South Star Communications, Inc., Appellant, v. Federal Communications Commission, Appellee, 946 F.2d 127 (D.C. Cir. 1991)

JUDGMENT

PER CURIAM

This appeal was considered on the record from the Federal Communications Commission and on the briefs and oral arguments of counsel. The court is satisfied that appropriate disposition of the case does not warrant an opinion. See D.C. Cir. Rule 14(c).

The record overwhelmingly supports the Commission's determination that South Star's application was properly dismissed on two independent grounds: (1) South Star had furnished no assurance that the transmitter site specified in its application, or indeed any other site, would be available to it; (2) South Star had unjustifiably failed to prosecute its application in a diligent and timely manner, as shown by its repeated late, incorrect, incomplete, or inadequate filings. See Comuni-Centre Broadcasting, Inc. v. FCC, 856 F.2d 1551, 1554-56 (D.C. Cir. 1988), cert. denied, 489 U.S. 1083 (1989). It is accordingly

ORDERED and ADJUDGED that the Commission's decision in this matter, released December 7, 1990, be affirmed.

We note the absence of any reasonably arguable challenge by the appellant to the Commission's decision, and, consequently, the frivolity of this appeal. We therefore invite the Commission to express its views on whether this court should award to the Commission, payable by the appellant or its counsel, attorneys' fees, single or double costs, or other "just damages." See Fed. R. App. P. 38; D.C. Cir. Rule 23; Coghlan v. Starkey, 852 F.2d 806, 808-10, 818 (5th Cir. 1988) (per curiam); United States v. Phoenix Petroleum Co., 727 F.2d 1579, 1580, 1582 (Temp.Emer. Ct. App. 1984) (per curiam). The Commission shall file its views, including documentation for any fees, costs, or damages sought, on or before October 21, 1991; counsel for the appellant shall file his response not later than October 31, 1991.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15(b) (2).