81 FR 58858 - Television Broadcasting Services; Seaford, Delaware
FEDERAL COMMUNICATIONS COMMISSION Federal Register Volume 81, Issue 166 (August 26, 2016)
Federal Register Volume 81, Issue 166 (August 26, 2016)
| Page Range | 58858-58859 | |
| FR Document | 2016-20504 |
[Federal Register Volume 81, Number 166 (Friday, August 26, 2016)] [Rules and Regulations] [Pages 58858-58859] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-20504] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 09-230; FCC 16-105] Television Broadcasting Services; Seaford, Delaware AGENCY: Federal Communications Commission. ACTION: Final rule; application for review. ----------------------------------------------------------------------- SUMMARY: In this Memorandum Opinion and Order, the Commission denies the application for review of the Media Bureau's dismissal of a petition for reconsideration of decisions that allotted VHF television channel 5 to Seaford, Delaware. The Media Bureau had dismissed the petition for reconsideration challenging the Seaford allotment because it was untimely filed and the Commission concludes that there is no basis to waive the statutory deadline for the filing of petitions for reconsideration. DATES: August 26, 2016. ADDRESSES: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Jeremy Miller, Media Bureau, (202) 418-1507, or by email at [email protected]. SUPPLEMENTARY INFORMATION: Pursuant to sections 331(a) and 307(b) of the Communications Act, this is a synopsis of the Commission's Memorandum Opinion and Order, MB Docket No. 09-230, adopted August 3, 2016, and released August 4, 2016. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS (http://fjallfoss.fcc.gov/ecfs/). To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Synopsis of Memorandum Opinion and Order The Commission has before it for consideration an Application for Review filed by PMCM TV, LLC (``PMCM''), seeking review of three decisions by the Video Division of the Media Bureau (the ``Division''): (1) The Seaford Report and Order that allotted very high frequency (``VHF'') television channel 5 to Seaford, Delaware; (2) the Seaford MO&O on Reconsideration rejecting a petition for reconsideration of the Seaford Report and Order and (3) the Seaford MO&O on Further Reconsideration dismissing PMCM's petition for reconsideration of the prior Seaford decisions as untimely. For the reasons set forth below, we deny the AFR and affirm the Division's dismissal of the PMCM Petition.\1\ --------------------------------------------------------------------------- \1\ An Application for Review must establish that the actions of the delegated authority: (i) Conflicted with statute, regulation, case precedent or Commission policy; (ii) involved a question of law or policy not previously resolved by the Commission; (iii) involved precedent or policy that should be overturned or revised; (iv) made an erroneous finding as to an important fact; or (v) made a prejudicial procedural error. --------------------------------------------------------------------------- In ordering the Seaford allotment, the Commission concluded that the outcome of PMCM's Reallocation Request was not relevant. PMCM did not seek reconsideration of that finding until nearly three years later when, for the first time, it opposed the new Seaford allotment that it had previously ``strongly'' supported. In hindsight, PMCM now argues that the Commission should have postponed allocating a new channel to Delaware while its efforts to reallocate channel 2 played out at the Commission and in court, even though the pendency of that litigation did not prevent PMCM from raising other concerns premised on a favorable outcome regarding its Reallocation Request, and the Seaford allotment is consistent with that request.\2\ In short, it appears that PMCM simply changed its strategy as developments unfolded. --------------------------------------------------------------------------- \2\ PMCM now attempts to excuse its failure to object to the Seaford allotment earlier on the grounds that it had no reason to object to the proposal to place the allotment in Seaford, in Southern Delaware, which lacked robust broadcast service, but its interests changed when Western Pacific applied to change the community of license to Dover. PMCM even sought to bid in the auction for channel 5. As to its objection to an allotment in Dover, WMDE's application for a change in community of license is the proper proceeding for the airing of this grievance, and in fact, PMCM has sought reconsideration of the Bureau's decision in that proceeding. --------------------------------------------------------------------------- The staff was correct in determining that PMCM's Petition for Reconsideration of the Seaford Report and Order was untimely. Section 405 of the Act provides that ``petitions for reconsideration must be filed within thirty days from the date upon which public notice is given of the action . . . complained of.'' Public notice of the Seaford Report and Order was given on May 7, 2010. The Petition for Reconsideration was filed on March 15, 2013, on the basis that allotment of a new channel to Seaford was improper. PMCM's claim that its Petition was timely because it was filed within 30 days after issuance of the Seaford MO&O on Further Reconsideration is entirely without merit. PMCM's Petition challenged the allocation adopted in the Seaford Report and Order, not the Commission's rejection of BMC's argument that the Commission should have placed the new allocation at channel 2 or 3. As to its request for reconsideration of the Seaford MO&O on Reconsideration, the Petition therefore was an impermissible collateral challenge to the Seaford Report and Order. The deadline for filing the Petition therefore was 30 days after public notice of the Seaford Report and Order, not 30 days after public [[Page 58859]] notice of the Seaford MO&O on Reconsideration. Accordingly, PMCM filed its Petition for Reconsideration approximately three years late. The Commission can only accept late-filed petitions for reconsideration if the petitioner shows that extraordinary circumstances warrant overriding the statutory filing deadline. As the D.C. Circuit has explained, ``[a]lthough section 405 does not absolutely prohibit FCC consideration of untimely petitions for reconsideration, we have discouraged the Commission from accepting such petitions in the absence of extremely unusual circumstances.'' Consistent with the D.C. Circuit's decisions, the Commission in applying that standard has focused on whether the Commission has failed to adhere to its procedural rules for providing notice of its decisions. PMCM has not even attempted to show that it has met this standard, much less demonstrated that the extraordinary circumstances required under this precedent are present here. The assertion that the Court's decision in PMCM TV constituted ``changed circumstances'' warranting an extension of the deadline for reconsideration of the Seaford Report and Order is also without merit. This contention presumes incorrectly that a showing of ``changed circumstances'' under section 1.429(b) warrants an extension of the statutory deadline for the filing of petitions for reconsideration. Thus, PMCM claims that ``[i]t is hornbook law that `changed circumstances' provide an adequate legal basis for reconsideration'' and that the ``relevant test is whether the petitioner has raised the changed circumstance at the first opportunity to do so.'' Rather than supporting its theory that changed circumstances can support a request for reconsideration filed after the applicable statutory deadline, the single case PMCM cites, a 1979 Commission order, relates not to the filing of petitions for reconsideration after the statutory deadline but instead to the circumstances under which parties may seek reconsideration of a Commission order denying an application for review. Section 1.429(b)(1) sets forth the limited circumstances in which new matter raised in a timely petition for reconsideration will be considered. It does not and cannot supersede the statutorily established deadline for the filing of petitions for reconsideration, which is set forth in Section 405 of the Act and reflected in Section 1.429(d) of the Commission's rules.\3\ --------------------------------------------------------------------------- \3\ There is no exception in section 1.429(d) for late-filed petitions based on new information nor any other exception. --------------------------------------------------------------------------- For the foregoing reasons, PMCM's argument that the Petition was timely filed because of its submission within 30 days of the release of the Seaford MO&O on Further Reconsideration is without merit. We therefore affirm the Bureau's dismissal of the Petition and deny the AFR. In light of our denial of the AFR, the Motion to Dismiss and associated pleadings are moot. We therefore dismiss these filings. Accordingly, it is ordered That, pursuant to section 5(c)(5) of the Communications Act of 1934, as amended, 47 U.S.C. 155(c)(5), and Sec. 1.115(g) of the Commission's rules, 47 CFR 1.115(g), the Application for Review IS DENIED. It is further ordered That, pursuant to section 4(i)-(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i)-(j), and Sec. 1.41 of the Commission's rules, 47 CFR 1.41, the Motion to Dismiss, Request for Leave to File Motion to Dismiss, and Reply to Opposition to Motion to Dismiss of Western Pacific Broadcast, LLC, and the Opposition to Motion to Dismiss, Comments in Response to Reply to Opposition to Motion to Dismiss, and Request for Leave to File Comments in Response to Reply to Opposition to Motion to Dismiss of PMCM TV, LLC, ARE DISMISSED as moot. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 2016-20504 Filed 8-25-16; 8:45 am] BILLING CODE 6712-01-P
![58858 Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations
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Permit/order or State effective 40 CFR part 52
Source name registration EPA approval date
date citation
No.
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Reynolds Metals Co.-Bellwood ........................................... 50260 10/20/2015 8/26/2016 [Insert Federal 52.2465(c)(110)
Register citation].
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* * * * * DC 20554. This document will also be the pendency of that litigation did not
[FR Doc. 2016–20299 Filed 8–25–16; 8:45 am] available via ECFS (http:// prevent PMCM from raising other
BILLING CODE 6560–50–P fjallfoss.fcc.gov/ecfs/). To request concerns premised on a favorable
materials in accessible formats for outcome regarding its Reallocation
people with disabilities (braille, large Request, and the Seaford allotment is
FEDERAL COMMUNICATIONS print, electronic files, audio format), consistent with that request.2 In short, it
COMMISSION send an email to fcc504@fcc.gov or call appears that PMCM simply changed its
the Consumer & Governmental Affairs strategy as developments unfolded.
47 CFR Part 73 Bureau at 202–418–0530 (voice), 202– The staff was correct in determining
[MB Docket No. 09–230; FCC 16–105] 418–0432 (tty). that PMCM’s Petition for
Reconsideration of the Seaford Report
Synopsis of Memorandum Opinion and
Television Broadcasting Services; and Order was untimely. Section 405 of
Order
Seaford, Delaware the Act provides that ‘‘petitions for
The Commission has before it for reconsideration must be filed within
AGENCY: Federal Communications consideration an Application for Review thirty days from the date upon which
Commission. filed by PMCM TV, LLC (‘‘PMCM’’), public notice is given of the action . . .
ACTION: Final rule; application for seeking review of three decisions by the complained of.’’ Public notice of the
review. Video Division of the Media Bureau (the Seaford Report and Order was given on
‘‘Division’’): (1) The Seaford Report and May 7, 2010. The Petition for
SUMMARY: In this Memorandum Opinion Order that allotted very high frequency Reconsideration was filed on March 15,
and Order, the Commission denies the (‘‘VHF’’) television channel 5 to Seaford, 2013, on the basis that allotment of a
application for review of the Media Delaware; (2) the Seaford MO&O on new channel to Seaford was improper.
Bureau’s dismissal of a petition for Reconsideration rejecting a petition for PMCM’s claim that its Petition was
reconsideration of decisions that reconsideration of the Seaford Report timely because it was filed within 30
allotted VHF television channel 5 to and Order and (3) the Seaford MO&O on days after issuance of the Seaford
Seaford, Delaware. The Media Bureau Further Reconsideration dismissing MO&O on Further Reconsideration is
had dismissed the petition for PMCM’s petition for reconsideration of entirely without merit. PMCM’s Petition
reconsideration challenging the Seaford the prior Seaford decisions as untimely. challenged the allocation adopted in the
allotment because it was untimely filed For the reasons set forth below, we deny Seaford Report and Order, not the
and the Commission concludes that the AFR and affirm the Division’s Commission’s rejection of BMC’s
there is no basis to waive the statutory dismissal of the PMCM Petition.1 argument that the Commission should
deadline for the filing of petitions for
In ordering the Seaford allotment, the have placed the new allocation at
reconsideration.
Commission concluded that the channel 2 or 3. As to its request for
DATES: August 26, 2016. outcome of PMCM’s Reallocation reconsideration of the Seaford MO&O
ADDRESSES: Federal Communications Request was not relevant. PMCM did on Reconsideration, the Petition
Commission, 445 12th Street SW., not seek reconsideration of that finding therefore was an impermissible
Washington, DC 20554. until nearly three years later when, for collateral challenge to the Seaford
FOR FURTHER INFORMATION CONTACT: the first time, it opposed the new Report and Order. The deadline for
Jeremy Miller, Media Bureau, (202) 418– Seaford allotment that it had previously filing the Petition therefore was 30 days
1507, or by email at Jeremy.Miller@ ‘‘strongly’’ supported. In hindsight, after public notice of the Seaford Report
fcc.gov. PMCM now argues that the Commission and Order, not 30 days after public
should have postponed allocating a new
SUPPLEMENTARY INFORMATION: Pursuant
channel to Delaware while its efforts to 2 PMCM now attempts to excuse its failure to
to sections 331(a) and 307(b) of the
reallocate channel 2 played out at the object to the Seaford allotment earlier on the
Communications Act, this is a synopsis grounds that it had no reason to object to the
Commission and in court, even though
of the Commission’s Memorandum proposal to place the allotment in Seaford, in
Opinion and Order, MB Docket No. 09– Southern Delaware, which lacked robust broadcast
1 An Application for Review must establish that service, but its interests changed when Western
230, adopted August 3, 2016, and
ehiers on DSK5VPTVN1PROD with RULES
the actions of the delegated authority: (i) Conflicted Pacific applied to change the community of license
released August 4, 2016. The full text of with statute, regulation, case precedent or to Dover. PMCM even sought to bid in the auction
this document is available for public Commission policy; (ii) involved a question of law for channel 5. As to its objection to an allotment
inspection and copying during normal or policy not previously resolved by the in Dover, WMDE’s application for a change in
Commission; (iii) involved precedent or policy that community of license is the proper proceeding for
business hours in the FCC’s Reference should be overturned or revised; (iv) made an the airing of this grievance, and in fact, PMCM has
Information Center at Portals II, CY– erroneous finding as to an important fact; or (v) sought reconsideration of the Bureau’s decision in
A257, 445 12th Street SW., Washington, made a prejudicial procedural error. that proceeding.
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![Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations 58859
notice of the Seaford MO&O on Act and reflected in Section 1.429(d) of Counsel to the Inspector General instead
Reconsideration. Accordingly, PMCM the Commission’s rules.3 of the Office of the General Counsel.
filed its Petition for Reconsideration For the foregoing reasons, PMCM’s DATES: These deviations are effective on
approximately three years late. argument that the Petition was timely August 26, 2016.
filed because of its submission within FOR FURTHER INFORMATION CONTACT:
The Commission can only accept late-
30 days of the release of the Seaford Brian Hildebrandt, Office of Counsel to
filed petitions for reconsideration if the
MO&O on Further Reconsideration is the Inspector General, Office of
petitioner shows that extraordinary without merit. We therefore affirm the
circumstances warrant overriding the Inspector General, (202)205–9493.
Bureau’s dismissal of the Petition and SUPPLEMENTARY INFORMATION:
statutory filing deadline. As the D.C. deny the AFR. In light of our denial of
Circuit has explained, ‘‘[a]lthough the AFR, the Motion to Dismiss and I. Background
section 405 does not absolutely prohibit associated pleadings are moot. We Notice is hereby given that the Office
FCC consideration of untimely petitions therefore dismiss these filings. of Inspector General (OIG) adopts the
for reconsideration, we have Accordingly, it is ordered That, Health and Human Services Acquisition
discouraged the Commission from pursuant to section 5(c)(5) of the Regulations (HHSAR) as issued in the
accepting such petitions in the absence Communications Act of 1934, as Code of Federal Regulations (CFR) as
of extremely unusual circumstances.’’ amended, 47 U.S.C. 155(c)(5), and chapter 3 of title 48; as promulgated by
Consistent with the D.C. Circuit’s § 1.115(g) of the Commission’s rules, 47 the Assistant Secretary for Financial
decisions, the Commission in applying CFR 1.115(g), the Application for Resources (ASFR) under the authority of
that standard has focused on whether Review IS DENIED. 5 U.S.C. 301 and section 205(c) of the
the Commission has failed to adhere to It is further ordered That, pursuant to Federal Property and Administrative
its procedural rules for providing notice section 4(i)–(j) of the Communications Services Act of 1949, as amended (40
of its decisions. PMCM has not even Act of 1934, as amended, 47 U.S.C. U.S.C. 121(c)(2)), and as delegated by
attempted to show that it has met this 154(i)–(j), and § 1.41 of the the Secretary.
standard, much less demonstrated that Commission’s rules, 47 CFR 1.41, the In addition, by the authority vested in
the extraordinary circumstances Motion to Dismiss, Request for Leave to the Senior Procurement Executive (SPE)
required under this precedent are File Motion to Dismiss, and Reply to in accordance with 48 CFR chapter 3,
Opposition to Motion to Dismiss of section 301.401 of the HHSAR, and 48
present here.
Western Pacific Broadcast, LLC, and the CFR chapter 1, section 1.401 of the
The assertion that the Court’s decision Opposition to Motion to Dismiss, Federal Acquisition Regulations (FAR),
in PMCM TV constituted ‘‘changed Comments in Response to Reply to I execute three class deviations from the
circumstances’’ warranting an extension Opposition to Motion to Dismiss, and HHSAR to ensure compliance with
of the deadline for reconsideration of Request for Leave to File Comments in section 3(g) of the Inspector General
the Seaford Report and Order is also Response to Reply to Opposition to Act. These deviations establish the OIG
without merit. This contention Motion to Dismiss of PMCM TV, LLC, shall make use of the Office of Counsel
presumes incorrectly that a showing of ARE DISMISSED as moot. to the Inspector General (OCIG), and not
‘‘changed circumstances’’ under section Federal Communications Commission. Office of the General Counsel (OGC), for
1.429(b) warrants an extension of the the purposes of HHSAR sections
Marlene H. Dortch,
statutory deadline for the filing of 301.602–3; 303.203; & 333.102(g)(1); and
Secretary.
petitions for reconsideration. Thus, further reaffirm the requirement that
[FR Doc. 2016–20504 Filed 8–25–16; 8:45 am] OCIG be consulted when the HHSAR
PMCM claims that ‘‘[i]t is hornbook law
that ‘changed circumstances’ provide an
BILLING CODE 6712–01–P and/or FAR require consultation with
adequate legal basis for reconsideration’’ legal counsel.
and that the ‘‘relevant test is whether Dated: August 2, 2016.
DEPARTMENT OF HEALTH AND
the petitioner has raised the changed Joanne M. Chiedi,
HUMAN SERVICES
circumstance at the first opportunity to Principal Deputy Inspector General, Senior
do so.’’ Rather than supporting its 48 Parts 301, 303 and 333 Procurement Executive for OIG.
theory that changed circumstances can [FR Doc. 2016–18790 Filed 8–25–16; 8:45 am]
support a request for reconsideration Notice of Adoption of the Health and BILLING CODE 4152–01–P
filed after the applicable statutory Human Services Acquisition
deadline, the single case PMCM cites, a Regulations (HHSAR) and OIG Class
1979 Commission order, relates not to Deviations DEPARTMENT OF COMMERCE
the filing of petitions for reconsideration AGENCY: Office of Inspector General National Oceanic and Atmospheric
after the statutory deadline but instead (OIG), HHS. Administration
to the circumstances under which ACTION: HHS OIG adoption of the
parties may seek reconsideration of a HHSAR, and deviation from three 50 CFR Part 648
Commission order denying an clauses.
application for review. Section [Docket No. 150306232–6736–02]
1.429(b)(1) sets forth the limited SUMMARY: This announcement RIN 0648–BE96
circumstances in which new matter establishes that the OIG contracting
raised in a timely petition for activity will follow the requirements of Fisheries of the Northeastern United
ehiers on DSK5VPTVN1PROD with RULES
reconsideration will be considered. It the HHSAR, subject to three deviations States; Monkfish; Framework
does not and cannot supersede the establishing that OIG personnel shall Adjustment 9
statutorily established deadline for the seek legal guidance from the Office of
AGENCY: National Marine Fisheries
filing of petitions for reconsideration, 3 There Service (NMFS), National Oceanic and
is no exception in section 1.429(d) for
which is set forth in Section 405 of the late-filed petitions based on new information nor Atmospheric Administration (NOAA),
any other exception. Commerce.
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Document Created: 2016-08-26 10:40:12
Document Modified: 2016-08-26 10:40:12
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule; application for review. | |
| Dates | August 26, 2016. | |
| Contact | Jeremy Miller, Media Bureau, (202) 418-1507, or by email at [email protected] | |
| FR Citation | 81 FR 58858 |
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