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Martin Bayou Management Corporation Petition For Reconsideration

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Released: November 29, 2011
Federal Communications Commission
Washington, D.C. 20554
November 29, 2011

DA 11-1948

In Reply Refer To:

1800B3-JAN
Released: November 29, 2011
Dennis J. Kelly, Esq.
Law Office of Dennis J. Kelly
P.O. Box 41177
Washington, DC 20018
In re: Martin Bayou Management Corporation
NEW(FM), Mexico Beach, Florida
Facility ID No. 174534
File No. BNPED-20071022BQK
Help Save the Apalachicola River Group, Inc.
NEW(FM), Port St. Joe, Florida
Facility ID No. 173830
File No. BNPED-20071018AQD

Petition for Reconsideration

Dear Mr. Kelly:
We have before us the June 2, 2011, “Petition for Reconsideration” (“Petition”) of Martin Bayou
Management Corporation (“MBMC”), asking the Commission to reconsider its actions of May 3, 2011,
regarding the referenced applications of Help Save the Apalachicola River Group, Inc. (“HSARG”) and
MBMC for new noncommercial educational (“NCE”) FM radio stations at Port St. Joe and Mexico
Beach, Florida, respectively.1 For the reasons set forth below, we deny the Petition pursuant to Section
1.106(p) of the Commission’s Rules (the “Rules”).2

Background

. MBMC and HSARG each applied to construct a new NCE FM station during a
filing window for such applications in October 2007. 3 On June 18, 2008, the Media Bureau (“Bureau”)
issued a public notice identifying the MBMC and HSARG Applications as mutually exclusive (“MX”)


1 On June 14, 2011, HSARG filed an “Opposition to Petition for Reconsideration” (“Opposition”) and on June 24,
2011, MBMC filed a “Reply to Opposition to Petition for Reconsideration” (“Reply”). HSARG filed a July 8, 2011,
“Opposition to Reply” which we disregard and dismiss on procedural grounds. See infra.
2 47 C.F.R. § 1.106(p).
3 File Nos. BNPED-20071022BQK and BNPED-20071018AQD (respectively, “MBMC Application” and “HSARG
Application”).
1

and grouping them into NCE MX Group 328 with eight other applications.4 Pursuant to established
procedures,5 the Commission determined that both the MBMC and HSARG Applications, along with
three others, were entitled to a fair distribution preference under Section 307(b) of the Communications
Act of 1934,6 as amended. 7 The Commission then subjected the five remaining applicants to a point
hearing analysis and identified a three-way tie between MBMC, HSARG, and Gulf Coast Community
College (“GCC”).8 After proceeding through tie-breakers,9 the Commission declared both HSARG and
MBMC to be the tentative selectees for Group 328 on a time-sharing basis.10 The Commission accepted
for filing the MBMC and HSARG Applications and established a deadline by which to file petitions to
deny them.11
MBMC filed a Petition to Deny the HSARG Application on July 28, 2010. In its Petition,
MBMC argued that HSARG had more applications for new NCE FM stations than were considered by
the Commission when conducting the second tie-breaker.12 MBMC claimed that it should have thus
prevailed in the point determination, and sought dismissal or denial of that HSARG Application.13
HSARG filed an Opposition to Petition to Deny on August 10, 2010, responding that its later-filed
applications were not “pending” at the time it filed the HSARG Application and therefore did not count
for the purposes of the second tie-breaker.14 HSARG also asserted that MBMC failed to adequately
document its claims that it was entitled to points under the established local applicant and diversity of


4 See Media Bureau Identifies Groups of Mutually Exclusive Applications, Public Notice, 23 FCC Rcd 9508,
Attachment A (MB 2008).
5 See 47 C.F.R. § 73.7002 (procedures for selecting among mutually exclusive applicants for stations proposing to
serve different communities); see also Reexamination of the Comparative Standards for Noncommercial
Educational Applicants
, Report and Order, 15 FCC Rcd 7386 (2000), recon. granted in part, 16 FCC Rcd 5074
(2001), rev’d in part on other grounds, NPR v. FCC, 254 F.3d 226 (D.C. Cir. 2001).
6 See 47 U.S.C. § 307(b) (“In considering applications for licenses . . . when and insofar as there is demand for the
same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among
the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each
of the same.”); 47 C.F.R. § 73.7002(a).
7 Comparative Consideration of 52 Group of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Education FM Stations
, Memorandum Opinion and Order, 25 FCC Rcd 8793, 8812-13
(2010) (“52 Groups Comparative Order”).
8 Id. at 8813.
9 The first tie-breaker criterion the Commission considers for NCE-FM applicants is the number of radio station
authorizations attributable to each applicant; the applicant with the fewest authorizations prevails. GCC certified
that it had 14 attributable interests; HSARG and MBMC certified that they each had no attributable interests.
Accordingly, GCC was eliminated, and HSARG and MBMC proceeded to the second criterion: the number of
pending radio applications attributable to each applicant. HSARG and MBMC certified that each had one radio
application pending. Thus both applicants proceeded to the tiebreaker of last resort, which is mandatory time
sharing. See 52 Groups Comparative Order, 25 FCC Rcd at 8813.
10 Id..
11 Id. at 8841. The GCC application was dismissed on August 9, 2010. See Broadcast Actions, Public Notice,
Report No. 47298 (Aug. 12, 2010).
12 See n. 9 supra.
13 See Comparative Consideration of 37 Group of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Education FM Stations
, Memorandum Opinion and Order, 26 FCC Rcd 7008, 7038
(2011) (“37 Groups Comparative Order”).
14 Id.
2

ownership criteria.15 MBMC filed a Reply to Opposition to Petition to Deny on August 20, 2010,
restating its previous arguments and also arguing that HSARG’s Opposition was procedurally defective
and should have been dismissed.16
The Commission addressed these pleadings in the 37 Groups Comparative Order. First, the
Commission found that while HSARG could have raised its objections to the MBMC Application in its
own Petition to Deny rather than in its Opposition to MBMC’s Petition to Deny, the Opposition met the
requirements of an informal objection under Section 73.3587 of the Rules.17 Accordingly, the
Commission declined to dismiss the Opposition and instead treated the portion that addressed the MBMC
Application as an informal objection.18 Second, the Commission agreed with HSARG that MBMC’s
documentation to support its diversity claim was insufficient and that it thus erred in awarding points to
MBMC for that criterion. Third, the Commission recognized that the correction of its error altered the
point hearing analysis in favor of HSARG and declared it the sole tentative selectee for NCE MX Group
328.19 Accordingly, the Commission granted the HSARG Application and dismissed the MBMC
Application.20
MBMC filed the subject Petition on June 2, 2011, in which it concedes that it did not submit the
appropriate documentation for its diversity of ownership claim.21 However, MBMC seeks
reconsideration of other aspects of the 37 Groups Comparative Order. MBMC asserts that HSARG’s
established local applicant documentation was insufficient and that the Commission erred in awarding it
points under that criterion.22 Also, MBMC argues that the Commission afforded disparate treatment to
the HSARG and MBMC Applications in violation of Melody Music, Inc. v. FCC23 by reviewing “on its
own motion” MBMC’s diversity documentation while not treating HSARG’s established local applicant
documentation with the same scrutiny.24 In its Opposition, HSARG argues that its documentation was in
fact sufficient.25 In its Reply, MBMC’s restates the arguments in the Petition26 and also seeks dismissal
of the Opposition due to a procedural defect,27 namely, that it is allegedly not signed and verified as
required by Section 1.52 of the Rules.28


15 Id.
16 Id.
17 Id. See also 47 C.F.R. § 73.3587.
18 In light of the procedural validity of the arguments attacking the MBMC Application and their ultimate success on
the merits, the Commission deemed as moot and refused to consider both MBMC’s Petition to Deny and the portion
of HSARG’s Opposition to Petition to Deny specifically addressing MBMC’s Petition to Deny. 37 Groups
Comparative Order
, 26 FCC Rcd at 7038-39.
19 37 Groups Comparative Order, 26 FCC Rcd at 7038-39.
20 Id. at 7060.
21 Petition at 3.
22 Id.
23 345 F.2d 730 (D.C. Cir. 1965).
24 Petition at 3.
25 Opposition at 1-2.
26 Reply at 3-4.
27 Id. at 2.
28 47 C.F.R. § 1.52.
3

Discussion.

Petition for Reconsideration. Reconsideration is warranted only if the petitioner sets
forth an error of fact or law, or presents new facts or changed circumstances which raise substantial or
material questions of fact that otherwise warrant reconsideration of the prior action.29 Furthermore, the
Bureau has the authority to dismiss or deny petitions for reconsideration of actions of the full
Commission when the arguments plainly do not warrant consideration by the full Commission.30
Procedural Issues. As an initial matter, we dismiss HSARG’s July 8, 2011, Opposition to Reply.
Section 1.45 of the Rules allows for the filing of a petition, any oppositions, and a singular reply by the
petitioner.31 Any unauthorized pleadings are subject to dismissal without consideration.32 Accordingly,
we dismiss HSARG’s Opposition to Reply without consideration.
Additionally, MBMC argues that HSARG’s Opposition is procedurally defective and must be
stricken or disregarded.33 MBMC asserts that the Opposition was signed by “Diane C. Brown,
Representative” and that it is defective because she is “not an attorney.”34 MBMC seeks dismissal of the
Opposition on these grounds, citing Section 1.52 of the Rules35 and Tama Radio Licenses of Tampa
Florida, Inc.36
In relevant part, Section 1.52 states that “[t]he original of all petitions, motions, pleadings,
briefs and other documents filed by any party represented by counsel shall be signed by at least one
attorney of record in his individual name, whose address shall be stated. A party who is not represented
by an attorney shall sign and verify the document and state his address
.”37 The Commission’s data base
indicates that Diane C. Brown is an officer of the corporation (Secretary) and the Application Certifier
and that HSARG is not represented by counsel. Ms. Brown signed and verified the Opposition.38 Thus,
HSARG did not violate Section 1.52 of the Commission Rules and there is no reason to strike or
otherwise disregard the Opposition.
Substantive Issues. MBMC argues that HSARG “did not attach any proof to its application that it
was an established local applicant.”39 MBMC notes that its application included a topographic map
showing the calculation of the distance between its headquarters the community reference coordinates to


29 See 47 C.F.R. § 1.106(c) and (d). See also WWIZ, Inc., Memorandum Opinion and Order, 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).
30 See 47 C.F.R. § 1.106(p). See also Amendment of Certain of the Commission's Part 1 Rules of Practice and
Procedure and Part 0 Rules of Commission Organization
, Report and Order, 26 FCC Rcd 1594, 1606-07 (2011).
31 See 47 C.F.R. § 1.45.
32 See, e.g., Lee. G. Petro, Esq., Letter, 25 FCC Rcd 4486, 4488 (MB 2010) (dismissing pleadings not authorized by
47 C.F.R. § 1.45).
33 Reply to Opposition at 2.
34 Id.
35 47 CFR § 1.52.
36 25 FCC Rcd 7588 (2010), aff’d sub nom. Cherry v. FCC, 641 F.3d 494 (D.C. Cir. 2011) (dismissing application
that did not comply with 47 CFR § 1.115).
37 47 CFR § 1.52 (emphasis added). See, e.g., RJM Communications, Letter, 21 FCC Rcd 7980, 7981 (MB 2006)
(“Section 1.52 of the Rules requires documents submitted to the Commission to be signed by an attorney or a party.
A party's signature verifies that such party has read the document; that to the best of his or her knowledge,
information, and belief there is good ground to support it; and that it is not interposed for delay.”).
38 See Opposition at 2-3. “Diane C. Brown, Representative” signed the Opposition and stated her address.
39 Petition at 3.
4

support its claim to established local applicant points40 and that HSARG only provided a document from
the Florida Department of State listing the addresses of the HSARG principal place of business and the
addresses of the corporation’s officers.41 MBMC suggests, without citing to any case, rule, statute, or
Commission decision, that there must be something “on the face of the application” that demonstrates the
qualifications for established local applicant points, and that HSARG has failed to meet this standard.42
MBMC’s arguments are misguided. MBMC cites43 to that portion of the Form 340 Instructions
that provides that “[e]xamples of acceptable documentation [to support a claim to established local
applicant points] include corporate material from the secretary of state, lists of names, addresses, and
length of residence of board members, copies of governing documents requiring a 75% local governing
board . . . etc.”44 As MBMC itself acknowledges, HSARG provided in support of its application a
document from the Florida Department of State with the necessary geographic information. HSARG also
provided its by-laws, which state that the corporation “shall be headquartered and at least 75% of its
board members shall reside within 25 miles of the reference coordinates of the community to be served by
a noncommercial radio station for which the Corporation files a construction permit application.”45
Nothing further is required to document HSARG’s eligibility for established local applicant points, and
we reject MBMC’s argument.
MBMC then argues that the Commission violated Melody Music by allegedly “review[ing] on its
own motion the lack of documentation in the MBMC application” while not engaging in a similar review
of the “lack of documentation” in the HSARG Application.46 While we agree with MBMC that Melody
Music
requires us to afford similar treatment to similarly situated applicants, we disagree with the premise
that MBMC and HSARG are similarly situated. According to the Form 340 Instructions, an applicant
claiming diversity of ownership points must have “governing documents [requiring] that such diversity be
maintained” and must submit to the Commission copies of the documentation. 47 MBMC concedes that it
failed to do this.48 HSARG, on the other hand, submitted all of the necessary documentation, and none of
it was defective. As the parties before us are not similarly situated, there was no violation of Melody
Music
and we reject this argument. Finally, we reject the factual premise of MBMC’s disparate treatment
claim, namely that the Commission reviewed the MBMC diversity documentation “on its own motion.”


40 Reply to Opposition at 3.
41 Petition at 3 and Exhibit A.
42 Petition at 3; Reply to Opposition at 3.
43 Petition at 3; Reply to Opposition at 3.
44 FCC, Instructions for FCC 340 Application for Construction Permit for Reserved Channel Noncommercial
Educational Broadcast Station, p. 9, http://transition.fcc.gov/Forms/Form340/340.pdf (retrieved Oct. 6, 2011)
(“Form 340 Instructions”).
45 See HSARG Application, Attachment 2.
46 Petition at 3. In support of this argument, MBMC cites “Telephone & Data Systems, Inc. v. FCC, 195 F.3d 655,
658 (D.C. Cir. 1994).” This citation is problematic for several reasons. First, the volume, reporter, and page
numbers cited do not correspond to Telephone & Data Systems, Inc. v. FCC, but to Curry v. District of Columbia,
195 F.3d 654 (D.C. Cir. 1999). The correct citation for the named case is Telephone & Data Systems, Inc. v. FCC,
19 F.3d 42 (D.C. Cir. 1994). However, neither case is germane to the issues raised in the Petition or contains the
quotation that Petitioner included with the citation. Accordingly, this part of the Petition will be disregarded.
47 See Form 340 Instructions at p. 9.
48 Petition at 3 (“In reviewing our application, it turns out to be correct–MBMC did not submit the corporate
resolution regarding ‘diversity,’ which we regret.”).
5

To the contrary, HSARG first raised this issue in its Opposition to MBMC’s Petition to Deny.49 The
Commission concluded that the issue was properly raised and, therefore, appropriately addressed in this
application proceeding. Accordingly, MBMC’s Melody Music argument is meritless.

Conclusion/Actions

. Accordingly, for the reasons set forth above, IT IS ORDERED, pursuant to
73 C.F.R. § 1.45, that the Opposition to Reply to Opposition to Petition for Reconsideration filed by Help
Save the Apalachicola River Group, Inc. on July 8, 2011, is DISMISSED.
Additionally, the arguments in the Petition plainly do not warrant consideration by the full
Commission. Therefore, IT IS FURTHER ORDERED, pursuant to authority contained in 47 C.F.R. §
1.106(p), that the Petition for Reconsideration filed by Martin Bayou Management Corporation on June 2,
2011, is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
cc: Martin Bayou Management Corporation
Help Save the Apalachicola River Group, Inc.


49 See 37 Groups Comparative Order, 26 FCC Rcd at 7038.
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