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FCC Affirms Bureau's Holding Regarding New NCE Station at Yates, MI

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Released: June 13, 2014
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Federal Communications Commission

FCC 14-90

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

SMILE FM

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File No. BNPED-20071019AMN

)

Facility ID No. 175918

Application for a Construction Permit

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For a New Noncommercial Educational

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FM Station at Yates, Michigan

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MEMORANDUM OPINION AND ORDER

Adopted: June 12, 2014

Released:

June 13, 2014

By the Commission:

1.

The Commission has before it an Application for Review (“AFR”) filed by Smile FM on

June 15, 2011. Smile FM challenges the dismissal of its application for a new noncommercial

educational FM station at Yates, Michigan (“Application”).

2.

Smile FM filed the Application during a filing window opened by the Commission in

October 2007. On May 22, 2008, the Media Bureau (“Bureau”) dismissed the Application as

unacceptable for filing.1 The Bureau explained that its engineering study revealed that the directional

antenna proposed by Smile FM violated Sections 73.510(a) and (b) of the Commission’s Rules (“Rules”)2

and that the proposed facility violated the 1991 United States-Canada FM Broadcast Agreement (“USA-

Canada Agreement”).

3.

Smile FM challenged the Bureau’s decision in a Petition for Reconsideration (“June

Petition”).3 It concurrently sought to amend the Application to eliminate the engineering defects

identified by the Bureau. The Bureau granted the June Petition, finding the amendment modified the

proposed facility’s directional antenna pattern to comply with Section 73.510 of the Rules and the USA-

Canada Agreement.4 The Bureau went on to dismiss the application, though, finding that the community

Smile FM proposed to serve could not be defined and thus that the Application failed to satisfy the

community coverage requirements set forth in Section 73.515 of the Rules.5

4.

Smile FM challenged this decision in a second Petition for Reconsideration (“September

Petition”).6 It argued that the Bureau’s determination that Yates was not a licensable community was

“arbitrary and capricious” and that the Bureau should have given it the opportunity to demonstrate that

Yates met the Commission’s definition of a licensable community. Smile FM acknowledged that Yates

1 Letter from James D. Bradshaw, Deputy Chief, Audio Division, Media Bureau, to Smile FM (dated May 22, 2008).

2 47 C.F.R. §§ 73.510(a), (b).

3 Smile FM, Petition for Reconsideration (rec’d June 30, 2008).

4 Letter from Rodolfo F. Bonacci, Assistant Chief, Audio Division, Media Bureau, to Smile FM (dated Aug. 7, 2008).

5 47 C.F.R. § 73.515.

6 Smile FM, Petition for Reconsideration (rec’d Sept. 11, 2008).

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Federal Communications Commission

FCC 14-90

was an unincorporated community but offered evidence that it claimed demonstrated that Yates

nonetheless was a licensable community. Smile FM also indicated that it “will be amending this

reconsideration shortly” with additional evidence.7 In a Supplement filed a little over two years later,

Smile FM submitted this evidence.8

5.

On May 11, 2011, the Bureau dismissed the Supplement without consideration, finding it

was filed more than two years after the filing deadline for petitions for reconsideration and any

supplements thereto and noting that Smile FM did not file a motion seeking leave to file its Supplement

after this deadline.9 The Bureau considered the evidence submitted and arguments made in the September

Petition and concluded Smile FM had not demonstrated that Yates was a licensable community.

Accordingly, the Bureau denied the September Petition.

6.

Smile FM now seeks Commission review of the Bureau’s decisions. It argues for the

first time that the Bureau improperly dismissed the Application as originally filed.10 We dismiss this

portion of the AFR as procedurally defective. Section 5(c)(5) of the Communications Act of 1934, as

amended, and Section 1.115(c) of the Rules bar applications for review that rely “on questions of fact or

law upon which the [designated authority issuing the decision] has been afforded no opportunity to

pass.”11

7.

Smile FM also asserts that the Bureau should have considered the evidence and

arguments contained in the Supplement. It specifically focuses on the fact that the Bureau found it did

not request leave to file the Supplement and argues that it actually did so in a footnote to the Supplement

itself.12 Section 1.106(f), however, specifically states: “No supplement or addition to a petition for

reconsideration … filed after expiration of the 30 day period [for filing such a petition], will be

considered except upon leave granted upon a separate pleading for leave to file, which shall state the

grounds therefor.”13 The Supplement was unaccompanied by a separate pleading seeking leave to file or

making such a showing.

Moreover, Smile FM made no attempt to show that it could not have timely filed

7 Id. at 2.

8 Smile FM, Supplement to Petition for Reconsideration (rec’d Sept. 20, 2010). Smile FM did not state any grounds

for its failure to timely file the Supplement. Instead, it asserted in a footnote that the filing “corrects and

supplements original filing based on information that has become available since that time” and “[t]o the extent

necessary,” asked the Commission to accept the Supplement. Id. at 1 n.1.

9 Letter from Peter H. Doyle, Chief, Audio Division, Media Bureau, to Edward Czelada, Smile FM (dated May 11,

2011) (“2011 Letter Decision”).

10 AFR at 2-5. We note that, in its June Petition, Smile FM stated that “[d]iscussions with the staff have revealed

that some of the issues raised in the letter were incorrect.” June Petition at 1. It went on to state that Smile FM

“disagree[d] with the staff assertion that [the] 20 dB ratio is only valid if all domestic assignments can be treated as

omni[directional].” Id. at 1 n. 1. However, despite this assertion, Smile FM merely “reserve[d] the right to

challenge this assertion if the need arises.” Id. Smile FM did not actually present the issue to the Bureau for

decision in the June Petition, much less give the Bureau the opportunity to pass on it.

11 See 47 U.S.C. § 155(c)(5); 47 C.F.R. § 1.115(c). Likewise, we dismiss Smile FM’s argument that Yates is

analogous to another community that the Bureau determined was licensable in an unpublished decision. AFR at 7,

citing Letter from James D. Bradshaw, Deputy Chief, Audio Division, Media Bureau, to Great Lakes Radio, Inc.

(dated Oct. 08, 2008) (“Great Lakes”). Setting aside the fact that Great Lakes is an unpublished Bureau decision and

therefore not binding upon the Commission, we find that the Bureau did not have the opportunity to consider this

assertion either.

12 AFR at 6.

13 47 C.F.R. § 1.106(f) (emphasis added).

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Federal Communications Commission

FCC 14-90

the material that it submitted with its Supplement.14 Accordingly, we affirm the Bureau’s dismissal of the

Supplement without consideration.

8.

Finally, Smile FM claims that the Bureau erred in dismissing the Application as

amended. Smile claims that failure to specify a licensable community constitutes a “grantability defect”

not an “acceptance defect” and thus that the Bureau should have sent a deficiency letter to it and allowed

it time to submit information demonstrating Yates was a licensable community.15 Assuming for sake of

argument that the Bureau erred, we find such error to have been harmless.16 The Bureau ultimately did

consider all of the evidence that Smile FM timely submitted on this issue and concluded that Smile FM

had not demonstrated that Yates was a licensable community. Upon review of the evidence submitted

with the September Petition, we conclude that Smile FM has failed to demonstrate that the Bureau erred

in concluding that Yates is not a licensable community. The Bureau properly decided this issue, and we

uphold its finding for the reasons stated in its decision.

9.

ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the

Communications Act of 1934, as amended,17 and Sections 1.115 (c) and (g) of the Commission’s rules,18

the Application for Review IS DISMISSED for the reasons stated above and IS otherwise DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

14 See 2011 Letter Decision at n. 17, citing 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192 (D.C. Cir. 2003)

(affirming the Commission’s decision not to exercise its discretion to hear late-filed supplements when the petitioner

offered no plausible explanation as to why supplemental arguments were not made in its initial petition). Indeed, in

its rather untimely Supplement, Smile FM stated: “If we obtain additional information we will amend our

reconsideration to further demonstrate the establishment of a community.” Supplement at 5. This reflects a

fundamental misunderstanding of the Commission’s procedural rules.

15 AFR at 4-5.

16 To the extent that Smile FM asserts that this alleged error did result in harm because it caused the Bureau to

decline to consider the evidence included in the Supplement, AFR at 6, we find no merit to this argument. As a

separate and independent basis for our decision, we have reviewed this evidence and do not find that its

consideration would have altered the finding that Yates is not a licensable community. Specifically, the evidence,

including maps and a list of businesses and other locations that Smile FM attributes to Yates, reveals that part of the

area that Smile FM claims is Yates lies within the incorporated City of Rochester Hills. See Penacook, New

Hampshire, Report and Order, 2 FCC Rcd 459, 460 ¶ 6 (MMB 1987) (proposed community found not to be

licensable as it was an unincorporated area not listed in the Census and evidence demonstrated that the area was, in

fact, a mere neighborhood which traversed the incorporated boundaries of two adjacent cities).

17 47 U.S.C. § 155(c)(5).

18 47 C.F.R. § 1.115(c), (g).

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