Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

WFUN-LP, Miami, Fl

Download Options

Released: February 22, 2013
Federal Communications Commission
Washington, D.C. 20554
February 22, 2013

DA 13-256
Released: February 22, 2013

LocalOne Texas, Ltd.
c/o A. Wray Fitch III, Esq.
Gammon & Grange, P.C.
8280 Greensboro Drive, 7th Floor
McLean, Virginia 22102-3807
The School Board of Broward County, Florida
c/o Paul H. Brown, Esq.
Wood, Maines & Brown, Chartered
1827 Jefferson Place, N.W.
Washington, D.C. 20036
Re: Second Petition for Reconsideration, Application to
Convert WFUN-LP to Class A Television Status,
File No. BLTTA-20001208AEF
Facility ID No. 60542
Counsel:
We have before us a second Petition for Reconsideration filed by LocalOne Texas, Ltd.
(“LocalOne”) regarding dismissal of its application for a Class A license for low power television station
WFUN-LP, Miami, Florida. For the reasons set forth below, we will deny the petition.

Background.

The Community Broadcasters Protection Act (“CBPA”) instructed the
Commission to make Class A licenses available to “qualifying low-power television stations.”1 An
applicant was a “qualifying low-power television station” if the station (among other requirements) “from
and after the date of its application for a Class A license . . . [wa]s in compliance with the Commission’s
operating rules for full-power television stations.”2 In the regulations implementing the CBPA, released
in April 2000, the Commission made clear that all regulations that apply to full-power television stations
would apply to Class A licensees except for those which could not apply for technical or other reasons.3
Maintenance of a main studio was among those full-power station requirements.4 The primary
function of a main studio is to serve the needs and interests of the residents of the station’s community of
license.5 As set forth in the Commission’s rules, precedent, and the above-captioned application, all full-
power stations must have a main studio, which must: (i) be equipped with production and transmission


1 47 USC § 336(f)(A).
2 47 USC § 336(f)(A)(ii).
3 Establishment of a Class A Television Service, Report and Order, (“Report and Order”) 15 FCC Rcd 6355, 6365,
6369 (2000).
4 Id. at 6366.
5 See Review of the Commission’s Rules Regarding the Main Studio and Local Public Inspection Files of Broadcast
Television and Radio Stations
, Report and Order, 13 FCC Rcd 15691, 15692 and n.3 (1998), modified, 14 FCC Rcd
11113 (1999) (Serving the needs and interests of its community is a “bedrock obligation of every broadcast
licensee.”).

facilities that meet applicable standards; (ii) maintain continuous program transmission capability; and
(iii) maintain a meaningful management and staff presence, which requires staffing the studio with at least
one management-level employee and one staff-level employee at all times during regular business hours.6
LocalOne filed its application for a Class A license on December 8, 2000. In its application,
LocalOne certified compliance with the main studio rule.7 The Commission initially granted LocalOne’s
application.
The School Board of Broward County and Sherjan Broadcasting Company filed timely petitions
for reconsideration.8 Upon review of the evidence, the staff concluded that LocalOne had falsely certified
its eligibility and rescinded the grant.9 The staff found that, first, LocalOne failed to staff the site with at
least one management-level employee and one staff-level employee at all times during regular business
hours.10 LocalOne’s employees admitted that they did not meet this requirement.11 Second, contrary to
an earlier claim,12 the station admitted that its local telephone number was not publicly available until
May 2002.13 Third, LocalOne did not maintain adequate production equipment at the main studio
location.14 Fourth, the station’s local public inspection file was not “available for public inspection at any
time
during regular business hours,” as evidenced by the reconsideration petitioners’ repeated
unsuccessful attempts to inspect the file at the site.15 The staff concluded that “LocalOne failed to comply
with [the requirements of full-power stations] at the time it filed [the] license application, and we see no
compelling or equitable circumstances that would otherwise warrant a grant of Class A status.”16
On August 27, 2004, LocalOne filed a Petition for Reconsideration.17 First, LocalOne argued that
the Commission’s rescission of its grant of Class A status to the station was arbitrary and capricious
because the Commission had previously assessed only forfeitures, rather than grant reversals, against
parties that LocalOne asserts were similarly situated.18 Second, LocalOne argued the Commission’s
reversal of the grant of Class A status to the Station was not consistent with the standard practice of
assessing forfeitures against full power television stations that committed main studio violations at the


6 B&C Kentucky, 16 FCC Rcd. 9305 ¶ 7; see also FCC Form 302-CA, Instruction II.F; Establishment of a Class A
Television Service
, Memorandum Opinion and Order on Reconsideration, 16 FCC Rcd 8244 (2001) ¶¶ 27-29; Jones
Eastern of the Outer Banks, Inc.
, 7 FCC Rcd 6800 (1992).
7 LocalOne was on notice of the implications of a false certification, as the Report and Order implementing the
Class A service clearly stated that “a Class A application could be denied if a certification of eligibility [was] later
determined to be incorrect.” Report and Order, 15 FCC Rcd at 6372, ¶ 40.
8 Sherjan Broadcasting Company is no longer participating in this proceeding.
9 Letter from Barbara A. Kreisman, Chief, Video Division, to A. Wray Fitch III, Esq. (July 23, 2004) at 7 (“2004
Decision
”).
10 2004 Decision at 8.
11 Id. at 9.
12 Local One Opposition to Petition for Reconsideration (April 4, 2001) at 5.
13 2004 Decision at 7 (citing LocalOne July 15, 2002 Response at 3).
14 Id. at 7 (citing LocalOne July 15, 2002 Response at 2).
15 Id. (quoting 47 § CFR 73.3526(c)(1)).
16 Id. at 10.
17 Id. at 7.
18 LocalOne Petition for Reconsideration (Aug. 27, 2004) at 2-6 (“First Petition for Reconsideration”).
2

time they filed and during the pendency of their license applications.19 Third, LocalOne contended that
the grant rescission was contrary to the public interest because the Station was purportedly in compliance
with the eligibility requirements during the 90 days preceding enactment of the CBPA.20
On August 4, 2005, the Commission denied the Petition for Reconsideration in a letter decision,
addressing and rejecting each of LocalOne’s arguments.21 On September 6, 2005, LocalOne filed a
second Petition for Reconsideration.22 LocalOne argues that “[f]urther reconsideration is warranted
pursuant to Rule 1.106(b)(3)(c) due to new case precedent since LocalOne filed its First Petition for
Reconsideration and is also warranted due to important policy implications concerning maintaining and
obtaining Class A status.”23

Discussion.

Section 1.106(k)(3) of the Commission’s rules allows the staff to dismiss as
“repetitious” any petition for reconsideration of an order which has previously been denied on
reconsideration.24
“Absent extraordinary circumstances, if the tacking of petitions were permitted,
Commission actions might never become final and the rule would become nugatory.”25 LocalOne neither
cites to any intervening decisions that compel a different result nor presents any compelling
circumstances to persuade us to allow the second Petition for Reconsideration in this case. Although we
have the authority to dismiss the pleading as repetitious, we nevertheless consider the new arguments
raised by the second Petition for Reconsideration and deny them for the reasons set forth below.
LocalOne argues that it was in full compliance by the deadline for submission of Class A
applications, which was July 12, 2001.26 However, the CBPA requires the applicant to be in compliance
“from and after the date of its application” to convert to Class A status, regardless of whether the
application was filed before the statutory deadline.27 LocalOne was not in compliance with the main
studio rule as of the date of its application.28
LocalOne also argues that the scope of the main studio requirement did not become clear until the
issuance of the Class A Reconsideration Order.29 But LocalOne itself acknowledges in its Petition that


19 Id. at 6-9.
20 Id. at 9-11.
21 LocalOne Texas, Ltd., Letter, 20 FCC Rcd 13521 (M.B. 2005) (“2005 Decision”).
22 LocalOne Petition for Reconsideration and Reinstatement of Application Nunc Pro Tunc (September 6, 2005)
(“Second Petition for Reconsideration”).
23 Second Petition for Reconsideration at 1 n.1.
24 In re Application of Great Lakes Broadcasting Academy, Inc., 19 FCC Rcd. 11655, 11656 (June 21, 2004).
25 Id. (quoting Brainerd Broadcasting Company, 25 R.R. 297, 298 (1963); see also Iola Broadcasting Company, 2
F.C.C.2d 439, 439 (1966) (stating “it is not in the interests of orderly procedure to permit repeated petitions for
reconsideration”).
26 Second Petition for Reconsideration at 10-11.
27 47 U.S.C. § 336(f)(2)(A).
28 LocalOne also argues that the statutory eligibility requirements relevant here require a less stringent level of
compliance than certain other requirements in the CBPA. Second Petition for Reconsideration at 8-9. We reject
this distinction and conclude that the Commission intended the policy to apply to all of the requirements, including
the main studio rule. We further conclude that, even if the policy only applied to the requirements of
336(f)(2)(A)(i), LocalOne’s deficiencies were so significant that the result would be the same.
29 Second Petition for Reconsideration at 12-14.
3

the Class A Report and Order “contains the form of [the] Class A license application,”30 which, as noted
above, required an applicant to certify that its main studio was compliant. The main studio staffing
requirement was clear at the time when LocalOne filed the application. The rules adopted in the Report
and Order
were final 30 days after the May 10, 2000 publication in the Federal Register, and applied to
LocalOne at the time it filed its license application.
Finally, LocalOne claims in a footnote that “[t]he Commission’s factual basis for its conclusions
on WFUN’s rule violations are[sic] not correct.”31 LocalOne disputes the accuracy of the vehicle logs that
showed that station personnel infrequently visited the main studio.32 But the staff’s decision relied on the
totality of the evidence, including LocalOne’s objections to the reliability of the vehicle logs and the
admissions of LocalOne’s management regarding their infrequent visits to the site, in concluding that
LocalOne did not comply with the rule.33 LocalOne also states that the main studio was not open to the
public,34 apparently because “[t]he entire transmitter site and building is locked and guarded, not
specifically the main studio. . . .”35 LocalOne thus admits that the main studio was not fully accessible to
the public.
Having already denied LocalOne’s Petition for Reconsideration on August 4, 2005, we will,
though legally entitled to dismiss the instant pleading, deny it. Contrary to the implication of its pleading,
LocalOne has not cited any new case precedent or compelling circumstances that would cause the
Commission to reconsider its decision. Moreover, for the reasons stated above, we conclude that
LocalOne’s arguments are without merit.
Accordingly,

IT IS ORDERED

, that the Second Petition for Reconsideration filed by LocalOne
Texas, Ltd. seeking reversal of the July 23, 2004, staff decision dismissing the application of Station
WFUN-LP, Miami, Florida, for a Class A license is

DENIED

.
Sincerely,
Barbara A. Kreisman
Chief, Video Division
Media Bureau


30 Id. at 12.
31 Second Petition for Reconsideration at 3-4 n.3.
32 Id. at 3 n.3.
33 See 2004 Decision at 8-9.
34 Second Petition for Reconsideration at 4 n.3 (citing 2005 Decision, 20 FCC Rcd at 13522).
35 Id.
4

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.