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TV Communications v. FCC, No. 11-1443 (D.C. Cir.)

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Released: December 22, 2011
USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 1 of 19
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
TV Communications Network, Inc.,

)








)
Appellant,




)








)



v.




) No. 11-1443








)

FEDERAL COMMUNICATIONS


)
COMMISSION






)









)




Appellee.


)

MOTION OF THE FEDERAL COMMUNICATIONS

COMMISSION FOR DISMISSAL IN PART AND FOR

SUMMARY AFFIRMANCE IN PART


Appellant TV Communications Network, Inc. (“TVCN”) was the
winning bidder at an auction conducted by the Federal Communications
Commission (“FCC” or “Commission”) of radio spectrum licenses. TVCN
acquired those licenses subject to the condition that it would make full and
timely payment for the licenses under an installment payment plan. After
TVCN failed to make timely payments, its licenses automatically cancelled
pursuant to the Commission’s rules.

In this case, TVCN seeks to challenge two FCC decisions: (1) an
order issued on January 5, 2010, declining TVCN’s request for a waiver of
the Commission’s automatic cancellation rules and for reinstatement of

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 2 of 19
2
TVCN’s licenses (the Installment Payment Order);1 and (2) a subsequent
order dismissing TVCN’s untimely petition for administrative
reconsideration of the Installment Payment Order (the Reconsideration
Dismissal Order).2 Because TVCN did not file its appeal from the
Installment Payment Order within the thirty-day window prescribed by
section 402(c) of the Communications Act, 47 U.S.C. § 402(c), that appeal
should be dismissed for lack of jurisdiction. And because TVCN’s
challenge to the Reconsideration Dismissal Order is clearly without merit,
the Court should affirm that order without briefing and argument. See
Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98 (D.C. Cir. 1987)
(summary affirmance is appropriate where “the merits of [the] case are so
clear that expedited action is justified.”).
1 Alpine PCS, Inc.; CommNet Communications Network, Inc.; GLH
Communications, Inc
.; Inforum Communications, Inc.; Lancaster
Communications, Inc
.; Allen Leeds; TV Communications Network, Inc.;
Virginia Communications, Inc. Requests for Waiver of the Installment
Payment Rules and Reinstatement of Licenses
, Memorandum Opinion and
Order, 25 FCC Rcd 469 (2010) (“Installment Payment Order”), aff’d, Alpine
PCS, Inc. v. FCC
, 404 Fed. Appx. 508 (D.C. Cir. 2010), reh. denied, No. 10-
1020 (D.C. Cir., Feb. 10, 2011).
2 TV Communications Network, Inc., Request for Waiver of the Installment
Payment Rules and Reinstatement of Licenses
, Order on Reconsideration, 26
FCC Rcd 14891 (2011) (“Reconsideration Dismissal Order”).

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 3 of 19
3

BACKGROUND

A.

Statutory and Regulatory Framework

Licensing Through Spectrum Auctions.

Section 301 of the
Communications Act of 1934 (“Communications Act” or “the Act”), 47
U.S.C. § 301, vests in the FCC exclusive authority to grant spectrum
licenses when the agency finds that the “public convenience, interest, or
necessity will be served thereby.” 47 U.S.C. § 307(a); see also id. § 309(a).
In 1993, Congress amended the Act to authorize the FCC to award certain
spectrum licenses through a system of “competitive bidding,” i.e., by
auction. See 47 U.S.C. § 309(j). Congress specified that the use of auctions
would not “diminish the authority of the Commission under the other
provisions of [the Act] to regulate or reclaim spectrum licenses.” 47 U.S.C.
§ 309(j)(6)(C).

The FCC’s Installment Payment Program

. Pursuant to the Act’s
competitive bidding provisions, the FCC adopted rules for certain auctions
permitting qualified small businesses to pay their winning bids in
installments. See 47 C.F.R. § 1.2110 (1994).3 Under those rules, when a
3 The FCC has discontinued the use of installment payments for future
auctions, but has allowed entities already paying in installments to continue
to do so. See TV Communications Network, Inc., Order, 22 FCC Rcd 1397,
1399 (¶ 3) (WTB 2007) (“Staff Order”), aff’d, Installment Payment Order,

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 4 of 19
4
licensee elects to take advantage of an installment payment plan, its license
is conditioned on the “full and timely” performance of the licensee’s
obligations under the plan, and its failure to make full and timely payments
automatically triggers cancellation of the license. 47 C.F.R. § 1.2110(d)(4)
(1994). See Implementation of Section 309(j) of the Communications Act –
Competitive Bidding, Second Report and Order, 9 FCC Rcd 2348, 2391
(¶ 240) (1994); Installment Payment Order, 25 FCC Rcd at 472 (¶ 3); see
also Morris Commnc’ns v. FCC, 566 F.3d 184, 186 (D.C. Cir. 2009).
In 1997, the FCC amended its installment payment rules to provide
for “automatic” grace periods for licensees paying for their licenses in
installments. Amendment of Part 1 of the Commission’s Rules —
Competitive Bidding Procedures, 13 FCC Rcd 374, 436 (1997). Under the
amended rules, a licensee that misses a required installment payment has the
benefit of two grace periods during which the missed payment can be paid
(along with applicable late fees), without incurring cancellation of the
license. See 47 C.F.R. § 1.2110(f)(4)(i), (ii) (2001).4 If, however, the
25 FCC Rcd 469, recon. dismissed, Reconsideration Dismissal Order, 26
FCC Rcd 14891.
4 At the time of TVCN’s first missed payment, the grace period was 90 days.
Amendment of Part 1 of the Commission’s Rules – Competitive Bidding
Procedures
, Order on Reconsideration of the Third Report and Order, Fifth
Report and Order, and Fourth Further Notice of Proposed Rule Making, 15
FCC Rcd 15293, 15310 (¶ 28) (2000), recon. denied, 18 FCC Rcd 10180

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 5 of 19
5
licensee persists in failing to make its required payment by the end of the
second grace period, the license “automatically cancel[s]” without any
action by the FCC, and the defaulting licensee is “subject to debt collection
procedures.” Id., § 1.2110(g)(4)(iv) (1998). In other words, the licensee
loses its license, is not refunded prior payments, and is subject to collection
of the outstanding debt due.

Waiver Rule

. Section 1.925 of the FCC’s rules permits the
Commission to consider whether to waive its wireless service rules where an
applicant shows (1) “[t]he underlying purpose of the rule(s) would not be
served or would be frustrated by application to the instant case, and that a
grant of the requested waiver would be in the public interest,” or (2) “[i]n
view of unique or unusual factual circumstances of the instant case,
application of the rule(s) would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable
alternative.” 47 C.F.R. § 1.925. See Morris Commc’ns, 566 F.3d at 189.

B. This Proceeding

TVCN’s License Payment Defaults and Subsequent Waiver


Requests

. TVCN won twelve Broadband Radio Service licenses at auction
and elected to pay for those licenses through the FCC’s installment payment
(2003). The grace period changed to three calendar months on October 30,
2000. Id.

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 6 of 19
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program. TVCN subsequently acquired two additional licenses in the
secondary market that were also subject to installment payment obligations.
Installment Payment Order, 25 FCC Rcd at 478 (¶ 13).
TVCN failed to make the installment payment due in November 1998
for one of its licenses (License MDB405) and, after the expiration of the two
grace periods, that license cancelled automatically. See id.; Staff Order, 22
FCC Rcd at 1400 (¶ 7). In November 2001 — after missing the August 31,
2001 installment payment for all of its remaining licenses — TVCN asked
the FCC to waive its installment payment rules for six months or until the
company could obtain the necessary funding to make the required payments.
TVCN claimed that “[u]nforseen economic conditions” had forced it to seek
potential buyers for its licenses and that its attempts to find such buyers or
negotiate financing had not been successful. TVCN Nov. 29, 2001 Letter.
TVCN failed to tender the required payment by the expiration of the two
grace periods and, on March 1, 2002, the remaining 13 licenses cancelled
automatically. Installment Payment Order, 25 FCC Rcd at 478 (¶ 13).
After the FCC initiated debt collection procedures, TVCN on
February 4, 2003 filed another request for a waiver of the installment
payment rules for the previously cancelled licenses, and asked for a one-year
grace period for making payment. TVCN stated that it had been continually

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 7 of 19
7
“losing money” on its service and had been “avoiding filing for bankruptcy
under the hope that the Commission would grant [its waiver] request.”
TVCN February 4, 2003 Letter at 1. TVCN subsequently told the FCC that
it had entered into an agreement to transfer the licenses to another entity.
Staff Order, 22 FCC Rcd at 1402 (¶ 8).

FCC Orders.

In an order released January 29, 2007, the FCC’s staff
denied TVCN’s waiver request. Staff Order, 22 FCC Rcd 1397.
On January 5, 2010, the FCC affirmed the Staff Order and seven
similar staff denials of waivers of the installment payment rules. Installment
Payment Order, 25 FCC Rcd 469. The FCC concluded that TVCN had
failed to show, under the first part of 47 C.F.R. § 1.925, that the grant of a
waiver would further the objectives underlying the automatic cancellation
rule and the public interest. Id. at 481-89 (¶¶ 18-31). The FCC explained
that the automatic cancellation rule safeguards the integrity of the auction
and licensing process by ensuring that entities that have won licenses at
auction on the promise of full payment of the winning bid remain willing
and able to fulfill their payment obligations. Id. at 481 (¶ 19). Granting a
waiver here, the agency observed, would undermine that purpose. Id. at
486-87 (¶¶ 28-29). It would also give auction bidders an increased incentive
to make bids they could not pay, and would reduce opportunities for

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 8 of 19
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competing bidders — who could honor their payment obligations — to win
licenses. See id. at 482-83 (¶ 21).
The FCC accordingly applied its consistent “policy of strict
enforcement of the automatic cancellation rule” in this case. Id. at 483
(¶ 22). The agency noted that TVCN had neither paid its outstanding debt
nor made consistent post-default payments with an unconditional promise to
pay its remaining debt in accordance with the FCC’s payment terms. Id. at
486 (¶ 28 & n.125).

The FCC further concluded that TVCN had failed to show any unique
or unusual factual circumstances that justified a grant of a waiver. Id. at
489-96 (¶¶ 32-46) (discussing failure to satisfy standard under 47 C.F.R.
§ 1.925). The agency specifically noted that where, as in this case, a
successful auction bidder has sought to justify its failure to honor its
installment payment obligations by relying on its asserted financial distress,
the Commission has consistently declined to waive the automatic
cancellation rule. Id. at 491 (¶ 35).

Notice to TVCN.

On January 5, 2010, the day the Installment
Payment Order was released, the FCC emailed a copy to TVCN at the email
address listed in its application for review. The next day, the FCC
(1) announced its decision in its Daily Digest (a public list of recent FCC

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 9 of 19
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actions), (2) placed the order on its website, and (3) sent TVCN another
copy of the order by certified mail to the mailing address listed on TVCN’s
application for review. Although the U.S. Postal Service (“USPS”) left a
notice of the certified mail at TVCN’s address on January 8, 2011, TVCN
did not sign a receipt for the package until February 3, 2011.
Reconsideration Dismissal Order, 26 FCC Rcd at 14892 (¶ 4).

Judicial and Reconsideration Proceedings

. On February 4, 2010,
Alpine PCS, Inc. (“Alpine”), another licensee that failed to make timely
installment payments and was denied a waiver of the automatic cancellation
rule in the Installment Payment Order, filed a timely notice of appeal of that
order. On December 21, 2010, this Court denied Alpine’s appeal of the
Installment Payment Order. Alpine PCS, Inc. v. FCC, 404 Fed. Appx. 508
(D.C. Cir. 2010), reh. denied, No. 10-1020 (D.C. Cir., Feb. 10, 2011).
While the Alpine case was before this Court, TVCN, on February 18,
2010, filed with the Commission a petition asking the agency (1) to extend
retroactively the deadline for filing a petition for reconsideration of the
Installment Payment Order, and (2) to reconsider the Installment Payment
Order. In support of its extension request, TVCN asserted that it did not
receive a copy of the Installment Payment Order by certified mail until
February 3, 2010, because its Chief Executive Officer was “away from the

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 10 of 19
10
office during the month of January.” TVCN Petition at 1. TVCN
acknowledged that it had not monitored the FCC’s public releases to
ascertain whether the FCC had ruled on its waiver. Id.
On October 14, 2011, the FCC denied TVCN’s request for an
extension of time and dismissed its reconsideration petition.
Reconsideration Dismissal Order, 26 FCC Rcd 14891. The Commission
explained that section 405(a) of the Communications Act requires that
petitions for reconsideration be filed within 30 days of public notice of the
decision from which reconsideration is sought. Id. at 14893 (¶ 5). See 47
U.S.C. § 405; see also 47 C.F.R. § 1.106(f) (FCC’s implementing rule).
Because public notice of the Installment Payment Order occurred on
January 5, 2010, the date the order was released (see 47 C.F.R. § 1.4(b)(2)),
the statutory deadline for filing TVCN’s reconsideration petition was
February 4, 2010, and thus TVCN filed its petition two weeks after that
deadline had passed. Reconsideration Dismissal Order, 26 FCC Rcd at
14893 (¶ 5). See 47 U.S.C. § 405; 47 C.F.R. § 1.106(f).
The FCC concluded that TVCN had not shown the extraordinary
circumstances necessary to excuse its failure to meet the statutory filing
deadline. Id. at 14894 (¶ 8). The agency explained that TVCN had not
alleged, let alone shown, any agency error in providing notice. Id. at 14893

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 11 of 19
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(¶ 7). The FCC noted that TVCN’s own pleading, which recounts TVCN’s
failure to monitor its mail between January 8, 2010, and February 3, 2010,
suggests that TVCN’s delay in receiving actual notice of the Installment
Payment Order “was a business decision or an oversight entirely within
[TVCN’s] control.” Id. The FCC also explained that TVCN could have
ascertained when the Installment Payment Order was released by checking
the FCC’s daily releases on the FCC’s web site and could have obtained a
copy of the decision online. Id. at 14894 n.20. Even with the delay in actual
notice, the FCC pointed out that TVCN could have filed its two-page
reconsideration petition “on February 4, 2010, the final day of the 30-day
filing period.” Id. at 14894 n.20. Accordingly, the FCC concluded that
there was “no basis” for granting TVCN’s extension request or considering
its petition for reconsideration. Id. at 14894 at (¶ 8).
On November 14, 2010, TVCN appealed the Installment Payment
Order and Reconsideration Dismissal Order to this Court.

ARGUMENT

I. THE COURT SHOULD DISMISS TVCN’S APPEAL OF THE

INSTALLMENT PAYMENT ORDER

FOR LACK OF
JURISDICTION.
TVCN’s appeal from the Installment Payment Order was filed over
19 months after the deadline for appealing that order passed. Because the

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 12 of 19
12
appeal was untimely filed, the Court should dismiss it for lack of
jurisdiction.
Section 402(b)(5) gives this Court exclusive jurisdiction to adjudicate
appeals by “the holder of any . . . station license which has been . . . revoked
by the Commission.” 47 U.S.C. § 402(b)(5). This Court has held that
section 402(b) governs judicial challenges by a licensee to the cancellation
of its licenses for failure to make timely installment payments. Nextwave
Personal Commc’ns, Inc. v. FCC, 254 F.3d 130, 140 (D.C. Cir. 2001), aff’d,
537 U.S. 293 (2003). The Court reasoned that “[e]ven if the Commission
did not formally ‘revoke’ [the] licenses, that is certainly the effect of the
license cancellation. . . .” Id.; see also N. Am. Catholic Educ. Programming
Found. v. FCC, 437 F.3d 1206, 1209 (D.C. Cir. 2006) (Court’s jurisdiction
under section 402(b) “involve[s] issues ‘ancillary’ to the grants or denials of
licenses,” including waiver decisions related to licensing).
To properly invoke this Court’s jurisdiction to review an FCC order
under section 402(b), an aggrieved party must file a notice of appeal within
30 days of the date of public notice of that order. 47 U.S.C. § 402(c). “The
time limit imposed by 47 U.S.C. § 402(c) is jurisdictional, i.e., if the appeal
is not filed in accordance with the statutory terms, ‘it must be dismissed.’”
Waterway Comm’cns Sys., Inc. v. FCC, 851 F.2d 401, 405 (D.C. Cir. 1988)

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 13 of 19
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(quoting Nat’l Black Media Coal. v. FCC, 760 F.2d 1297, 1298 (D.C. Cir.
1985)); accord Freeman Eng’g Assoc. Inc. v. FCC, 103 F.3d 169, 177 (D.C.
Cir. 1997). See also N. Am. Catholic Programming, 437 F.3d at 1208, 1210
(dismissing appeal filed 32 days after public notice).5 Consistent with that
bright-line jurisdictional limitation, Federal Rule of Appellate Procedure
26(b)(1) provides, subject to exceptions not relevant here, that “court[s] may
not extend the time to file . . . a notice of appeal.”
The FCC gave public notice of the Installment Payment Order on
January 5, 2010, the date the order was released, see 47 C.F.R. § 1.4(b)(2).
Accordingly, the 30-day window prescribed by section 402(c) for filing a
notice of appeal from the Installment Payment Order closed on February 4,
2010. See 47 U.S.C. § 402(c). TVCN did not, however, file its notice of
appeal from the Installment Payment Order until November 14, 2011 —
more than 19 months past the statutory deadline.6 The Court thus lacks
jurisdiction to review that order.
5 As this Court has pointed out, “[s]ection 402(c) makes public notice, not
private notice, the operative event for purposes of the running of the
statutory filing period, and it makes no exception for excusable failure to file
within thirty days of proper public notice.” Nat’l Black Media Coal, 760
F.2d at 1299. Accordingly, the Court has refused to accept a late-filed
notice of appeal that allegedly was caused by the FCC’s failure to provide
appellants with personal notice of its decision. Id.
6 It is immaterial that TVCN incorrectly styled its notice as a “Petition for
Review.” See N. Am. Catholic Programming, 437 F.3d at 1208-09. Indeed,

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 14 of 19
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The FCC’s dismissal of TVCN’s untimely petition for reconsideration
did not open up a new 30-day window for filing an appeal from the
Installment Payment Order. It is well-established that only a timely petition
for administrative reconsideration tolls a statutory time period for the filing
of a judicial appeal. Williston Basin Interstate Pipeline v. FERC, 475 F.3d
330, 334-35 (D.C. Cir. 2006); see also Nat’l Bank of Davis. v. Office of
Comptroller of Currency, 725 F.2d 1390, 1391-92 (D.C. Cir. 1984);
Bowman v. Lopereno, 311 U.S. 262, 266 (1940) (“The filing of an untimely
petition for rehearing which is not entertained or considered on its merits . . .
can not operate to extend the time for appeal.’”). And, as shown below,
TVCN’s reconsideration petition (like its appeal) was untimely filed. Were
the rule otherwise, any party challenging an FCC order governed by section
402(b) could avoid the 30-day statutory window for appeals simply by filing
with the agency an untimely petition for administrative reconsideration and
then filing a notice of appeal within 30 days of the reconsideration order
dismissing that untimely petition.
To properly challenge the Installment Payment Order, TVCN, within
the 30-day period ending on February 4, 2010, was required to either: (1) file
TVCN characterized this case as an “appeal” in the body of its filing, and
cited section 402(c) (applicable to appeals under section 402(b)(5)) as
authority for the filing. See TVCN Petition for Review at 1, 2.

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 15 of 19
15
a petition for agency reconsideration, which would have rendered the
Installment Payment Order nonfinal and tolled the time period for filing an
appeal until the FCC acted on reconsideration;7 or (2) file a notice of appeal
with this Court. It did neither, and its appeal from the Installment Payment
Order therefore should be dismissed for lack of jurisdiction.

II. THE COURT SHOULD SUMMARILY AFFIRM THE

RECONSIDERATION DISMISSAL ORDER

.
This Court will summarily affirm an administrative order without
briefing and argument where “the merits of [the] case are so clear that
expedited action is justified.” Taxpayers Watchdog, 819 F.2d at 297. As
shown below, the claim that the FCC erred by enforcing the deadline
prescribed in 47 U.S.C. § 405(a) for filing of petitions for agency
reconsideration is so clearly meritless that the Court should summarily
affirm the Reconsideration Dismissal Order.
Section 405(a) imposes a 30-day deadline for the filing of petitions for
reconsideration. 47 U.S.C. § 405(a); see also 47 C.F.R. § 1.106. TVCN
indisputably missed that statutory filing deadline. It waited until February
18, 2011 to seek reconsideration, while any such petition was due two weeks
earlier on February 4. See p. 10, supra. In the absence of “extraordinary
circumstances,” the Court has made clear that the FCC must enforce the
7 See, e.g., Stone v. INS, 514 U.S. 386, 392 (1995).

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 16 of 19
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statutory filing deadline and dismiss untimely reconsideration petitions.
E.g., Reuters Ltd. v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986); see Virgin
Islands Tel. Corp. v. FCC, 989 F.2d 1231, 1237 (D.C. Cir. 1993) (Court has
“discouraged the Commission from accepting [untimely reconsideration]
petitions in the absence of extremely unusual circumstances.”).
Here, TVCN points to no circumstances – let alone “extraordinary
circumstances” – that would justify compelling the FCC to exempt TVCN
from complying with the statutory filing deadline. Although TVCN
suggests it did not know that the FCC had issued its Installment Payment
Order until February 3, 2011, TVCN does not claim, let alone demonstrate,
that any alleged lack of notice was the result of agency error.
Reconsideration Dismissal Order, 26 FCC Rcd at 14893 (¶ 7). On January
5, 2010, the day the Installment Payment Order was released, the FCC e-
mailed TVCN a copy of the Installment Payment Order to the address that
TVCN had provided to the agency. Id. at 14892 (¶ 4). On January 6, 2010,
the FCC announced the release of the order in its Daily Digest and made the
Installment Payment Order publicly available on its website. Id. at 14894
n.20. That same day, the FCC sent TVCN another copy of the Installment
Payment Order by certified mail to the address listed on its application for
review and, two days later, USPS left TVCN a notice at its business address

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 17 of 19
17
that the certified mail was ready for delivery. Id. at 14892 (¶ 4). Yet TVCN
did not file its reconsideration petition until February 18, 2011 – two weeks
after the February 4, 2011 deadline for seeking administrative
reconsideration had passed.
To the extent that TVCN was unaware of the public release of the
Installment Payment Order, that is solely attributable to its own failure to:
(1) read its e-mail messages; (2) timely monitor and sign for mail delivered
by the USPS,8 and (3) check the FCC’s website for the status of its waiver
request. That lack of diligence does not qualify as “extraordinary
circumstances” justifying a departure from the statutorily prescribed
deadline for seeking administrative reconsideration. E.g., Reuters, 781 F.2d
at 952; Virgin Islands Tel. Corp., 989 F.2d at 1237.
Because TVCN has no colorable argument that the FCC erred in
dismissing the company’s untimely petition for reconsideration, the Court
should summarily affirm the Reconsideration Dismissal Order.9
8 TVCN argues that it did not sign for the certified mail because its Chief
Executive Officer was “away from the office during the month of January.”
TVCN Petition at 1. TVCN, however, does not explain why it did not
arrange for someone else to monitor and sign for TVCN’s mail during its
CEO’s extended absence from the office.
9 This Court has held that a waiver is warranted only where the delay in
notification makes it “impossible” for the party filing a reconsideration
petition to comply with the section 405(a) filing deadline. A/B Financial,
Inc. v.
FCC, 76 F.3d 1244, 1245 (D.C. Cir. 1995) (Table). That is not the

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 18 of 19
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CONCLUSION


The Court should dismiss TVCN’s untimely appeal of the Installment
Payment Order for lack of jurisdiction, and should summarily affirm the
Reconsideration Dismissal Order.
Respectfully
submitted,







Austin C. Schlick
General
Counsel






Peter Karanjia
Deputy
General
Counsel






Richard K. Welch
Deputy
Associate
General
Counsel
/s/
Laurel
R.
Bergold
Laurel
R.
Bergold,
Counsel




Federal Communications Commission

Washington
D.C.
20554

(202)
418-1747
December 21, 2011


case here. TVCN acknowledged that, by no later than February 3, 2011, it
had received actual notice of the Installment Payment Order. Yet TVCN
inexplicably chose not to file its reconsideration petition (which was less
than two pages long) the following day – the last day of the 30-day filing
period. Instead, it waited more than a week, belatedly seeking
reconsideration on February 16. Reconsideration Dismissal Order, 26 FCC
Rcd at 14894 n.20.

USCA Case #11-1443 Document #1349270 Filed: 12/22/2011 Page 19 of 19
11-1443




IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

TV Communications Network, Inc., Appellant

v.

Federal Communications Commission and the United States of
America, Appellee.

CERTIFICATE OF SERVICE

I, Laurel R. Bergold, hereby certify that on December 22, 2011, I
electronically filed the foregoing Motion for Dismissal and Summary
Affirmance with the Clerk of the Court for the United States Court of
Appeals for the District of Columbia Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.
*John G. Nelson
Catherine G. O’Sullivan
1624 Market Street, Suite 202
Nancy C. Garrison
Denver, CO 80202
United States Department of Justice
Counsel for: TV Communications
Antitrust Division, Appellate Section
Network, Inc.
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Counsel for United States
/s/ Laurel R. Bergold

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