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Petition for Reconsideration of Entravision Holdings, LLC Denied

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Released: December 7, 2012

Federal Communications Commission

Washington, D.C. 20554

December 7, 2012


DA 12-1971

In Reply Refer to:
1800B3-CEG
Released:

December 7, 2012

Mark Lipp, Esq.
Wiley Rein LLP
1776 K Street, N.W.
Washington, D.C. 20006
Barry A. Friedman, Esq.
Thompson Hine LLP
1920 N Street, N.W. Suite 800
Washington, D.C. 20036
In re:

NEW(FM), Aguila, Arizona

Facility ID No. 170953
File No. BNPH-20070403ACO

Petition for Reconsideration

KVVA-FM, Apache Junction, Arizona

Facility ID No. 1331
File No. BPH-20100817ABA

Petition for Reconsideration and
Reinstatement Nunc Pro Tunc

KDVA(FM), Buckeye, Arizona

Facility ID No. 2750
File No. BPH-20100817AAX

Petition for Reconsideration and
Reinstatement Nunc Pro Tunc

Dear Counsel:
We have before us a Petition for Reconsideration (“Petition”) filed by Entravision Holdings, LLC
(“Entravision”) on December 22, 2011, seeking reconsideration of the grant of the above-referenced
application of Able Radio Corporation (“Able”) for a new FM station at Aguila, Arizona (“Able Application”
or “Application”),1 and related responsive pleadings.2 We also have two Petitions for Reconsideration and
Reinstatement Nunc Pro Tunc (“Reinstatement Petitions”) filed by Entravision on December 23, 2011,
seeking reconsideration of the dismissal of Entravision’s above-referenced applications for minor
modifications of the licenses for stations KVAA-FM, Apache Junction, Arizona, and KDVA(FM), Buckeye,


1 Able Radio Corporation, Letter, 26 FCC Rcd 16161 (MB 2011) (“Letter Decision”).
2 On January 5, 2012, Able filed an Opposition to Petition for Reconsideration (“Able Opposition”). On January
17, 2012, Entravision filed a Reply to Opposition to Petition for Reconsideration (“Entravision Reply”).

Arizona (“Entravision Applications”),3 and responsive pleadings.4 For the reasons stated below, we deny the
Petitions.

Background.

Able was the winning bidder for a new commercial FM station on Channel 297C2
at Aguila, Arizona, in FM Auction 70.5 In its original April 3, 2007, post-auction long-form FCC Form
301 application, Able proposed to serve Aguila from an antenna site located at 33° 49’ 53” NL, 113° 1’
38” WL. On August 10, 2007, Able amended the Application to upgrade and remove the allotment from
Channel 297C2 at Aguila to Channel 297C1 at Tonopah, Arizona, with a transmitter site at 33° 49’ 04”
NL, 113° 16’ 18” WL.6 Subsequently, Able filed a series of minor amendments to the Application’s
technical proposal, including a May 5, 2008, amendment specifying service to Tonopah from a location at
33° 48’ 5” NL, 113° 17’ 4” WL (the “May 2008 Site”). On August 17, 2010, Entravision filed an
objection to the Able Application (“Informal Objection”). Able then filed an amendment to specify a new
transmitter site and change the community of license from Tonopah back to Aguila. The staff denied the
Informal Objection and granted the Able Application in a letter decision dated November 29, 2011.7 It
dismissed the Entravision Applications by a separate staff letter also dated November 29, 2011.8
In its Petition, Entravision reiterates its earlier argument that Able lacked reasonable assurance of
site availability for the amended May 2008 Site serving Tonopah.9 Entravision contends that, under the
reasonable assurance policy, once Able has been found to have applied for a transmitter site that lacked
reasonable assurance, it was precluded from amending to another site, and we must therefore deny the
subsequent site change amendment back to Aguila.10 In this regard, Entravision argues that auction
winners are not treated differently than other applicants: rather, “there is only one class of applicant
which must be treated in the same manner.”11 It further asserts that the Commission’s reasonable
assurance of site availability requirement applies equally to original applications and all amendments filed
thereto, so that the Bureau erred to the extent it did not apply the reasonable assurance policy to the May
2008 Site amendment.12 Finally, Entravision contends that Able has failed to prosecute its Application by


3 The Able Application was in conflict with the KVVA-FM minor modification application, part of a contingent
application group that included the KDVA(FM) minor modification application. As a later-filed application, the
KVVA-FM minor modification application was “held in queue” behind the Able Application. When the Able
Application was granted, the queue was dissolved and the KVVA-FM minor modification application was
dismissed. Entravision Holding, LLC, Letter, Ref. No. 1800B3-KT (Nov. 29, 2011) (“Dismissal Letter”). This
dismissal also resulted in dismissal of the contingent KDVA(FM) application. Id.; See 47 C.F.R. § 73.3517(e).
4 On January 5, 2012, Able filed an Opposition to Petition for Reconsideration and Reinstatement Nunc Pro Tunc
against both Reinstatement Petitions. On January 19, 2012, Entravision filed a Reply to Opposition to Petition for
Reconsideration and Reinstatement Nunc Pro Tunc.
5 See Auction of FM Broadcast Construction Permits Closes, Winning Bidders Announced for Auction No. 70,
Public Notice, 22 FCC Rcd 6323 (2007), Attachment A at 1.
6 See 47 C.F.R. § 73.3573(g), which permits changes in a station’s or application’s community of license by
application for a minor modification.
7 Letter Decision, supra note 1.
8 Dismissal Letter, supra note 3.
9 Petition at 2-3.
10 Petition at 6.
11 Petition at 2.
12 Petition at 4.
2

“allowing a patently defective application to remain on file for more than two years . . .”13 For these
reasons, Entravision concludes, the Able Application should be dismissed and the mutually-exclusive
Entravision Applications reinstated.14
Able responds that there is no reason to require the winning bidder in a competitive auction to
demonstrate that it has obtained reasonable assurance for the proposed transmitter site, because the
competitive bidding process lessens the incentive for insincere application filings.15 Rather, Able
contends, reasonable assurance only becomes relevant in the auction context if a petitioner proves “‘a
substantial and material question of false certification’ rising to the level of a misrepresentation”
regarding transmitter site availability.16 This standard is not met here, argues Able, because Able “sought
and believed that it had obtained reasonable assurance for the [May 2008 Site]” when BLM directed Able
to begin the application process for permission to use the site.17 Able also argues that the reasonable
assurance requirement does not apply to subsequently-filed application amendments, only to the original
application.18 Able cites two principles in support of this proposition. First, the reasonableness standard
itself is a liberal one, aimed to promote agency efficiency by deterring frivolous applications. Second, in
recognition of the different incentives applicable to auction winners, the Commission has adopted a more
lenient approach to processing defective applications of broadcast auction winners.19 Lastly, Able
contends that it duly prosecuted the Able Application and that any delay was primarily due to the need to
obtain Mexican concurrence for the allotment.20

Discussion.

The Commission will consider a petition for reconsideration only when the petitioner
shows either a material error in the Commission's original order, or raises additional facts, not known or
existing at the time of the petitioner's last opportunity to present such matters.21 Entravision has not met
this burden.
Entravision argues that the Bureau erred in not dismissing Able’s original Application due to an
alleged lack of reasonable assurance of site availability in a subsequently-filed site change amendment.
We uphold the Letter Decision as in keeping with the Commission’s well-established policy of permitting
liberal amendments by auction winners to correct application deficiencies.22 Our reasonable assurance of
site availability requirement was originally implemented as a deterrent to the filing of frivolous and





13 Petition at 9.
14 Petition at 9; Reinstatement Petition at 3. Entravision’s Reply largely restates arguments made in the Petition.
15 Able Opposition at 4-5.
16 Able Opposition at 5.
17 Able Opposition at 5-7.
18 Able Opposition at 2.
19 Able Opposition at 2-3.
20 Able Opposition at 8-9.
21 See 47 C.F.R § 1.106(c),(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, 387 U.S. 967 (1966).
22 Letter Decision at 4 (“As present Commission policy permits the ‘liberal’ filing of non-major corrective
amendments, we will not dismiss the Able Application due to an alleged lack of reasonable assurance for the May
2008 Site.”)
3

speculative applications.23 When we adopted auction procedures for broadcast licenses, the Commission
concluded that the competitive bidding process itself would lessen the incentive for insincere application
filings.24 Accordingly, the Commission adopted a lenient approach to the processing of defective
applications filed by a broadcast auction participant, employing staff deficiency letters and permitting
multiple corrective amendments, if necessary.25 Despite Entravision’s argument to the contrary, the
Commission expressly and deliberately treats auction winners dissimilarly to other, non-auction,
applicants. Following the Commission’s liberal amendment policy for auction winners, we have properly
allowed Able to file multiple amendments. Accordingly, we need not reach the issue of whether Able had
reasonable assurance of the May 2008 Site because that issue became moot when Able amended to a new
transmitter site.
The cases cited by Entravision are inapposite. In general, they stand for the proposition that, in a
comparative hearing context, an applicant was not permitted to file a curative amendment when its
originally-proposed site lacked reasonable assurance of site availability.26 Not only is the site at issue
here not the originally-proposed site, but the underlying rationale for this policy was specific to the
comparative hearing environment. In Port Huron, for example, the Review Board rejected a curative
amendment, explaining that “where a cutoff period is established, applications must be submitted in
substantially complete form before the cut-off date to be entitled to comparative consideration.”27 Such
concerns are not relevant in an auction context.
Entravision has similarly failed to show any error or omission in the staff’s analysis of Able’s
alleged failure to prosecute its Application.28 The Letter Decision noted that after Able filed the
Application, it filed a series of amendments, thus demonstrating its ongoing efforts to finalize and perfect
its proposal.29 Able also responded to staff correspondence and requests for further information.
Moreover, the Commission has long acknowledged that the competitive bidding process itself, in which
the winning bidder makes a substantial front end payment, provides a strong impetus for timely station


23 Implementation of Section 309(j) of the Communications Act—Competitive Bidding for Commercial Broadcast
and Instructional Television Fixed Services Licenses
, First Report and Order, 13 FCC Rcd 15920, 15963 (1998),
recon. denied, 14 FCC Rcd 8724 (1999), aff’d sub nom Orion Communications, Ltd. v. FCC, 213 F.3d 761 (D.C.
Cir. 2000) (“Auction Order”).
24 Id.
25 Id. at 15961.
26 See, e.g., South Florida Broadcasting Co., Memorandum Opinion and Order, 99 FCC 2d 840, 845 (Rev. Bd.
1984) (“[A]n applicant will not be permitted to amend where it did not have the requisite “reasonable assurance” to
begin with.”); See also Letter Decision at 3.
27 Port Huron, 4 FCC Rcd at 2535. We note also that the comparative hearing process imposed a greater
administrative burden on Commission resources, as staff had to consider multiple, mutually-exclusive applications
and pleadings. This led to a stringent overall amendment policy; post-designation amendments were accepted only
if they met a six-point good cause test. See Erwin O’Conner Broadcasting Co., Memorandum Opinion and Order,
22 FCC 2d 140, 143 (Rev. Bd. 1970) (“[T]he moving party must demonstrate that it acted with due diligence; that
the proposed amendment was not required by the voluntary act of the applicant; that no modification or addition of
issues or parties would be necessitated; that the proposed amendment would not disrupt the orderly conduct of the
hearing or necessitate additional hearing; that the other parties will not be unfairly prejudiced; and that the applicant
will not gain a competitive advantage.”).
28 See 47 C.F.R. § 73.3568(a)(1) (“Failure to prosecute an application, or failure to respond to official
correspondence or request for additional information, will be cause for dismissal.”).
29 Letter Decision at 4.
4

construction in order to recoup auction expenditures. 30 It follows that “[o]ur concern with spectrum
speculation in an auction environment, where there are strict bidding and payment requirements and
where the winning bidder has paid fair market value for an authorization, is minimal.” 31 Accordingly, we
affirm our earlier finding that Able had adequately prosecuted the Application.

Conclusion

/

Actions

. We find that grant of the Able Application and dismissal of the Entravision
Applications were not in error and were consistent with the public interest, convenience, and necessity.
Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by Entravision Holdings, LLC
on December 22, 2011, IS DENIED. IT IS FURTHER ORDERED that the Petition for Reconsideration
and Reinstatement Nunc Pro Tunc filed by Entravision Holdings, LLC, on December 23, 2011 (Apache
Junction, Arizona), IS DENIED. IT IS FURTHER ORDERED that the Petition for Reconsideration and
Reinstatement Nunc Pro Tunc filed by Entravision Holdings, LLC, on December 23, 2011 (Buckeye,
Arizona), IS DENIED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau


30 Streamlining of Mass Media Applications, Rules, and Processes, Report and Order, 13 FCC Rcd 23056, 23071
(1998) (subsequent history omitted).
31 Id.
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