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FCC Dismissed ACCESS Application For New LPFM Station At San Diego, CA

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Released: July 31, 2014
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Federal Communications Commission

FCC 14-108

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

ACCESS

)

)

Application for a New LPFM Station at

)

File No. BNPL-20131114AUJ

San Diego, California

)

Facility ID No. 196521

MEMORANDUM OPINION AND ORDER

Adopted: July 31, 2014

Released:

July 31, 2014

By the Commission:

1.

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

February 10, 2014. In the AFR, ACCESS seeks review of the Media Bureau (“Bureau”) staff letter1 that

dismissed its application for a new LPFM station at San Diego, California, for failing to meet the

minimum spacing requirements of Section 73.807 of the Commission’s Rules (“Rules”).2 ACCESS

acknowledges that the dismissal of its application was “completely valid under existing law and policy,”

but argues that the international third-channel spacing requirements have proven to be unnecessary.3

Accordingly, ACCESS requests that the Commission refrain from dismissing its application in order to

allow the Commission to encourage Mexico to change its spacing requirements.4

2.

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.”5 As ACCESS admits, it never

1 Letter to ACCESS from James Bradshaw, Ref. 1800B3 (MB Jan. 10, 2014) (“Staff Letter”)

2 47 C.F.R. § 73.807. The Station proposes to operate on Channel 262. As noted in the Staff Letter, the Station’s

proposed site is located 43.2 kilometers from third-adjacent XHTY-FM on Channel 259C1 in Tijuana, BN, Mexico.

The minimum spacing requirement is 73 kilometers. See Staff Letter. See also 47 C.F.R. § 73.807(g)(2). The Fifth

Report and Order in the LPFM proceeding generally eliminated the third-adjacent channel spacing requirement, but,

as ACCESS acknowledges, explicitly maintained the international third-adjacent channel protection requirements,

which are mandated by treaties between the United States and Canada, and the United States and Mexico. See

Creation of a Low Power Radio Service, Fifth Report and Order¸ Fourth Notice of Proposed Rulemaking and

Fourth Order on Reconsideration, 27 FCC Rcd 3315, 3321, n.44 (2012). In the AFR, ACCESS explains that its

application failed to comply with the international spacing requirements because its engineering consultant’s

software package, FM Commander Vsoft, eliminated both domestic and international third-adjacent spacing

protection. AFR at 2.

3 Id. at 2.

4 Id. at 3.

5 See 47 U.S.C. § 155(c)(5); 47 C.F.R. § 1.115(c); BDPCS, Inc. v. FCC, 351 F.3d 1177, 1184 (D.C. Cir. 2003)

(upholding Commission’s order dismissing arguments under Section 1.115(c) because that rule does not allow the

Commission to grant an application for review if it relies upon arguments that were not presented below).

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Federal Communications Commission

FCC 14-108

presented to the Bureau its argument that its application should be held pending a possible revision of

Section 73.807.6

Accordingly, we will dismiss the AFR.7

3.

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

Communications Act of 1934, as amended,8 and Section 1.115(c) of the Commission’s Rules,9 the

Application for Review filed by ACCESS IS DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

6 ACCESS argues that “no purpose would be served by seeking relief at the staff level, because staff are bound to

follow and implement existing Commission policy, as they have done here.” Petition at 2, n.1. However, ACCESS

has not requested a waiver of Section 1.115(c) and we will not grant one sua sponte.

7 Additionally, as a separate and independent ground for our denial of the relief sought by ACCESS, were we to

consider the AFR, we would deny it. See Iglesia Pentecostal Cristo Missionera, Memorandum Opinion and Order,

23 FCC Rcd 2230 (2008) (denying a request to keep a defective LPFM application pending until Congress addresses

the domestic third-adjacent protection standard). ACCESS’ proposal – to withhold action on defective applications

pending a possible revision of the law – would require the Bureau to speculate whether, and, if so, how the treaty

with Mexico may be changed at some unknown point in the future. Moreover, it would encourage parties to file

applications that cannot be granted. The Commission has previously expressed concerns about the burdens on the

staff and the processing delays caused by such applications, as well as the fundamental unfairness to parties that

chose to defer filings because they could not comply with current Rules. See Heartland Ministries, Inc., 25 FCC

Rcd at 3575-76, n. 25, citing Commission States Future Policy on Incomplete and Patently Defective AM and FM

Construction Permit Applications, Public Notice, 49 Fed. Reg. 47331 (Dec. 3, 1984) (“Incomplete and patently

defective applications place an inordinate burden on our processing staff. This burden entails repeated requests by

the staff for information clearly called for in the application. This delays the processing of not only the incomplete

and patently defective applications, but also the processing of grantable applications. Most important, service to the

public in the initiation of new broadcast service is delayed.”). Finally, ACCESS’s citation of section 1.115(b)(2) of

the rules, which includes as the factors that may be cited in an application for review “[t]he action involves

application of a precedent or policy which should be overturned or revised,” is unavailing. AFR at 2. ACCESS’s

application was dismissed because of its proposal’s failure to comply with a rule (47 C.F.R. §73.807(g)), not a

Commission precedent or policy.

8 47 U.S.C. § 155(c)(5).

9 47 C.F.R. § 1.115(g).

2

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