New NCE-FM, Bishop, CA.
Federal Communications Commission
Washington, D.C. 20554October 26, 2011
Released: October 26, 2011
Mark Van Bergh, Esq.
2538C South Arlington Mill Drive
Arlington, VA 22206
Donald E. Martin, Esq.
P.O. Box 8433
Falls Church, VA 22041
New NCE-FM, Bishop, CAFacility ID No. 175321
File No. BNPED-20071016AJF
Petition for ReconsiderationDear Counsel:
This letter concerns the referenced application ("Application") of Nevada-Utah Conference of
Seventh Day Adventists ("Nevada-Utah") for a new noncommercial educational ("NCE") FM station at
Bishop, California. On May 27, 2010, Benett Kessler ("Kessler") 1 filed a Petition for Reconsideration
(the "Petition")2 seeking reconsideration of the dismissal of an earlier Petition for Reconsideration ("2008
Petition") that she had filed on September 12, 2008. For the reasons set forth below, we grant the
Petition, rescind our grant of the Application and dismiss the Application pursuant to Section 73.3566(a)
of the Commission's Rules ("Rules").3 We also grant a Motion for Leave to Submit Declaration of Brian
Law ("Motion") filed by Kessler on June 1, 2011.
Background.In a decision released on June 30, 2008, we awarded Nevada-Utah a dispositive
preference under Section 307(b) of the Communications Act of 1934, as amended,4 and designated
Nevada-Utah the tentative selectee for NCE MX Group 23.5 We also accepted the Application for filing
1 Kessler is licensee of KSRW(FM), Independence, California.
2 Nevada-Utah opposed ("Opposition") the Petition on June 9, 2010, to which Kessler replied ("Reply") on June 17,
3 47 C.F.R. 73.3566(a).
4 47 U.S.C. 307(b).
5 See Threshold Fair Distribution Analysis of 32 Groups of Mutually Exclusive Applications for Permits to
Construct New or Modified Noncommercial Educational FM Stations, Memorandum Opinion and Order, 23 FCC
Rcd 10213, 10216 (MB 2008). No other application remains pending from NCE MX Group 23.
and established a 30-day period for filing petitions to deny.6 No petitions or objections were filed.
Accordingly, on August 11, 2008, we granted the Application.7
Subsequently, Kessler timely filed the 2008 Petition.8 Kessler argued that Nevada-Utah did not
have reasonable assurance of site availability when it filed the Application. On April 27, 2010, we
dismissed the 2008 Petition, finding it procedurally defective.9 Specifically, we found the 2008 Petition
failed to comply with the requirements of Section 1.106(b)(1) of the Rules10 because Kessler did not
object to the Application prior to its grant nor did she show good cause why it was not possible for her to
participate earlier.11 We also noted that, had we reached the merits, we would not have overturned our
grant of the Application. Among other things, we stated that "Kessler's failure to provide a timely
affidavit from the tower owner or its representative made under penalty of perjury, and her reliance
instead on her uncorroborated hearsay account of her conversation with [the tower owner's
representative]" were fatal to Kessler's claim regarding the availability of the site specified by Nevada-
Utah in the Application.12
Kessler timely challenged the dismissal of the 2008 Petition. Kessler argues that we erred in
finding the 2008 Petition to be procedurally defective.13 Kessler also contests our finding that she failed
to make a prima facie case that Nevada-Utah lacked reasonable assurance of site availability and submits
a declaration ("McClenaghan Declaration") from Daniel McClenaghan ("McClenaghan"), President of
Living Proof, Inc. ("Living Proof"), the owner of the tower specified in the Application, as further support
for her allegation.14
In opposition, Nevada-Utah argues that the 2008 Petition was procedurally defective and that the
Petition is repetitious and should be dismissed. Nevada-Utah, however, did not respond to Kessler's
allegation regarding the availability of the site specified in the Application. Accordingly, on March 14,
2011, we sent a Letter of Inquiry ("LOI") to Nevada-Utah requesting that it respond to this allegation.
After requesting and receiving additional time to respond, on April 8, 2011, Nevada-Utah submitted a
response ("LOI Response") to the LOI, which included a declaration ("Ashcraft Declaration") from its
consulting engineer, Leo Ashcraft ("Ashcraft").15
Subsequently, Kessler sought leave to submit a declaration ("Law Declaration") from Brian Law
("Law"), an employee of Living Proof who is referenced in the LOI Response and the Ashcraft
6 Id. at 10225.
7 Public Notice of the grant was released on August 14, 2008. See Broadcast Actions, Public Notice, Report No.
46800 (rel. Aug. 14, 2008).
8 Nevada-Utah opposed the 2008 Petition on October 16, 2008, to which Kessler replied on October 22, 2008.
9 Mark Van Burgh [sic], Esq., Letter, 25 FCC Rcd 4474, 4475-76 (MB 2010) ("Letter").
10 47 C.F.R. 1.106(b)(1).
11 Letter at 4475-76.
12 Id. at 4477-78.
13 Petition at 2-5.
14 Id. at 6-9 and Attach. 1, McClenaghan Decl.
15 LOI Response, Ashcraft Decl.
Declaration. Kessler asserts that "it is appropriate that the Bureau have the benefit of Mr. Law's
perspective on the issue of whether he could or would have authorized another party to use Living Proof's
Discussion.Procedural Issues. Kessler argues that we erred in finding her 2008 Petition to be
procedurally defective. She cites Section 1.106(c)(2) of the Rules in support of her argument,
characterizing it as "the second and alternate prong" under which we could have accepted her 2008
Petition.17 Nevada-Utah disputes Kessler's interpretation of Section 1.106. Nevada-Utah asserts that,
while Section 1.106(c)(2) does permit the Commission to grant a petition for reconsideration that presents
new facts if it finds it is in the public interest to do so, Kessler herself cannot present these new facts to
the Commission because she has not met the separate and distinct requirements of Section 1.106(b),18
which govern who can file such a petition.19 We agree. Indeed, the Commission has clarified this before,
Section 1.106(c) does not relate to who may file a petition for reconsideration; that is the
subject of Section 1.106(b)(1). Rather, Section 1.106(c) addresses the circumstances
under which an otherwise proper petition for reconsideration may rely on facts not
previously presented. That Section 1.106(c)(2) permits such facts to be raised when
"consideration of the facts relied on is required in the public interest" does not in any way
affect or provide relief from the requirement in Section 1.106(b)(1) that a person seeking
reconsideration of Commission action must either already be a party to the proceeding or
explain why earlier participation was not possible."20
We affirm our earlier finding that the 2008 Petition was procedurally defective. However, due to the
nature of the issue involved in this proceeding,21 we find that consideration of the additional evidence
submitted by Kessler in support of her allegation regarding site availability is in the public interest.22
Thus, we grant the Petition to the extent noted herein.
16 Motion at 2.
17 Section 1.106(c)(2) permits the grant of a petition for reconsideration which relies on facts not previously
presented if the Commission determines that "consideration of the facts relied on is required in the public interest."
47 C.F.R. 1.106(c)(2).
18 47 C.F.R. 1.106(b).
19 Opposition at 4.
20 Regionet Wireless License, LLC, Memorandum Opinion and Order, 17 FCC Rcd 21269, 21272 (2002). See also
Telecinco, Inc., Letter, 22 FCC Rcd 21526, 21527 (MB 2007) ("Section 1.106(b)(1) [sic] is an absolute requirement
for non-parties, and is wholly separate from Section 1.106(c)(2).").
21 It is well established that to be basically qualified an applicant must have, among other things, reasonable
assurance of the availability of the transmitter site it proposes to use. Lack of such reasonable assurance is a basis
for dismissal of the application pursuant to Section 73.3566(a) of the Rules. See, e.g., Liberty Productions, L.P., 16
FCC Rcd 12061, 12084 (2001).
22 See, e.g., Colorado Materials Holding Corp., Order on Reconsideration, 22 FCC Rcd 13997, 13998 (WTB 2007)
(affirming denial of earlier petition for reconsideration based on information before Bureau at that time but granting
petition for further reconsideration based on new information submitted by petitioner). See also, Morton Jerome
Victorson, Bankruptcy Trustee, Memorandum Opinion and Order, 10 FCC Rcd 9499, 9500 (1995) (affirming staff's
finding that petition for reconsideration was procedurally defective but, on Commission's own motion, electing to
consider the substantive arguments made); Preston Trucking Co., Inc., Memorandum Opinion and Order, Notice of
(continued . . .)
In addition, while we generally do not offer third parties the opportunity to respond to claims
made by an applicant or licensee in response to an LOI, we find the unique circumstances of this case
warrant doing so here. The Ashcraft Declaration that accompanied the LOI Response asserts that
Ashcraft obtained reasonable assurance of site availability from Law. Given that Kessler seeks leave to
submit a declaration from Law that responds to Ashcraft's assertion, we find that it is appropriate for us to
grant the unopposed Motion and consider the Law Declaration in our analysis.
Substantive Issues. In her Petition, Kessler continues to assert that Nevada-Utah lacked
reasonable assurance of site availability. She submits the McClenaghan Declaration as further support for
this allegation. McClenaghan states: "To my knowledge, [Nevada-Utah] never contacted Living Proof
regarding the possible use of the tower for their proposed new FM station, and Living Proof never gave
its consent for [Nevada-Utah] to use this tower or propose to use this tower in the [Application]."23 While
Nevada-Utah did not address the site availability allegation in its Opposition (or when it opposed the
2008 Petition), after being directed to respond to the allegation by staff, Nevada-Utah submitted the
Ashcraft Declaration. Therein, Ashcraft states "I have no written records of my work on this
application."24 Thus, he indicates that his declaration is "based on my memory and my review of the
application."25 Ashcraft states that he contacted the person listed as the contact person for the Living
Proof tower a man whose first name was Brian.26 He states that "[i]t was my understanding from Brian
that he gave me reasonable assurance of the availability of this tower for my client's antenna site in this
application." In response to the LOI Response and the Ashcraft Declaration, Kessler submitted the Law
Declaration. Therein, Law denies ever having given Ashcraft "permission for anyone to use Living
Proof's tower."27 Law explains that he lacked the authority to do so.28 He notes that "[p]ermission to use
(Continued from previous page)
Inquiry, and Notice of Proposed Rulemaking, 31 FCC 2d 366, 368 (1971) (finding petitions for reconsideration
procedurally defective but considering merits of petitioners' major arguments because "there are circumstances
present which justify" such action). We reject Nevada-Utah's attempt to analogize this case to Lee G. Petro., Esq.,
Letter, 25 FCC Rcd 4486 (MB 2010) ("Petro"). Petro involved allegations that the applicant lacked reasonable
assurance of site availability that were raised for the first time in a reply pleading. Id. at 4487-88. We refused to
consider these arguments due to the rule limiting replies to "matters raised in the oppositions," id. at 4488, which is
intended to "allow the target of a petition to deny the opportunity to respond to all allegations against it." See 47
C.F.R. 1.45(c). See also Applications of Comcast Corporation, General Electric Company and NBC Universal,
Inc., Order, 25 FCC Rcd 7521, 7524 (MB 2010). Neither that rule nor the policy underlying it are implicated here.
23 Petition, Attach. 1, McClenaghan Declaration at 3. He goes on to state: "Indeed, if Living Proof had been
contacted by [Nevada-Utah] regarding the use of our tower, I would have told them they could not use the tower
because of our concern that the operation of a full-power FM station from such a short tower in the middle of Bishop
would cause significant blanketing interference problems to people living near the tower, including hindering or
preventing the reception of Living Proof's station ...". Id.
24 LOI Response, Ashcraft Decl. at 4.
26 Id. at 5. Nevada-Utah points out that the contact for this tower in the Commission's Antenna Structure
Registration database is Law. LOI Response at 2. While Nevada-Utah implies in the LOI Response that Law is the
person with whom Ashcraft allegedly spoke, we note that Nevada-Utah did not attempt to contact Law to determine
whether he actually was the person with whom Ashcraft spoke or to obtain corroboration of Ashcraft's version of
events. We also note that, when Law was contacted by Kessler, he specifically denied providing reasonable
assurance to Ashcraft. Motion, Law Decl. at 3.
27 Motion, Law Decl. at 3.
the Living Proof tower would have to come from Living Proof's president, Mr. Daniel McClenaghan, or
Living Proof's full Board of Directors."29 Finally, Law explains that, "because of the relatively short
height of the tower, and its location on the roof of a building where people work (including myself), a full
power FM station operating from this tower is inappropriate due to possible human exposure to RF
radiation and interference it likely would cause to people living near the tower" and notes that this is
"why I would not have given permission to use the tower, even if I had such authority."30
An applicant seeking a new broadcast facility must, in good faith, possess "reasonable assurance"
of a transmitter site at the time it files its application.31 It is well established that the specification of a
transmitter site in an application is an implied representation that the applicant has obtained reasonable
assurance that the site will be available.32 While some latitude is afforded such "reasonable assurance,"
there must be, at a minimum, a "meeting of the minds resulting in some firm understanding as to the site's
availability."33 A mere possibility that the site will be available is not sufficient.34
We find that, with the submission of the McClenaghan and Law Declarations, Kessler has made a
prima facie case that Nevada-Utah lacked reasonable assurance of the availability of the site proposed in
the Application, which Nevada-Utah has failed to rebut. We find the Ashcraft Declaration unpersuasive.
Ashcraft is unable to fully identify the person from whom he allegedly obtained permission for Nevada-
Utah to use the Living Proof tower. Moreover, if the individual Ashcraft contacted was Brian Law, the
Law Declaration specifically rebuts Ashcraft's claim that he obtained reasonable assurance. In addition,
we note that Ashcraft provides no documentation to support his claim that he contacted Law or his claim
(Continued from previous page)
31 See, e.g., Port Huron Family Radio, Inc., Decision, 66 RR 2d 545 (1989); Radio Delaware, Inc., Memorandum
Opinion and Order, 67 RR 2d 358 (1989).
32 See, e.g., William F. Wallace and Anne K. Wallace, Memorandum Opinion and Order, 49 FCC 2d 1424, 1427
(1974) ("Wallace") ("Some indication by the property owner that he is favorably disposed toward making an
arrangement is necessary").
33 Genesee Communications, Inc., Memorandum Opinion and Order, 3 FCC Rcd 3595 (1988). The applicant need
not own the proposed site and may even work out the final details for a lease sometime in the future. The
"reasonable assurance" standard is satisfied by "[s]ome clear indication from the landowner that he is amenable to
entering into a future arrangement with the applicant for use of the property as its transmitter site, on terms to be
negotiated . . . ". Elijah Broadcasting Corp., Memorandum Opinion and Order, 5 FCC Rcd 5350, 5351 (1990).
34 See Wallace, 49 FCC 2d at 1425. The Commission does not require (and has never required) NCE broadcast
applicants to certify the availability of the transmitter site in its application procedures. See, e.g., Carnegie-Mellon
Student Government Corp., Hearing Designation Order, 7 FCC Rcd 3914 (MB 1992). Nonetheless, when an NCE
applicant proposes a site, it must do so with reasonable assurance in good faith that the site will be available. See,
e.g., Midland Educational Broadcasting Foundation, Hearing Designation Order, 4 FCC Rcd 5207 (MB 1989)
(holding that applicant for an NCE FM station had reasonable assurance of site availability because it paid for a
lease option on transmitter site). Cf. Alabama Citizens for Responsive Public Television, Inc., Memorandum
Opinion and Order, 62 FCC 2d 755 (Rev. Bd. 1977) (NCE television broadcast application designated for hearing
on issue of whether applicant had reasonable assurance of the site proposed in its application).
that Law authorized Nevada-Utah to use the Living Proof tower.35 Finally, we note that, as Nevada-
Utah's engineering consultant, Ashcraft is not a disinterested party.36 While the "reasonable assurance"
standard is a liberal one, Nevada-Utah has failed to meet it. Accordingly, Nevada-Utah may not amend to
cure this fatal defect, as it proposes in the LOI Response.37 Thus, we will rescind our grant of the
Application and dismiss it pursuant to Section 73.3566(a) of the Rules.
Conclusion/Actions.For the reasons set forth above, IT IS ORDERED that the Motion for
Leave to Submit Declaration of Brian Law filed by Benett Kessler on June 1, 2011 IS GRANTED. IT IS
FURTHER ORDERED that the Petition for Reconsideration filed by Benett Kessler on May 27, 2010, IS
GRANTED to the extent discussed above. IT IS FURTHER ORDERED that grant of the application for
a new noncommercial educational FM station at Bishop, California (File No. BNPED-20071016AJF)
filed by Nevada-Utah Conference of Seventh Day Adventists IS RESCINDED and the application IS
Peter H. Doyle
Chief, Audio Division
Nevada-Utah Conference of Seventh Day Adventists
35 Moreover, we find troubling the fact that Nevada-Utah failed to provide any evidence to rebut Kessler's allegation
until specifically instructed to do so by the Bureau. Indeed, Nevada-Utah requested extensions of time to respond to
the LOI and then submitted what falls far short of persuasive evidence rebutting Kessler's allegation or the
statements made in the McClenaghan Declaration.
36 See, e.g., Iglesia Jesucristo Es Mi Refugio, Inc., Memorandum Opinion and Order and Notice of Apparent
Liability, 25 FCC Rcd 16310, 16319 (MB 2010).
37 LOI Response at 3.
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