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Bond Broadcasting, Inc. Request for Declaratory Ruling Denied

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Released: April 2, 2013

Federal Communications Commission

Washington, D.C. 20554

April 2, 2013
DA 13-588
In Reply Refer to:
1800B3-PHD
Released: April 2, 2013
John F. Garziglia, Esq.
Womble Carlyle Sandridge & Rice, LLP
1200 19th Street, NW
Suite 500
Washington, DC 20036
Re: Request for Declaratory Ruling
MM Docket No. 97-234
MB Docket No. 07-172
RM-11338

Waiver of Section 1.2105(b)(2)

Dear Counsel:
This letter addresses the March 21, 2013, Request for Declaratory Ruling (“Request”) of Bond
Broadcasting, Inc. and East Kentucky Broadcasting Corp. (collectively, “Petitioners”). Petitioners request a
declaratory ruling “clarifying that the Auction 83 procedures announced in FM Translator Auction Filing
Window and Application Freeze
,1 . . . will not be altered without a notice and comment proceeding so as to allow
for heretofore prohibited major changes to long-pending FCC Form 175 applications of non-commercial
educational . . . applicants that specify non-commercial educational status.” For the reasons set forth below we
deny the Request.
A declaratory ruling is appropriate to terminate a controversy or remove uncertainty.2 No controversy or
uncertainty exists here. Petitioners request that the Commission provide notice and comment before waiving
Section 1.2105(b)(2)3 of the Commission’s rules to permit an Auction 83 applicant to amend its Form 175
application to de-select its noncommercial educational (“NCE”) filing status. It is well settled that the
Commission may waive a rule if special circumstances warrant a deviation from the general rule and such
deviation better serves the public interest.4 Petitioners provide no support for the unfounded proposition that the
Commission must follow rulemaking procedures to waive a rule. Nevertheless, the Commission addressed this

11 See FM Translator Auction Filing Window and Application Freeze, Public Notice, 18 FCC Rcd 1565, 1568 (MB/WTB
2003) (major modifications to FCC Form 175s not permitted after close of filing window).
2 See 47 C.F.R. § 1.2(a).
3 47 C.F.R. § 1.2105(b)(2) (“Major amendments cannot be made to a short-form application after the initial filing
deadline.”)
4 See, e.g., NetworkIP, LLC v. FCC, 548 F.3d 116, 125-28 (D.C. Cir. 2008).


exact issue when it reconsidered5 the 2003 NCE comparative licensing rulemaking order6 which held that an NCE
de-selection amendment would constitute a major change, and thus a prohibited amendment following the close
of an auction filing window. On reconsideration, the Commission concluded that NCE applicants in certain
commercial/NCE “mixed” groups should be permitted “to amend their pending applications for the sole purpose
of applying for a commercial station.”7 It explained that permitting these amendments “will give applicants for
NCE stations one opportunity to reevaluate their long-pending plans in the context of full and complete
information about how the licensing process will work . . . and avoid the harsh result of dismissing applicants
based on subsequently adopted processing rules . . . .”8 This Commission directive applies equally to Auction 83
NCE filers because the Second Report and Order was released several weeks after the close of the Auction 83
filing window. To date (and as Petitioners partially recognize), the Media and Wireless Telecommunications
Bureaus on three separate occasions have waived the major change rule to permit NCE de-selection amendments
for NCE applications.9 To the extent that Petitioners believe that Auction 83 applicants should not be subject to
the processing policies adopted in MOTOR and implemented thereafter by the Media and Wireless
Telecommunications Bureaus, those issues should be raised in the context of particular application proceedings
rather than in a declaratory ruling request.
Section 1.2(b) of the Commission’s rules states, in part, “The bureau or office to which a petition for
declaratory ruling has been submitted or assigned should docket such a petition [and] . . . seek comment on the
petition via public notice.”10 In stipulating that petitions for declaratory rulings “should” rather than “must” seek
comment, the Commission has afforded bureaus and offices discretion to act without public notice in unusual
circumstances. In adopting Section 1.2(b) the Commission explained that it intended to make the process for
petitions for declaratory rulings “similar” to that for petitions for rulemaking.11 With regard to the latter, a bureau
or office may deny or dismiss a petition without public notice when it is “moot, premature, repetitive, frivolous,
or which do[es] not warrant consideration by the Commission . . . .”12 We apply that standard here13 and, for the
reasons stated above, find that the Request is frivolous, repetitive and not warranting consideration by the
Commission.

5 Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Memorandum Opinion and
Third Order on Reconsideration, 23 FCC Rcd 17423, 17427-28 (2008) (“MOTOR”).
6 Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Second Report and Order,
18 FCC Rcd 6691, 6699-6700 (2003) (“NCE Second Report and Order”).
7 MOTOR, 23 FCC Rcd at 17428.
8 Id.
9 See American Family Association, et al., Letter, 19 FCC Rcd 18681 (MB/WTB 2004) (Auction 37); Supplemental
Notice Concerning Status of FCC Form 175 Applications to Participate in Auction 37
, Public Notice, 19 FCC Rcd
18696 (MB/WTB 2004) (providing opportunity for major amendments to Auction 37 applications); Christian
Broadcasting, Inc.
. Letter, 24 FCC Rcd 2212 (2009) (providing a 30-day opportunity for major amendments to certain
Auction 84 applications); Window Opened to October 30, 2009, to Permit Amendment of Applications for
Noncommercial Educational Stations in Pending, Closed Mixed Groups
, Public Notice, 24 FCC Rcd 12188 (MB 2009)
(providing opportunity for major amendments to certain Auction 88 applications).
10 47 C.F.R. § 1.2(b).
11 See Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure and Part 0 Rules of
Commission Organization
, Report and Order, 26 FCC Rcd 1594, 1598-99 (2011) (¶ 12).
12 47 C.F.R. § 1.401(e).
13 See James Edwin Whedbee, Letter, 28 FCC Rcd 379 (WTB 2011) (denying petition for declaratory ruling under
Section 1.401(e) standards).
2

For the reasons set forth above, IT IS ORDERED that the March 21, 2013, Request for Declaratory
Ruling of Bond Broadcasting, Inc. and East Kentucky Broadcasting Corp. IS DENIED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
3

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