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Able Radio Corporation Construction Permit Application

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Released: November 29, 2011
Federal Communications Commission
Washington, D.C. 20554

November 29, 2011

DA 11-1949

In Reply Refer to:
1800B3-JAN
Released: November 29, 2011
Able Radio Corporation
c/o Mark N. Lipp, Esq.
Wiley Rein LLP
1776 K Street, N.W.
Washington, DC 20006
Entravision Holdings, LLC
c/o Barry A. Friedman, Esq.
Thompson Hine LLP
Suite 800
1920 N Street, N.W.
Washington, DC 20036
In re: New(FM), Tonopah, AZ
Able Radio Corporation
Facility ID No. 170953
File No. BNPH-20070403ACO

Informal Objection

Gentlemen:
We have before us: (1) the referenced application (the “Application”) of Able Radio Corporation
(“Able”) for a new FM station at Tonopah, Arizona; (2) an August 17, 2010, “Informal Objection and
Request for Dismissal” (“Objection”) filed on behalf of Entravision Holdings, LLC (“Entravision”); and
(3) related responsive pleadings.1 For the reasons set forth below, we deny the Objection and grant the
Application.

Background

. Able was the winning bidder for a new commercial FM station on Channel 297C2
(107.3 MHz) at Aguila, Arizona, in FM Auction 70.2 In its April 3, 2007, “long-form” FCC Form 301
Application, Able proposed to serve Aguila from an antenna site located at the coordinates 33º 49’ 53”
North Latitude, 113º 1’ 38” West Longitude. On August 10, 2007, Able amended the Application to
upgrade and remove the allotment from Channel 297C2 at Aguila to Channel 297C1 at Tonopah,
Arizona, pursuant to Section 73.3573(g) of the Commission’s Rules (the “Rules”),3 proposing a new
transmitter location at the coordinates 33º 49’ 04 NL, 113º 16’ 18” WL. Subsequently, Able filed a series


1 On September 2, 2010, Able filed an Opposition to the Objection (“Opposition”), to which Entravision filed a
Reply (“Reply”) on September 14, 2010. Additionally, Entravision filed a Supplement to the Objection
(“Supplement”), also on September 14, 2010.
2 See Auction of FM Broadcast Construction Permits Closes, Winning Bidders Announced for Auction No. 70,
Public Notice, 22 FCC Rcd 6323 (2007), Attachment A p. 1.
3 47 C.F.R. § 73.3573(g), which permits changes in a station’s or application’s community of license by application.

of minor amendments to the Application’s technical proposal, including a May 5, 2008, amendment
specifying service to Tonopah from a location at 33º 48’ 5” NL, 113º 17’ 4”WL (the “May 2008 Site”).
Entravision filed its Objection on August 17, 2010. Entravision alleges that the May 2008 Site is
located in the Harquahala Mountains Wilderness (the “Wilderness”), that the tract of land is administered
by the Bureau of Land Management of the Department of Interior (“BLM”), and that federal law
forecloses the use of the land as a site for communications facilities.4 Entravision contends that Able thus
could not have had “reasonable assurance” for the specified site as required by the Commission5 and that
the Application must be dismissed.6 Entravision also argues that dismissal is warranted because Able has
failed to prosecute its Application.7 In support of its allegations, Entravision supplies an engineering
statement demonstrating that the coordinates for the May 2008 Site correspond to a location in the
Wilderness,8 a copy of an email from a BLM representative stating that the BLM would not authorize a
communications facility at the May 2008 Site and had not, in the two years prior to the email, received an
application for such a facility,9 and copies of relevant legal authorities.10
Able filed its Opposition on September 2, 2010, arguing that it did in fact have reasonable
assurance for the May 2008 Site.11 In support of its position, Able submits unsworn declarations from its
employees detailing the events leading up to the specification of the May 2008 Site, including a fact-
finding visit to the site as well as conversations with an unspecified BLM representative in the
Hassayampa Field Office. Able also filed a contemporaneous amendment to specify a new transmitter
site and change the community of license from Tonopah, Arizona back to Aguila, Arizona.
On September 14, 2010, Entravision filed its Supplement and its Reply. In the Supplement, it
argues that Able’s September 2, 2010, amendment is tantamount to an admission that Able did not and
could not have had reasonable assurance of the availability of the May 2008 Site and that Able cannot
amend its Application to specify a new site where it did not have reasonable assurance for the previous
one.12 In the Reply, Entravision attacks the credibility of the unsworn statements proffered by Able,13


4 Objection at 2-3.
5 See FCC, Instructions for FCC 301 Application for Construction Permit for a Commercial Broadcast Station, p. 2,
http://transition.fcc.gov/Forms/Form301/301.pdf (retrieved Nov. 8, 2011) (“Form 301 Instructions”) (citing Genesee
Communications, Inc.
, Memorandum Opinion and Order, 3 FCC Rcd 3595, 3595 (1988); National Innovative
Programming Network, Inc. of the East Coast
, Memorandum Opinion and Order, 2 FCC Rcd 5641, 5643 (1987),
recon. denied, 3 FCC Rcd 5650 (1988); William F. and Anne K. Wallace, Memorandum Opinion and Order, 49 FCC
2d 1424, 1427 (Rev. Bd. 1989)).
6 Objection at 4.
7 Id. at 5. Entravision notes that it has been over three years since the auction closed and argues that this passage of
time demonstrates that Able “has not made any material effort to prosecute its application.”
8 See id., Exhibit A.
9 See id., Exhibit B.
10 See id., Exhibit B. This exhibit includes copies of the Arizona Desert Wilderness Act of 1990, Pub. L. No. 101-
628 (1990) (designating the Harquahala Mountains Wilderness) and the Wilderness Act of 1964 § 4(c), 16 U.S.C. §
1133(c) (prohibiting, inter alia, structures, installations, and commercial enterprises in designated wilderness areas).
11 Opposition at 1.
12 Supplement at 1-2.
13 Reply at 2-5.
2

reasserts that Able did not have reasonable assurance for the May 2008 Site,14 and also provides
additional emails from BLM staff and additional engineering statements in support of its positions.15

Discussion.

Informal Objection. Under Section 309(e) of the Communications Act of 1934, as
amended, (the “Act”),16 informal objections, like petitions to deny, must provide properly supported
allegations of fact that, if true, would establish a substantial and material question of fact that grant of the
application would be prima facie inconsistent with the public interest, convenience and necessity.17 Upon
review of the record, we find that Entravision has not raised a substantial and material question of fact
calling for further inquiry.18
Site Availability. Entravision argues that Able lacked reasonable assurance for the May 2008
Site, that Able cannot now amend to specify a new site, and that this apparent defect warrants dismissal of
the Application. In support, it cites a number of cases in which the Commission did not allow curative
amendments19 and dismissed applications for lack of reasonable assurance of the specified transmitter
site.20 However, Entravision has misapplied this precedent, which pertains to reasonable assurance for an
originally-proposed site as opposed to a later-amended site.21 Entravision cites no cases in which the
Commission has dismissed an application based on a lack of reasonable assurance for an amended site,
and we decline to do so here.
Furthermore, dismissal of Able’s Application on these grounds would conflict with the
Commission’s stated policy regarding amendments to pending applications filed by auction winners. In


14 Id. at 10.
15 Id., Exhibits A and B.
16 47 U.S.C. § 309(e).
17 See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n. 10 (1990), aff'd sub nom.
Garden State Broadcasting L.P. v. FCC
, 996 F.2d 386 (D.C. Cir. 1993), reh’g denied (Sept. 10, 1993); Area
Christian Television, Inc.
, Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal objection must
contain adequate and specific factual allegations sufficient to warrant the relief requested).
18 In light of our action herein, we find it unnecessary to reach the issues of: 1) whether or not Able did in fact have
reasonable assurance for the May 2008 Site, and 2) the evidentiary sufficiency of hearsay generally, unsworn
statements, and unverified copies of electronic communications.
19 Objection at 4 (citing Classic Vision, Inc., 104 FCC 2d 1271 (Rev. Bd. 1986), rev. denied, 2 FCC 2376 (1987);
South Florida Broadcasting Co., 99 FCC 2d 840 (Rev. Bd. 1984), recon. denied, 100 FCC 2d 474 (Rev. Bd. 1985)).
20 Id. (citing Radio Delaware, Inc., Memorandum Opinion and Order, 4 FCC Rcd 8630 (1989); Port Huron Family
Radio, Inc.
, Decision, 4 FCC Rcd 2532 (Rev. Bd. 1989), modified, 5 FCC Rcd 4562 ; Steven A Roy, 22 FCC Rcd
16828 (MB 2007);
21 See, e.g., Classic Vision, Inc., 104 FCC 2d at 1273 (citing South Florida Broadcasting Co., 99 FCC 2d at 845 n.
12) (noting in dicta that even if the subject application has not been dismissed for failure to prosecute, it would have
been dismissed for lack of reasonable assurance of the originally-proposed site and amendment would be denied);
South Florida Broadcasting Co., 99 FCC 2d at 842 (referencing alleged deficiencies in an originally-proposed site
and delaying action on a petition for leave to amend until it was determined whether or not applicants had
reasonable assurance of the availability of the site ); Duchess Communications Corp., Decision, 101 FCC 2d 243,
253 (Rev. Bd. 1985) (citing South Florida Broadcasting Co., 99 FCC 2d at 845 n. 12) (denying leave to amend
where applicant did not have reasonable assurance of an originally-proposed site).
3

adopting rules to implement authority to auction commercial broadcast licenses,22 the Commission
established a “more lenient approach toward the processing of defective broadcast applications for new
facilities and major changes, . . . permitting multiple corrective amendments, if necessary.”23 The
Commission also noted that “in relaxing the standards for filing amendments, deficiencies in long-form
applications filed by winning bidders will not be curable by major amendment. As they significantly
change the long-form application as originally filed, major amendments must be filed in accordance with
the window filing procedures discussed above.”24 Finally, unlike the previous “hard look” processing
procedures, “the new processing standards for broadcast long-form applications will enable applicants
[for new facilities] to avoid dismissal and to liberally correct heretofore fatal defects in application
information.”25 As present Commission policy permits the “liberal” filing of non-major corrective
amendments, we will not dismiss Able’s Application due to an alleged lack of reasonable assurance for
the May 2008 Site.
The Application. We have examined the amended Application and find that it complies with all
pertinent statutory and regulatory requirements and that its grant will further the public interest,
convenience, and necessity.
Failure to Prosecute. Entravision also asserts that Able has violated Section 73.3568(a)(1) of the
Rules26 by failing to “make any material effort to prosecute its application.”27 Entravision argues that the
passage of three years since the close of Auction 70 indicates, “as best as can be told, [that] Able has not
made any material effort to prosecute its application.”28 Section 73.3568(a)(1) states that “[f]ailure to
prosecute an application, or failure to respond to official correspondence or request for additional
information, will be cause for dismissal.” Under this provision, an applicant therefore will not suffer
dismissal for failure to prosecute unless, “with contempt or inexcusable sloth, [it] plainly defies an
order.”29 Able’s conduct does not rise to this level. Since Able filed the Application, it has filed seven
amendments to its proposal. This does not evidence that Able has made no “material effort to prosecute
its application,” and we reject this argument.


22 Implementation of Section 309(j) of the Communications Act – Competitive Bidding for Commercial Broadcast
and Instructional Television Fixed Services Licenses
, First Report and Order, 13 FCC Rcd 15920 (1998), recon.
denied
, 14 FCC Rcd 8724 (1999), aff'd sub nom. Orion Communications, Ltd. v. FCC, 213 F.3d 761 (D.C. Cir.
2000) (the “Auction Order”).
23 Auction Order, 13 FCC Rcd at 15986.
24 Id. We note that the specification of a new transmitter site is considered a minor amendment as opposed to a
major amendment. See 47 C.F.R. § 73.3573(a)(1) (defining what constitutes a “major facility change”).
25 Id. at 15987.
26 47 C.F.R. § 73.3568(a)(1).
27 Objection at 5.
28 Id.
29 Innovative Women's Media Ass'n v. F.C.C., 16 F.3d 1287, 1289 (D.C. Cir. 1994) (quoting The Dunlin Group,
Memorandum Opinion and Order, 6 FCC Rcd 4642, 4644 (Rev.Bd.1991).
4

Conclusion/Actions

. Accordingly, IT IS ORDERED that, for the reasons set forth above, the
Informal Objection and Request for Dismissal filed by Entravision Holdings, LLC IS DENIED.
IT IS FURTHER ORDERED that the application of Able Radio Corporation for a new FM
station at Tonopah, Arizona (File No. BNPH-20070403ACO) IS GRANTED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
5

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