UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


LAKESHORE BCAST INC

v.

FCC


98-1478a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: Lakeshore Broadcasting Corpo- ration appeals
an order of the Federal Communications Com- mission dismissing
Lakeshore's application for a construction  permit due to its failure
to make timely payment of the  hearing fee. Pursuant to Commission
regulations, the dead- line for payment of the hearing fee had been
announced in a  public notice released only in the Commission's press
office in  Washington, D.C. 


Lakeshore claims that the Commission violated the Com- munications Act
of 1934, the agency's own regulations, and  the Due Process Clause of
the Fifth Amendment to the  Constitution of the United States by
dismissing Lakeshore's  application for failure to meet a deadline of
which Lakeshore  was never given personal notice. Lakeshore also
challenges  as arbitrary and capricious the Commission's denial of
Lake- shore's petition for waiver of the deadline and reinstatement 
of its application.


We affirm the order of the Commission. The dismissal of  Lakeshore's
application for failure to pay by the deadline  does not violate any
statutory, regulatory, or constitutional  constraint. Because the
Commission's policy is lawful, and  because Lakeshore has failed to
demonstrate that the agency  treated its application differently from
others similarly situat- ed, the Commission properly denied
Lakeshore's petition for  waiver and reinstatement.


I. Background


Under the Communications Act of 1934, the Commission  grants an
application for a broadcasting license based upon  its determination
that "the public interest, convenience, and  necessity will be
served." 47 U.S.C. s 309(a). If the Com- mission has before it two or
more "mutually exclusive" appli- cations--that is, applications of
which only one can be granted  because they seek the same license or
different licenses for 


broadcasting stations that would interfere with each other-- then the
Commission must hold a "comparative hearing" to  consider the relative
merits of the applications. See Ashback- er Radio Corp. v. FCC, 326
U.S. 327, 333 (1945).


The Commission periodically releases a public notice listing 
applications newly accepted for filing, grouped by station so  that it
is apparent where there are mutually exclusive applica- tions subject
to a comparative hearing. During the period  relevant to this
litigation, such public notices were released  only in the
Commission's press office in Washington, D.C.;  they were neither
mailed to the listed applicants nor publish- ed by the Commission in
any other form. At some point after  release of the public notice, the
Commission, as required by  statute, "formally designate[s] the
application for hearing ...  [and] forthwith notif[ies] the
applicant." 47 U.S.C. s 309(e).  Specifically, the Commission issues a
hearing designation  order (HDO) giving the time and place of the
hearing and  setting forth issues to be heard, which it mails to each 
affected applicant. See 47 C.F.R. s 1.221(a)-(b).


A. The Hearing Fee Deadline Rule


In 1986 the Congress added s 8 to the Communications  Act, 47 U.S.C. s
158, instructing the Commission to assess  and collect a substantial
fee from each applicant subject to a  comparative hearing. See
Consolidated Omnibus Budget  Reconciliation Act of 1985, Pub. L. No.
99-272, s 5002(e), 100  Stat. 82, 118 (1986) (COBRA). The Commission
was autho- rized to "prescribe appropriate rules and regulations to
carry  out" the fee program, 47 U.S.C. s 158(f), and to dismiss 
applications for "failure to pay [the fee] in a timely manner,"  id. s


The Commission first promulgated a rule establishing the  deadline for
payment of the comparative hearing fee in 1987.  At that time, the
Commission opined that "[t]he relevant  legislative history indicates
that [the hearing fee] should be  levied when an application is
designated for hearing." See  Establishment of a Fee Collection
Program, 2 F.C.C.R. 947,  p 138 (1987) (citing H.R. Conf. Rep. No.
99-453, at 427  (1985)). The Commission therefore tied the fee


the formal act of designating an application for hearing: Each 
applicant was required to pay the hearing fee within 20 days  of the
Commission's mailing the HDO to that applicant. See  id. at p p 144,
157. Thus, under the 1987 rule, an applicant  whose application had
been designated for hearing received  personal notice from which the
applicant--provided it knew  the deadline rule--could determine when
the hearing fee was  due.


In 1990 the Commission decided to move the time for  payment of the
hearing fee to an earlier stage in the compar- ative process; it did
so in order to promote earlier settle- ments by weeding out
non-serious applicants and by encour- aging the serious ones to settle
before the hearing fee was  due. See Proposals to Reform the
Commission's Compara- tive Hearing Process to Expedite the Resolution
of Cases,  Report and Order, 6 F.C.C.R. 157, p 4 [Report & Order]; see
 also 47 U.S.C. s 158(g) (1990) (setting comparative hearing  fee at
$6,760 for 1990). The Commission again considered  the remark in the
conference report on the COBRA linking  the hearing fee to formal
designation of the application for  hearing, but concluded this time
that the remark was descrip- tive rather than prescriptive; the
Congress did not intend to  limit the Commission's discretion over
when to require pay- ment. See Report & Order, 6 F.C.C.R. 157, p 6
n.8. The  Commission then adopted its current approach to setting the 
deadline for payment, under which the deadline is tied to the  release
of the public notice rather than to formal designation  of the
application for hearing and the mailing of the HDO:


In addition to announcing the acceptance of mutually  exclusive
applications and establishing a date for the  filing of petitions to
deny such applications, the public  notice ... will also announce the
date on which all  mutually exclusive applicants will be required to
pay the  hearing fee.


47 C.F.R. s 73.3573(g)(2)(i). The new rule makes no provi- sion for
personal notice to the applicant of the deadline for  paying the


The practical effect of the 1990 rule is that once one files an 
application with the Commission, one must monitor the Com- mission's
public notices in order to determine when one's  application has been
accepted for filing and whether a mutu- ally exclusive application has
been accepted; if so, then there  will be a comparative hearing, a
hearing fee, and a deadline  for paying the fee. If one misses the
relevant public notice,  then the payment deadline could pass--and
one's application  be dismissed--before one receives personal notice
(in the  HDO) that a hearing is necessary.


B. Lakeshore's Application 


On January 19, 1993 Lakeshore applied to the Commission  for a permit
to construct a new FM broadcast station to  operate on channel 229A.
On April 9, 1993 the Commission  released at its Washington, D.C.
press office Public Notice  NA-168, reporting the acceptance of five
mutually exclusive  applications for channel 229A, including
Lakeshore's. See  Notice of Acceptance for Filing of FM Broadcast
Applica- tions and Notice of Petitions to Deny and Hearing Fee 
Deadlines, Mimeo No. 32634. The Public Notice also stated  that
Lakeshore and its rivals were each required to pay the  $6,760 hearing
fee "no later than June 11, 1993, or the  application will thereafter


When June 11 arrived the other four applicants had paid  their hearing
fees but Lakeshore had failed to do so. By  letter dated August 3,
1993 the Commission staff therefore  dismissed Lakeshore's
application. In response, Lakeshore  tendered a check in the amount of
the hearing fee, along with  a petition requesting reconsideration of
the dismissal or waiv- er of the deadline and reinstatement of its
application. The  staff denied Lakeshore's petition in 1995, and in
1998 the  Commission denied Lakeshore's application for review. See 
In re Application of Lakeshore Broadcasting, Inc., 13  F.C.C.R.


II. Analysis


Lakeshore challenges the dismissal of its application, first,  on the
ground that the 1990 deadline rule violates the Com-


munications Act of 1934 by requiring payment of the hearing  fee before
an application has been formally designated for  hearing. Second,
Lakeshore claims the dismissal of its appli- cation violates the
Commission regulation precluding enforce- ment of an unpublished
requirement against a party that has  not received actual notice
thereof. Third, Lakeshore argues  that the dismissal violates its
fifth amendment right to due  process, both because Lakeshore was not
given personal  notice of the deadline and because the published rule
does not  provide fair notice of what is required of an applicant. In
the  alternative, Lakeshore challenges as unreasonable and dis-
criminatory the Commission's denial of its petition for waiver  of the
deadline and reinstatement of its application.


A. The Communications Act of 1934


As mentioned above, Lakeshore claims that the Commis- sion's deadline
rule violates the Communications Act of 1934  because it requires
payment of the hearing fee prior to formal  designation of the
application for hearing. Under s 8 of the  Act, as added by the COBRA
in 1986, the Commission is  required simply to "assess and collect" a
charge for a compar- ative hearing; the time for its payment is not
specified. The  conference report accompanying the 1986 legislation,
howev- er, describes the hearing fee as "[t]he charge levied when an 
application is designated for hearing." H.R. Conf. Rep. No.  99-453,
at 427 (1985). Lakeshore therefore argues that the  Congress expressed
its intention that the hearing fee not be  levied--let alone made
payable--before an application is for- mally designated for hearing.


Because the Congress committed administration of the Act  in general,
and of s 8 in particular, to the Commission, see 47  U.S.C. ss 154(i)
and 158(f), Lakeshore's challenge to the  agency's statutory authority
is governed by the two-step  analysis of Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837  (1984). Under Chevron step one, we ask "whether Congress
 has directly spoken to the precise question at issue." Id. at  842.
If so, then we "must give effect to the unambiguously  expressed
intent of Congress." Id. at 843. If not, then  under Chevron step two
we will defer to the agency's inter-


pretation of the statute if it is reasonable in light of the text,  the
structure, and the purpose of that enactment. See id.


As for Chevron step one, we cannot say that the Congress  has spoken to
the issue and made the hearing fee payable  only after the application
is formally designated for hearing.  Clearly, s 8 itself is silent on
the question when the hearing  fee must be paid; it requires only that
"the Commission shall  assess and collect application fees." Nor does
the apparent  purpose behind s 8--to recapture the costs of
regulation-- have any implication for what the Congress must have
intend- ed with respect to the deadline for paying the hearing fee to 
cover those costs. Finally, the conference report contains no 
evidence at all that the Congress intended to preclude the  Commission
from changing the timing of payment. The  relevant fragment is: "2.c.
Hearing Charge--The charge  levied when an application is designated
for hearing." H.R.  Conf. Rep. No. 99-453, at 427 (1985). This
description ap- pears only in the legislative history, not in the
statute itself;  moreover, it is but an entry in a list describing 80
different  fees being newly imposed by the Congress in the COBRA.  We
will not, based upon nothing more than this itemization in  the
conference report, attribute to the Congress a definitive  intent upon
a subject as to which the statute itself is silent.


With respect to Chevron step two, the important feature of  the present
rule is that it ties the time for payment of the  hearing fee to the
Commission's acceptance of mutually exclu- sive applications. That
event marks the beginning of a  process that will, unless the
applicants settle, lead inexorably  to a comparative hearing. See
Report & Order, 6 F.C.C.R.  157, p 6. Considering that the Act directs
the Commission to  "assess and collect" a fee for such a hearing, we
can hardly  say it is unreasonable for the Commission to demand pay-
ment of the fee when the hearing first becomes necessary,  rather than
waiting for the formality of the HDO in which the  hearing is
scheduled and the issues are set out. We conclude  that the
Commission's current rule on the hearing fee dead- line reflects a
reasonable interpretation of s 8 of the Commu- nications Act.


B. The Notice Regulation


Lakeshore also challenges the dismissal of its application as  a
violation of the Commission's regulation governing the use  of
unpublished materials, 47 C.F.R. s 0.445(e), which pro- vides:


If [adjudicatory opinions and orders of the Commission,  texts adopted
by the Commission or a member of its  staff, rulemaking documents, and
certain formal policy  statements and interpretations] are published
in the Fed- eral Register, the FCC Record, FCC Reports, or Pike  and
Fischer Radio Regulation, they may be relied upon,  used or cited as
precedent by the Commission or private  parties in any manner. If they
are not so published,  they may not be relied upon, used or cited as
precedent,  except against persons who have actual notice of the 
document in question or by such persons against the  Commission. No
person is expected to comply with any  requirement or policy of the
Commission unless he has  actual notice of that requirement or policy
or a document  stating it has been published as provided in this para-


According to Lakeshore, the June 11, 1993 fee deadline for its 
application is a Commission requirement that was not pub- lished as
provided in the quoted regulation; therefore, Lake- shore, not having
had actual notice of the deadline, cannot be  required to comply with


The Commission responds that s 0.445(e) requires publica- tion or
actual notice only of the deadline policy, not of every  deadline
established pursuant to that policy. Because the  final rule
promulgating the deadline policy was published in  the Federal
Register, see 56 Fed. Reg. 787, 796 (Jan. 9, 1991),  s 0.445(e) has
been satisfied and the deadline can be enforced  against Lakeshore
without publication or actual notice of the  specific deadline by
which it had to pay the hearing fee.


Even without the substantial deference we show to an  agency's
interpretation of its own regulations, see Udall v.  Tallman, 380 U.S.
1, 16-17 (1965); Jersey Shore Broadcast-


ing Corp. v. FCC, 37 F.3d 1531, 1536 (D.C. Cir. 1994), we  would accept
the Commission's interpretation of s 0.445(e) as  having been
satisfied by publication of the deadline policy in  the Federal
Register. The regulation on its face authorizes  the agency to enforce
a published policy, which necessarily  leaves to the individual
regulatee the burden of knowing that  policy and how it applies to


C. Due Process: Herein of Personal Notice and of Fair  Notice


Lakeshore claims that dismissal of its application on the  facts of
this case violates its constitutional right to due  process.
Specifically, Lakeshore claims that the due process  clause requires
the Government to give adequate and effec- tive notice of any
proceeding that will adversely affect the  property or liberty
interest of a party thereto, and that  public--as opposed to
personal--notice is inadequate where  the affected party is known to
the Government. See Men- nonite Board of Missions v. Adams, 462 U.S.
791, 800 (1983);  Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306,  314-15 (1950). Because the Commission knew Lakeshore's 
identity and knew that its application would be dismissed if it 
failed to meet the deadline, Lakeshore claims the Commission  was
required to give it personal notice of the fee deadline.


Assuming for the sake of the argument that Lakeshore was  deprived of a
liberty or property interest by dismissal of its  application, we hold
that public notice was all the process that  Lakeshore was due. See
Brenner v. Ebbert, 398 F.2d 762,  765 (D.C. Cir. 1968) (assuming
property interest at stake and  denying due process challenge because
notice was adequate).  The premise of Lakeshore's constitutional
argument appears  to be that it had no notice at all of the payment
deadline, but  that is not so. Lakeshore "received, or should have
received,  notice ... in the most obvious way of all: by reading the 
regulations." General Electric Co. v. Environmental Protec- tion
Agency, 53 F.3d 1324, 1329 (D.C. Cir. 1995). Had 




__________

n * Lakeshore does not claim that it did not have "actual notice of 
... a document stating [that the deadline rule] has been published  as
provided in this paragraph." 47 C.F.R. s 0.445(e).


Lakeshore simply read the Commission's regulations, it would  have
known how to determine and satisfy the deadline for  paying its
hearing fee. The Commission promulgated the  1990 deadline rule more
than two years before Lakeshore  filed its application. The rule had
been the subject of a notice  and comment rulemaking, see Report &
Order, 6 F.C.C.R. 157  (1990), had been published in the Federal
Register, see 56  Fed. Reg. 787, 796 (Jan. 9, 1991), and had been
placed in the  Code of Federal Regulations, see 47 C.F.R. s 73.3573.
The  rule unambiguously notified each prospective applicant, in-
cluding Lakeshore, that the public notice announcing that its 
application had been accepted for filing "will also announce  the date
on which all mutually exclusive applicants will be  required to pay


The Commission's published regulations also notified pro- spective
applicants how to obtain the public notice: "A limited  number of
copies of ... public notices of Commission actions  [ ] and other
public releases [are] made available at the Press  and News Media
Division when they are issued. Back issues  of public releases are
available for inspection in this office."  Id. s 0.422. Finally, the
Commission's published regulations  notified the prospective applicant
that failure to pay the fee in  a timely manner would result in the
dismissal of its applica- tion. See id. s 1.1110 (1993), recodified at


The Commission's regulations clearly put Lakeshore on  notice that once
it filed an application it would be required to  monitor the
Commission's public notices as they were re- leased in the
Commission's Washington press office. This is  not an unreasonable
burden to place upon an applicant.  Lakeshore was not required to
monitor public notices on a  daily basis: The minimum period between
the issuance of a  public notice and the hearing fee deadline was 60
days, see id.  s 73.3573(g)(2), and the Commission maintained back
issues  of public notices for inspection at its Washington office, see
id.  s 0.422. Therefore, Lakeshore could safely have checked the 
public notices as infrequently as every 45 or 50 days. The  Commission
also represented at oral argument that at the  relevant time all
public notices were indexed by applicant  name in the FCC Daily


effort required to monitor the status of one's application.  True, the
1990 deadline rule requires an applicant to bear a  greater burden of
diligence than would a rule that provided  for personal notice of the
deadline. Lakeshore adduces no  principle of due process, however,
that precludes the Commis- sion, by a duly published rule, from
transferring this burden  to the prospective licensee.


Mullane and its progeny, urged upon us by Lakeshore,  require no
different result. Those cases were concerned with  notice to parties
who had no reason even to know there was  pending a proceeding that
could result in deprivation of their  property interest. Lakeshore is
in a fundamentally different  position: as an applicant before the
Commission, it had  initiated the application process and knew or
should have  known that its application was subject to dismissal if it
failed  to abide by the Commission's various regulations for the 
submission and prosecution of an application. By filing its 
application, Lakeshore did not become entitled, as a matter of  due
process, to personal notice of all existing regulatory  requirements
that might affect its application; rather, the  burden was upon
Lakeshore to read and to comply with the  agency's published


Upon these facts, notice by publication of the rule, without  personal
notice of the individual applicant's deadline, is con- sistent with
Mullane. Therefore, Lakeshore's claim of inade- quate notice reduces
to its argument that the Commission's  publication of the deadline
rule "did not give adequate notice  of the substance of its new
rules." Although it is unclear  whether Lakeshore premises this "fair
notice" claim upon the  due process clause, see, e.g., General
Electric Co. v. Environ- mental Protection Agency, 53 F.3d 1324, 1328
(D.C. Cir.  1995), or upon the Administrative Procedures Act, see,
e.g.,  Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3-4 (D.C. Cir. 
1987), Lakeshore correctly notes that this court has consis- tently
reversed Commission decisions dismissing applications  where the
Commission failed to provide "full and explicit  notice of all
prerequisites." Salzer v. FCC, 778 F.2d 869,  871-72 (D.C. Cir. 1985);
see also McElroy Electronics Corp.  v. FCC, 990 F.2d 1351, 1358 (D.C.
Cir. 1993); Satellite  Broadcasting, 824 F.2d at 3-4; Radio Athens,


v. FCC, 401 F.2d 398, 401 (D.C. Cir. 1968). The Commission  need not,
however, have "made the clearest possible articula- tion"; it is
enough if "based on a 'fair reading' of [the rule,  applicants] knew
or should have known what the Commission  expected of them." McElroy
Electronics, 990 F.2d at 1358.


Lakeshore claims that the deadline rule fails to provide  fair notice
that an applicant would not receive a personal  notice of the deadline
in addition to the public notice. Under  the 1987 deadline rule,
applicants had received personal no- tice before the fee deadline, in
the form of the HDO. When  the Commission first proposed moving the
hearing fee dead- line forward, it included a provision for personal
notice. See  Proposals to Reform the Commission's Comparative Hear-
ing Process to Expedite the Resolution of Cases, Notice of  Proposed
Rule Making, 5 F.C.C.R. 4050, p 8 (1990) ("the  staff would send the
applicants a pre-designation notice....  That notice would establish
the date for filing notices of  appearance and the hearing fee").
Although the Commission  did not in the end adopt that provision,
Lakeshore argues  that a reasonable applicant would believe the agency
would  nonetheless continue to provide personal notice in addition to 
releasing the public notice. Therefore, according to Lake- shore, a
reasonable applicant would not be on notice, even if  it had read the
1990 deadline rule, that it must "ferret out"  the deadline by
searching the public notices.


We think that a fair reading of the 1990 deadline rule would  put a
reasonable applicant on notice that it must monitor the  Commission's
public notices in order to determine whether  and when any hearing fee
was due. The 1990 rule makes no  mention of additional personal
notice, see 47 C.F.R. s 73.3573,  and the Report and Order adopting
the final rule chose to  announce the deadline in the public notice
"as opposed to a  date established in a pre-designation letter," i.e.,
as opposed  to the proposed rule upon which Lakeshore seeks to rely. 6
 F.C.C.R. 157, p 6 (1990). In light of the Commission's rejec- tion of
the proposed rule and the unambiguous character of  the final rule, a
reasonable applicant would not sit back and  await personal notice. We
therefore conclude that the Com- mission has satisfied its obligation
to provide fair notice of 


what is required of an applicant in order to avoid dismissal  for
non-payment of its hearing fee.


D. Lakeshore's Petition for Waiver and Reinstatement


Assuming its application was properly dismissed for failure  to make
timely payment, Lakeshore argues that the Commis- sion abused its
discretion when it denied Lakeshore's request  for a waiver of the
deadline. Proper consideration of a  waiver request is particularly
important insofar as the Com- mission regulates through stringent
general rules. See  WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir.
1969).  To prevail upon this ground, however, Lakeshore must show 
that the Commission's reason for denying it a waiver of the  deadline
rule is "so insubstantial as to render that denial an  abuse of
discretion." WAIT Radio v. FCC, 459 F.2d 1203,  1207 (D.C. Cir. 1972).
This Lakeshore cannot do.


In rejecting Lakeshore's petition for a waiver, the Commis- sion
expressly cited Lakeshore's failure to "establish[ ] good  cause for
waiver of the hearing fee deadline." In re Applica- tion of Lakeshore
Broadcasting, Inc., 13 F.C.C.R. 19062  (1998); see also Letter from
Marilyn McDermett, FCC Asso- ciate Managing Director, to George R.
Borsari, Jr. and Susan  H. Rosenau 2 (Sept. 11, 1995) ("Lakeshore has
not advanced  any compelling or extraordinary circumstances that would
 warrant waiver of the hearing fee deadline"). Indeed, Lake- shore's
only proffered reason for its failure to pay the hearing  fee on time
is that public notice of the deadline was inade- quate--the very point
we have already rejected.


In the alternative, Lakeshore argues that its waiver re- quest was
treated differently from those of two similarly  situated petitioners,
citing In re Nancy Naleszkiewicz, 7  F.C.C.R. 1797 (1992), and Letter
to Martin W. Hoffman, Esq.  (Apr. 23, 1993) (Martin Hoffman). To
prevail upon a claim of  disparate treatment, Lakeshore must
demonstrate that the  Commission's action was "so inconsistent with
its precedent  as to constitute arbitrary treatment amounting to an
abuse of  discretion." New Orleans Channel 20, Inc. v. FCC, 830 F.2d 
361, 366 (D.C. Cir. 1987).


In the challenged order, the Commission distinguished  Nancy
Naleszkiewicz because that case did not involve a  waiver of the
deadline for payment of a hearing fee; and it  distinguished Martin
Hoffman because that decision was  based upon concern that dismissing
the application of a  Chapter 7 bankruptcy trustee could interfere
with federal  bankruptcy policy. At the same time, the Commission
cited  three other cases in which it denied waivers upon facts 
similar to those of the present case. See Lakeshore, 13  F.C.C.R. at
19062 (citing East Coast Comm. L.P., 11 F.C.C.R.  18221 (1996); Macon
County Broadcasting, Inc., 8 F.C.C.R.  8669 (1993); Gerald E. Davis &
Joe Ann Dunn, 9 F.C.C.R.  3016 (1994)).


The Commission's action here does not appear to be at all  inconsistent
with precedent, let alone "so inconsistent ... as  to constitute ...
an abuse of discretion." New Orleans  Channel 20, 830 F.2d at 366.
Lakeshore pointed to a single  instance in which the Commission waived
the hearing fee  deadline, and the Commission discussed the factual
differ- ences between that case and this, while noting three cases 
closer on point where it did not waive the rule. To require a  waiver
on these facts would be to "transform [an] isolated  grant[ ] of
[waiver] into a rule binding on the agency." Id.


III. Conclusion


When the Commission by rule adopted the practice of  announcing the
deadline for an applicant to pay the hearing  fee in a public notice
released prior to issuance of the HDO, it  shifted to the applicant
the burden of monitoring the progress  of its application in order to
keep abreast of procedural  milestones. The rule is premised upon a
reasonable interpre- tation of the Commission's authority under the
Communica- tions Act to implement the hearing fee program, and the 
dismissal of an application for failure to comply with the rule 
neither violates the Commission's own regulations nor denies  the
applicant due process of law. We therefore reject Lake- shore's
challenges to the dismissal of its application. Because  Lakeshore has
presented no valid justification for its failure 


to pay by the deadline and has failed to demonstrate that it  was
treated more harshly than was any similarly situated  applicant, we
uphold the Commission's denial of Lakeshore's  petition to waive the
hearing fee deadline. The order of the  Commission is therefore


Affirmed.