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FCC Upholds Grant of New NCE FM Station at Brookings, Oregon

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Released: June 12, 2014
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Federal Communications Commission

FCC 14-87

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Totally Jesus Network, Inc.

)

)

Application for a New NCE FM Station at

)

Gold Beach, Oregon

)

Facility ID No. 175729

)

and

)

)

UCB USA, Inc.

)

)

Application for a New NCE FM Station at

)

File No. BNPED-20071018AON

Brookings, Oregon

)

Facility ID No. 172931

MEMORANDUM OPINION AND ORDER

Adopted: June 11, 2014

Released:

June 12, 2014

By the Commission:

1.

The Commission has before it an Application for Review (“AFR”) filed by Totally Jesus

Network, Inc. (“TJN”) on September 9, 2011.1 In the AFR, TJN seeks review of a Media Bureau

(“Bureau”) decision2 that affirmed: a) the Public Notice that denied TJN’s request for waiver and

dismissed its application for a new noncommercial (“NCE”) FM station at Gold Beach, Oregon; 3 and b)

the grant of the competing application of UCB.4 In the AFR, TJN again argues that the Bureau erred in

not accepting its application, which TJN claims it was unable to timely file because of difficulties using

the Commission’s electronic filing system, CDBS. For the reasons set forth below, we deny review.

2.

On April 4, 2007, the Bureau announced a filing window from October 12 to October 19,

2007, for new NCE FM station and major modification construction permit applications.5 On August 9,

2007, the Bureau released a Public Notice announcing that applicants could begin to electronically

complete their FCC Form 340 applications immediately and encouraging applicants to “submit their

applications early during the window to ensure proper submission.”6 The window opened as scheduled

1 UCB USA, Inc. (“UCB”), filed an Opposition on September 23, 2011 (“Opposition”).

2 Bishop Wilfret Johnson Ministries International, Inc., et. al, Letter, Ref. 1800B3-ATS (MB Aug 10, 2011)

(“Reconsideration Decision”). See also Broadcast Actions, Report No. 27550 (MB Aug. 15, 2011).

3 NCE FM New Station and Major Change Application Dismissed for Failure to Timely File, Public Notice, 25 FCC

Rcd 13065 (MB 2010) (“Public Notice”).

4 See UCB USA, Inc., Letter, Ref. 1800B3 (MB June 26, 2008).

5 See Media Bureau Announces NCE FM New Station and Major Modification Application Filing Window for New

and Certain Pending Proposals; Window to Open on October 12, 2007, Public Notice, 22 FCC Rcd 6726 (MB

2007).

6 See Media Bureau Announces NCE FM New Station and Major Change Filing Procedures for October 12 –

October 19, 2007 Window; Limited Application Filing Freeze to Commence on September 8, 2007, Public Notice,

22 FCC Rcd 15050, 15054 (MB 2007) (“Applicants are encouraged to access the system and prepare their

(continued….)

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Federal Communications Commission

FCC 14-87

on October 12 and CDBS functioned properly until it experienced a brief overnight outage on October 19,

2007. In response, the Bureau extended the filing window until October 22, 2007 at 2 p.m.7 TJN did not

file before the extended filing deadline, but instead, filed a paper application for a new NCE station and

waiver request (“Waiver Request”) on October 31, 2007, nine days after the close of the extended

window. TJN claimed that it continued to experience technical problems with CDBS during the extended

window, and therefore that the Commission should accept its untimely paper application.8 The Waiver

Request relies principally on Roamer One, Inc.,9 where the Commission waived a window deadline for

electronic filing of modification applications in the 220 MHz service.

3.

We find that the Bureau properly rejected this argument and correctly distinguished

Roamer One. The record does not demonstrate unique circumstances permitting deviation in the filing

deadline. The difficulties TJN allegedly encountered in filing electronically do not appear to have been

widespread. As noted in the Reconsideration Decision, over 830 applications were filed during the last

seven hours of this NCE window.10 In all, over 1,200 applications were successfully filed on October 22,

2007, the day that TJN claims to have experienced difficulty, in CDBS, including over 30 other

applications filed by TJN’s counsel at regular intervals throughout the day. Thus, unlike the facts in

Roamer One, TJN has failed to demonstrate that the Commission was “partly responsible” for TJN’s

failure to file in the window. Also, unlike Roamer One, here, in addition to allowing applicants to file

over two months before the window formally opened, the Commission had already extended the filing

window three days to compensate for a CDBS outage between 1:30 a.m. and 8 a.m. on October 19,

2007.11 We specifically reject TJN’s apparent view that the Commission should waive the filing deadline

when applicants experience any slowdown in CDBS system capabilities, particularly after applicants were

urged repeatedly to file early to avoid complications and also were granted an extension to account for

CDBS difficulties.12

4.

TJN also ignores the Roamer One requirement that the applicant “initiate[] the filing in a

timely manner, show[] reasonable diligence when technical difficulties occurred, and . . . file very shortly

after the deadline.”13 Here, TJN chose not to take advantage of the early filing option that the

Commission made available for potential applicants. TJN also made no effort to file either during the

originally announced seven-day window or during the first two days of the extended filing window.

(Continued from previous page)

applications and amendments at their earliest possible convenience. Applicants may begin to complete applications

immediately [i.e., starting on August 9, 2007]. Applicants are also encouraged to submit their applications early

during the window to ensure proper submission.”).

7 Media Bureau to Extend Window for NCE FM New Station and Major Change Applications; Window Will Close

on October 22, 2007, Public Notice, 22 FCC Rcd 18680 (MB 2007) (“Window Extension PN”).

8 Waiver Request at 3.

9 Roamer One, Inc., Order, 17 FCC Rcd 3287 (2002) (“Roamer One”).

10 A review of CDBS filing activity establishes that during the last nine hours of the extended window, the longest

gap between successful filings was less than 15 minutes.

11 See Window Extension PN.

12 Waiver Request at 3 (“The undersigned [TJN’s counsel] spent most of Sunday [October 21st] and Monday

[October 22nd] attempting to submit applications as quickly as possible. However, the system was substantially

slowed down through those hours, precluding the submission of as many applications as could have been filed and

as were substantially complete and ready to file.”).

13 17 FCC Rcd at 3291.

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Federal Communications Commission

FCC 14-87

Finally, TJN waited until nine days after the close of the window to submit its application.14 In contrast,

the applicant in Roamer One diligently continued to submit applications throughout the filing window

and completed its filing two days after the window’s close.15

5.

Upon review of the AFR and the entire record, we conclude that TJN has failed to

demonstrate that the Bureau erred. We thus uphold the Bureau’s decisions for the reasons stated in the

Public Notice and the Reconsideration Decision.16

6.

ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the

Communications Act of 1934, as amended,17 and Section 1.115(g) of the Commission’s Rules,18 the

Application for Review filed by Totally Jesus Network, Inc., IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

14 Commission records indicate that although TJN’s counsel filed over thirty applications on October 22 between

6:09 a.m. and 2:00 p.m., he did not file any applications on October 20 and only one application on October 21, at

1:24 p.m. Counsel thus waited until the last day of the extended filing window to submit TJN’s application. See

NetworkIP, LLC v. FCC, 548 F.3d 116, 127 (D.C. Cir. 2008) (“procrastination plus the universal tendency for things

to go wrong (Murphy's Law)—at the worst possible moment (Finagle's Corollary)—is not a ‘special

circumstance’”).

15 Roamer One, 17 FCC Rcd at 3288 (applicant had been submitting applications for a week).

TJN claims that “the

CDBS system was completely inoperable by the public [from the close of the window] until late on October 24” and

the “only complete copy of the application that existed at the time was on the virtual copy on the Commission’s

computer,” so it was unable to retrieve and print out a paper copy of the application until the system was again

accessible. AFR at 3. TJN fails to explain why, after missing the electronic filing deadline, (1) it was unable to

print out a blank form, reconstruct the application from the materials that it had used to download it to CDBS, and

file it immediately, or (2) failing that, why it waited until Wednesday, October 31 to file, despite having printed out

the application from CDBS on the afternoon of October 28. See Waiver Request (Attachment). In short, TJN’s

conduct fell fall short of the reasonable diligence exhibited by the tardy applicant in Roamer One.

16 We also agree with the Bureau’s rejection of TJN’s contention that the Bureau’s extended 2 p.m. October 22 filing

deadline conflicted with the reference to midnight in Section 1.4(f) of the rules. 47 C.F.R. § 1.4(f). As the Bureau

stated, that rule did not preclude it from establishing a deadline before midnight on the extended filing deadline.

Reconsideration Decision at 3. Although TJN renews this argument at page 8 of its AFR, it still fails to provide any

supporting authority for its position. Moreover, as UCB noted in its Opposition, because TJN made no attempt to

file until October 31, it would not have timely filed even if the deadline on October 22 had been midnight, as TJN

urges. Opposition at 6.

17 47 U.S.C. § 155(c)(5).

18 47 C.F.R. § 1.115(g).

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