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Convergence Entertainment and Communications, LLC

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Released: March 20, 2013

Federal Communications Commission

DA 13-508

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Convergence Entertainment and

)
Facility ID No. 48412

Communications, LLC

)
)

Reclassification of License of Class A Television
)
Station WBVT-CA
)
Burlington, VT
)

ORDER

Adopted: March 19, 2013

Released: March 20, 2013

By the Chief, Video Division, Media Bureau:
1.
The Commission has before it for consideration a Petition for Reconsideration1 filed by
Convergence Entertainment and Communications, LLC (Convergence), seeking review of a letter
decision reclassifying WBVT-CA, Burlington, Vermont from a primary status Class A television station
to a secondary status low power television station (LPTV) November 7, 2012.2 For the following
reasons, we dismiss the Petition for Reconsideration.

I.

BACKGROUND.

2.
Class A television stations are accorded primary spectrum use status pursuant to the
Community Broadcasters Protection Act of 1999 (CBPA).3 By letters dated March 25, 2011 and August
3, 2011, the Video Division of the Media Bureau requested information from Convergence regarding its
apparent failure to make the required filing of quarterly FCC Form 398 (Children’s Television
Programming Report) for the station for the third and fourth quarters in 2009 and all four quarters in


1 Convergence Entertainment and Communications, LLC, Petition for Reconsideration (dated Dec. 14, 2012).
2 Reclassification of License of Class A Television Station WBVT-CA, Burlington, VT, Order, 27 FCC Rcd 13550
(Vid. Div. MB 2012) (Reclassification Order).
3 Community Broadcasters Protection Act of 1999, Pub. L. No. 106-113, 113 Stat. Appendix I at pp. 1501A-594 –
1501A-598 (1999), codified at 47 U.S.C. § 336. Beginning on the date of its application for Class A license and
thereafter, the CBPA requires that a station must be “in compliance with the Commission’s operating rules for full-
power television stations.” 47 U.S.C. § 336(f)(2)(A)(ii); see also Establishment of a Class A Television Service, MM
Docket No. 00-10, Report and Order, 15 FCC Rcd 6355, 6366 (2000), Memorandum Opinion and Order on
Reconsideration, 16 FCC Rcd 8244, 8254-56 (2001); 47 C.F.R. §§ 73.6001, 73.6026. WBVT-CA was granted
Class A television status in 2002. See FCC File No. BLTTA-20001208AED (granted Mar. 27, 2002).

Federal Communications Commission

DA 13-508

2010.4 Both letters required that the information be provided within 30 days of the date of the letter and
cautioned that failure to provide the information could result in a change of the station’s status from
Class A television to low power television. Convergence failed to respond to the Division’s letters or to
file the required Children’s Television Programming Reports. Accordingly, pursuant to Section 316(a)
of the Communications Act of 1934, as amended,5 on February 28, 2012 the Video Division issued an
Order to Show Cause why the license for WBVT-CA should not be modified to specify the station as a
low power television station.6
3.
Convergence was afforded until March 30, 2012 to file a written statement why its license
should not be so modified and was also notified that if no written statement was filed by that date, it
would be deemed to have consented to the modification of the WBVT-CA license from Class A
television status to low power television status. The Reclassification Order held that because
Convergence did not file a written statement in response to the Order to Show Cause, it deemed it to have
accepted the modification of the WBVT-CA license to low power television status.7 Further, because
Convergence failed to file Children’s Television Programming Reports (FCC Form 398) for the period
2009 through 2011 and had not responded to the Video Division’s two letters regarding this failure or to
the Order to Show Cause, the Reclassification Order concluded that it has not fulfilled its obligations as
a Class A licensee, and that the modification of its Class A license to a low power television license
therefore serves the public interest. To date, the Commission’s licensing system shows that Convergence
has still not filed its FCC Form 398 for the third quarter of 2009.8
4.
In its Petition, Convergence argues that the Station’s Class A status should be restored for
three reasons, including an assertion that it did not receive “actual notice” of the Commission’s inquiry
into its children’s programming reporting compliance. However, Convergence concedes that it did
receive the Reclassification Order.9 Convergence does not specifically seek a waiver of the statutory
deadline or the Commission’s rules, and provides no explanation for why it filed its petition a week late.


4 See 47 C.F.R. §§ 73.671, 73.3526 and 73.6026.
5 47 U.S.C. § 316(a).
6 Reclassification of License of Class A Television Station WBVT-CA, Burlington, VT, Order to Show Cause, 27 FCC
Rcd 2136 (Vid. Div. MB 2012) (Order to Show Cause). In addition to the period covering 2009 and 2010, the
Order to Show Cause noted that Convergence had also failed to file Children’s Television Programming Reports for
all four quarters of 2011.
7 27 FCC Rcd at 13551 para. 3 n.5 (citing 47 C.F.R. § 1.87(g)(1), (h) (Absent good cause shown, the right to file a
protest or have a hearing is waived if licensee does not file a timely protest or statement of intent to appear at a
hearing, and “[w]here the right to file a protest or have a hearing is waived, the licensee . . . will be deemed to have
consented to the modification as proposed and a final decision may be issued by the Commission accordingly.”)).
8 See http://licensing.fcc.gov/KidVid/public/report/10/query.faces (last visited Mar. 5, 2013).
9 Petition at 8.
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Federal Communications Commission

DA 13-508

II.

DISCUSSION

5.
We find that the Petition for Reconsideration was untimely filed. 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.10 The December 14, 2012 filing
date is past the 30-day deadline for filing a petition for reconsideration of the Reclassification Order that
was issued on November 7, 2012.11
6.
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,12 absent
compelling circumstances.13 We note the filing requirement of Section 405(a) of the Act applies even if
the petition for reconsideration is filed only one day late.14 We do not believe that Convergence has
shown such compelling or extraordinary circumstances to be present here. Accordingly, we lack the
power to excuse the late-filed pleading based on the facts before us, and dismiss the Petition as late-filed.


10 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 . . .”)
11 Moreover, the Commission does not have any record that the Petition was ever filed with the Secretary’s office, as
required by the Commission’s rules. See 47 C.F.R. §§ 1.4, 1.106.
12 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).
13 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”).
14 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).
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Federal Communications Commission

DA 13-508

III.

ORDERING CLAUSES

7.
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 the
Commission’s rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by Convergence
Entertainment and Communications, LLC on December 14 IS DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreissman
Chief, Video Division
Media Bureau
4

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