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Petitions For Reconsideration Of Dismissed MD FM Translator Apps

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Released: August 19, 2013
Federal Communications Commission
Washington, D.C. 20554

August 19, 2013

DA 13-1773

In Reply Refer to:
1800B3-SS
Released: August 19, 2013
Mr. Edward A. Schober
402 10th Avenue
Haddon Heights, NJ 08035

In re: NEW FM Translator Station,
Denton, MD

Facility ID No. 141493
File No. BNPFT-20130325ABA

NEW FM Translator Station,
Denton, MD
Facility ID No. 141483
File No. BNPFT-20130325ABK
Petitions for Reconsideration
Dear Mr. Schober:
This letter concerns the referenced March 25, 2013, applications ("Denton Applications") filed by
Edward A. Schober ("Schober") for construction permits for new FM translator stations at Denton,
Maryland. The staff dismissed the Denton Applications on April 9, 2013.1 On May 1, 2013, Schober
filed two nearly identical Petitions for Reconsideration (collectively, the "Petitions"), seeking
reinstatement of each of the Denton Applications as well as leave to amend those applications. For the
reasons set forth below, we deny the Petitions.

Background

. Schober filed applications2 for construction permits for two new FM translator
stations at Rio Grande, New Jersey, in the March 2003 FM non-reserved band FM translator (Auction 83)
filing window.3 The Rio Grande Applications were determined to be "singletons," and Schober was
invited to file a Form 349 long-form construction permit application for each facility.4 On March 25,
2013, he filed the two long-form Denton Applications in which he: (1) proposed a minor change in the
transmitter sites of each of the Rio Grande Applications; (2) specified Denton, Maryland, as the proposed
stations' community of license; and (3) changed the primary stations to be rebroadcast. Each newly-

1 See Broadcast Actions, Public Notice, Report No. 47966 (rel. Apr. 12, 2013).
2 See File Nos. BNPFT-20030311ACN and BNPFT-20030311ACG (the "Rio Grande Applications").
3 See FM Translator Auction Filing Window and Application Freeze, Public Notice, 18 FCC Rcd 1565 (MB/WTB
2003). The filing window was subsequently extended to March 17, 2003. FM Translator Auction Filing Window
and Application Freeze Extended to March 17, 2003
, Public Notice, 18 FCC Rcd 3275 (MB/WTB 2003).
4 See Media Bureau Announces FM Translator Auction 83 Filing Window and Filing Procedures, Public Notice, 28
FCC Rcd 1500, 1510 at Appendix A (MB 2013) ("Filing Window PN").

proposed Denton site was in the "buffer zone" of the spectrum-available "Appendix B" market of Ocean
City/Salisbury, Maryland.5 The Public Notice announcing the filing window and filing procedures for
Auction 83 applicants detailed the market-specific FM translator application processing policies designed
to effectuate the Local Community Radio Act.6 It specifically stated that any Form 349 proposal which
differs from the original tech box proposal, as is the case here, and proposes a transmitter site at a location
within the 39-kilometer "buffer" of any defined "Market Grid," as is the case here, would be required to
file a Preclusion Showing. The deadline for these showings, demonstrating that the FM Translator
application, if granted, would not preclude any protected LPFM licensing opportunities7 was March 28,
2013.8 The Media Bureau ("Bureau") issued a follow-up Public Notice on March 18, 2013, reiterating
this filing requirement.9 Schober failed to submit a Preclusion Showing for either Denton Application by
the filing deadline, and the staff dismissed the referenced applications on April 9, 2013. On May 1, 2013,
he filed the Petitions.
On reconsideration, Schober contends that the reason he failed to timely file Preclusion Showings
is because the Commission's procedures for processing Auction 83 FM translator applications "are spread
out over thousands of pages" and are "confusing."10 He also argues that the deadline should be waived
because he did not receive the Guidance PN "due to travel" and because it was released "long after [he]
had prepared the long form application[s]."11 Accordingly, Schober argues that the Bureau should accept
his untimely Preclusion Showings. Schober claims that it would be "unfair" to preclude an applicant
from perfecting an application when the deficiency is due to a "misinterpretation of complex standards
which are not codified into the rules."12 Finally, Schober claims that reinstatement and amendment of the
Denton Applications would serve the public interest by improving local radio service in this rural area.13

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

5 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fourth Report and Order and Third Order on Reconsideration, 27 FCC Rcd 3364 (2012)
("Fourth Report and Order").
6 Pub. L. No. 111-371, 124 Stat. 4072 (2011).
7 See Fourth Report and Order, 27 FCC Rcd at 3385-86.
8 See Filing Window PN, 28 FCC Rcd at 1501. The term "Market Grid" is the 30x30 or 20x20 minute grid specified
in Appendices A and B for each studied market. See Fourth Report and Order, 27 FCC Rcd at 3398-3406. The
Denton Applications are 32 kilometers from the nearest grid point of the Ocean City/Salisbury buffer zone.
9 See Media Bureau Provides Additional Guidance on Preclusion Showing Filing Requirements for Auction 83 FM
Translator Applicants,
Public Notice, 28 FCC Rcd 2840 (MB 2013) ("Guidance PN") ("A Preclusion Showing is
required . . . [i]f an applicant has filed a Technical Amendment . . . [and] the proposal is within 39 km of a
Spectrum Available Market Grid . . . .").
10 Petitions at 2.
11 Id.
12 Petition at 2-3. We note that this argument is made only in the Petition seeking reinstatement of File No.
BNPFT-201300325ABK.
13 Petitions at 3.
2

known or existing at the time of the petitioner's last opportunity to present such matters.14 Schober has
not met this burden.
Initially, we note that under the procedures established for the processing of short-form FM
translator applications, applicants in certain circumstances were permitted to file minor amendments to
their tech box proposals ("Technical Amendments"), e.g., changes in power, height, directed pattern
channel, etc., at designated times.15 The Bureau was very clear that any Form 349 proposal which differs
from the original tech box proposal and proposes a transmitter site within a 39-kilometer "buffer zone," as
here, must file a Preclusion Showing.16 The Bureau also was very clear that "a [P]reclusion [S]howing
may not be submitted, amended, corrected, completed or resubmitted for further consideration after the
Application Deadline [of March 28, 2013]."17 It is well established that applicants are required to comply
with filing requirements set forth in public notices but not codified in the Rules.18 Accordingly,
Schober's argument to the contrary is without merit.
We also reject Schober's assertion that a waiver of the Preclusion Showing filing deadline is
warranted due to his "confusion."19 It is well settled that applicants are charged with knowledge of the
Commission's processing rules.20 A professed lack of knowledge of and/or failure to understand the
Commission's rules and policies do not excuse the failure to meet a filing deadline.21 We note that the
Filing Window and Guidance PNs contain contact information for Bureau representatives to assist
applicants requiring additional guidance.22 Moreover, permitting Schober to file a Preclusion Showing at
this point would frustrate the processing efficiencies which the filing deadline was designed to promote
and would be unfair to the many applicants who fully complied with all filing requirements.23

14 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).
15 See Fourth Report and Order, 27 FCC Rcd at 3385-86; see also Guidance PN, 28 FCC Rcd at 2841.
16 Id.
17 See Filing Window PN, 28 FCC Rcd at 1502.
18 See Community Religious Broadcasting, Inc., Letter, 23 FCC Rcd 15363, 15364 (MB 2008) (incumbent upon
applicants to monitor Public Notices and adhere to their requirements), citing 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 (2007) (applicant's failure to file a point
supplement by the deadline because it had not monitored Commission public notices is not an excuse for late-filing).
19 Petitions at 2.
20 See, e.g., L.T. Simes II and Raymond Simes, Letter, 21 FCC Rcd 1421, 1422 (MB 2006) (burden of providing
information and demonstrating qualifications by the applicable deadline falls upon the applicant).
21 See Alamo Navajo School Board, Inc., Forfeiture Order, 25 FCC Rcd 17057, 17059 (MB 2010) (rejecting
argument that late-filing should be excused because licensee's staff was "simply daunted and confused by the arcane
requirements of the [Commission's] electronic filing system"); Community-First Broadcasters, Inc., Forfeiture
Order, 23 FCC Rcd 10923, 10923-24 (MB 2008) (same, for licensee who was "flummoxed" by the Commission's
electronic filing procedures).
22 Filing Window PN, 27 FCC Rcd at 1502; see also Guidance PN, 28 FCC Rcd at 2842.
23 See Glorious Communications Channel Broadcasting, LLC, Letter, 20 FCC Rcd 11887, 11888 (MB 2005)
(waiver request denied where applicant, aware of filing deadline but "distracted by personal problems," failed to
make submission); see also Gregg P. Skall, Esq., Letter, 20 FCC Rcd 11889, 11890 (MB/WTB 2005) ("The
Commission's auction rules are best served by applying deadlines in a fair and consistent manner. By having an
(continued . . .)
3

Finally, we reject Schober's claim that reinstatement of the Denton Applications would be in the
public interest because the proposed stations would improve local service to the rural area here. Our
engineering staff has determined that currently there are at least five stations providing service to the area
proposed by the Denton Applications.24

Conclusion/Actions

. We find that Schober has not set forth an error of fact or law, or presented
new facts or changed circumstances which raise substantial or material questions of fact that otherwise
warrant reconsideration of the staff's action. Accordingly, for the reasons set forth above, IT IS
ORDERED, that the two May 1, 2013, Petitions for Reconsideration filed by Edward A. Schober ARE
DENIED.
Sincerely,

Peter H. Doyle
Chief, Audio Division

Media Bureau

(Continued from previous page)
announced procedure which applies uniformly, we created a predictable and fair procedure for all applicants in [the]
Auction . . . .").
24 WKNZ(FM), Harrington, Delaware; WSCL(FM), Salisbury, Maryland; WRDX(FM), Dover, Delaware; WCEI-
FM, Easton, Maryland; and WTDK(FM), Federalsburg, Maryland.
4

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