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Holy Family Communications, Inc.

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Released: September 9, 2011

Federal Communications Commission

DA 11-1524

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Application of
)
File No. BPED-19960920MA
)
Facility ID No. 83428

Holy Family Communications, Inc.

)
NCE MX Group 960908
)
For a New Noncommercial FM Station
)
Petition for Reconsideration
at Lancaster, New York
)

MEMORANDUM OPINION AND ORDER

Adopted: September 8, 2011

Released: September 9, 2011

By the Chief, Audio Division, Media Bureau

I.

INTRODUCTION

1.
This Order addresses a Petition for Reconsideration filed by the Mary V. Harris
Foundation ("Harris") of a Letter Decision1 which granted an application by Holy Family
Communications, Inc. ("HFC") to construct a new noncommercial educational ("NCE") FM station at
Lancaster, New York. The Letter Decision also dismissed Harris's mutually exclusive application to
construct a new NCE station at Williamsville, New York. For the reasons discussed herein, we deny
reconsideration.
2.
The Commission tentatively selected HFC's application for grant based on a comparative
point system analysis of the two applications.2 The Commission directed the staff to undertake a final
review of the application and, following an opportunity for petitions to deny, to grant HFC's application
if no substantial and material issue of fact remained.3 Harris filed a Petition to Deny which was found
meritorious, in part, leading to the Letter Decision's exclusion of two points HFC had previously received
for diversity of ownership. The Letter Decision rejected, however, Harris's additional challenges to
HFC's qualifications, and granted HFC's application because HFC's revised total of three points still
exceeded Harris's two point total.4 Harris now seeks reconsideration.

II.

DISCUSSION

3.
At issue are three arguments rejected in the Letter Decision: (1) that HFC should be
deemed unqualified because it was not yet incorporated at the time of application; (2) that the
Commission should have preferred Harris as a threshold matter because Harris's proposal to provide a
first or second NCE service to 9.46% of the population within the proposed service area came close to the
ten percent minimum needed for a fair distribution preference; and (3) that HFC did not qualify for points
as an established local entity because no business was conducted at HFC's claimed local headquarters
which was also the residence of two of its principals.


1 Mary V. Harris Foundation, Letter, 22 FCC Rcd 18931 (2007) ("Letter Decision").
2 Comparative Consideration of 76 Groups of Mutually Exclusive Applications to Construct New or Modified
Noncommercial Educational FM Stations
, Memorandum Opinion and Order, 22 FCC Rcd 6101 (2007).
3 Id.
4 The expiration date of HFC's construction permit has been tolled during consideration of the petition for
reconsideration of the permit's grant, at HFC's request. See 47 C.F.R. 73.3598(b)(2).

Federal Communications Commission

DA 11-1524

4.
Reconsideration is appropriate only where the petitioner shows either a material error or
omission in the original order or raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters.5 With respect to the corporate status and fair
distribution matters, Harris essentially reasserts points that it made previously. Nothing in the petition for
reconsideration persuades us to revisit the Letter Decision's essential elements and conclusions with
respect to these two matters, namely: (1) that HFC's incorporation approximately one month after the date
of application was immaterial under the procedures which governed at that time, because HFC established
its qualifications as a non-profit educational organization well before an "A" cut-off notice accepting its
application and could have filed amendments as of right until a later "B" cut-off date;6 and (2) that Harris
neither met the ten percent benchmark for receipt of a fair distribution preference nor timely requested a
waiver.
5.
The sole remaining issue on reconsideration is whether HFC qualified for three points
which it received as an established local entity. Such points are intended to distinguish organizations that
are most likely to serve community needs immediately because they can "hit the ground running" with
local knowledge and accountability from those with a lesser degree of community operations, contact, and
interaction.7 HFC received established local entity points based on its claim that HFC had maintained a
corporate headquarters within 25 miles of Lancaster, New York, since 1996.8 A local headquarters must
be a primary place of business and not, for example, a post office box, vacation home, attorney's office,
or branch office, which would not provide sufficient contact between the station's decision makers and the
area to be served.9 Furthermore, a headquarters must be operational and not merely the address of an
inchoate "paper" organization.10 Harris argued in its Petition to Deny that HFC's claimed headquarters at
87 Thomas Jefferson Lane, Snyder, New York (the "Snyder address"), was a mere "shell" where no HFC
business took place. Harris based its argument solely on the fact that the Snyder address also served as
the residence of two of HFC's three principals, James and Joanne Wright. We determined that Harris had
not met its burden of demonstrating that the headquarters was insufficient for receipt of points as a local
entity.
6.
In further support of its claims, Harris now submits copies of forms which HFC filed with
the Commission and/or Internal Revenue Service between 1999 and 2005. These forms listed two
different addresses 6325 Sheridan Drive, Williamsville, New York (the "Williamsville address") and
2211 Kensington Avenue, Amherst, New York (the "Amherst address"). Harris argues that the absence


5 See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir.
1965), cert. denied, 383 U.S. 967 (1966); 47 C.F.R. 1.106.
6 Moreover, even under current rules, an applicant for an NCE authorization is not required to submit evidence that
it is incorporated at the time of application. Rather, it must certify that it is a nonprofit educational organization with
an educational purpose. See Catholic Social Club of Tennessee, Inc., Putnam County, Tennessee, Inc., 26 FCC Rcd
5057, 5059 (MB 2011). Hammock Environmental and Educational Community Services, 25 FCC Rcd 12804 (MB
2010).
7 See Reexamination of Comparative Standards for Noncommercial Educational Applications, Memorandum
Opinion and Second Order on Reconsideration, 17 FCC Rcd 13132, 13137 (2002).
8 See 47 C.F.R. 73.7000.
9 Reexamination of Comparative Standards for Noncommercial Educational Applications, Report and Order, 15
FCC Rcd 7386, 7410 (2000).
10 Comparative Consideration of 33 Groups of Mutually Exclusive Applications for Permits to Construct
Noncommercial Educational Broadcast Stations,
Memorandum Opinion and Order, 26 FCC Rcd 9058, 9082-85
(2011)
("Kaneohe, Hawaii"); Reexamination of Comparative Standards for Noncommercial Educational
Applications,
Memorandum Opinion and Second Order on Reconsideration, 17 FCC Rcd 13132, 13137-38 (2002).
2

Federal Communications Commission

DA 11-1524

of the Snyder address on these filings raises an issue as to whether any business has been conducted there,
and indicates that the Snyder address is, at most, a branch office. Harris argues that the Williamsville
address is most likely HFC's domicile because HFC also used that address on IRS forms pertaining to
three other HFC stations: WLOF, Attica, New York (now Elma, New York); WQOR, Olyphant,
Pennsylvania; and WHIC, Rochester, New York. Harris also shows that HFC's filings with the IRS for
2005 and 2006 stated that the board members who reside at the Snyder address had devoted zero hours
per week to the corporation's business during those years. Harris therefore concludes that even had HFC
maintained its headquarters at the Snyder address, there is a question as to whether HFC had ceased to
have a local headquarters prior to grant of the application in 2007.
7.
We observe that HFC, which is the licensee of several operating broadcast stations, does
not exist merely on paper. In fact, the corporation, as licensee of WLOF, has been serving communities
also within 25 miles of Lancaster since 1999. Harris does not question the ongoing activities of HFC
itself, but rather whether HFC might have conducted its business from a location other than its claimed
headquarters. Harris' arguments are flawed both procedurally and substantively. The new information
that Harris submits is based on public documents which existed well before its last opportunity to present
such matters. Harris' arguments will be denied pursuant to Section 1.106(c), which provides for
consideration of new information on reconsideration only if the petitioner could not have submitted it
earlier or if consideration is required in the public interest.11 Moreover, even had these matters been
timely presented, they would have made no difference in HFC's qualifications as an established local
applicant. HFC submits maps to show that the Williamsville and Amherst addresses, like the Snyder
address, are within 25 miles of the community of Lancaster approximately 6.5 miles for Williamsville
and approximately10.5 miles for Amherst.12 Thus, even had HFC moved its headquarters to the
Williamsville or Amherst address for the relevant years, while retaining only a branch office in Snyder as
alleged, HFC nevertheless would have continuously maintained a local headquarters.
8.
Moreover, HFC shows through affidavits, governing documents, minutes of board
meetings, and other supporting documents that its headquarters has been at the Snyder address
continuously since 1996, and that meaningful corporate activity has taken place there. For example, most
meetings of the board of directors have taken place at the Snyder headquarters.13 With respect to
concerns raised by Harris about HFC mailing addresses, HFC shows that corporate correspondence from
the New York Secretary of State and HFC's bank have been sent to the Snyder address. HFC explains
that it also has received mail as a matter of convenience at Mr. Wright's dental business, which is
currently located at the Williamsville address, and was formerly at the Amherst address. These facts
present no material question as to whether the Snyder location functioned as something less than a
headquarters, such as a post office box, lawyer's office, or branch office.14 With respect to the statement
on IRS forms that the Wrights devoted no time to HFC in 2005 and 2006, HFC submits a letter from its
accountant explaining that the statement was a mistake by the accounting firm, which had forgotten to ask
how many hours each principal had worked those years. The accountant indicates that he has amended
the tax returns to reflect that Jim Wright spent at least 20 hours a week and Joanne Wright approximately
15 hours a week for HFC, comparable to the hours each devoted to the organization in prior years.15


11 47 C.F.R. 1.106(c).
12 See HFC Opposition, Exhibit 4.
13 See HFC Opposition, Exhibits 1-3.
14 Compare Kaneohe, Hawaii, 26 FCC Rcd at 9084 (local office of one corporate director insufficient to qualify as
local headquarters for receipt of established local applicant points where the office merely housed the pending
application of an inchoate organization which conducted no activities from that location).
15 Letter from Phillip Gallston, PA (Dec. 14, 2007), HFC Opposition, Exhibit 4.
3

Federal Communications Commission

DA 11-1524

III.

ORDERING CLAUSE

9.
Accordingly, IT IS ORDERED that, the Petition for Reconsideration filed by Mary V.
Harris Foundation is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
4

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