In an unusual decision, the Federal Communications Commission has essentially waived the statutory thirty-day period for filing petitions for reconsideration and will conduct a de novo review of a June 30, 2005 effective competition finding. Section 405 of the Communications Act governs petitions for reconsideration of Commission actions. The statute specifically requires that any "petition for reconsideration must be filed within 30-days from the date upon which public notice is given of the order, decision, report or action complained of."
The Commission has no authority – at least under the terms of the Communications Act -- to waive statutory timelines. Indeed, in a recent ruling in Reuters Limited v. FCC, the D.C. Circuit Court of Appeals held that the FCC exceeded its authority in acting on a late-filed petition for reconsideration. As a result, in virtually all instances in which the Commission considers an untimely filed petition for reconsideration, it denies the petition as untimely filed. Here, though, the Commission relied on an older Court of Appeals case -- Gardner v. FCC -- holding that the statutory limit does not prevent the Commission from considering late-filed petitions under extraordinary conditions.
Background
Mediacom Southeast, LLC originally filed its petition seeking an effective competition decision as to its Fairhope, Alabama system on April 4, 2005. For reasons that remain unexplained, Fairhope’s opposition, as well as a number of other related pleadings, were not placed in the Commission’s file. Mediacom’s request was treated as unopposed and granted along with sixteen other unopposed effective competition petitions.
The decision was publicly released on July 6, 2005. In order to be considered timely, a petition for reconsideration would have had to have been filed on or before August 7, 2005. The City of Fairhope, however, did not file for reconsideration until August 25, 2005.
The Petition for Reconsideration
Fairhope argued that it was unaware of the grant because the Commission failed to provide either it or its counsel with a copy of the decision. It further asserted that it only learned of the decision on August 22, 2005 when it received a copy attached to a Mediacom submission to the Commission relevant to the case.
Notwithstanding that Fairhope at least should have known of the decision because of its public release – note that the time for seeking for reconsideration does not run from notice by mail but from the release date – the Commission found sufficient extraordinary conditions to warrant review:
* First, Fairhope had timely filed an opposition to Mediacom’s effective competition request;
* Second, "t was the Commission’s error which substantially contributed to" Fairhope's failure to timely seek reconsideration; and
* Third, Fairhope acted quickly after discovering the grant.
his is a rare decision as the Commission virtually always follows the Reuters holding, denying untimely reconsideration petitions on the grounds that it has no authority to waive the statutory thirty-day filing deadline.
Having decided to grant reconsideration, the Commission will now conduct a de novo review, fully considering the arguments raised in response to the effective competition petition. It has further directed the parties to update the record requiring that "the updated information should reflect the best possible data available and accurately reflect the current state of competition in Fairhope." It indicated that a decision will be issued "expeditiously" following completion of the pleading cycle.
However, the Commission denied Fairhope's request that the Commission modify the ex parte status of the proceeding from "restricted" to "permit but disclose," which would have permitted other interested parties to address the Commission's continued use of 2000 Census occupied household data for purposes of determining DBS penetration and other related issues. The Commission held such issues were "of general concern that exceed the limits of its Petition for Reconsideration" that there was an existing forum for the discussion of such matters.
Please contact Mark Palchick (202/857-4411) or Howard Barr (202/857-4506) if you have any questions regarding this advisory.
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