Capital Network System, Inc., Petitioner, v. Federal Communications Commission and United States Ofamerica, Respondents.capital Network System, Inc., Petitioner, v. Federal Communications Commission and United States Ofamerica, Respondents.capital Network System, Inc., Petitioner, v. Federal Communications Commission and United States Ofamerica, Respondents, 957 F.2d 911 (D.C. Cir. 1992)

Upon consideration of the Commission's motion to dismiss, the opposition thereto and the reply, and the motion to consolidate, it is

ORDERED that the motion to dismiss No. 92-1007 be granted. Assuming solely for the purpose of ruling on this motion that the challenged Commission action was a final order, the petition for review was untimely filed. See 47 C.F.R. § 1.4(b), as amended, 56 Fed.Reg. 40566-02 (Aug. 15, 1991) (amending the Commission's rules to redefine public notice as the day Commission actions are published or released); see also 28 U.S.C. § 2344 (petition for review of agency order must be filed "within 60 days after its entry."). In this case, the release date and therefore the public notice date of the challenged order was November 8, 1991; hence, a petition for review, to be timely, should have been filed no later than January 7, 1992. It is

FURTHER ORDERED that the motion to consolidate be dismissed as moot. We note that the court's disposition of this case is without prejudice to any arguments which the parties may seek to raise in Case Nos. 92-1044 and 92-1045.

The Clerk is directed to withhold issuance of the mandate in No. 92-1007 until seven days after disposition of any timely petition for rehearing.