Electronic Comment Filing System

In the Matter of Application of Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 EchoStar Communications Corporation, (a Nevada Corporation), General Motors Corporation, and Hughes Electronics Corporation (Delaware Corporations) (Timsrerors) and EchoStar Communications Corporation (a Delaware Corporation) (Transferee) To: The Secretary RECEIVED Nav - 7 2002 FuIuv\L COMMUNICATIONS GOMMISSlOhl NFla QF THE SECRETAPV 1 1 1 1 CS Docket No. 01-348 1 ) REQUEST FOR DEFERRAL AND DETERMINATION OF HEARING FEE Johnson Broadcasting, Inc. (?Johnson?), by its attorney, hereby files its request Tor deferral and determination that a hearing fee is not required. In support hereof, Johnson states as follows: Paragraph 297 of the Hearing De.yignation Order (?HDO?) in the above- captioned docket, CS Docker No. 01-348, released October 18, 2002 requires applicants as well as parties that filed peiitions to deny to submit a hearing fee. However, a hearing fee should not apply to Johnson because Johnson is not an applicant, but rather acquired party status as a result of iis filing a petiiion to deny the above-referenced EchoStarDirectTV applicalion for transfer of control. Hearing fees generally apply to applicants rather than to parties filing petitions.? Section I. I107 requires direct broadcast satellite applicants to pay a hearing fees for ?New and MajorIMinor change, comparative hearing; comparative license renewal hearing.? Johnson has not filed an amendment nor is it an applicant in a comparative hearing or a comparative license renewal. Section 1.1 107 makes no reference to the payment of a hearing fee from a non-applicant party. To require Johnson to pay a hearing fee would be fundamentally unfair. Any interpretation of Section 1.1 107 of the Commission?s rules that requires the payment of a hearing fee would conflict with Johnson?s unequivocal right, as a party in interest, to file a petition to deny pursuant to Section 309 of the Communications Act. Further, any interpretation of Section 1.1107 of the Commission?s Rules requiring Johnson to submit a hearing fee would discourage parties from filing Petitions to Deny. This would have the undesired effect of discouraging parties from submitting information and data, which the Commission needs to perform its regulatory duties. Finally, paragraph 295 of the HDO gives the applicants 30 days from the mailing of the NDO to file an amended application and also to file a petition to suspend the hearing pending review of the application. Notices of Appearance and hearing fees are due no later than 20 days aftcr the HDO is mailed. Thus, Johnson could pay the hearing fee only to have the hearing suspended indefinitely. This again would be fundamentally See. Esrublishmeiif ofu Fee Cullecriull Pro<qrum 2 FCC Rcd 947 ar n. 134 (1988). The FCC will not I iissess 3 fee In [he following situarinns: Individuals or organizations named parties (47 CF?R 8 I .221); those who tile Peritions to Deny. -2- unfair. Any hearing fee that may be due should be paid only after the Commission has had an opportunity to review any filed amendment Accordingly, Johnson requests that the Commission determine that a non- applicant party is not required to pay a hearing fee. Alternatively, if a hearing fee is required it should not be due until after the Commission has had an opportunity to review any amendment to the application the transferors or transferee may choose to file. Respectfully submitted, Johnpp Broadcasting, Inc. By: Arthur V. Belendiuk Its Attorney Smithwick & Belendiuk, P.C. 5028 Wisconsin Avenue, N.W. Suite 301 Washington, D.C. 20016 (202) 363-4050 November 7,2002 -3- CERTIFICATE OF SERVICE I, Sherry Schunemann, in the law offices of Smithwick & Belendiuk, P.C., hereby certify that a copy of the foregoing ?Request For Deferral and Determination of Hearing Fee? was mailed by First Class U.S. Mail, postage prepaid (or hand delivered as denoted by an asterisk), this 7?h day of November, 2002, to the following: *Honorable Richard Sippel Chief, Admidnistrativc Law Judge Federal Communications Commission Washington, D.C. 20554 *Charles W. Kelley, Esquire Chief, Investigations and Hearings Division Enforcement Bureau Federal Communications Commission Washington, D.C. 20554 Jack Richards, Esquire Keller and Heckman, LLP 1001 G Street, N.W. Suite 500 West Washington, D.C. 20001 Counsel for National Rural Telecommunications Corp. Christopher C. Cinnamon Cinnamon Mueller 307 North Michigan Avenue, Suite 1020 Chicago, Illinois 60601 Counsel for American Cable Association Kemal Kawa, Esquire O?Melveny &Myers LLP 1650 Tysons Boulevard McLean, Virginia 22102 Counsel for Northpoint Technology, Ltd. James W. Olson, Esquire Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2402 Counsel for National Association of Broadcasters Patrick J. Grant, Esquire Arnold & Potter 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Counsel for Pegasus Communications Corporation William D. Silva, Esquire Law Offices of William D. Silva 5335 Wisconsin Avenue, N.W., #400 Washington, D.C. 20015-20003 Counsel for Word Network Peter Tannenwald, Esquire Irwin, Campbell & Tannenwald, P.C. 1730 Rhode Island Avenue, N.W., #200 Washington, D.C. 20036-3101 Counsel for Family Stations, Inc. and North Pacific International Television, Inc. Debbie Goldman, Esquire Communications Workers of America SO1 Third Street, N.W. Washington, D.C. 20001 Counsel for Communications Workers of America John R. Feore, Jr., Esquire Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, N.W., #800 Washington, D.C. 20036 Counsel for Paxson Communications Corporation Mark A. Balkin, Esquire Hardy, Carey & Chautin I10 Veterans Boulevard, #300 Metdire, LA 70005 Counsel for Carolina Christian Television, Inc. Scott R. Flick, Esquire Shaw Pittman LLP 2300 N Street, N.W. Washington, D.C. 20037 Counsel for Univision Communications, Inc. 2 Barry D. Wood, Esquire Wood, Maines & Brown, Chartered 1827 Jefferson Place, N.W. Washington, D.C. 20036 Counsel for Eagle I11 Broadcasting, LLC and Brunson Communications, Inc. Pantelis Michalpoulas, Esquire Philip L. Malet, Esquire Rhonda M. Bolton, Esquirc Steptoe & Johnson, LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036-1795 Counsel for EchoStar Communications Corporation Gary M. Epstein, Esquire James H. Barker, Esquire Arthur S. Landerholm Latham & Watkins 555 Illh Street, N.W., #IO00 Washington, D.C. 20004 Counsel for General Motors Corporation, Hughes Electronic Corporation , rl? + *, i* / I/ Sherry Schunemann 3