02-12062. Repetitious or Conflicting Applications

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document the Commission proposes to amend its rules concerning repetitious or conflicting applications. This proposal will simplify and clarify the Commission's rules and promote the most efficient use of the Commission's resources.

DATES:

Written comments on the proposed are due on or before June 14, 2002 and reply comments are due on or before July 1, 2002.

ADDRESSES:

Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Filings can be sent first class by the US Postal Service, by an overnight courier or hand and messenger-delivered. Hand and message-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

FOR FURTHER INFORMATION CONTACT:

Genevieve Augustin, Esq., [e-mail], Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, [phone], or TTY [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's Notice of Proposed Rule Making, FCC 02-83, adopted on March 14, 2002, and released on March 20, 2002. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at [phone] or TTY [phone].

1. In this Notice of Proposed Rule Making (“NPRM”), the Commission proposes to amend § 1.937 of its Rules to prohibit the filing of any repetitious license application in the Wireless Radio Services within twelve months of the denial or dismissal with prejudice of a substantially similar application. The Commission's Rules have long prevented the filing of repetitious license applications. As written, however, § 1.937 can be interpreted as permitting the filing of other repetitious applications that are not specified in the rule. In at least one instance, a licensee has filed a repetitious application for the same service less than twelve months after the denial of his renewal application. Such cases can consume significant resources to re-litigate identical issues involving the same applicants very close in time. Therefore, we hereby propose to amend § 1.937 to prohibit any repetitious application in the Wireless Radio Services within twelve months of the denial or dismissal with prejudice of a substantially similar application.

2. Also the Commission proposes to streamline its Rules by combining §§ 1.937(a) and (b) into one simplified rule. Our goal is to simplify and clarify our rules against repetitious applications. This will promote the most efficient use of the Commission's resources by preventing the filing of such applications and barring applicants from immediately re-litigating decided matters.

I. Procedural Matters

A. Ex Parte Rules—Permit-But-Disclose Proceeding

3. This is a permit-but-disclose notice and comment rule making proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in our Rules.

B. Regulatory Flexibility Act

4. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The purpose of this Notice is to prohibit the filing of applications for radio station licenses within twelve months of the denial of a substantially similar application. This change is proposed to promote the most efficient use of the Commission's resources by preventing the immediate filing of repetitious applications. The proposed rule change does not impose any additional compliance burden on small entities regulated by the Commission. Accordingly, we certify, pursuant to section 605(b) of the RFA, that the rule proposed in this Notice will not have a significant economic impact upon a substantial number of small entities, as that term is defined by the RFA. The Commission's Office of Public Affairs, Reference Operations Division, shall send a copy of this Notice, including this certification, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with the RFA. We shall also publish a copy of this certification in the Federal Register. With respect to the proposed rules, we shall analyze the information submitted during the comment period and, if we determine at the time we issue a final rule that such final rule changes will have a significant economic impact on a significant number of small entities, we shall prepare a Final Regulatory Flexibility Analysis.

C. Paperwork Reduction Act

5. This Notice does not contain either a proposed or modified information collection.

D. Comment Dates

6. Pursuant to §§ 1.415 and 1.419 of the Commission's Rules, interested parties may file comments on or before June 14, 2002 and reply comments on or before July 1, 2002. Comments may be filed using the Commission's Electronic Filing System (ECFS) or by filing paper copies.

7. Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/​e-file/​ecfs.html>. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, then commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail to [e-mail], and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

8. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Filings can be sent first class by the US Postal Service, by an overnight courier or hand and messenger-delivered. Hand and message-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

9. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Genevieve Augustin, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, 445 12th St., SW., Room 3-A431, Washington, DC 20554. Such a submission should be on a 3.5-inch diskette formatted in an IBM compatible format using Microsoft Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the lead docket number in this case, WT Docket No. 02-87), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters should send diskette copies to the Commission's copy contractor, Qualex International, Inc., 445 12th St., SW., Room CY-B402, Washington, DC 20554.

II. Ordering Clauses

10. Pursuant to Sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, this Notice of Proposed Rule Making is hereby adopted, and notice is hereby given of the proposed regulatory changes described in the Notice of Proposed Rule Making and contained in the rule changes.

List of Subjects in 47 CFR Part 1

• Administrative practice and procedure
• Radio

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Proposed Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 1 as follows:

PART 1—PRACTICE AND PROCEDURE

1. The authority citation for part 1 continues to read as follows:

Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and 325(e).

2. Section 1.937 is amended by revising paragraphs (a) and (c) and by removing and reserving paragraph (b) to read as follows:

§ 1.937

Repetitious or conflicting applications.

(a) Where the Commission has, for any reason, dismissed with prejudice or denied any license application in the Wireless Radio Services, or revoked any such license, the Commission will not consider a like or new application involving service of the same kind to substantially the same area by substantially the same applicant, its successor or assignee, or on behalf of or for the benefit of the original parties in interest, until after the lapse of 12 months from the effective date of final Commission action.

(b) [Reserved]

(c) If an appeal has been taken from the action of the Commission dismissing with prejudice or denying any application in the Wireless Radio Services, or if the application is subsequently designated for hearing, a like application for service of the same type to the same area, in whole or in part, filed by that applicant or by its successor or assignee, or on behalf or for the benefit of the parties in interest to the original application, will not be considered until the final disposition of such appeal.

* * * * *