Challenged order languished in the post office for 29 days of 30-day filing period.
Some 30-day deadlines run out after 30 days, whether or not the affected party knows the clock is ticking.
TV Communications Network (TVCN) learned this the hard way. With 14 licenses in the Broadband Radio Service, the company was making auction payments to the FCC on the installment plan – until it missed payments. In accordance with the rules, all 14 of its licenses canceled automatically. TVCN asked the FCC’s Wireless Telecommunications Bureau to waive the automatic cancellation and reinstate the licenses; the Bureau refused. TVCN filed an Application for Review with the full Commission seeking to overturn the Bureau’s decision. The Commission said no.
So far, nothing out of the ordinary. But now, follow the dates.
The FCC released its denial of the Application for Review on January 5, 2010. That same day it emailed a copy to TVCN. The next day, January 6, it sent the company a hard copy by certified mail. (Also on January 6, the FCC posted a link to the denial in the “Daily Digest” page of its website, specifically identifying TVCN in the title of the item.) The Postal Service left a notice of the certified mail at TVCN’s address on January 8, but did not actually deliver the item until February 3.
Release of the denial order on January 5 entitled TVCN to file a Petition for Reconsideration, in which it could try to persuade the FCC to change its mind. Such a petition must be filed within 30 days, starting with the date the order was released. The deadline for the petition thus fell on February 4, the day after TVCN signed for the certified mail copy of the order. Now TVCN may previously have seen the email copy, or the copy posted on the FCC’s website. We don’t know whether that happened. But since TVCN signed for the certified mail copy on February 3, we can assume it saw the order on that date.
It’s possible to get a recon petition out the door in one day – we’ve done it a few times – but TVCN took its time and filed on February 18, two weeks late.
The FCC rulebook is full of deadlines, most of them invented by the FCC. The 30-day limit on a Petition for Reconsideration is different – one of the very few imposed by Congress and embodied in the Communications Act. Because the FCC is answerable to Congress, it has long taken the position that it lacks the authority to waive or amend this deadline. It routinely dismisses reconsideration petitions filed even a few minutes late. The courts have generally gone along, save for a narrow exception that requires the FCC to extend the deadline in cases where the FCC itself failed to notify a party of an adverse action, thus making it impossible for the party to file on time.
Here, TVCN argued that its CEO was out of the office for the month of January, and did not see the FCC’s order until his return on February 3. Sorry, said the FCC. That was TVCN’s problem. It could have had someone monitor the mail, or it could have watched for the order online, or it could have stayed up late and filed its Petition for Reconsideration (which turned out to be all of two pages long) the day after the CEO received the certified mail copy. Note, though, that even if TVCN had seen the FCC’s email or website posting earlier, and deliberately delayed picking up the mail until February 3, the outcome would have been the same.
One last point the FCC did not make, but we will. TVCN’s effort to seek reconsideration of an Application for Review was unlikely to succeed, even had it been filed on time. The FCC routinely denies such petitions unless they are based on facts or arguments which either (a) arose after the last opportunity to present them to the FCC, or (b) the petitioner could not have known about earlier. This almost never happens. Here, it was easy for the FCC to dismiss on the grounds of untimely filing. But we suspect it could just as well have denied the petition on the merits.