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Kahuku et al., Hawaii, FM Table of Allotments

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Released: January 31, 2014

Federal Communications Commission DA 14-112

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Amendment of Section 73.202(b),
)
Table of Allotments,
)
MB Docket No. 09-189
FM Broadcast Stations.
)
RM-11564
(Kahuku and Kualapuu, Hawaii)
)
)

Application of

)
Big D Consulting, Inc.
)
File No. BPH-20090810ACM
Station KNAN(FM), Nanakuli, Hawaii
)
Facility ID No. 165992

MEMORANDUM OPINION AND ORDER

(Proceeding Terminated)

Adopted: January 30, 2014

Released: January 31, 2014

By the Chief, Audio Division, Media Bureau:
1. The Audio Division has before it a Petition for Reconsideration (the “Petition for
Reconsideration”) filed on March 21, 2011, by Kona Coast Radio, LLC (“Kona”). Kona seeks review of
the Report and Order1 in this proceeding that dismissed its Petition for Rule Making and associated
application for a new FM station at Kahuku, Hawaii (the “Kahuku Petition and Application”) 2 and
granted a counterproposal (the “Counterproposal”) filed by Kemp Communications, Inc. (“Kemp”) for a
new allotment at Kualapuu, Hawaii and the captioned minor modification application (the “Nanakuli
Application”) filed by Big D Consulting, Inc. (“Big D”).3 For the reasons discussed below, we deny the
Petition for Reconsideration.
2. Background. On July 23, 2009, Kona filed its Kahuku Application for a new FM station on
Channel 296C3 at Kahuku, Hawaii, and on July 24, 2009, it submitted the Kahuku Petition for the
allotment of Channel 296C3 at Kahuku as a first local service. The Kahuku Petition was addressed to the
Chief, Audio Division, rather than to Office of the Secretary, as required by Section 1.401(b) of the
Commission’s Rules, and was stamped as “Filed/Accepted” by the Office of the Secretary on August 18,
2009, the date actually received in that office. In response to the Kahuku Petition, the staff released a
Notice of Proposed Rule Making on October 23, 2009, proposing a new allotment at Kahuku and


1 See Kahuku and Kualapuu, Hawaii, Report and Order, 26 FCC Rcd 1983 (MB 2011) (the “R&O”).
2 See RM-11564 and File No. BNPH-20090723AED.
3 Kemp and Big D jointly filed an Opposition to Petition for Reconsideration on March 31, 2011 (the
“Opposition”) and Kona filed a Reply to Opposition to Petition for Reconsideration on April 12, 2011 (the
“Reply”).

Federal Communications Commission DA 14-112



establishing a December 14, 2009, deadline for filing counterproposals.4 The Notice did not take into
account the intervening and conflicting Nanakuli Application, which Big D had filed on August 10, 2009.
The Nanakuli Application requested an upgrade of Station KNAN(FM), Nanakuli, Hawaii, from Channel
294C3 to Channel 294C2, which was short-spaced with the Kahuku Petition for Channel 296C3 at
Kahuku under the Commission’s minimum distance separation requirements.5
3. In response to the Notice, Kemp timely filed its Counterproposal on December 14, 2009,
requesting the allotment of Channel 296C2 at Kualapuu as a first local service. While the
Counterproposal is mutually exclusive with Kona’s Kahuku Petition, the Counterproposal does not
conflict with Big D’s Nanakuli Application. In addition, Kona filed Comments, expressing its continued
interest in the Kahuku allotment, one day late on December 15, 2009. On this same date Kona separately
filed a Motion for Late Acceptance.
4. Citing both Commission policy and rule regarding proper filing procedures,6 the staff ruled in
the R&O that, although the Kahuku Petition was received at the Audio Division on July 24, 2009, its
official filing date was August 18, 2009, the date that the Kahuku Petition was received by the Office of
the Secretary.7 The staff also explained that, under Section 73.208(a)(3)(iii), a petition for rule making to
amend the FM Table of Allotments will not be considered if it is filed after the date that a conflicting FM
application was filed.8 Because Kona’s Kahuku Petition was officially filed eight days after Big D
submitted its Nanakuli Application, the staff found that the Nanakuli Application enjoyed cut-off
protection against the subsequently filed Kahuku Petition and, therefore, dismissed the Kahuku Petition.9
On the merits, the staff also granted Kemp’s Counterproposal by allotting Channel 296C2 at Kualapuu
and granted Big D’s Nanakuli Application to upgrade to Channel 294C2. The R&O stated that these
proposals were not mutually exclusive and would provide a first local service and an upgrade in existing
service.10

5. In its Petition for Reconsideration, Kona argues that the staff erred in three ways when it
dismissed the Kahuku Petition. First, Kona contends that it was arbitrary and capricious for the staff to


4 See Kahuku, Hawaii, Notice of Proposed Rule Making, 24 FCC Rcd 12905 (MB 2009) (“Notice”).
5 See 47 C.F.R. § 73.207.
6 See 47 C.F.R. § 1.401(b) (requiring rule making petitions to be filed at the Office of the Secretary); and Filing
Requirements in FM Allotment Rulemaking Proceedings,
Public Notice, 20 FCC Rcd 7502 (MB 2005) (alerting
parties in FM allotment proceedings that incorrectly addressed filings will be treated as having been filed on the
receipt date shown on the official ‘Office of the Secretary’ date stamp) (“FM Allotment Public Notice”).
7 See R&O, 26 FCC Rcd at 1984.
8 See 47 C.F.R. § 73.208(a)(3)(iii) (minor change applications are protected from subsequently filed and
conflicting petitions to amend the FM Table of Allotments as of the date such applications are filed). See also
Conflicts Between Applications and Petitions for Rulemaking to Amend the FM Table of Allotments
, Report and
Order, 7 FCC Rcd 4917, 4919-20 (1992), recon. granted in part, Memorandum Opinion and Order, 8 FCC Rcd
4743 (1993) (“Conflicts”).
9 See R&O, 26 FCC Rcd at 1984.
10 Id.
2

Federal Communications Commission DA 14-112



rely upon the FM Allotment Public Notice, requiring that all filings in FM allotment proceedings be made
at the Secretary’s Office because that document has been superseded by the Commission’s new
procedures for FM allotment proceedings, which require a construction permit application to be filed
with a rule making petition.11 Because of this new requirement, Kona alleges that, if a rule making
petition is not properly addressed, the filing of an application for a new allotment and the Commission’s
Public Notice of that filing would provide adequate notice to interested parties, which is the stated
purpose for requiring FM allotment pleadings to be filed at the Secretary’s Office. Second, Kona alleges
that the R&O erroneously takes the position that the FM Allotment Public Notice will be strictly followed
whereas it contemplates discretion and waiver of the rule as it states that failure to follow these
requirements “may result in the treatment of the filing as untimely.” Third, Kona contends that a waiver
of the FM Allotment Public Notice is warranted because the Kahuku Petition would result in a
preferential arrangement of allotments.12 Accordingly, Kona requests that the staff reinstate the Kahuku
Petition and associated Application and rescind the grant of the Nanakuli Application and the allotment
of Channel 296C2 at Kualapuu.

6. In their Opposition, Kemp and Big D argue that, in cases involving requests for a new
allotment, the public is entitled to more than simply notice that an application has been filed. Kemp and
Big D note that petitions for rule making typically contain information concerning the status of the
proposed community of license, such as population, available aural services, demographic information,
and other facts concerning the community. In addition, they allege that Kona has provided no
justification for waiver of the FM Allotment Public Notice, arguing that liberal grant of such waivers
would wreak havoc upon the orderly processing of proposals involving conflicts between minor change
applications and new allotment proposals.13 Finally, Kemp and Big D reiterate an argument made earlier
in the proceeding that, as a separate procedural defect, Kona’s proposal should be dismissed because it
filed an untimely continuing expression of interest in the Kahuku allotment and its acceptance would
prejudice parties to this proceeding.14 Accordingly, Kemp and Big D believe that the dismissal of the
Kahuku Petition was correct.
7. In its Reply, Kona disagrees with Kemp’s and Big D’s argument that the Kahuku Application
does not provide adequate notice to interested parties that would meet the purpose of the FM Allotment
Public Notice.
On the contrary, Kona contends that its Kahuku Application provides even more
information than the Kahuku Petition and that Kemp and Big D have not identified any material data
included in the Kahuka Petition that was not included in the Kahuku Application. Kona also argues that
Kemp and Big D have not shown how they would be prejudiced by consideration of the Kahuku Petition.
Accordingly, Kona urges reinstatement of the Kahuku Petition, as well as its associated Application, and
rescission of the grant of Big D’s Nanakuli Application and the allotment of Channel 296C2 at Kualapuu.


11 See Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of
License in the Radio Broadcast Services,
Report and Order, 21 FCC Rcd 14212, 14223-25 (2006), recon. pending
(“Allotment Streamlining Order”).
12 Specifically, Kona alleges that Channel 296C3 could be allotted to Kahuku and alternate Channel 250C2 could
be allotted to Kualapuu in lieu of Channel 296C2, providing both communities with first local services. By way of
contrast, Kona states that the R&O upgraded the service of an existing station and provided one first local service.
13 Kemp and Big D’s Oppossition to Petition for Reconsideration at 2-3.
14 Id. at 3-4.
3

Federal Communications Commission DA 14-112



8.

Discussion.

Section 1.429 of the Commission’s Rules sets forth the limited provisions under
which the Commission will reconsider an action in a rule making proceeding.15 Reconsideration is
warranted only if the petitioner cites error of fact or law or has presented facts or circumstances that
otherwise warrant Commission review of its prior action.16 Kona has not met this standard.
9. Late Filed Expression of Interest. The Notice in this, as well as all, allotment proceedings
require that the proponent of a proposed allotment is expected to file comments restating its present
intention to apply for the channel, if it is allotted.17 The Notice further provides that failure to file a
continuing expression of interest may lead to denial of the request.18 It is also well established that the
Commission will not accept late filed expressions of interest in allotment proceedings where prejudice
would be caused to parties who have timely filed their pleadings.19 In this case, Kona filed its
Comments, restating its interest in the proposed allotment, on December 15, 2009, which was one day
after the comment deadline. The Comments were accompanied by a Motion for Late Acceptance
without an explanation for the late filing. Kemp filed an Opposition to the Motion for Late Acceptance,
arguing that the late filed Comments should not be accepted because it would prejudice parties to the
proceeding.20 Although the R&O did not address this issue, Kemp is correct. Acceptance of Kona’s late
filed expression of interest would prejudice Big D because its Nanakuli Application is short-spaced to the
proposed allotment of Channel 296C3 at Kahuku.21 Under these circumstances, we find that Kona’s
failure to file timely its continuing expression of interest is a separate and fatal defect that warrants
dismissal of the Kahuku Petition. Accordingly, we will not accept Kona’s late filed expression of
interest.
10. Improperly Addressed Rule Making Petition. We also find that Kona has not demonstrated
material error with respect to the R&O’s dismissal of Kona’s Kahuku Petition based upon Section
1.401(b) of the Rules and the FM Allotment Public Notice. Kona concedes that its Kahuku Petition was
improperly addressed and was not received at the Secretary’s Office until August 18, 2009. Because this


15 See 47 C. F.R. § 1.429.
16 See Eagle Broadcasting Co. v. FCC, 514 F.2d 852 (D.C. Cir. 1975).
17 See Notice, 24 FCC Rcd at 12907, Appendix.
18 Id.
19 See Amor Family Broadcasting Group v. FCC, 918 F.2d 960 (D.C. Cir. 1990); Woodville and Liberty,
Mississippi, et al.,
Report and Order, 11 FCC Rcd 4712 n.4 (MMB 1996) (dismissing late filed expression of
interest because it would prejudice a party to the proceeding).
20 See Kemp’s December 28, 2009, Opposition to Motion for Leave to File Late Comments at 2-3.
21 Although Kona had suggested the use of alternate Channel 250C2 at Kualapuu in lieu of Channel 296C2, the use
of this alternate channel would not entirely eliminate prejudice in this proceeding. While Channel 250C2 is
available at Kualapuu, the use of that channel would eliminate only the conflict between Kona’s Kahuku Petition
and Kemp’s Counterproposal, and the conflict between the Kualapuu and Nanakuli channels would remain.
Further, a staff engineering analysis reveals that there are no alternate channels available at Kualapuu or Nanakuli
that would resolve the conflict between Kona’s and Big D’s proposals.
4

Federal Communications Commission DA 14-112



official filing date is after Big D’s August 10, 2009, filing of the intervening and conflicting Nanakuli
Application, the R&O properly dismissed the Kahuku Petition. We also disagree with Kona’s apparent
belief that the Commission’s Allotment Streamlining Order supersedes the FM Allotment Public Notice.
The requirement that a proponent of a new FM allotment must file a construction permit application for
the proposed allotment, as well as pay a filing fee, was intended to curb abuse of process in allotment
proceedings by ensuring that expressions of interest were legitimate.22 While we acknowledge that the
filing of an associated construction permit application may provide additional notice to interested parties
in allotment proceedings, the Commission did not adopt this requirement to supersede the requirement
under Section 1.401(b) that rule making petitions and related pleadings be filed at the Secretary’s Office.
Such an interpretation would undermine the other stated purposes of the FM Allotment Public Notice,
which are “to ensure fair and efficient processing including entry in ECFS and to conserve the
Commission’s limited resources.”23 As pointed out by Kemp and Big D, allowing rule making petitions
and other pleadings in FM allotment proceedings to be officially filed on the date received at offices
other than Office of the Secretary would be inefficient and place burdens on the staff to readdress
properly or deliver the pleadings to the Secretary’s Office.
11. Likewise, Kona has not demonstrated that the staff erred by failing to exercise discretion in
interpreting the FM Allotment Public Notice in this case. We have strictly applied the policy in cases
arising after release of the FM Allotment Public Notice where there would be prejudice to other parties.24
In this case, considering the Kahuku Petition as officially filed on the date received at the Audio Division
would prejudice Big D because its conflicting Nanakuli Application would be dismissed. Kona has cited
no authority to the contrary. Accordingly, we conclude that the R&O did not commit a material error in
dismissing the Kahuku Petition pursuant to the FM Allotment Public Notice.

12. Waiver of FM Allotment Public Notice. As a final matter, we consider Kona’s request that
we waive the filing requirements of the FM Allotment Public Notice. The Commission must give waiver
requests “a hard look,” but an applicant for waiver “faces a high hurdle even at the starting gate”25 and
must support its waiver request with a compelling showing.26 Waiver of the Commission’s policies or


22 See Allotment Streamlining Order, 21 FCC Rcd at 14223.
23 See Caliente and Moapa, Nevada, Memorandum Opinion and Order, 21 FCC Rcd 11481, 11483 (MB 2006)
(“Caliente”) (explaining the purposes of the FM Allotment Public Notice).
24 See, e.g., Roma, New York, 21 FCC Rcd 10007 21 FCC Rcd 10007 (MB 2006) (denying reconsideration of
dismissal of a counterproposal in FM allotment proceeding where improperly addressed filing was date stamped by
the Media Bureau two days before the deadline but not date stamped by the Secretary’s office until two days after
the deadline). We have also dismissed other improperly addressed pleadings in FM allotment rule making
proceedings even if there were no prejudice to other parties. See, e.g., Caliente, 21 FCC Rcd at 11483 (dismissing
petition for reconsideration in FM allotment proceeding as untimely and denying waiver request where petition
was improperly addressed to the Audio Division, received a Media Bureau date stamp three weeks before the
reconsideration filing deadline, and bore a date stamp from the Secretary’s Office that was two weeks after the
filing deadline).
25 See WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) aff'd, 459 F.2d 1203 (1972), cert. denied, 93 S.Ct.
461 (1972).
26 Greater Media Radio Co., Inc., Memorandum Opinion and Order, 15 FCC Rcd 7090 (1999) (citing Stoner
Broadcasting System, Inc.
, Memorandum Opinion and Order, 49 FCC 2d 1011, 1012 (1974)).
(continued….)
5

Federal Communications Commission DA 14-112



rules is appropriate only if both: (i) special circumstances warrant a deviation from the general rule, and
(ii) such deviation will serve the public interest.27 We find that Kona has not met this burden. While
Kona characterizes strict application of the Commission’s filing requirements as “draconian,” Kona does
not allege that it was subject to a particular hardship in attempting to comply with those requirements,
nor does it demonstrate equitable considerations to justify waiver of the requirements in this instance.
Both Rule 1.401(b) and the FM Allotment Public Notice had been in effect for several years prior to the
filing of the Kahuku Petition, and “[p]arties appearing before the Commission . . . are charged with
knowledge of its rules.”28 Further, to the extent that Kona alleges that the FM Allotment Public Notice
should be waived because the Kahuku Petition would result in a preferential arrangement of allotments,
our case law recognizes that an FM allotment rule making proposal may be dismissed procedurally, even
if, as a substantive matter, it would be preferable.29 Accordingly, we will not grant Kona’s request for
waiver of the FM Allotment Public Notice.
13.

Conclusion/Ordering Clauses.

IT IS ORDERED that the Petition for Reconsideration
filed by Kona Coast Radio, LLC IS DENIED.
14. IT IS FURTHER ORDERED, that a copy of this Memorandum Opinion and Order will be
sent to A. Wray Fitch, III, Esq., Gammon & Grange, P.C., 8280 Greensboro Drive, 7th Floor, McLean,
VA 22102 (Counsel to Kona Coast Radio, LLC); and James A. Koerner, Esq., Koerner & Olender, P.C.,
11913 Grey Hollow Court, North Bethesda, MD 20862 (Counsel to Kemp Communications, Inc., and
Big D Consulting, Inc.).
15. For further information concerning this proceeding, contact Andrew J. Rhodes or Deborah
Dupont, Media Bureau, (202) 418-2700.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
(Continued from previous page)


27 NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular Telephone Company, L.P.
v. FCC,
897 F.2d 1164, 1166 (D.C. Cir. 1990).
28 APCC Services, Inc. v. CCI Communications, LLC, Order on Review, 28 FCC Rcd 564, 571 (2013), citing Profit
Enterprises, Inc.
, Forfeiture Order, 8 FCC Rcd 2846, 2846 (1993) (¶ 5).
29 See, e.g., Pinewood, North Carolina, Memorandum Opinion and Order, 5 FCC Rcd 7609, 7610 (1990).
6

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