Federal Communications Commission
Washington, D.C. 20554
August 5, 2013
In Reply Refer to:
Released: August 5, 2013
Stuart W. Nolan, Jr., Esq.
LegalWorks Apostolate, PLLC
4 Family Life Lane
Front Royal, VA 22630
Ernest T. Sanchez, Esq.
The Sanchez Law Firm P.C.
2300 M Street, NW, Suite 800
Washington, D.C. 20037
Jeffrey D. Southmayd, Esq.
Southmayd & Miller
4 Ocean Ridge Boulevard South
Palm Coast, FL 32137
WSFI(FM), Antioch, Illinois
Facility ID No. 175700
File No. BMPED-20120620ABX
Application for Minor Modification of
We have before us the above-referenced application for a minor modification of the construction
permit ("Construction Permit") for noncommercial educational ("NCE") FM Station WSFI(FM),
Antioch, Illinois ("Modification Application"), filed by BVM Helping Hands ("BVM").1 We also have
before us two self-styled "petitions to deny" that we will construe as informal objections:2 one filed on
1 On June 7, 2013, the Bureau released a substantially identical letter granting the Modification Application. See
Stuart J. Nolan, Jr., Esq.
, Letter, 28 FCC Rcd 8303 (MB 2013) ("Original Grant
"). However, the Modification
Application was not grantable because BVM had not yet completed the environmental review process through the
Antenna Structure Registration ("ASR") system. Accordingly, on June 13, 2013, we set aside the Original Grant
letter. See Stuart J. Nolan, Jr., Esq.,
Letter, 28 FCC Rcd 8392 (MB 2013). The ASR process is now complete and
on July 18, 2013, BVM submitted an amendment to the Modification Application to include an ASR number for the
proposed facilities. Therefore, the Modification Application is now grantable.
2 Because petitions to deny do not lie against minor modification applications, these pleadings will be considered as
informal objections under Section 73.3587 of the rules. See
47 U.S.C. 309(c) and 47 C.F.R. 73.3584, 73.3587;
July 17, 2012, by Chicago Public Media ("CPM") ("CPM Objection")3 and one filed on July 25, 2012, by
Faith Evangelical Lutheran Church ("FELC") ("FELC Objection") (collectively, the "Informal
Objections" and "Objectors"), and related pleadings.4 For the reasons set forth below, we deny the
Informal Objections and grant the Modification Application.
BVM filed an application for a new NCE FM station at Antioch, Illinois, during the October 2007
NCE filing window ("CP Application").5 On September 2, 2010, BVM was designated as the tentative
selectee in NCE MX Group 545.6 Thereafter, on December 9, 2010, the Audio Division of the Media
Bureau ("Bureau") granted the CP Application and dismissed CPM's mutually-exclusive application for a
new NCE FM station at Kenosha, Wisconsin ("Letter Grant
").7 On January 10, 2011, CPM filed a
petition for reconsideration of the Letter Grant
, which the Bureau denied by letter decision on June 13,
2011.8 On July 13, 2011, CPM filed an application for review of the Letter Grant
, which remains
On June 20, 2012, BVM filed the Modification Application, which includes a request for limited
waiver of Section 73.509 of the rules to allow otherwise prohibited overlap with NCE Station
WBSD(FM), Burlington, Wisconsin.9 Such a waiver, allowing an NCE station to receive overlap from
second or third adjacent channel stations, is commonly known as a Raleigh
waiver.10 In support of its
waiver request, BVM states that it will operate on a third adjacent channel to Station WBSD(FM) and
will receive overlap from but not cause overlap to it. BVM also submits that its proposed modification
will provide increased service to an additional population of 116, 858 within its 60 dB contour, but will
result in overlap with a 3.2 square kilometer area containing 2,989 persons.11
Objectors allege a variety of defects with respect to the Modification Application. Procedurally,
Objectors argue that the Modification Application should not be considered at this time because the
see also Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of
License in the Radio Broadcast Services
, Report and Order, 21 FCC Rcd 14212, 14220 (2006).
3 Prior to its corporate name change, Chicago Public Media was known as The WBEZ Alliance, Inc. For
consistency, throughout this letter we refer to the entity as "CPM."
4 On August 6, 2012, BVM filed a Consolidated Opposition to Petitions to Deny ("Opposition"), and on August 17,
2012, CPM filed a Reply ("Reply").
5 File No. BNPED-20071022BJE.
6 Comparative Consideration of 24 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Educational FM Stations Filed in the October 2007 Filing Window
Opinion and Order, 25 FCC Rcd 12887, 12912 (2010) ("2010 NCE Order
7 Ernest T. Sanchez, Esq.
, Letter, Ref. No. 1800B3-KAD (MB Dec. 9, 2010).
8 Ernest T. Sanchez, Esq.
, Letter, Ref. No. 1800B3-MM (MB June 13, 2011).
9 47 C.F.R. 73.509.
10 See Educational Information Corporation
, Memorandum Opinion and Order, 6 FCC Rcd 2207, 2208 (1991)
Modification Application, Exhibit 1, "Sworn Declaration of Stephen Gajdosik and Additional Technical
Support of Raleigh Waiver Request" at 2.
Construction Permit "lacks the finality necessary for the Commission to process a modification
application"12 and it would be "an unjustified waste of Commission resources to allow BVM to pursue a
speculative technical proposal . . . when BVM's original application is still subject to review and may yet
be disqualified."13 Objectors further contend that the Modification Application is a prohibited contingent
application.14 Substantively, Objectors argue that BVM's interference showing erroneously uses the
"undesired-to-desired" signal strength ratio interference prediction method rather than the required
contour overlap method.15 FELC adds that waiver would also be inappropriate because BVM fails to
show that there are no other transmitter sites available that would not cause prohibited overlap. CPM
contends that the Modification Application is not grantable because an applicant should not be permitted
to "improve its competitive position by a post-filing upgrade."16 FELC argues that BVM is financially
unqualified to build Station WSFI(FM), based on information disclosed in its federal tax forms. CPM
adds that BVM's tax forms not only provide prima facie
evidence of lack of financial qualifications, but
also indicate unauthorized control by "mysterious funders" that merits further inquiry by the
BVM maintains that its initial waiver request was technically correct, although it provides a new
interference analysis using a 100 dB contour rather than a 105 dB interference contour out of an
"abundance of caution."18 BVM argues that modifications in this situation are permitted, provided that
the applicant does not seek comparative credit for the changes proposed.19 BVM contends that it was, and
remains, financially qualified to construct and operate Station WSFI(FM), and that any allegation to the
contrary is unsupported and untimely. Lastly, BVM states that the Modification Application is not
"contingent" on the outcome of CPM's application for review because--regardless of the disposition of
the application for review--construction must be completed before the Construction Permit expires.20
In its Reply, CPM largely restates its earlier arguments, adding that BVM is under an ongoing
obligation, pursuant to Section 1.65(a) of the Commission's rules, to disclose the loss of the tower site
specified in the 2007 CP Application to the Commission.21 BVM's failure to disclose this event,
12 FELC Objection at 2.
13 CPM Objection at 3.
14 FELC Objection at 6-7; CPM Objection at 3.
15 FELC Objection at 4-5; CPM Objection at 2. The Commission replaced the signal strength ratio methodology
with a contour overlap standard in 1985. See Changes in the Rules Relating to Noncommercial Educational FM
Memorandum Opinion and Order, MMB Docket No. 20735, 50 FR 27954, 27960 (1985). The
signal strength ratio method identifies the area in which the quality of service is predicted to fall below the
minimally acceptable level. The contour overlap method identifies a larger area defined by the 60 dB contour of
the protected station and interfering contour of the second station. See
47 C.F.R. 73.509(a).
16 Reply at 8.
17 Reply at 9-10.
18 A 105 dB contour indicates use of the signal strength ratio interference prediction method, whereas a 100 dB
contour is used for contour overlap analysis.
19 Opposition at 6.
20 Opposition at 7.
21 Reply at 6; 47 C.F.R. 1.65.
according to CPM, requires not only denial of the Modification Application but also dismissal of the CP
Informal objections, like petitions to deny, must allege properly supported facts that, if true,
would establish a substantial and material question of fact that grant of the application would be
inconsistent with the public interest.23 Objectors have not met this burden.
Procedural issues. Pending application for review
Objectors' argument that we cannot
consider the Modification Application until action is taken on CPM's application for review--particularly
FELC's assertion that BVM's Construction Permit "does not exist at the present time"24--confuses
finality with effectiveness. A Bureau action, such as the grant of the Construction Permit, is effective
upon release.25 The Commission may, at its discretion, stay the effectiveness of such action pending
review, which it did not do in this case.26 Therefore, the Construction Permit is currently effective--
although not final--until it expires. Because, as BVM points out, the "clock is ticking" on the
Construction Permit, we will not delay processing the Modification Application to await the outcome of
CPR's pending application for review.27
Objectors similarly confuse finality and contingency. An application is contingent
when it cannot be granted unless and until a second application, also pending before the Commission, is
granted.28 Again, a Bureau action is effective, but not final, upon the date of release. Thus, even if we
were to consider the CP Application a "second application," it is no longer "pending" for contingency
purposes: it has been granted and is now effective. Therefore, the Modification Application cannot be
considered to be contingent on grant of the CP Application, notwithstanding CPR's pending application
Substantive issues. Waiver
. The Commission's rules may be waived for good cause shown.30
When an applicant seeks waiver of a rule, it must plead with particularity the facts and circumstances
22 Reply at 5.
23 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), reh'g denied
(D.C. Cir. Sept. 10, 1993).
24 FELC Objection at 7.
25 47 C.F.R. 1.102(b)(1).
26 47 C.F.R. 1.102(b)(3). Similarly, the Bureau may stay the effectiveness of an action pending reconsideration.
47 C.F.R. 1.102(b)(2).
27 The grant of the Modification Application is and will remain subject to any action that the Commission takes on
the CPM application for review.
28 See, e.g.
, 1998 Biennial Regulatory Review--Streamlining of Radio Technical Rules in Parts 73 and 74 of the
, First Report and Order, 14 FCC Rcd 5272, 5280 (1999).
29 47 C.F.R. 73.3517.
30 47 C.F.R. 1.3.
which warrant such action.31 The Commission must give waiver requests "a hard look," but an applicant
for waiver "faces a high hurdle even at the starting gate"32 and must support its waiver request with a
compelling showing.33 Waiver is appropriate only if both (1) special circumstances warrant a deviation
from the general rule, and (2) such deviation better serves the public interest.34
In this case, BVM requests a waiver to allow received overlap of its protected contour with the
interfering contour of third-adjacent channel NCE Station WBSD(FM). In Raleigh
, the Commission first
noted that it would be inclined to grant waivers of received overlap from second- or third-adjacent
channel stations in circumstances where the benefit of increased NCE service outweighs the potential for
interference in small areas.35 Following this approach, we have consistently rejected waiver requests that
would receive predicted overlap from co- or first-adjacent channel stations.36 We have also repeatedly
rejected proposals that would cause, rather than receive, overlap.37 Granting waivers in these limited
circumstances provides flexibility for NCE stations to modify their service areas while protecting existing
service from interference. In this case, BVM meets these special criteria and has thus demonstrated that
grant of the Modification Application would be in the public interest. Therefore, we grant BVM's waiver
request to receive limited overlap from third-adjacent channel NCE Station WBSD(FM).
Although in this case waiver is based primarily on the factors discussed above (second- or third-
adjacent channel and received, not caused, overlap) rather than the specific percentage of overlap area
versus increased service area, we require, as always, a complete and accurate description of the proposed
modification, including the area predicted to receive overlap. We agree with Objectors that the signal
strength ratio method is inappropriate in this context, as Section 73.509 of the rules defines an area
protected from overlap, not an area based on interference ratio calculations.38 Therefore, a signal strength
interference showing does not satisfy the requirement for a waiver applicant to "plead with particularity
the facts and circumstances" that would warrant a waiver.39 Accordingly, our analysis in this case is
based solely on the contour overlap interference analysis provided by BVM in its subsequent amendment
to the Modification Application.40
31 See, e.g., Spirit Radio of North Florida, Inc. c/o Aaron P. Shainis, Esq.
, Letter, 24 FCC Rcd 2958, 2959 (MB
2009) ("Spirit Radio
"); WAIT Radio v. FCC
, 418 F.2d 1153, 1157 (D.C. Cir. 1969) ("WAIT Radio
32 WAIT Radio
, 418 F.2d at 1157.
33 Greater Media Radio Co., Inc
., Memorandum Opinion and Order, 15 FCC Rcd 7090 (1999) (citing Stoner
Broadcasting System, Inc.
, Memorandum Opinion and Order, 49 FCC 2d 1011, 1012 (1974)).
34 NetworkIP, LLC v. FCC
, 548 F.3d 116, 125-128 (D.C. Cir. 2008) (citing Northeast Cellular Telephone Co.
F.2d 1164, 1166 (1990)).
, 6 FCC Rcd at 2208.
36 See Lakeside Telecommunications, Inc.
, Memorandum Opinion and Order, 20 FCC Rcd 763, 766 (2005)
"); Open Media Corp
., Memorandum Opinion and Order, 8 FCC Rcd 4070, 4071
37 Spirit Radio
, 24 FCC Rcd at 2960.
47 C.F.R. 73.509; see also Lakeside Telecommunications
, 20 FCC Rcd at 765 n.16.
39 See Centenary College c/o Mark N. Lipp, Esq.
, Letter, 23 FCC Rcd 17317, 17322, n.36 (2008) (citing Board of
Education of City of Atlanta (WABE-FM)
, Memorandum Opinion and Order, 11 FCC Rcd 7763, 7764 (1996)).
40 Modification Application, Exhibit 1, "Sworn Declaration of Stephen Gajdosik and Additional Technical Support
of Raleigh Waiver Request" at 2.
. Contrary to FELC's assertions, the Modification Application does not
contain--nor is required to contain--a certification regarding BVM's financial qualifications.41 Given
that we do not require modification applicants to prove their financial qualifications, there is no need for
further inquiry into this matter. Furthermore, we find CPM's argument regarding unauthorized control,
which is based solely on inferences drawn from BVM's alleged lack of financial qualifications, to be
purely speculative. Finally, to the extent that FELC objects to BVM's financial qualifications at the time
of the 2007 CP Application, it is untimely.42 Therefore, we do not further consider Objectors' financial
qualifications and related arguments here.
Duty to furnish information under Section 1.65
.43 CPM's argument regarding BVM's alleged
duty to report the loss of its original tower site relates solely to the 2007 CP Application, not the
Modification Application. Therefore this objection, if it lies at all, lies against the CP Application. As
such, it appears to be a belated, attempted third bite at the apple: CPM has already filed both a petition
for reconsideration and application for review of the grant of the CP Application, and the statutory time
limit for additional petitions for reconsideration has passed.44 Because CPM does not allege any reporting
violation with respect to BVM's currently-proposed transmitter site in the Modification Application, we
will not further consider CPM's Section 1.65 allegations in this context.
Comparative advantage and holding period
. As a tentative selectee, BVM has already completed
the NCE comparative consideration process. The Commission's rules provide that amendments after the
close of the pertinent filing window may potentially diminish, but cannot enhance, an NCE applicant's
comparative position.45 BVM confirms that it does not seek or expect additional points for the changes
proposed in the Modification Application. Since our rules clearly do not permit BVM to retroactively
improve its competitive position through a modification at this stage, Objectors' concerns on this point
are unfounded. Finally, BVM certifies, in the Modification Application, that the proposed modification
satisfies our "holding period" rule by not downgrading service to the area on which its comparative
preference was based.46
41 See Instructions for FCC 340
at 1 ("Existing stations proposing a minor change on a reserved channel need file
only Sections I, II (Items 1, 13, 18, and 19 only), IV, V, VI, and VII.").
42 47 U.S.C. 405(a) ("A petition for reconsideration must be filed within thirty days from the date upon which
public notice is given of the order, decision, report, or action complained of."); 47 C.F.R. 1.106(f). The date of
public notice for an unpublished letter decision is the date appearing on the document: in this case, December 9,
47 C.F.R. 1.4(b)(5).
43 47 C.F.R. 1.65(a) (providing that whenever the information furnished in a pending application is no longer
substantially accurate and complete, the applicant shall promptly amend the application to furnish additional or
47 U.S.C. 405(a); 47 C.F.R. 1.106(f).
45 47 C.F.R. 73.7003(e); 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, 9088 (2011).
46 Modification Application, Section II, Question 18; see
Construction Permit at 3, Condition 7; 47 C.F.R.
73.7002(c), 73.7005(b). BVM's comparative preference was partially based on a fair distribution of service
pursuant to 47 U.S.C. 307(b). 2010 NCE Order
, 25 FCC Rcd at 12912.
Based on the above, we find that CPM and FELC have not raised a
substantial and material question of fact warranting further inquiry. Accordingly, IT IS ORDERED that
the Informal Objections ARE DENIED.
IT IS FURTHER ORDERED that the waiver of Section 73.509 of the rules IS GRANTED and
the application for minor modification of the construction permit for Station WSFI(FM), Antioch, Illinois
(File No. BMPED-20120620ABX), IS GRANTED.
Peter H. Doyle
Chief, Audio Division