration because it was not properly filed in
accordance with the Commission’s Rules. Petitions for reconsideration must be filed with the Office of
the Secretary.8 Petitions that are not submitted to the Secretary are not considered properly filed,9 and the
Rules further notify Commission filers that documents submitted to the wrong location will not be
processed.10 Bon-Tele apparently sent its petition directly to the FCC’s mailroom and not to the
Secretary’s Office. We therefore dismiss the petition as improperly filed.11
Bon-Tele also cannot cure this deficiency through a second filing with the Secretary. Section
405(a) of the Act, as implemented by section 1.106(b) of the Commission’s rules, specify that petitions
for reconsideration must be filed within 30 days of the public notice of the underlying order.12 Any filing
made by Bon-Tele at this time would be past the 30-day deadline for filing a petition for reconsideration
of the cancellation, which appeared on public notice on February 11, 2013. The United States Court of
Appeals for the District of Columbia Circuit has consistently held that the Commission is without
authority to extend or waive the statutory thirty-day filing period for filing petitions for reconsideration
specified in Section 405(a) of the Communications Act,13 absent compelling circumstances.14 We note


6 Bon-Tele Petition for Reconsideration at 1.
7 Id. at 1-4.
8
47 C.F.R. § 1.106(i) (“Petitions for reconsideration, oppositions, and replies shall . . . be submitted to the
Secretary, Federal Communications Commission, Washington, DC 20554, by mail, by commercial courier, by hand,
or by electronic submission through the Commission's Electronic Comment Filing System or other electronic filing
system (such as ULS).”); cf. Convergence Entertainment and Communications, LLC, Order, 2013 WL 1187689 at
*2 n.11 (Vid. Div. March 20, 2013), Thomas R. Morrison, Letter Decision, 24 FCC Rcd 5805, 5806 (WTB 2009).
9 47 C.F.R. § 1.106(i) (“Petitions submitted only by electronic mail and petitions submitted directly to staff without
submission to the Secretary shall not be considered to have been properly filed.”).
10 47 C.F.R. § 0.401; see also 47 C.F.R. § 1.7 (“documents are considered to be filed with the Commission upon
their receipt at the location designated by the Commission”).
11 Thomas R. Morrison, 24 FCC Rcd at 5806 (dismissing petition for reconsideration that was not filed with the
Secretary’s office); Thomas K. Kurian, Order on Further Reconsideration, 22 FCC Rcd 13223, 13224
(WTB 2007).
12 47 C.F.R. § 405(a)(“A petition for reconsideration must be filed within thirty days from the date upon which
public notice is given of the order, decision, report, or action complained of.”); 47 C.F.R. § 1.106(b) (“The petition
for reconsideration and any supplement thereto shall be filed within 30 days from the date of public notice of the
final Commission action . . .”)
13 See Reuters Ltd. v. FCC, 781 F.2d 946, 951-52 (D.C. Cir. 1986); Gardner v. FCC, 530 F.2d 1086 (D.C. Cir.
1976).
2

the filing requirement of Section 405(a) of the Act applies even if the petition for reconsideration is filed
only one day late.15
We further find that even if Bon-Tele’s Petition was not procedurally defective, the Petition
would fail on the merits. Bon-Tele maintains that equity and fairness support reinstatement of this
expired license. We have carefully considered Bon-Tele’s request and conclude that it has failed to
demonstrate circumstances that warrant exercise of our discretion under Section 312(g) to reinstate a
license “to promote equity and fairness.” In the past, the Commission has exercised its discretion in cases
involving natural disaster or other compelling circumstances outside of the licensee’s control which
forced cessation of the station’s operations. For example, in V.I. Stereo Communications Corp.,16 the
Commission on reconsideration concluded that the station’s extended silence was understandable and that
reinstatement was warranted, given the fact that the station’s tower had been destroyed by a hurricane
and, after it was rebuilt, again sustained substantial damage from three more hurricanes. In another case,
the staff reinstated an expired permit when the station’s extended silence was the result of the licensee’s
compliance with an order issued by a state court.17
Here, Bon-Tele has not demonstrated the occurrence of similarly compelling circumstances
which forced the station to remain silent for more than 12 months. Instead, Bon-Tele relies on its past
broadcasting experience and achievements as potential grounds for reinstating the license. We find this
argument unpersuasive, however, given that the ability to avoid the license’s cancellation was within
Bon-Tele’s control. Bon-Tele had ample notice of the need to construct and operate its in-core facility by
no later than December 31, 2012 and full awareness of the implications of failing to transmit a broadcast
signal for twelve consecutive months.18
Thus, in accordance with precedent, we decline to exercise our discretion under the Section
312(g) “equity and fairness” provision to reinstate the license, which expired by operation of law due to
circumstances within Bon-Tele’s control. Accordingly,

IT IS ORDERED

that pursuant to Sections 4(i)
and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of





14 See Reuters, Ltd. v. FCC, 781 F.2d at 952 (holding that express statutory limitations barred the Commission from
acting on a petition for reconsideration that was filed after the due date); Gardner v. FCC, 530 F.2d at 1091
(excepting where “extraordinary circumstances indicate that justice would thus be served”).
15 See, e.g., Panola Broadcasting Co., Memorandum Opinion and Order, 68 FCC 2d 533 (1978) (dismissing petition
for reconsideration that was filed one day after the statutorily allotted time for filing requests for reconsideration);
Metromedia, Inc., Memorandum Opinion and Order, 56 FCC 2d 909 (1975).
16 V.I. Stereo Communications Corp., Memorandum Opinion and Order, 21 FCC Rcd 14259 (2006).
17 Mark Chapman, Court-Appointed Agent, Letter, 22 FCC Rcd 6578 (Audio Div. 2007)
18 See A-O Broadcast Corp., Memorandum Opinion and Order, 23 FCC Rcd 603, 617 (2008) (rejecting past
broadcasting experience as a legal or equitable basis for overcoming the cancellation provision of Section 312(g) of
the Act).
3

the Commission’s rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by The Bon-Tele
Network, Inc. on March 12, 2013

IS DISMISSED

.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau
4

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.