The FCC Nov. 2, 2012 upheld a June 2000 decision by the Media Bureau to dismiss a statement of eligibility for Class A television status filed by The Atlanta Channel (WTHC-LP).
In a Memorandum Opinion and Order released Nov. 9, 2012, the dismissal of the The Atlanta Channel’s statement of eligibility was within the FCC’s authority granted under the Community Broadcasters Protection Act (CBPA) of 1999. That law required LPTV licensees seeking Class A status to submit a certification of eligibility within 60 days of its enactment, which was Jan. 28, 2000.
LPTV licensees seeking Class A designation were required to certify they complied with a variety of requirements, such as a minimum of 18 hours broadcast per day and production of at least three hours per week of programming within the market served.
According to the MO&O, The Atlanta Channel filed its statement of eligibility within the 60-day window, but failed to certify it was in compliance with the qualification requirements. The Atlanta Channel responded by filing a petition for reconsideration in which it said the omission of the certification was due to a clerical error. Further, it said the agency should have given it the chance to correct a “minor defect,” just as the Commission does with defective or incomplete AM and FM applications.
The staff denied the petition, saying The Atlanta Channel filed its amended statement after the statutory deadline and that the Commission lacks the authority to waive or extend the deadline without there being extraordinary circumstances.
In its application for review, The Atlanta Channel said untimeliness is not grounds for dismissal of the corrected statement of eligibility. It also said its incomplete statement was timely and not materially deficient because despite not certifying compliance with the requirements it nonetheless met all of the programming and technical requirements.
In its MO&O, the agency said it disagreed with The Atlanta Channel’s “overly restrictive interpretation of the term ‘material deficiency’ to exclude filings, such as its original Statement of Eligibility, that omit all of the required certifications so long as the licensee actually met the CBPA’s qualification requirements.”
In a statement released with the MO&O, FCC commissioner Robert McDowell voted to uphold the Media Bureau’s original decision to deny but chided the agency for not acting more expeditiously. “Twelve years of inaction is not justifiable,” he said. “Such bureaucratic lethargy causes uncertainty, impedes investment, and hinders innovation and economic growth.”
FCC commissioner Ajit Pai said the delay underscored the need for change in the way the agency does business in such matters. “Today’s decision highlights the need for the Commission to establish a firm deadline for acting on applications for review and to consider other procedures in order to speed up the disposition of Commission-level items,” he said.
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