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Sacred Heart Roman Catholic Parish, Westley, CA

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Released: July 27, 2012

Federal Communications Commission

Washington, D.C. 20554

July 27, 2012

DA 12-1207
In Reply Refer to:
1800B3-ERC
Released: July 27, 2012
Dennis J. Kelly, Esq.
P.O. Box 41177
Washington, DC 20018
Michael Couzens, Esq.
6536 Telegraph Avenue, Suite B201
Oakland, CA 94609
David. A. O’Connor, Esq.
Wilkinson Barker Knauer, LLP
2300 N Street, N.W., Suite 700
Washington, DC 20037
In re:

NCE Reserved Allotment Group No. 8

New NCE-FM, Westley, California

Sacred Heart Roman Catholic Parish

Facility ID No. 184829
File No. BNPED-20100226AJO

New NCE-FM, Westley, California

Modesto Peace/Life Center
Facility ID No. 184977
File No BNPED-20100224ABX

New NCE-FM, Westley, California

Calvary Chapel of Turlock, Inc.
Facility ID No. 185121
File No BNPED-20100226AGO

Petitions to Deny

Dear Counsel:
We have before us: the referenced applications of Sacred Heart Roman Catholic Parish
(“SHRCP”), Modesto Peace/Life Center (“MPLC”), and Calvary Chapel of Turlock, Inc. (“CCT”) for a
new noncommercial educational (“NCE”) FM station on Channel 238A at Westley, California (the
“SHRCP Application,” “MPLC Application” and “CCT Application,” respectively); a Petition to Deny
the SHRCP Application, filed by MPLC on June 2, 2011 (“MPLC Petition”); and a Petition to Deny the
SHRCP Application, filed by CCT on June 2, 2011 (“CCT Petition”).1 For the reasons set forth below,


1 SHRCP filed an Opposition to Petition to Deny (“Opposition”) on June 27, 2011. MPLC filed a Reply to
Opposition to Petition to Deny (“Reply”) on July 8, 2011.

we grant the MPLC and CCT Petitions, rescind the prior tentative selection of the SHRCP Application,
and dismiss the SHRCP Application. Further, we find the MPLC and CCT Applications defective and
dismiss them as well.

Background.

SHRCP, MPLC, CCT, and five other parties2 filed mutually exclusive applications
for a new NCE FM facility on Channel 238A at Westley, California, during the February 2010 NCE filing
window. The Commission subsequently designated these applications as NCE Reserved Allotment Group
No. 8.3 In the Comparative Consideration Order, the Commission concluded that each applicant would
provide a first or second NCE service to at least ten percent of the population and to at least 2,000 people
within their proposed service areas. 4 Therefore, all applicants proceeded to an NCE point hearing. SHRCP
received three points for being an established local applicant, two points for diversity of ownership, and two
points for having the best technical proposal for a total of seven points. MPLC and CCT were credited with
five points.5 Accordingly, the SHRCP Application was tentatively accepted for filing, triggering a 30-day
period for parties to file petitions to deny against the tentative selectee.6
In its application, SHRCP asserted that the total population within its 60 dBμ contour is 587,663
people, and that a total of 154,981 people (approximately 26 percent of the total population) within its
contour would receive either a first or second NCE service. Accordingly, SHRCP contended that it met the
reservation standard.
Both the MPLC and CCT Petitions assert that the SHRCP Application failed to account for NCE
FM station KUOP(FM), Stockton, California, in its NCE service calculations and that, when station
KUOP(FM) is taken into account, SHRCP’s aggregate first and second NCE service would serve only
approximately five percent of the total population. MPLC and CCT request that the SHRCP Application
be dismissed for failing to satisfy the third channel reservation standard’s ten-percent service threshold.7
In its Opposition, SHRCP concedes that it overlooked KUOP(FM) and thus does not meet the
reservation standard under its original application. However, SHRCP has submitted a curative
amendment (“Amendment”), which accounts for the additional NCE station and adjusts its proposed


2 The other five applicants were Radio Bilingue, Inc. (File No. BNPED-20100225ACV) (“RBI”), Ondas de Vida
Network, Inc. (File No. BNPED-20100226AAE) (“OVN”), Crossroads Church, an Evangelical Free Church (File
No. BNPED-20100226ACV) (“Crossroads”), Centro Cristiano Vida Abundante, Inc. (File No. BNPED-
20100226ADX) (“CCVA”), and Hispanic Family Christian Network, Inc. (File No. BNPED-20100226AHR)
(“HFCN”). These applications were dismissed by the staff on June 7, 2011, and those actions have become final.
See Broadcast Actions, Public Notice, Report No. 47505 (Jun. 10, 2011).
3 See Comparative Consideration of 37 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial FM Stations filed in the February 2010 and October 2007 Filing Windows
, Memorandum
Opinion and Order, 26 FCC Rcd 7008, 7019-20 (MB 2011) (“Comparative Consideration Order”). The Westley,
CA, Channel 238* allotment was reserved for NCE use in Amendment of Section 73.202(b), Table of Allotments, FM
Broadcast Stations. (Westley, California)
, Report and Order, 19 FCC Rcd 13115 (MB 2004).
4 Id. at 7020. Channel 238A at Westley, California was reserved under the third channel reservation criterion.
Accordingly, applicants for this frequency must demonstrate that they are technically precluded from using a
reserved channel and that they will provide first or second NCE service to at least ten percent of its covered
population, which must total at least 2,000 persons.
5 See id. Crossroads also was credited with five points. RBI, OVN, CCVA, and HFCN each received two points.
6 Id. at 7052.
7 Id. at 7010. The MPLC Petition also argues for dismissal on the grounds that SHRCP failed to obtain reasonable
assurance of the construction site’s availability, and the CCT Petition claims that the SHRCP’s construction site is
unsuitable and that SHRCP violated FAA notification requirements, 47 C.F.R. § 17.7(a). Because we dismiss the
SHRCP Application on the fair distribution argument, we do not address the merits of these claims.
2

service population and area. 8 After the Amendment, SHRCP claims its proposed site provides first or
second service to 10.2 percent of its total service population. SHRCP claims because it satisfies the ten
percent threshold, the SHRCP Application cannot be dismissed and should be re-evaluated alongside
MPLC and CCT.
In its reply, MPLC contends that the Amendment was unauthorized, and, therefore, it cannot be
considered.9 It states that satisfaction of the third channel reservation standard is a prerequisite to
qualifying for the points analysis, and SHRCP cannot amend its Application because it impermissibly
enhances its qualifications after the application window closed.

Discussion.

SHRCP Application. Section 309(d)(1) of the Act10 provides that any party in
interest may file a petition to deny an application. In order to assess the merits of a petition to deny, a
two-step analysis is required.11 First, the petition must make specific allegations of fact sufficient to
demonstrate that the petitioner is a party in interest and that a grant of the application would be prima
facie
inconsistent with the public interest, convenience, and necessity.12 This threshold determination is
made by evaluating the petition and the supporting affidavits. If the petition meets this threshold
requirement, the Commission must then examine all of the material before it to determine whether there is
a substantial and material question of fact calling for further inquiry and requiring resolution in a
hearing.13 If no such question is raised and if the Commission concludes that such grant otherwise serves
the public interest, convenience, and necessity, the Commission will deny the petition and grant the
application.
In upholding the third channel reservation standard, the Commission specifically advised
prospective NCE applicants that the first or second NCE service requirement does not end upon allotment
but remains applicable at the application stage.14 An application implementing an allotment reserved
under these procedures that fails to satisfy this requirement is eliminated and will not proceed to the point
system analysis.15 Taking station KUOP(FM) coverage into account, we find that SHRCP’s original
technical proposal provides first and second NCE service to a combined population of 190 people, only
0.03 percent of the total service population of 693,714 people. It thus fails to satisfy the ten-percent
threshold requirement of the third channel reservation standard.


8 The Amendment changes the antenna coordinates, height, and coverage pattern in order to reduce SHRCP’s
service population from 587,663 people to 285,962 people and its service area from 3,376 sq. km to 2,309 sq. km.
In the Amendment, SHRCP claims to provide first NCE service to 25 people and second NCE service to 29,133
people for a combined 10.2% of the total service population.
9 The Reply also contends that the population calculations used in SHRCP’s Amendment are flawed because they
are based on NED 3-second terrain data instead of the standard 30-second NGDC data. Because we are not
considering SHRCP’s amendment, we need not address this argument.
10 47 U.S.C. § 309(d)(1).
11 See, e.g., Artistic Media Partners, Inc., Letter, 22 FCC Rcd 18676, 18676 (MB 2007).
12 See id.; Astroline Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988).
13 47 U.S.C. § 309(d)(2).
14 See Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Second Report
and Order, 18 FCC Rcd 6691, 6705 (2003) (“NCE Second Report and Order”) (“Reserved allotments will be
conditioned on the construction and licensing of an NCE station that provides the requisite level of first and second
NCE service. In the event that all applications for a reserved band allotment fail to propose such service, the
allotment will become unreserved by operation of law and subject to the Commission’s competitive bidding
licensing procedures”). See also 47 C.F.R. § 73.202(a)(1)(ii).
15 Comparative Consideration Order, 26 FCC Rcd at 7009.
3

SHRCP argues in its Opposition that a tentative selectee is permitted to submit curative
amendments if its application is found to be unacceptable;16 it argues that it is not improving its
qualifications because it is reducing its originally proposed service area and population and claiming
fewer points than originally awarded, in effect weakening its original comparative position.17 MPLC
argues that the SHRCP Amendment cannot be considered, as the Amendment does have the effect of
impermissibly enhancing SHRCP’s qualifications after the application window closed because SHRCP
should not have proceeded to the point hearing in the first place with its defective proposal.18
Section 73.7003(e) provides that an applicant’s “maximum qualifications are established at the
time of application.”19 However, we need not decide whether the Amendment constitutes an untimely
attempt to enhance SHRCP’s comparative position, because the Amendment, even if acceptable, fails to
cure the defect in the SHRCP Application. Contrary to SHRCP’s submission, our studies indicate that
SHRCP’s amended proposal would provide first or second NCE service to 20,458 people, only 7.1
percent of the total service population of 289,179 people within the amended 60 dBμ contour.20

Accordingly, we find that the SHCRP Application is defective because it fails to meet the third
channel reservation standard and must be dismissed pursuant to Section 73.3566(a). We therefore will
rescind our tentative selection of the SHRCP Application and dismiss the SHRCP Application as
defective pursuant to Section 73.3566(a).
MPLC and CCT Applications. Because we are dismissing the tentatively selected SHRCP
Application, we now turn to the MPLC and CCT Applications, tied with five points in the Comparative
Consideration Order
.21 Upon reviewing the technical proposals for the MPLC and CCT Applications, we
find them similarly defective. CCT claims to provide aggregate first and second NCE service to 27,433
people, 10.2 percent of its total service population of 269,972 people.22 MPLC claims to provide
aggregate first and second NCE service to 26,531 people, 10.5 percent of its total service population of
253,959 people.23 However, we found that both applicants fail to attain the ten-percent threshold and,
therefore, do not satisfy the requirements of the third channel reservation standard. Our studies show that
CCT would provide first and second NCE service to 19,901 people, 7.0 percent of its total service
population of 285,562 people; MPLC would provide first and second NCE service to 19,920 people, 7.6


16 See Comparative Consideration of 33 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Educational FM Stations
, Memorandum Opinion and Order, 26 FCC Rcd 9058, 9094 n.
157 (MB 2011).
17 Opposition at 3; 47 C.F.R. § 73.3522(b)(2).
18 Reply at 4.
19 47 C.F.R. § 73.7003(e). See also Fair Distribution Threshold Analysis of 28 Groups of Mutually Exclusive
Applications for Permits to Construct New or Modified Noncommercial Educational FM Stations
, Memorandum
Opinion and Order, 24 FCC Rcd 12390, 12399 (MB 2009) (rejecting applicant’s attempt to amend its application
after the close of the filing window to claim a preference based solely on aggregated first and second NCE service).
20 Our review revealed that the amended proposal failed to include an existing station whose contour overlaps with
the proposed coverage area: KCSS(FM), Turlock, California (File No. BLED-19990316KB).
21 See 47 C.F.R. § 73.7004(d) (“If an applicant is found unqualified, the application shall be denied, and the
applicant(s) with the next highest point tally named as the new tentative selectee”). Although Crossroads also
received five points, it did not file a petition for reconsideration of the dismissal of its application, and that dismissal
is now final. See supra n. 2.
22 CCT Application, Exhibit 13.
23 MPLC Application, Exhibit 13.
4

percent of its total service population of 260,982 people.24 Accordingly, none of the remaining
applications in NCE Reserved Allotment Group No. 8 would provide the requisite level of first and
second NCE service. Therefore, we also dismiss the MPLC and CCT Applications pursuant to Section
73.3566(a) and conclude that the Channel 238A Westley, CA, allotment is unreserved by operation of
law. The Media Bureau will include this allotment in an upcoming auction.25

Conclusions/Actions.

Accordingly, IT IS ORDERED, that the Petition to Deny filed by
Modesto Peace/Life Center on June 2, 2011 and the Petition to Deny filed by Calvary Church in Turlock,
Inc. on June 2, 2011, ARE GRANTED to the extent indicated above.
IT IS FURTHER ORDERED, that the tentative selection of Sacred Heart Roman Catholic
Parish’s application (File No. BNPED-20100226AJO) IS RESCINDED and its application IS
DISMISSED.
IT IS FURTHER ORDERED, that the applications of Modesto Peace/Life Center and Calvary
Chapel of Turlock, Inc. (File Nos. BNPED-20100224ABX and BNPED-20100226AGO, respectively)
ARE DISMISSED.
IT IS FURTHER ORDERED, that, pursuant to Section 4(i), 5(c)(1), 303(g) and (r), and 307(b) of
the Communications Act of 1934, as amended, and Sections 0.61, 0.204(b) and 0.283 of the
Commission’s Rules, IT IS ORDERED, that effective July XX, 2012, the FM Table of Allotments,
Section 73.202(b) of the Commission’s Rules, IS MODIFIED BY OPERATION OF LAW with respect
to the communities listed below, to read as follows:


Community
Channel No.


Westley, California 238A


Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau


24 As did SHRCP, MPLC and CCT failed to include KCSS(FM) in their NCE coverage calculations. See supra n.
21.
25 See NCE Second Report and Order, 18 FCC Rcd at 6705, supra n. 14.
5

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