FCC set to rule on 5 LPFM dismissals and a disputed MX group
The Federal Communications Commission has released a Sunshine agenda for the upcoming full Commission meeting on Thursday, September 17. On the consent agenda, there are five proposed actions on applications for review filed in LPFM proceedngs as well as action on a disputed MX group. The Application for Review is the appeal process if the Media Bureau turns down a petition for reconsideration.
In the case of the MX group, if an informal objection or petition to deny is filed and the outcome results in the FCC's Audio Division proposing the change the score of an application, it must go to the full Commission for approval.
The following are the items to be considered. Since they are on a consent agenda, they will all be voted on at once without further discussion. We will not know the actual outcome of the findings until the actual report and orders are released by close of business on Friday, September 18.
Baltimore, MD MX Group
The FCC will be acting on an objection by Loyola University challenging the loss of the "ownership diversity" point. While Loyola claimed all 5 points on their application, the diversity point was removed in the Public Notice because a member of the board of trustees, Rosemary Juras is a 10% owner of M-10 Broadcasting, the licensee of WQLL(AM) (formerly WVIE), Pikesville, MD.
In their Petition to Deny against the other MX members (which is standard practice for disputing points), Loyola argues that they complied with 73.858 of the rules that permits a board member who has other interests to recuse themselves from the LPFM station. In the same petition, Loyola also brings up John Hopkins University who had originally claimed four points and then amended to add the fifth point. The FCC accepted John Hopkins as a five point application for filing and made them a tentative selectee. John Hopkins never responded to Loyola's objection. John Hopkins would later enter into a time share agreement with the Benedictine Society of Baltimore City and St. Joseph's Sykesville. St. Joseph's would eventually move transmitter sites and leave the time share group proposal
REC Analysis
REC feels that the Commission is going to act on the fifth point awarded to John Hopkins. In REC's opinion, the Commission tentatively selected Johns Hopkins in error. When Johns Hopkins originally filed their application, it was filed without the diversity point. In February, 2014, an amendment was filed to add the diversity point while still admitting that the Johns Hopkins "currently holds 17 Commission licenses".
On Johns Hopkins, while they "hold 17 Commission licenses", none of them are broadcast. 73.871(b) of the rules prohibit an applicant from filing an amendment after the end of the filing window that would improve their position and that's what Johns Hopkins did in February, 2014.
In the case of Loyola, while the Commission does allow for a board member to recuse themselves from the operations of the LPFM station, it still considers an interest attributable where it comes to the new entrant/diversity of ownership point (See the MX Window Public Notice at footnote #13).
REC feels in this MX group, the Commission will find that the Audio Division erred when they accepted Johns Hopkins for filing and as a result, they will remove Johns Hopkins diversity in ownership point. Loyola is not entitled to the diversity in ownership point due to Rosemary Juras' 10% stake in M-10 even though the interest was disclosed.
With Johns Hopkins being reduced to 4 points, this will invalidate the two-party time share agreement between them and Benedictine Society. Therefore, there will be a three-way tie between Benedictine Society, Center for Emerging Media and The United Workers Association. The winners will be given an opportunity to reach a settlement to prevent a non-renewable involuntary time share.
Christian Charities Deliverance Church
Christian filed an application during the 2013 window for a new LPFM station to serve Sayville, NY. The application was dismissed on December 5, 2013 due to a co-channel short spacing with WZMX, Hartford, CT. The site is located 96.4 km away and the LPFM had to be located at least 97 km away (96.5 km with rounding). Christian timely files a Petition for Reconsideration stating they did not intend to put "Sayville, Nevada" as the community of license but the coordinates were correct. In January, 2014, they filed a second petition for reconsideration acknowledging the reason for their dismissal as actually being the short spacing with Hartford and requesting a new set of coordinates located to the southwest of the originally filed location. In a third petition for reconsideration, Christian claims that required separation to Hartford was 97 km "which equals 60 miles" and that the LPFM station was spaced "59.968 miles" which rounds to 60 miles. In September, 2014, the Audio Division rejects all claims made by Christian. In October, Christian would file a timely application for review.
REC Analysis
73.870(c) states that applications filed during the window that do not meet the minimum 73.807 spacing guidelines would be dismissed without an opportunity to amend. The nunc pro tunc policy does not apply if there is a specific rule stating that applications will be dismissed with no opportunity to correct. There is no provision in the rules to allow for a conversion from metric (km) to English (miles) units. Section 1.19 of the rules actually states that in some situations (like in the full power FM rules) where there are miles shown in parenthesis, the metric units will prevail. By using an argument that the station is properly spaced if you base the distances as miles and round up, they are making a very far stretch. Bottom line, there are no feet or miles in LPFM.
Even if the proposed location was properly spaced to Hartford, the proposed transmitter site is located in the Great South Bay and there is no evidence of an oil platform or other physical feature to support a station. Their revised location would have moved them further off-shore.
This same organization attempted to file for an LPFM station in the first LPFM (2001) window as well as two applications during the 2007 NCE window. Both NCE applications were dismissed on MX comparative review.
REC feels the Commission will uphold the Audio Division's dismissal.
ByFaith Ministries Association
ByFaith applied for a new LPFM station in Sayville, NY. Their application was dismissed in January, 2014 for short spacing with a translator (13.8 km, should be 15 km) and with WSPK, Poughkeepsie, NY (110.4 km, should be 112). The FCC dismissed the application with no opportunity to correct in accordance with 73.870(c) of the Rules. By Faith filed a petition for reconsideration in February that requested that their application be "unblocked" in CDBS so a curative amendment could be filed. They also claim the FCC LPFM channel finder stated this channel was available. In September, 2014, the FCC rejects the petition for reconsideration citing 73.870(c) and the unofficial status of the LPFM Channel Finder (yet FCC staff did check the coordinates on the application and did not find any available channels there). In October, ByFaith files an application for review stating that the Channel Finder properly showed the channels available.
REC Analysis
Based on the proposed station location and the format of the post-dismissal pleadings in this case, it is obvious that there is a de-facto relationship between ByFaith and Christian Charities. Like with Christian, the proposed byFaith station is located in the Great South Bay off the coast of Sayville and north of the barrier island.
This application was part of MX Group 260. In addition to challenging their own dismissal, ByFaith also engaged in filing objections on the other MX applicants. For more information on this, please visit REC Window Notes and scroll down to Group #260.
REC feels the Commission will uphold the Audio Division's dismissal.
Rooftop Productions
Rooftop applied for a new LPFM station in Seattle. On December 4, the application was dismissed due to short spacing with a translator and with Class D FM station, KMIH, Mercer Island. In addition, the application was second adjacent channel short spaced and did not present an exhibit to address the short spacing (did not request a waiver). The application was dismissed per 73.870(c). In January, Rooftop filed a petition for reconsideration stating that the incorrect coordinates were entered and wish reinstatement citing Pike Place Market Preservation and Development Authority. In denying reconsideration, the Audio Division states that because the decision to reinstate Pike Place was by public notice and not letter, the decision is not binding. In reconsideration, Rooftop states that in respect to the K206CJ translator, the translator was filed subsequent to the public notice date so therefore they are not required to protect the station. In respect to KMIH, the proposed location is 14 km away where the minimum distance to a Class D is 13 km and that the LPFM Channel Finder stated the facility was OK and that even the dismissal letter, 13 km was given. In respect to second adjacent channel station KNCH, Rooftop claims they put the correct antenna structure registration number on the application but there was a keying error on the coordinates. They further claim that all classes of service allows curative amendments except LPFM.
REC Analysis
During the LPFM filing window, KMIH operated 30 watts at 69 meters above average terrain. This gives them a service contour of 6.3 km. Since KMIH is in the reserved band (88.1~91.9), they are subject to the note to paragraph (a) and (b) in 73.807(b) of the rules which states that any Class D station with a service contour that exceeds 5 km will be protected as a Class A station. That would increase the required spacing to 56 km. Regardless of every other factor and any alternate location in Seattle on 89.1, the application is short spaced to KMIH. Since it was short spaced on the initial application, 73.870(c) would apply and even if the FCC granted an exception to allow them to change because of a typo, they would still be short spaced to KMIH due to KMIH's "super power" status.
REC feels the Commission will uphold the Audio Division's dismissal.
Massasoit Community College
Massasoit applied for a new LPFM station in Brockton, MA. On December 20, 2013, the Audio Division dismissed the application due to third-adjcent channel short spacing with WATD-FM, Marshfield which the Audio Division claims carries a radio reading service via a subcarrier frequency. The dismissal was pursuant to 73.870(c). In reconsideration, Massasoit claims that they are in negotiations with the subcarrier provider to also place the reading service on the subcarrier of the LPFM. They state that the reading service does not place a good signal within the service area of the LPFM station. Massasoit even states that WATD is willing to turn off the subcarrier if it would result in the grant of the application. On reconsideration, the FCC denied the waiver due to Section 4 of the Local Community Radio Act that mandates protections to radio reading services on third-adjacent channels. On review, Massaoit raises the same issues.
REC Analysis
Prior to the LCRA, this station would have not been possible due to third-adacent channel short spacing. The predecessor legislation to the LCRA, the Radio Broadcast Preservation Act mandates third adjacent channel protections in Section 632(a)(1)(A). The LCRA eliminated third-adjacent channel protection requirements except in respect to radio reading services. As REC had said in the recent commercial LPFM proceeding, you can not waive a statute like the LCRA. The same case applies here. The Commission is statutorily barred from granting a waiver in this case and this has been the case since 2000 between the RBPA and LCRA languages.
REC feels the Commission will uphold the Audio Division's dismissal.
Hispanic Broadcasting Institute, Inc.
HBI applied for a new LPFM station in Nashua, NH. The application was dismissed on December 13, 2013 due to an inconsistent application, the same board member appearing on more than one application. The board member, Frank Greer also appeared on applications for US Pro Descubierta in Sefner, FL and Iluminacion Divina, Inc. in Lawrence, MA. Both of those applications would be dismissed for short spacing. After the dismissals, there was a flurry of filings between HBI, another applicant Zeitgeist Gallery and another organization called "No More Discrimination Against Latino" (which did not have an LPFM application under that name). HBI files an application for review claiming "improper dismissal, misrepresentation of FCC Rule 855(a) [sic] ownership limits, bribery nad corruption" signed by Mia Allana Greer. In their pleading, they did not violate 73.855(a) because Iluminaction Divina was dismissed. A second application for review was filed by No More Discrimination Against Latino claiming among other things, that CDBS has been "hacked" and HBI's information has been replaced with information for Zeitgeist Gallery.
REC Analysis
This huge mess has also spread to Florida through the dismissal of US Pro Descubierta. REC was dragged into this fight due our former vendor arrangement with Nexus Broadcast and our eventually handling of another application that was MX with US Pro. It reached a point where REC had to file a complaint with the Office of General Counsel at the FCC due to violations of the Commission's ex-parte rules through the "on-the-record" submission of an REC publication that outlined applications that we were concerned about (including all of the Cesar Guel applications).
With the backstory aside, the bottom line was at the time of filing, there was an inconsistent application. During the window, Frank Greer's name appeared on three applications and the rules prohibit multiple ownership of LPFM stations. Inconsistent applications can not be remedied nunc pro tunc.
REC feels the Commission will uphold the Audio Division's dismissal.
Remember, these analyses are only speculation on what is likely to happen. We look forward to the Commission's decisions on these six cases.
