Federal Communications Commission
Washington, D.C. 20554
October 10, 2012
DA 12-1614In Reply Refer To:
Released: October 10, 2012
Cary S. Tepper, Esq.
Booth Freret Imlay & Tepper
7900 Wisconsin Avenue
Bethesda, MD 20814
Donald E. Martin, Esq.
Donald E. Martin, P.C.
P.O. Box 8433
Falls Church, VA 22041
Matthew H. McCormick, Esq.
Fletcher, Heald & Hildreth, PLC
1300 N. 17th Street, 11th Floor
Arlington, VA 22209
In re: NCE Reserved Allotment Group 29
New NCE(FM), Terre Haute, IN
Facility ID No. 184662
Terre Haute Bible Baptist Church, Inc.
File No. BNPED-20100224AAV
New NCE(FM), Terre Haute, IN
Facility ID No. 184620
Terre Haute Seventh-Day Adventist
File No. BNPED-20100224AAE
New NCE(FM), Terre Haute, IN
Facility ID No. 184889
The Light House Mission Ministries, Inc.
File No. BNPED-20100224AAF
Consolidated Petition to Deny
We have before us (1) the applications of Terre Haute Bible Baptist Church (“THBBC”), Terre
Haute Seventh-Day Adventist Church (“THSAC”), and The Light House Mission Ministries, Inc. (“Light
House”), for new noncommercial educational (“NCE”) FM stations at Terre Haute, Indiana; and (2)
THBBC’s Consolidated Petition to Deny the applications of THSAC and Light House (“Consolidated
Petition”).1 For the reasons set forth below, we deny the Consolidated Petition.
NCE Reserved Allotment Group 29 consisted of 12 mutually exclusive
applications proposing service on vacant Channel 298B at Terre Haute, Indiana, an allotment reserved for
an NCE station by the third channel reservation standard.2 Pursuant to established procedures,3 the
Commission engaged in a point system selection process in which it awarded THBBC, THSDA, and
Light House three points each as established local applicants and two points each for diversity of
ownership.4 Since THBBC, THSDA, and Light House all were tied with five points, the highest number
of points in this group, they proceeded to a tie-breaker.5 Because the tie-breaker did not change the
outcome, the Commission identified these three applicants as the tentative selectees of Group 29 on a
time-sharing basis.6 The Commission then accepted their applications for filing and announced a 30-day
period for filing petitions to deny.7 THBBC timely filed its Consolidated Petition.
Pursuant to Section 309(d) of the Communications Act of 1934, as amended
(“Act”),8 a petition to deny must provide properly supported allegations of fact that, if true, establish a
substantial and material question of fact that granting the application would be prima facie
with the public interest, convenience, and necessity.9
1 THBBC filed its Consolidated Petition on May 25, 2011. THSDA filed a Partial Opposition to Consolidated
Petition to Deny (“Partial Opposition”) on June 14, 2011 (THSDA opposed the denial of its application but
supported THBBC’s petition to deny Light House’s application). THBBC filed a Reply to Partial Opposition and
Motion to Strike on June 20, 2011 in response to THSDA’s Partial Opposition. Light House filed an Opposition to
Petition to Deny (“Opposition”) on June 23, 2011. In response to Light House’s Opposition, THBBC filed a Reply
to Opposition to Petition to Deny on June 28, 2011. THSDA filed an Opposition to Motion to Strike on July 6,
2 See Comparative Consideration of 37 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Educational FM Stations Filed in the February 2010 and October 2007 Filing Windows,
Memorandum Opinion and Order, 26 FCC Rcd 7008, 7018 (2011) (“Tentative Selectee Order
47 C.F.R. § 73.7003 (point system selection procedures); see also Reexamination of the Comparative
Standards for Noncommercial Educational Applicants
, Report and Order, 15 FCC Rcd 7386 (2000); Memorandum
Opinion and Order, 16 FCC Rcd 5074, 5105 (2001) (“NCE Comparative MO&O
”), rev’d in part on other grounds,
NPR v. FCC
, 254 F.3d 226 (D.C. Cir. 2001).
4 See Tentative Selectee Order
, 26 FCC Rcd at 34-35.
47 U.S.C. § 309(d).
9 See, e.g
., WWOR-TV, Inc
., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990), aff'd sub nom.
Garden State Broadcasting L.P. v. FCC
, 996 F 2d 386 (D.C. Cir. 1993), rehearing denied
(Sept. 10, 1993); Area
Christian Television, Inc
., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (petitions to deny must
contain adequate and specific factual allegations sufficient to warrant the relief requested).
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THBBC’s petition to deny THSDA’s application.
In its Consolidated Petition, THBBC argues
THSDA’s application should be denied because THSDA was improperly credited with three points as a
local applicant. THBBC states THSDA failed to provide any actual governing documents stating
THSDA will maintain the qualities of an established local entity.10 THBBC states that THSDA’s exhibit
to the application, which recites its policy to maintain its localism, does not fulfill the Commission’s
requirement for documentation.11 Additionally, THBBC argues THSDA did not provide documentation
that THSDA has been an established local entity, and the narrative in the exhibit does not fulfill the
Commission’s requirement for documentation.12
THSDA’s application exhibit explains that the church has no governing documents, such as
articles of incorporation or bylaws.13 Instead, the actions of the church board serve as its governing
documents, and in support of its application, the church board adopted a policy to maintain its localism.14
The policy states:
The local Seventh-Day Adventist Church has no governing documents similar to articles
of incorporation, a constitution or bylaws. Consequently, local policy and governance
are implemented by the church board. Actions of the church board serve as governing
documents for the church. In support of the church’s claim to comparative points, the
church board has adopted the following policies…. 1) It is our policy to always maintain
the headquarters (i.e. the church building and facilities) of our local church within 25
miles of the reference coordinates for the community of Terre Haute, Indiana.… These
policies are adopted for the purpose of complying with the FCC’s comparative selection
procedures for noncommercial broadcast applications as set forth in Sections 73.7000 and
73.7003 of the FCC’s Rules (47 CFR 73.7000 and 73.7003).15
THSDA’s exhibit also states it “has operated in and served the community of Terre Haute (within
25 miles of the reference coordinates for Terre Haute) since 1902. The Church has committed in a
written policy statement adopted by the church board to maintain the qualities of an established local
entity….”16 The exhibit states that the church itself is the THSDA headquarters.17
THSDA believes it has properly fulfilled the Commission’s documentation requirements.18 It
argues the Commission has accepted similar statements in the past and credited applicants even if they did
not provide governing or historical documents.19
10 Consolidated Petition at 4.
13 THSDA application at Exhibit 1.
18 Partial Opposition at 2.
. at 4-6, citing Alaska Federation for Community Self Reliance
(File No. BNPED-20071018AVG); Kodiak
Public Broadcasting Corporation
(File No. BNPED-20071018AVG); Kachemak Bay Broadcasting, Inc.
BNPED-20071019ADH); Calvary Chapel of Modesto, Inc.
(File No. BNPED-20071022BOJ); Crested Butte
Mountain Educational Radio, Inc.
(File No. BNPED-20071019AHW); Summit Public Radio & TV, Inc.
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THBBC does not attempt to rebut THSDA’s claim to have maintained its headquarters locally
since 1902. Instead, THBBC replies that in the instances cited by THSDA, the applicant had provided
some physical documentation to support its claims for localism points, such as a copy of the board
resolution or a copy of the bylaws. THBBC argues that none of the applicants in those cases simply
relied on a narrative in an exhibit to the application.20
An NCE applicant is awarded three localism points if it certifies that it has been local and
established for at least two years.21 We find that THBBC’s objection to THSDA’s localism exhibit is
misplaced. Although Section 73.7003 states the applicant must demonstrate that its governing documents
require that its localism be maintained,22 we have previously determined that such documentation is not
necessary to demonstrate that an applicant will maintain local headquarters.23 Instead, we have found that
FCC Form 340 and the orders adopting the current NCE point system only require documentation about
maintaining localism when the localism claim is based on local residence by the members of the
applicant’s board of directors.24 The Commission adopted the documentation requirement as a
“safeguard” to ensure that governing board characteristics
are maintained notwithstanding inevitable
changes in board composition.25 This concern is not relevant, particularly on the facts of this case, when
an applicant has maintained its headquarters in its proposed service area for an extended period. In these
circumstances, we conclude that THBBC’s challenge to the sufficiency of THSDA’s “established local
applicant” documentation is wholly misguided. Accordingly, THBBC’s failure to present any question
about the validity of THSDA’s certification of its application as “true, complete, and correct” requires
that we deny the Petition for failure to present a prima facie
question about THSDA’s localism
THBBC’s petition to deny Light House’s application.
In its Consolidated Petition, THBBC
argues Light House’s application should either be dismissed or denied because Light House was
improperly credited with three localism points. THBBC raises a question as to whether Light House is an
independent applicant or is acting for, instead, an undisclosed and unidentified real party in interest
outside of the Terre Haute community of license. THBBC offers a letter from Pastor Keith McIntyre, a
member of Light House’s Board, as evidence that the real party in interest is not a member of the local
community. In relevant part, the letter states:
BNPED-20071018AKW); Southwest Project for Community Education
(File No. BNPED-20071015ABU); Common Ground Athens, Inc.
(File No. BNPED-20071022AQA); Inter Mirifica, Inc.
(File No. BNPED-
20071022BHU); Horizon Christian Fellowship of Indianapolis
(File No. BNPED-20071017ABZ); Summit Seekers,
(File No. BNPED-20071022AXE); Harvest Chapel, Inc.
(File No. BNPED-20071022BJS); Crisis Pregnancy
Help Center of Slidell
(File No. BNPED-20071016ABC); Brice’s Creek Bible Church
(File No. BNPED-
20 Reply to Partial Opposition and Motion to Strike at 3-4.
21 47 C.F.R. § 73.7003 (b)(1).
23 See, e.g., Black Media Works
, Letter, 27 FCC Rcd 6397, 6401 (MB 2012) (applicant’s physical location within
community of license was sufficient to demonstrate that it would maintain its local headquarters). See also
Form 340 at 9 (requiring governing documents to ensure that applicant maintain “local” characteristics of governing
board); FCC Form 340, Worksheet 4 (same).
25 NCE Comparative MO&O
, 16 FCC Rcd at 5095.
THSDA application, Section VI.
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The Light House Mission was approached by an individual from Fort Wayne, Indiana
who is interested in bringing a nonprofit radio station to Terre Haute. As a mission we
have no funds available to apply, and no manpower to operate such a station. The
individual asked if he could apply on our behalf, and he would take care of the funding
and operation of the station.27
THBBC states that at a minimum this letter is evidence that the real party in interest is not a local
applicant, and the application should not have been awarded localism points.28 THBBC also states the
letter provides grounds for a Commission investigation of a potential undisclosed real party in interest.29
THBBC argues that if the Commission determines that a misrepresentation was made, Light House could
be disqualified as an applicant.30
In response, Light House argues the letter offered by THBBC is insufficient to support the
Consolidated Petition.31 Light House argues THBBC’s allegations do not fulfill the procedural
requirements of Section 309(d)(1) of the Communications Act or Section 73.7004(b) of the
Commission’s rules.32 Light House states the allegations are not specific and are not supported by a
sworn affidavit or a declaration under penalty of perjury.33
As noted above, in considering the Consolidated Petition, we must first determine whether
THBBC has made specific allegations of fact that, if true, would demonstrate that grant of the application
would be prima facie
inconsistent with the public interest. These specific allegations must be supported
by the affidavit of a person with knowledge of the facts alleged, except for those of which we may take
official notice.34 If the specific allegations make a prima facie
case, we next examine and weigh the
evidence presented to determine “whether the totality of the evidence arouses a sufficient doubt on the
point that further inquiry is called for.”35 We must also determine whether grant or denial of the
application would serve the public interest.36
Here, THBBC has neither provided the documentation necessary to support its allegations nor set
forth specific facts to support its conclusion that Light House was not acting independently. THBBC fails
to provide a sworn affidavit or an unsworn declaration in lieu of an affidavit to support its allegations.37
27 Consolidated Petition at 5.
31 Light House Opposition at 2.
(citing 47 C.F.R. §1.16).
47 U.S.C. § 309(d); 47 C.F.R. § 73.5006(b).
35 Citizens for Jazz on WRVR v. FCC
, 775 F.2d 392, 395 (D.C. Cir. 1985). See also
47 U.S.C. § 309(d)(1) (“The
petition shall contain specific allegations of fact sufficient to show that . . . grant of the application would be prima
facie inconsistent with [Section 309(a)]. Such allegations of fact shall, except for those of which official notice may
be taken, be supported by affidavit of a person or persons with personal knowledge thereof.”); 47 C.F.R. §
36 See Astroline Communications Co. v. FCC
, 857 F.2d 1556, 1561 (D.C. Cir. 1988). See also Rocky Mountain
Radio Co., LLP
, Memorandum Opinion and Order, 15 FCC Rcd 7166, 7167 (1999).
47 C.F.R. § 1.16.
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Instead, THBBC relies on a vague and unverifiable letter from Pastor McIntyre. The letter fails to
identify the alleged third party or provide any supporting details such as any date(s) or location(s) of any
alleged interaction with that party. The letter does not specify what role the third party may have played
in the application process, nor does it specify what role the third party would have in the operations of the
station. THBBC also does not specify whether Pastor McIntyre was present when these statements were
made by the unidentified third party. It is also unclear whether Pastor McIntyre is relying on hearsay
statements and/or merely providing his personal opinion regarding Light House’s ability to construct and
operate a station. Allegations consisting of generalizations and hearsay are not sufficient to satisfy the
specificity requirements of Section 309(d) or the Commission’s rules.38 Therefore, THBBC has failed to
present a substantial and material question of fact as to either the basic or comparative qualifications of
Light House under Section 309(d) of the Act.
Time Share Agreement
. By this letter, we announce the opening of the 90-day period for the
tentatively selected applicants in Reserved Allotment Group 29 to negotiate a voluntary time-sharing
agreement. Upon negotiation and submission of such an agreement, the referenced applications will be
granted, conditioned upon each selectee's compliance with Section 73.7005 of the Commission's Rules.39
Should the three applicants fail to file with the Commission an acceptable voluntary time-sharing
agreement by January 8, 2013, we will designate the applications for evidentiary hearing on the sole issue
of an appropriate time-sharing arrangement, as directed by the Commission.
Accordingly, IT IS ORDERED, that the May 25, 2011, Consolidated Petition to
Deny the applications of Terre Haute Seventh-Day Adventist Church and The Light House Mission
Ministries, Inc., filed by Terre Haute Bible Baptist Church, Inc., IS DENIED.
Peter H. Doyle
Chief, Audio Division
Terre Haute Bible Baptist Church, Inc.
Terre Haute Seventh-Day Adventist Church
The Light House Mission Ministries, Inc.
38 See WFBM, Inc.
, Memorandum Opinion and Order, 47 FCC2d 1267, 1267 (1974) (“Hearsay, rumor, opinion or
broad generalization do not satisfy the specificity requirements of Section 309(d) or the Commission’s regulations
implementing that provision of the Communications Act”).
39 47 C.F.R. § 73.7005.
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