Federal Communications Commission
Washington, D.C. 20554
June 20, 2013
DA 13-1410In Reply Refer To:
June 20, 2013
Gary S. Smithwick, Esq.
Smithwick & Belendiuk, P.C.
5028 Wisconsin Ave NW Ste 301
Washington, DC 20016
John Garziglia, Esq.
Womble Carlisle Sandridge & Rice, PLLC
1401 Eye Street NW Ste 700
Washington, DC 20005
In re: W245BL, Branchport, NY
Facility ID No. 147188
File No. BPFT-20080714ADP
File No. BMPFT-20080825ABI
File No. BLFT 20080822ABF
Petition for Reconsideration
We have before us a "Petition for Reconsideration and Request to Rescind Grant of Construction
Permit" ("Petition") filed by Saga Communications of New England, LLC ("Saga")1 on August 14, 2008,
and related pleadings.2 Saga seeks reconsideration of the grant of the above-referenced application ("CP
Application") of Lake Country Broadcasting, Inc. ("Lake Country") for a construction permit to modify
FM translator W245BL, Branchport, New York, to change its community of license from Branchport to
Dundee and Penn Yan, also New York, and relocate its transmitting antenna.3 We also have before us the
above-referenced applications of Lake Country for a minor modification of the Construction Permit
("Modification Application") and license to cover the Construction Permit ("License Application").
Finally, we have an Informal Objection ("Informal Objection") filed against the Modification and License
Applications by Saga on August 27, 2008, and related pleadings.4 For the reasons set forth below, we
grant the Petition, rescind the grant of the CP Application, dismiss the CP Application, dismiss the
Modification and License Applications, and dismiss the Informal Objection as moot.
1 Saga is the licensee of full service Station WYXL(FM), Channel 247B, Ithaca, New York.
2 On September 8, 2008, Lake Country filed an Opposition to Petition for Reconsideration ("Reconsideration
Opposition"). On September 18, 2008, Saga filed a Reply to the Opposition to Petition for Reconsideration and
Request for Order to Cease and Desist ("Reply").
3 The CP Application was filed July 14, 2008, placed on public notice of acceptance July 17, 2008 (Report No.
26780), and granted July 22, 2008 ("Construction Permit").
4 On September 18, 2008, Saga filed a Supplement to Informal Objection and Request for Order to Cease and Desist
("Supplement"). On November 7, 2008, Lake Country filed an Opposition to Informal Objection ("Objection
. CP Application.
The CP Application is the latest in a series of translator "hops"
relocating Station W245BL's facilities to various sites in the Finger Lakes region of upstate New York.
The CP Application was granted July 22, 2008, the Petition was filed August 14, 2008, and Lake Country
completed construction by August 22, 2008, the filing date of the License Application. Saga's primary
contention is that the CP Application was granted in error because it violated the contour overlap
provision of Section 74.1204(a) of the Rules, causing prohibited overlap with the protected contour of
Station WYXL(FM), but failing to qualify for the "lack of population" exception of Section 74.1204(d).5
In support of this argument, Saga submits a recent USGS aerial topographical image showing buildings
within the relevant area.6
In its Opposition, Lake Country acknowledges that the CP Application does not fall within the
"lack of population" exception to the contour overlap rule; however, it argues that--in the absence of any
listener complaints showing actual interference--Station W245BL should be allowed to continue to
operate until the violation is "cured" by grant of the Modification Application.7 In reply, Saga contends
that the public interest will not be served by allowing Station W245BL to continue to operate despite a
demonstrated violation of the Rules.8
Modification and License Applications
. Saga contends that the Modification Application suffers
from the same defect as the CP Application: namely, that the proposed contour overlap area is actually
populated and therefore not exempt from the general prohibition on contour overlap. Specifically, Saga
argues that a road passing through the overlap area, Porters Corner Road, is a "major road" that precludes
application of Section 74.1204(d).9 Saga also argues that the License Application should be dismissed or
denied because the underlying Construction Permit is not yet final, due to the pending Petition.10 Lake
Country disputes Saga's characterization of Porters Corner Road, pointing out that the New York State
Department of Transportation has classified it as "FC 09/Rural Local Road," the most minor road
classification in New York.11
Discussion. Petition for Reconsideration
. The Commission will consider a petition for
reconsideration only when the petitioner shows either a material error in the Commission's original order,
5 Petition at 3-5; 47 C.F.R. 74.1204(a),(d). Initially, Saga also argued that: (1) the facility violates 47 C.F.R.
74.1235(d)(3) (limiting the 34 dB interfering contour of translator stations within 320 kilometers of the Canadian
border to 60 kilometers); and (2) Lake Country falsely certified that it built the facilities for each of several station
moves ("hops") preceding the CP Application. Petition at 5-9; see
File Nos. BLFT-20080423ADC, BLFT-
20080512AAA, BLFT-20080609ACA, and BLFT-20080703ACW. In response to subsequent showings by Lake
Country that no part of its interfering contour intersects the Canadian border and that each of the relevant facilities
were constructed as authorized, Saga withdrew its arguments on these issues. Reply at 2, n. 2. In light of Saga's
withdrawal, we have reviewed the pleadings and find that they raise no questions on these issues that require further
consideration here. See Stockholders of CBS, Inc
., Memorandum Opinion and Order, 11 FCC Rcd 3733, 3739
(1995); Booth American Company
, Memorandum Opinion and Order, 58 FCC 2d 553, 554 (1976). We also note
that Saga's arguments regarding Lake Country's previously-granted modification applications are untimely. No
objections or petitions to deny were filed against these applications, and those grants are now final. See
405(a); 47 C.F.R. 1.106(f).
6 Petition at Attachment 1, Exhibit 2.0.
7 Opposition at 4, 6; see
47 C.F.R. 74.1204(a),(d).
8 Reply at 3.
9 Supplement at 3-4.
10 Informal Objection at 1.
11 Objection Opposition at 2.
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or raises additional facts, not known or existing at the time of the petitioner's last opportunity to present
such matters.12 If the petitioner is not a party to the proceeding, it must state with particularity the manner
in which its interests are adversely affected and show good reason why it was not possible to participate
in the earlier stages of the proceeding.13 In this case, Saga has properly alleged that its interests are
adversely affected because grant of the CP Application would cause prohibited overlap with the protected
contour of its Station WYXL(FM), Ithaca, New York. Saga has also shown that its failure to participate
earlier in the proceeding is justified by the short time frame (three full business days) between public
notice of acceptance and grant of the CP Application.14
An application for an FM translator station will not be accepted for filing if the proposed
operation involves overlap of specified predicted field contours with any other station, unless the
applicant demonstrates that no actual interference will occur due to intervening terrain, lack of population,
or other factors.15 In the CP Application, Lake Country alleged that there was no population within the
proposed overlap area of Stations W245BL and WYXL(FM).16 In support of this statement, Lake
Country provided a topographic map that displays no structures or roads within the overlap area.17 This
map, while not dated, appears to be a reprint of the 1942 United States Geologic Survey ("USGS")
topographical series. To refute Lake Country's "lack of population" claim, in its Petition, Saga submits a
recent copy of a USGS "US Topo" series aerial topographic image, available free to the public online at http://nationalmap.gov/
, which shows several buildings within the overlap area.
We agree with Saga that the "US Topo" map, which was not before the staff at the time of grant,
demonstrates that the CP Application violated the general contour overlap rule of Section 74.1204(a) and
therefore was granted in error.18 We do not agree with Lake Country that a permittee can "cure" a
technically defective application, after grant, by modifying the construction permit to relocate the
violating facilities to a rule-compliant site. Such a policy would potentially waste staff resources and
undermine our application processing rules by encouraging applicants to file defective applications or
build violating facilities with the expectation that such defect or violation could be rectified through a
modification application.19 Nor do equitable considerations compel a different result: it is well-
established that a permittee opting to construct before the grant of its application becomes final does so at
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).
13 47 C.F.R. 1.106(b)(1).
14 In similar circumstances, the Commission has found that such a short filing opportunity effectively precludes
participation during the initial consideration of an application. See Mr. David Levandusky
, Letter, 25 FCC Rcd
14172, 14174, n.16; Aspen FM, Inc.
, Memorandum Opinion and Order, 12 FCC Rcd 17852, 17854 (1997).
15 47 C.F.R. 74.1204(a), (d).
16 CP Application, Exhibit 13.
17 CP Application, Attachment 13, "Overlap Area Lack of Population Detailed View."
47 C.F.R. 74.1204(a),(d); Living Way Ministries, Inc.
, Memorandum Opinion and Order, 17 FCC Rcd
17054, 17059 (2002) ("Where a USGS Topographic Map depicts residences, commercial or industrial areas . . .
within an area of predicted interference, or other potentially occupied sites where one would expect listeners, we
will presumptively conclude that the "lack of population" exception does not apply.").
47 C.F.R. 73.3566 ("Applications which are determined to be patently not in accordance with the FCC
rules, regulations, or other requirements ... will be considered defective and will not be accepted for filing or if
inadvertently accepted for filing will be dismissed").
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its own risk.20 Accordingly, we grant the Petition, rescind grant of the CP Application, and dismiss the
CP Application.21 Because there is no authorization remaining for Lake Country to modify or cover, we
also dismiss the Modification Application and License Application as null and void and the Informal
Objection as moot.22
. Based on the above, we find that Saga has shown material error in the grant of the
CP Application. Accordingly, IT IS ORDERED that the petition for reconsideration filed by Saga
Communications of New England, LLC on August 14, 2008, IS GRANTED and the grant of the
Construction Permit to modify FM translator W246BL, Branchport, New York (File No. BPFT-
20080714ADP), IS RESCINDED and the CP Application IS DISMISSED.
IT IS FURTHER ORDERED that the applications of Lake Country for minor modification of the
Construction Permit (File No. BMPFT-20080825ABI) and a license to cover the Construction Permit
(File No. BLFT 20080822ABF) ARE DISMISSED and the informal objection filed by Saga
Communications of New England, LLC on August 27, 2008, IS DISMISSED as moot.
Peter H. Doyle
Chief, Audio Division
20 See, e.g., Robert J. Buenzle, Esq.
, Letter, 25 FCC Rcd 2129, 2131 (2010) (citing Dennis P. Corbett, Esq.
22 FCC Rcd 4795, 4797-98 (MB 2007); and Las Americas Communications, Inc
., Memorandum Opinion and Order,
6 FCC Rcd 1507, 1510 (1991)). Here, Lake Country chose to construct the facilities even before the end of the 30-
day statutory period for reconsideration. See
47 U.S.C. 405(a); 47 C.F.R. 1.106(f).
21 However, we remind Lake Country that the Commission will favorably consider (and reinstate nunc pro tunc
petitions for reconsideration after an initial dismissal or return of an application when the applicant submits "a
relatively minor curative amendment within 30 days." Commission States Future Policy on Incomplete and Patently
Defective AM and FM Construction Permit Applications
, Public Notice, 56 RR.2d 776 (1984) (as subsequently
published in the Federal Register, 49 Fed. Reg. 47331, 47332 (Dec. 3, 1984)); see also Gerald R. Proctor, Esq.
Letter, 20 FCC Rcd 12345, 12846 (2005).
22 See WCYQ Inc
., Memorandum Opinion and Order, 18 FCC Rcd 16900, 16904 (2003) ("[B]y operation of law,
there no longer existed any translator station license to modify, and the modification application had become null
and void"). Although we base dismissal here on the non-existence of the underlying Construction Permit, we also
observe that the License Application, on its face, contains other apparent defects that would affect its acceptability if
it were to be processed. First and foremost, of course, the facilities that Lake Country proposed to license violate the
contour overlap rule. See
; see also
47 C.F.R. 74.1204(a),(d). Second, and relatedly, Lake
Country certified in the License Application that "no cause or circumstance has arisen since the grant of the
underlying construction permit which would cause any statement or representation contained in the construction
permit application to be incorrect now." License Application, Section II, Question 3. This certification was made after
Lake Country was served with Saga's Petition and its accompanying up-to-date USGS maps. Indeed, just 17
days later--apparently without new information-- Lake Country expressly acknowledged that its maps were not
accurate: "[Lake Country] recognizes now
that the structures exist." Opposition at 4 (emphasis added). At
whatever point Lake Country concluded that its mapping data was incorrect, it should have supplemented the
License Application to that effect. See
47 C.F.R. 1.65. Third, in the License Application, Lake Country
inaccurately summarized Saga's objection as Lake Country's "fail[ure] to construct the facilities as certified" and
states that Saga "withdrew its objection with respect to that allegation." License Application, Exhibit 7. This
statement is incomplete to the point of misstatement. It omits Saga's key argument that the License Application
violates Section 74.1204(a) of the Rules. That argument was not
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