Federal Communications Commission
Washington, D.C. 20554
October 31, 2013
DA 13-2108In Reply Refer to:
October 31, 2013
David D. Oxenford, Esq.
Wilkinson Barker Knauer, LLP
2300 N Street, NW
Washington, DC 20037
Educational Media Foundation
W267AT, Oneonta, New York
Facility ID No. 140739
File No. BPFT-20130416AAG
Petition for Reconsideration
We have before us a Petition for Reconsideration (“Petition”) filed by Educational Media
Foundation (“EMF”). The Petition challenges a letter dated June 10, 2013,1 which denied a request for
waiver of Section 74.1233(a)(1) of the Commission’s Rules (“Rules”)2 filed by EMF and dismissed the
above-referenced application (“Application”) to modify the facilities of W267AT, Oneonta, New York
(“Station”). For the reasons discussed below, we deny the Petition.
EMF filed the Application on April 16, 2013. A request for waiver of Section
74.1233(a)(1) of the Rules accompanied the Application. EMF included the waiver request because its
proposal to move the Station’s transmitter to a new site did not qualify as a minor change under Section
74.1233(a)(1) of the Rules, which requires the 60 dBu contours of a Station’s existing and proposed
facilities to overlap. EMF maintained that waiver of Section 74.1233(a)(1) would be in the public interest
and would be consistent with precedent. EMF cited our Mattoon
decision, in which we granted a waiver
of Section 74.1233(a)(1) to another translator. 3 EMF argued that it satisfied each of the four criteria set
forth in Mattoon
and thus that we should grant its waiver request.
In the Letter Decision
we denied EMF’s request and dismissed the Application. We concluded
that EMF did not satisfy the fourth Mattoon
criterion because EMF did not propose to operate the Station
as a fill-in translator for an AM station.
EMF challenges this decision. EMF disputes our reading of Mattoon
, arguing that to satisfy the
criterion a translator need not propose fill-in service. EMF then asserts that to satisfy the
1 Letter to Education Media Foundation from James D. Bradshaw, Deputy Chief, Audio Division, Media Bureau
(dated June 10, 2013) (“Letter Decision
2 47 C.F.R. § 74.1233(a)(1).
3 Cromwell Group, Inc.
, Letter, 26 FCC Rcd 12685 (2011) (“Mattoon
criterion an applicant simply must demonstrate that the proposed move “would serve the
We have previously waived Section 74.1223(a)(1) where an applicant has
demonstrated that: (1) it does not have a history of filing “serial” minor modification applications; (2) the
proposed facility is mutually exclusive to its licensed facility; (3) the proposed move would not foreclose
future licensing opportunities in the LPFM service in certain markets, and (4) while not alone dispositive,
the translator will rebroadcast an AM station as an AM fill-in translator.5
We agree with EMF that the Letter Decision
incorrectly describes the fourth Mattoon
focusing upon whether a translator will provide fill-in service. However, we find EMF’s proposed
interpretation of that criterion to be too broad.6 In setting out the fourth Mattoon
criterion, we actually
emphasized the fact that the applicant sought to rebroadcast an AM – as opposed to an FM – station.7
Specifically, we noted that “[i]n 2009, the Commission authorized the use of certain FM translators to
rebroadcast the signal of a local AM station.” We went on to explain that our grant of waiver was
“consistent with our continued efforts to revitalize the AM service and to make the most efficient use of
limited spectrum.” Because EMF proposes to rebroadcast the signal of an FM station, it cannot satisfy
the fourth Mattoon
criterion.8 Thus, while we disagree with the reasoning set forth in the Letter Decision
we affirm the actions taken therein.
For the reasons set forth above, IT IS ORDERED, that the Petition for
Reconsideration filed by Educational Media Foundation on July 15, 2013, IS DENIED.
Peter H. Doyle
Chief, Audio Division
4 Petition at 3.
26 FCC Rcd at 12686. See also Perry Broadcasting Co., Inc.
, Letter, 27 FCC Rcd 5955 (MB 2012).
6 Indeed, were we to interpret the fourth Mattoon
criterion as broadly as EMF advocates, we believe we would run
afoul of NetworkIP, LLC v. FCC
, 548 F.3d 116, 125-128 (D.C. Cir. 2008). Therein, the U.S. Court of Appeals for
the District of Columbia found that waiver of the Commission’s Rules is appropriate only if such deviation will
serve the public interest and
special circumstances warrant a deviation from the general rule.
7 The Commission’s Rules require that translators rebroadcasting the signals of AM stations be fill-in. See
Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations
, Report and Order, 24 FCC Rcd
9642, 9650 (2009). The fill-in nature of these translators, however, was not the focus of our analysis in Mattoon
8 While EMF asserts that, “[i]n many cases,” we have granted Mattoon
waivers to translators proposing to
rebroadcast FM stations, it cites only one instance in which we have granted an application filed by a translator
proposing to rebroadcast the signal of an FM station that included a request for a Mattoon
Petition at 3,
n. 5. We acknowledge that we did grant the application that EMF cites. However, we note that such grant occurred
via public notice and did not discuss the waiver request. It is well established that such a decision does not
constitute binding precedent. 47 C.F.R. § 0.445(e). Further, we conclude that our grant of that application was in
error. However, that grant is final and cannot be rescinded.