Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

FCC Upholds Grant Of Application Of Able Radio Corporation

Download Options

Released: April 23, 2014

Federal Communications Commission

FCC 14-51

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Able Radio Corporation
)
)

Application for a Construction Permit
)
File No. BNPH-20070403ACO
For a New FM Broadcast Station at Aguila,
)
Facility ID No. 170953
Arizona
)

MEMORANDUM OPINION AND ORDER

Adopted: April 23, 2014

Released: April 23, 2014

By the Commission:
1.
In this Memorandum Opinion and Order, we deny the Application for Review filed by
Entravision Holdings, LLC (“Entravision”) on January 7, 2013. Entravision seeks review of a December
7, 2012, action by the Media Bureau (“Bureau”),1 which denied Entravision’s Petition for
Reconsideration of the November 29, 2011, letter decision granting the above-captioned application
(“Application”) of Able Radio Corporation (“Able”).2
2.
Able was the winning bidder for a new commercial FM station in FM Auction 70. After
timely filing its original post-auction long-form FCC Form 301 application, Able submitted several
amendments. One such amendment, filed on May 5, 2008, specified a new transmitter site (the “May
2008 Site”). As it did below, Entravision argues that the Application should be dismissed because,
having allegedly failed to obtain reasonable assurance of site availability for the May 2008 Site, Able is
precluded from specifying a successor site to correct this deficiency. Entravision also claims that Able
has failed to prosecute the Application. Auction winners, according to Entravision, should be treated the
same as all other applicants with respect to these requirements because: (1) the Commission must treat
similarly-situated applicants similarly; and (2) post-auction, auction winners are governed by the same
statutory provisions as any other applicant.3
3.
In the Reconsideration Decision, the Bureau rejected Entravision’s arguments and
applied the Commission’s long-standing policy of liberally accepting minor amendments filed by
broadcast auction winners to correct application deficiencies.4 As set out in the instructions to the FCC

1 Mark Lipp, Esq., Letter, 27 FCC Rcd 15190 (MB 2012) (“Reconsideration Decision”).
2 Able Radio Corporation, Letter, 26 FCC Rcd 16161 (MB 2011). On July 11, 2013, Able applied for an
involuntary assignment of the Station’s license to Rodney D. Tow, Trustee, stating that it had filed for Chapter 7
bankruptcy on May 22, 2013. File No. BAPH-20130711AAV, Exhibit 2. This involuntary assignment was
consummated on December 9, 2013. For convenience, we refer to the Station licensee as “Able” herein.
3 See Application for Review at 1-3 (citing Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965) (establishing
the basic proposition that the Commission must treat similarly-situated applicants similarly or explain the
differential treatment); 47 U.S.C. §§ 309(j), 308(b), 310(d)).
4 See 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, 15986 (1998)
(subsequent history omitted) (establishing “a more lenient approach toward the processing of defective broadcast
applications for new facilities and major changes, . . . permitting multiple corrective amendments, if necessary” due
(continued….)

Federal Communications Commission

FCC 14-51

Form 301, all applicants for broadcast facilities, including, as here, auction winners, must have reasonable
assurance of site availability when they file a Form 301.5 This case, however, does not involve a dispute
about the availability of the site identified in the Form 301 at the time that form was filed. Rather, it
centers on the availability of a different site identified in a post-auction amendment. Under these
circumstances, we agree that the Bureau did not have to reach the issue of site availability with respect to
the May 2008 Site because Able subsequently filed another amendment to specify a new, compliant site.
As the Bureau explained in the Reconsideration Decision, the Commission permits such amendments in
the auction context, thus “expressly and deliberately” treating auction winners dissimilarly to other, non-
auction, applicants because “the competitive bidding process itself [lessens] the incentive for insincere
application filings.”6 The Bureau also found that Able had adequately prosecuted the Application by
filing amendments and responding to staff inquiries and requests for information, observing that where an
applicant is incentivized to build promptly in order to recoup upfront auction expenses, the concern with
spectrum speculation is “minimal.”7
4.
Upon review of the Application for Review and the entire record, we conclude that
Entravision has not demonstrated that the Bureau erred. The Bureau, in the Reconsideration Decision,
properly decided the matters raised, and we uphold its decision for the reasons stated therein.
5.
ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the
Communications Act of 1934, as amended,8 and Section 1.115(g) of the Commission’s rules,9 the
Application for Review IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch

Secretary
(Continued from previous page)
to the relatively small volume of winning bidder long-form applications, the relatively brief time period that winning
bidders have to prepare and file their long-form applications following the close of an auction, and the incentive for
auction winners to recoup their bid expenditures); see also, e.g., David Oxenford, Esq., Letter, 28 FCC Rcd 6269,
6271 (MB 2012).
5 See Instructions for FCC Form 301, Section I.K, http://transition.fcc.gov/Forms/Form301/301.pdf (May 2012)
(“All applicants for broadcast facilities must have a reasonable assurance that the specified site will be available at
the time they file FCC Form 301.”).
6 Reconsideration Decision, 27 FCC Rcd at 15192-3.
7 See 1998 Biennial Regulatory Review—Streamlining of Mass Media Applications, Rules, and Processes, Report
and Order, 13 FCC Rcd 23056, 23071 (1998) (subsequent history omitted).
8 47 U.S.C. § 155(c)(5).
9 47 C.F.R. § 1.115(g).
2

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.