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The KBOO Foundation

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Released: September 27, 2011

Federal Communications Commission

Washington, D.C. 20554

September 27, 2011
DA 11-1605
In Reply Refer To:

1800B3-MM
Melodie Virtue, Esq.
Garvey Schubert Barer
Fifth Floor
Flour Mill Building
1000 Potomac Street, N.W.
Washington, DC 20007-3501
Donald E. Martin, Esq.
P.O. Box 8433
Falls Church, VA 22041
In re: New NCE(FM), Chehalis, Washington
Facility ID No. 173822
The KBOO Foundation
File No. BNPED-20071019ARU

Petition to Deny

Counsel:
We have before us the referenced application filed by The KBOO Foundation ("KBOO") for a
new, noncommercial educational ("NCE") FM station at Chehalis, Washington. We also have before us:
(1) a Petition to Deny the KBOO application ("Petition"), filed by Chehalis Valley Educational
Foundation ("CVEF") on January 7, 2011; (2) an Opposition to Petition to Deny filed by KBOO on
January 19, 2011; and (3) a Reply to Opposition to Petition to Deny filed by CVEF on February 2, 2011.
For the reasons set forth below, we deny the Petition and grant KBOO's application.

Background.

Both KBOO and CVEF filed applications in the October 2007 NCE FM filing
window.1 Their applications were mutually exclusive ("MX") with 15 others and were designated NCE
MX Group 543.2 On November 24, 2008, KBOO amended its application ("November 2008


1 Media Bureau Announces NCE FM New Station and Major Modification Application Filing Window for New and
Certain Pending Proposals; Window to Open on October 12, 2007
, Public Notice, 22 FCC Rcd 6726 (MB 2007).
2 See Comparative Consideration of 24 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Educational FM Stations,
Memorandum Opinion and Order, 25 FCC Rcd 12887 (2010)
("Comparative Consideration Order").

Amendment") to reflect a greater than 50 percent change in its governing board ("Board"), which is
generally considered a "major change" prohibited by Section 73.3573 of the Commission's Rules
("Rules").3 The November 2008 Amendment asked the Commission to waive the Rule in this case as it
did in the 2007 Omnibus Order.4 Specifically, that Order waived the major change rule for "similarly
situated" applications that had experienced "routine and inevitable changes in their boards" over a very
long period during which they were pending due to judicial challenges to the new NCE comparative
procedures.5
On September 2, 2010, the Comparative Consideration Order dismissed both referenced
applications.6 A November 2, 2010, Public Notice published KBOO's application's dismissal.7 On
December 2, 2010, KBOO filed a petition for reconsideration of the dismissal, and amended its
application pursuant to a settlement agreement that would allow its application to be grantable as a
singleton ("December 2010 Amendment"). The Commission granted the petition and reinstated KBOO's
application by Public Notice on December 8, 2010, pending a 30-day petition to deny period.8 CVEF
timely filed its Petition on January 7, 2011.
The Petition alleges that a Section 73.3573 waiver is not warranted because KBOO's application
is not "similarly situated" to those addressed in the Omnibus Order.9 CVEF argues that entities eligible
for waiver pursuant to the Omnibus Order must have experienced Board turnover gradually during a
lengthy period of time and that the application must be "several years old."10 Here, CVEF avers that
KBOO's first turnover occurred relatively suddenly, about a year after the application was filed, and
KBOO's application is not nearly as old as the applications at issue in the Omnibus Order.11


3 47 C.F.R. 73.3573(a)(1), stating, "A major change in ownership is any change where the original party or parties
to the application do not retain more than 50 percent ownership interest in the application as originally filed." Major
changes are not acceptable outside the filing window. See 47 C.F.R. 73.3573(b)(3).
4 Comparative Consideration of 76 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Educational FM Stations,
Memorandum Opinion and Order, 22 FCC Rcd 6101, 6125
(2007) rescinded, in part, by Indiana Community Radio Corp., Memorandum Opinion and Order, 23 FCC Rcd
10963 (MB 2008) ("Omnibus Order").
5 Id. at 6125. See also Opposition at 2 and at Attachment 1.
6 Comparative Consideration Order, 25 FCC Rcd at 12909-10.
7 Broadcast Actions, Public Notice, Report No. 47354 (MB 2010).
8 Broadcast Applications, Public Notice, Report No. 27378 (MB 2010).
9 Petition at 2-4.
10 Id.
11 Id.
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In opposition, KBOO states that the Board turnover was gradual because it did not occur at one
single time.12 Moreover, it claims that the changes were: (1) routine, as all the Board additions were in
accordance with the bylaws;13 and (2) did not alter the nature of the organization or break continuity of
control.14
CVEF also alleges that the December 2010 Amendment suffers from a fatal certification defect15
because it was not signed by an officer of the corporation.16 In response, KBOO avers that the signatory
was an officer at the time, and it submitted a corrective amendment on January 19, 2011, with the list of
current Board members ("January 2011 Amendment").17 The January 2011 Amendment also reflects
another major change and includes a similar request for waiver of Section 73.3573 of the Rules.18

Discussion.

Pursuant to Section 309(d) of the Communications Act of 1934, as amended
("Act"), a petition to deny must provide properly supported allegations of fact that, if true, would
establish a substantial and material question of fact that grant of the application would be prima facie
inconsistent with Section 309(a) of the Act.19 We find that the Petition fails to present specific factual
allegations sufficient to meet this standard.
Waiver Requests. Pursuant to Section 73.3573 of the Rules, a 50 percent change in the governing
board of an NCE applicant is generally considered a "major change" not permissible outside a filing
window.20 The Omnibus Order waived this Rule for a specific class of applications based on special
circumstances applicable to that class. The class consisted of those applications pending for a substantial
period while parties litigated the merits of the new NCE-FM points hearing system.21 Although KBOO's
application is not part of this class, KBOO argues that the same special circumstances are present here,
including major Board changes that were "gradual," "routine" and "inevitable" during a lengthy period.22


12 Opposition at 3.
13 Reply at 4.
14 Id.
15 Petition at 6. It also alleges that the November 2008 Amendment is defective because it was signed and certified
more than two years prior to the submission date. Petition at 5. In response, KBOO claims that the outdated
certification claim is a nonissue because CVEF misread the submission date of the November 2008 Application.
Opposition at 6, n.24. It is clear that CVEF's allegation was erroneous, as the November 2008 Amendment was
submitted, signed, and certified in 2008. The signature could not have been two years old. We thus reject this
argument.
16 Petition at 5-6.
17 Opposition at 5-6.
18 The January 2011 Amendment shows that the KBOO Board lost eight members and gained seven, a 70 percent
change during about a year's time.
19 See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990), aff'd sub nom.
Garden State Broadcasting L.P. v. FCC
, 996 F.2d 386 (D.C. Cir. 1993), rehearing denied (Sept. 10, 1993); Area
Christian Television, Inc
., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (petitions to deny must
contain adequate and specific factual allegations sufficient to warrant the relief requested).
20 See 47 C.F.R. 73.3573.
21 See Omnibus Order, 22 FCC Rcd at 6125.
22 Id.
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We disagree. First, KBOO's application has been pending for about four years, a considerably shorter
period of time than the ten years during which many of the applications in the Omnibus Order were
pending.23 In addition, we disagree with KBOO's assertion that their Board changes were gradual in the
sense contemplated by the Omnibus Order. In the Omnibus Order, the term gradual was augmented by
the phrase "over long periods." 24 While gradual change can arguably occur over one year, the changes at
issue here did not occur over a long period. The November 2008 Amendment revealed that, over the
course of the year after KBOO filed its original application, its 12-member board had acquired six new
board members and lost seven, a 55 percent change. Likewise, KBOO's January 2011 Amendment
shows that KBOO lost eight members and gained seven, a 70 percent change during about a year's time.
Thus, we do not find here the same special circumstances as in the Omnibus Order.
However, the Commission may grant a waiver for good cause shown.25 A waiver is appropriate
if: (1) special circumstances warrant a deviation from the general rule, and (2) such deviation would
better serve the public interest than would strict adherence to the rule.26 Generally, the Commission may
grant a waiver of its rules in a particular case only if the relief requested would not undermine the policy
objective of the rule in question, and would otherwise serve the public interest.27 We find that special
circumstances and good cause merit a waiver in this case.
The purpose of Section 73.3573(a)(1) of the Rules is to ensure that, upon close of the filing
window, the applicant maintains its organizational characteristics while the staff evaluates the
application's merits. We find that KBOO has proven that at no one time since the application's filing
have Board changes disrupted continuity of organizational operations because they occurred
incrementally over time and in accordance with its bylaws.28 We agree that these types of changes do not
alter the nature of the organization or break continuity of control. In the licensee context, we have
acknowledged such changes to be gradual as long as they do not occur at once or as a result of a dramatic


23 The cases KBOO cites in support are inapposite, as each involves applications pending for at least nine years. See
State of Oregon Acting by and Through the State Board of Higher Education for the Benefit of Southern Oregon
University,
Letter, 22 FCC Rcd 17643 (MB 2007) (application pending nine years); Thomas Aquinas School, Letter,
22 FCC Rcd 15651 (MB 2007) (application pending for 12 years). See also Eagle's Nest Fellowship Church, Letter,
23 FCC Rcd 862 (MB 2008) (application pending ten years).
24 Omnibus Order, 22 FCC Rcd at 6125.
25 See 47 C.F.R. 1.3. See also WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) ("WAIT Radio"); Northeast
Cellular Tel. Co. v. FCC
, 897 F.2d 1166 (D.C. Cir. 1990).
26 WAIT Radio 418 F.2d at 1166.
27 Id. at 1157.
28 KBOO submitted with its Opposition a copy of its bylaws and a detailed account of which Board members were
elected, appointed, removed, quit, or were rendered ineligible and when those events occurred. The records
corroborate KBOO's claims that 50 percent of the Board was not replaced at any one time. Opposition at Exhibit 1.
- 4 -

coup.29 We also note the special circumstances of this case. By virtue of the settlement agreement,
KBOO's application is, procedurally, uniquely positioned for a grant because as a singleton it would not
preclude grant of another application in the MX Group.
Certification Defects. CVEF argues that the December 2010 Amendment suffers from
certification defects, a violation of Section 73.3513 of the Rules, which requires corporations'
applications to be signed by an officer.30 Specifically, CVEF alleges that the December 2010 Amendment
was signed by Kurt Lauer, who does not appear in either the November or December Amendment as an
officer of the corporation. KBOO avers that it did not violate Section 73.3513 because Mr. Lauer was an
officer at the time of the December 2010 Amendment. KBOO had failed to update the December 2010
Amendment's list of Board members. It filed the January 2011 Amendment to correct this oversight.
Accordingly, we find no certification defect.
Section 1.65 Violation. CVEF alleges that KBOO's failure to update its application to reflect the
January 2011 Amendment Board changes is a violation of Section 1.65 of the Rules, which requires
applicants to submit an amendment within 30 days of when the information in the pending application is
no longer substantially accurate and complete in all significant respects.31 Only deliberate
misrepresentations are disqualifying.32 While KBOO concedes that it inadvertently neglected to amend
its application to report its latest ownership change, we find that this omission is not disqualifying.
Section 1.65 violations are potentially disqualifying only if an applicant intends to conceal information or
if omissions of reportable information are so numerous and serious as to undermine the applicant's basic
qualifications.33 CVEF has submitted no evidence that KBOO intentionally concealed its ownership
change or had any motive to do so. Further, we note that the January 2011 Amendment updated KBOO's
ownership information and thus, remedied any deficiencies.

Conclusion

. Accordingly, IT IS ORDERED, that the January 7, 2011, Petition to Deny filed by
Chehalis Valley Educational Foundation, IS DENIED.


29 Compare Ocean Pines LPB Broadcast Corp., Initial Decision, 4 FCC Rcd 7767 (ALJ 1989) (finding nonprofit
applicant had violated Section 73.3573 of the Rules with an abrupt major board change), and Fatima Response, Inc.,
Letter, 21 FCC Rcd 11711 (MB 2006) (finding nonprofit applicant had violated Section 73.3573 of the Rules when
100 percent of board members changed), with Center for Study of Black Economic Development, Initial Decision, 8
FCC Rcd 2116 (ALJ 1993) (finding majority board turnover to be "evolutionary"), citing Storer Communications,
Inc. v. FCC
, 763 F.2d 436, 442 (D.C. Cir. 1985) and Transfer Of Control Of Certain Licensed NonStock Entities, 4
FCC Rcd 3403, 3405 (1989). See also Texas Educational Broadcasting Co-operative, Memorandum Opinion and
Order and Notice of Apparent Liability, 22 FCC Rcd 13038 (MB 2007) (discounting alleged violation of Section
73.3527 of the Rules on the basis that incremental transfers of control will not necessarily change the nature of the
organization or break continuity of control).
30 47 C.F.R. 73.3513.
31 47 C.F.R. 1.65.
32 Contemporary Media, Inc., v. FCC, 214 F.3d 187, 196 (D.C. Cir. 2000).
33 See David Ortiz Radio Corp. v. FCC, 941 F.2d 1253 (D.C. Cir. 1991) (citing Valley Broadcasting Co., Decision, 4
FCC Rcd 2611, 2618 (Rev. Bd. 1989). Intentional deceit reflects upon an applicant's basic qualifications, and "the
fact of concealment may be more significant than the facts concealed." See Character Qualifications, Report, Order
and Policy Statement, 102 FCC 2d 1179, 1210, n.77 (1986) (quoting FCC v. WOKO, Inc., 329 U.S. 223, 227
(1946)). Intention can be inferred from motive. See, e.g., RKO General, Inc., Decision, 4 FCC Rcd 4679, 4684
(Rev. Bd. 1989).
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IT IS FURTHER ORDERED, that the waiver requests of The KBOO Foundation ARE
GRANTED, and the application for a new noncommercial educational FM station at Chehalis,
Washington (File No. BNPED-20071019ARU) filed by The KBOO Foundation, IS GRANTED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
cc: Mr. Kurt Lauer, The KBOO Foundation
Mr. Cameron Beierle, Chehalis Valley Educational Foundation
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