South Missouri Broadcasting Co., Appellant, v. Federal Communications Commission, Appellee, 15 F.3d 1160 (D.C. Cir. 1993)

This cause came to be heard on a petition for review from the order of the Federal Communications Commission ("FCC") in In re South Missouri Broadcasting Co., 7 F.C.C.R. 2989 (1992). The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C. Cir. Rule 14(c).

Petitioner argues that the FCC failed to give adequate notice when it retracted a rule announced in In re Ronette Communications Corp., 51 Rad.Reg.2d 229 (1982), of ignoring noncompliance of up to 0.5 miles with the FCC's spacing requirements in applications for broadcast transmitter stations. We find that the FCC never had a 0.5 mile nonrecognition rule. Instead, it accepted applications that satisfied the FCC's requirements of minimal spacing between stations after distance figures were rounded to the nearest mile.

After the FCC's switch to the metric system and publication of an amendment to 47 C.F.R. Sec. 73.208(c) in 52 Fed.Reg. 37,786, 37,788 (October 9, 1987), petitioner was on notice that distances in broadcast transmitter applications must be calculated in kilometers and rounded to the nearest kilometer. Since after performing the calculations according to the regulations petitioner's broadcast transmitter site fell short of the minimal spacing requirements, petitioner would have had to apply for a waiver of the FCC's rules in order to save his application from rejection. Petitioner failed to file a timely waiver request and the FCC reasonably rejected its application.

Accordingly it is,

ORDERED and ADJUDGED, by the Court, that in No. 92-1249 the decision by the FCC is affirmed; and it is

ORDERED that the petition for review is denied.

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