FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,069
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Federal Communications Commission
for the first time in a petition for reconsideration unless the petitioner demonstrates that it was unable,
with exercise of diligence, to raise the matter earlier.14
7. We have recently pointed out that pleadings inconsistent with the Commission's
procedural rules waste the resources of the Commission and other parties to a proceeding.'5 Indiana's
Petition is such a pleading. It primarily consists of a reprise of arguments that Indiana made earlier
concerning its change order requests for giving radios a first touch and for $100,000 in licensing services.
The Petition also relies on new evidence which, with exercise of ordinary diligence, Indiana could have
presented earlier. Accordingly, as detailed below, and as the Commission's rules and cases dictate, we
decline to consider matter that is repetitious of that contained in Indiana's Statement of Position, and new
matter raised by Indiana which, with exercise of ordinary diligence, it could have raised in its Statement
A. License Preparation and Filing Fees
8. Indiana submits that the quote that Sprint submitted from EWA to perform the licensing
work is "irrelevant"''6 because, "it did not include all actions which must be taken by the State in
modifying its existing authorizations.""7 It then goes on to state - for the first time in this proceeding -
that the licensing services it requires include such engineering tasks as co-channel and adjacent-channel
frequency analysis, and the filing of applications to replace current Special Temporary Authorizations
(STA) held by Indiana.'s
9. There is no mention in Indiana's Statement of Position, or elsewhere in the record, that
"licensing services" included engineering analysis or STA-associated tasks. Indiana has not demonstrated
that it was unable, with exercise of diligence, to earlier have claimed that the application services
involved engineering analysis and the filing of STA-related applications. Indiana adding these tasks in
the context of a petition for reconsideration constitutes an improper attempt to introduce new evidence
concerning the scope of its licensing services requirements. We are foreclosed from considering this new
evidence. As the United States Court of Appeals for the District of Columbia has instructed: "We cannot
allow a party to 'sit back' and hope that a decision will be in its favor, and when it isn't, to parry with an
offer of more evidence.'9 Accordingly, we are disregarding Indiana's claim that its required application
services include co-channel and adjacent-channel engineering analysis and STA-related applications.
10. Indiana submits, also for the first time, that EWA is not qualified to provide the required
application services. It claims it has not earlier challenged EWA's "obvious failings for understandable
reasons related to public decorum."'20 There is no "public decorum" exception to Section 1.106 of the
Commission's rules which bars Indiana from raising new arguments in a petition for reconsideration. We
therefore reject Indiana's attack on EWA's qualifications. We likewise disregard, on the same grounds,
Indiana's claim that its preferred vendor, EMR, has "superior qualifications." It has not previously
claimed that EMR is "superior" and cannot be heard to do so now.
14 47 C.F.R 1.106; WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), af'd sum nom.,
Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 387 U.S. 967 (1966).
' Ottawa County, Ohio, Order, 26 FCC Rcd 2205 (PSHSB 2011), DA 11-382, Feb. 28, 2011.
16 Petition at 1.
I8 d. at 4-6.
'9 Colorado Radio Corp. v. FCC, 118 F.2d 24, 26 (D.C. Cir. 1941).
2o Petition at 8.
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/241/: accessed January 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.