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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
)
CITICASTERS LICENSES, INC. ) File No. 00-IH-0283
) NAL/Acct. No.
) 200132080019/MG
) FRN 0003-0174-23
)
)
MEMORANDUM OPINION AND ORDER
Adopted: January 18, 2002 Released: January 28,
2002
By the Commission:
INTRODUCTION
1. In this Memorandum Opinion and Order we deny
Citicasters Licenses, Inc.'s1 (``Citicasters'') petition for
reconsideration of our dismissal of its application for review of
a Forfeiture Order issued by the Chief, Enforcement Bureau.2
Citicasters' application for review challenged for the first time
the Bureau's imposition of a $25,000 forfeiture based upon
Citicasters' unauthorized assumption of control of WBTJ(FM),
Hubbard, Ohio, in violation of section 310(d) of the
Communications Act of 1934, as amended, (``Act'') and section
73.3540 of the Commission's rules (``rules'').3 We dismissed
Citicasters' application for review pursuant to section 1.115(a)
of the rules because Citicasters did not demonstrate good cause
for its failure to participate in the forfeiture proceeding prior
to the filing of its application for review. Citicasters
contends, on reconsideration, that it was not required to make a
good cause showing, and thus that our dismissal of its
application for review on procedural grounds was erroneous. For
the reasons set forth below, we deny Citicasters' request for
reconsideration.
2. Citicasters argues that, as the target of the
forfeiture proceeding, it is a party to the forfeiture
proceeding, and thus is exempt from the good cause showing
required by section 1.115(a). Citicasters claims that the
Commission has specifically limited the good cause requirement of
section 1.115(a) to non-parties that participate in a proceeding
for the first time by filing an application for review of a
decision made under delegated authority. We disagree.
DISCUSSION
3. As a preliminary matter, we note that the good cause
requirement of section 1.115(a) applies on its face to all
``persons,'' not just non-parties. The precedent cited4 does not
support Citicasters' assertion that a party is exempt from the
good cause requirements of section 1.115(a), despite the plain
language of the rule. The cited cases all involve a non-party
that sought review of an action taken by the delegated authority
without participating earlier. Thus, this precedent does not
specifically address the applicability of 1.115(a) when a party
fails to contest the delegated authority's decision prior to
filing an application for review. Nor do these cases rule that
parties are not subject to the good cause requirements of section
1.115(a).
4. Citicasters also cites the language of the Commission's
rule for dealing with petitions for reconsideration, section
1.106(b)(1), which requires a non-party to show good cause if it
fails to participate prior to requesting reconsideration of the
delegated authority's action. Section 1.106(b)(1) imposes no
similar requirement on a party. Citicasters argues that the
Commission has found the good cause requirement of section
1.115(a) to be ``similar'' to the good cause requirement of
section 1.106, and thus that the good cause requirement of both
rules is applicable only to non-parties.5 However, the plain
language of the two rule sections differs - section 1.115(a)
applies to all ``persons'' while section 1.106(b)(1) applies only
to non-parties. The cases cited by Citicasters do not address
this, or specifically rule on the issue of whether a party is
exempt from the good cause requirement of section 1.115(a)
despite the language of the rule.6
5. Alternatively, Citicasters argues that it did
previously participate in the proceeding. In this regard,
Citicasters states that it responded to the Bureau's letter of
inquiry and that the Bureau addressed this response in the Notice
of Apparent Liability (``NAL'') proposing a forfeiture based on
its apparent violation of the statute and the Commission's rules.
However, a forfeiture proceeding commences when a notice of
apparent liability is issued, giving the person against whom the
notice has been issued the opportunity to show, in writing, why
no such forfeiture penalty should be imposed.7 Citicasters did
not respond to the Bureau's NAL. Thus, we disagree with
Citicasters' argument.
CONCLUSION
6. For reasons that are unclear, Citicasters did not
respond to the Bureau's NAL. Instead, it responded in the first
instance to the Commission in an application for review of the
Bureau's default forfeiture order. This is not the way the
Commission's rules work. The target of a Bureau NAL is supposed
to give the Bureau the opportunity to address its arguments
before raising them with the Commission.8 Citicasters did not do
so. Accordingly, we affirm our prior dismissal of the
application for review.
ORDERING CLAUSES
7. ACCORDINGLY, IT IS ORDERED That, Citicasters' Motion
for Leave to File a supplement to its application for review IS
HEREBY DENIED and the Supplement to Application for Review filed
October 29, 2001 IS HEREBY DISMISSED.
8. IT IS FURTHER ORDERED That, pursuant to section 1.106
of the rules, 47 C.F.R. § 1.106, Citicasters Licenses, Inc.'s
Petition for Reconsideration of the dismissal of its application
for review of the Forfeiture Order for NAL No. 200132080019/MG IS
HEREBY DENIED.
9. IT IS FURTHER ORDERED That the Opposition to
Citicasters' petition for reconsideration, filed September 6,
2001 by Stop 26-Riverbend, Inc., IS HEREBY DISMISSED, and
Citicasters' reply to this opposition IS DISMISSED AS MOOT.
10. Payment of the forfeiture shall be made in the manner
provided for in section 1.80 of the Commission's rules9 within 30
days of the date of the release of this Memorandum Opinion and
Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice
for collection pursuant to section 504(a) of the Act.10 Payment
may be made by mailing a check or similar instrument, payable to
the order of the Federal Communications Commission, to the
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment must include the FRN and the NAL/Acct.
No. referenced above. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.11
11. IT IS FURTHER ORDERED That a copy of this Memorandum
Opinion and Order shall be sent by Certified Mail Return Receipt
Requested to Citicasters Licenses, Inc., 50 E. RiverCenter Blvd.,
12th Floor, Covington, KY 41011 and to Citicasters' counsel,
Marissa G. Repp, Esq., Hogan & Hartson, L.L.P., 555 13th Street,
N.W., Washington, DC 20004-1109.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 Formerly named Citicasters Co.
2 Citicasters Co., 16 FCC Rcd 14137 (2001). See also,
Citicasters Co., 16 FCC Rcd 7582 (EB 2001)(Forfeiture Order); 16
FCC Rcd 3415 (EB 2001)(Notice of Apparent Liability). On October
29, 2001, Citicasters filed a motion for leave to file a
supplement to its application for review. Citicasters'
supplement is untimely because it was filed outside the time
period established in section 1.115 of the rules and well after
our decision dismissing its application for review. 47 C.F.R. §
1.115(c). Citicasters argues that acceptance of the supplement
will not result in administrative inconvenience or delay because
its application for review was dismissed rather than considered
on the merits. However, Citicasters' supplement also raises
arguments that the Bureau did not have the opportunity to
consider and address, in violation of section 1.115(c).
Citicasters addresses this procedural deficiency by arguing that
the Commission can return this matter to the Bureau to be treated
as a petition for reconsideration. We decline to do so and will
deny Citicasters' motion and dismiss the supplement. See, e.g.,
BDPCS, Inc., 15 FCC Rcd 17590, 17596-97 (2000)(supplements to
application for review that are not filed within 30 days of
public notice of the Commission's action on delegated authority
and which raise matters on which the delegated authority has not
had an opportunity to consider are procedurally deficient and
warrant dismissal on their face); Greater Media Radio Company,
Inc., 15 FCC Rcd 7090, 7102 (1999)(dismissing a supplement to an
application for review that advances new legal arguments on which
the Mass Media Bureau did not have an opportunity to pass, in
violation of section 1.115(c)).
3 47 U.S.C. § 310(d); 47 C.F.R. § 73.3540. In addition, we
note that the call sign of WBTJ(FM) has been changed to WRBP(FM).
The licensee of the station, Stop 26-Riverbend, Inc. filed an
opposition to Citicasters' petition for reconsideration. Stop
26-Riverbend, Inc. was not a party to the forfeiture proceeding,
and its opposition will be dismissed.
4 Family Stations, Inc., 12 FCC Rcd 11779 (1997); Local
Exchange Carrier Line Information Database, 8 FCC Rcd 2957
(1993); Indianapolis Telephone Company, 2 FCC Rcd 2893 (1987);
Pan American Satellite Corporation, 60 RR 2d 398 (1986); Wayne
State University, 53 FCC Rcd 697 (1975).
5 Citicasters cites Wayne State University, supra, which
addresses a pleading filed with the Commission styled as both an
application for review or a petition for reconsideration. The
pleading was filed by a non-party that had not presented its
arguments to the delegated authority. The decision states that
both 1.115 and 1.106 require non-parties to demonstrate good
cause if the non-party did not participate earlier. Citicasters
also cites Heritage Cablevision Associates of Dallas, L.P., 7 FCC
Rcd 4192 (1992), which notes that both 1.115(a) and 1.106(b)(1)
have similar good cause requirements for non-parties.
6 Section 1.106(b)(1) provides:
(b)(1) Subject to the limitations set forth in paragraph (b)(2)
of this section [applicable to petitions for reconsideration of
the Commission's denial of an application for review], any party
to the proceeding, or any other person whose interests are
adversely affected by any action taken by the Commission or by
the designated authority, may file a petition requesting
reconsideration of the action taken. If the petition is filed by
a person who is not a party to the proceeding, it shall state
with particularity the manner in which the person's interests are
adversely affected by the action taken and shall show good reason
why it was not possible for him to participate in the earlier
stages of the proceeding.
Section 1.115(a) provides:
(a) Any person aggrieved by any action taken pursuant to
delegated authority may file an application requesting review of
that action by the Commission. Any person filing an application
for review who has not previously participated in the proceeding
shall include with his application a statement describing with
particularity the manner in which he is aggrieved by the action
taken and showing good reason why it was not possible for him to
participate in the earlier stages of the proceeding. Any
application for review which fails to make an adequate showing in
this respect will be dismissed.
7 47 U.S.C. §503(b); 47 C.F.R. § 1.80(e)(providing that a
forfeiture proceeding may be initiated either by issuing a notice
of apparent liability or a notice of opportunity for hearing).
See generally WXTV License Partnership, G.P., 15 FCC Rcd 3308,
3317 ¶25 (2000) and Cable Vision Systems Corporation, 15 FCC Rcd
3269(2000)(Notice of Apparent Liability) (Commission issues (1)
a decision in a complaint proceeding and (2) a Notice of Apparent
Liability growing out of the complaint as separate matters on the
same day). Additionally, Citicasters argues that it participated
in the forfeiture proceeding by responding to a letter filed by
Stop 26-Riverbend, Inc., the licensee of WBTJ(FM), prior to the
expiration of the 30 day period following issuance of the NAL.
That letter opposed Stop 26-Riverbend, Inc.'s request for a cease
and desist order as an additional enforcement step. It did not,
however, respond to the NAL.
8 In this regard, as noted in our prior order, some of
Citicasters' arguments in the Application for Review were
different than those contained in its response to the inquiry
letter arising from the complaint, in violation of section
1.115(c) of the rules. See also note 1, supra.
9 47 C.F.R. § 1.80.
10 47 U.S. C. § 504(a).
11 See 47 C.F.R. § 1.1914.