Blessed Sacrament Catholic Church Of Ontario, Inc
Federal Communications Commission
Washington, D.C. 20554
August 18, 2011DA 11-1442
In Reply Refer to:
Released: August 23, 2011
Mr. Benjamin Grad
Tool Shed PDX
5040 SE Milwaukie
Portland, OR 97202
Stuart W. Nolan, Jr., Esq.
E. Scott Lloyd, Esq.
Legal Works Apostolate, PLLC
4 Family Life Lane
Front Royal, VA 22630
Reserved Allotment Group No. 19
NEW NCE FM, Weiser, Idaho
Facility ID No. 185010
File No. BNPED-20100226ACY
Petition to Deny
New NCE FM, Weiser, Idaho
Facility ID No. 185010
File No. BNPED-20100226AJX
We have before us: (1) the referenced application of Blessed Sacrament Catholic Church of
Ontario, Inc. (“BSCC”), for a new noncommercial educational (“NCE”) FM station to serve Weiser, Idaho
(“BSCC Application”); (2) the referenced application of Tool Shed PDX (“TSP”) for a new NCE FM
station to serve Weiser, Idaho (“TSP Application”); (3) a Petition to Deny (“Petition”) the BSCC
Application filed by TSP on June 1, 2011;1 and (4) a Petition for Reconsideration filed by TSP on July 7,
2011, seeking reinstatement of its dismissed application. For the reasons set forth below, we grant the
Petition, dismiss the BSCC Application, grant the Petition for Reconsideration, and accept for filing the
Background. The BSCC Application was part of the NCE Reserved Allotment Group 19, which
included BSCC, TSP, Hispanic Family Christian Network (“HFCN”), and Grace Public Radio (“GPR”).
1 BSCC filed an Opposition to the Petition (“Opposition”) on June 30, 2011, to which TSP filed a Reply to
Opposition to Petition to Deny (“Reply”) on July 11, 2011.
Each of these applicants proposes to serve Weiser, Idaho.2 Pursuant to established procedures,3 the
Commission tentatively selected the BSCC Application as the winner of Reserved Allotment Group No.
19.4 In a subsequent Public Notice, the Bureau dismissed the applications of HFCN, TSP, and GPR.5 It
therefore accepted the BSCC Application for filing and announced a 30-day period for filing petitions to
deny.6 TSP filed the Petition to Deny on June 1, 2001, asserting that BSCC lacked reasonable or any
assurance of access to the proposed tower site listed in the BSCC Application.7 In support of its Petition,
TSP presents an email correspondence with a representative of the Baker City Field Office for the
Department of Interior, Bureau of Land Management (“BLM”)8 that states that the proposed coordinates
appear to be on BLM land, and that BLM has no record of an FCC application being proposed for this
parcel.9 TSP therefore argues that the BSCC Application must be dismissed and TSP’s application granted
as the next best proposal.10
In its Opposition, BSCC contends that it had, at minimum, a good faith belief that it had secured
reasonable assurance regarding the availability of the proposed tower site.11 To support this assertion,
BSCC attached two authored letters from Keith Pettyjohn, a representative of BSCC, to Harry Bettis, the
landowner where BSCC actually intended to construct a tower for its technical facilities.12 These letters
“constitut[e] a written memorialization of conversations between the individuals in the weeks leading up to
the application window filing deadline in February of 2010.”13 BSCC further explains that there was a
discrepancy between the precise coordinates cited in the BSCC Application and those cited in the letter,
and that there was a typographical error in the original application.14 Contemporaneously with the
Opposition, BSCC filed an amendment to its Application correcting the coordinate error.15 The new
2 See Comparative Consideration of 37 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial Educational FM Stations, Memorandum Opinion and Order, 26 FCC Rcd 7008, 7027
(2011) (“Comparative Consideration Order”).
3 See 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), reversed in part on other grounds, NPR v. FCC, 254 F.3d 226 (DC Cir.
4 After calculating all points, BSCC was credited with five points; HFCN with four points; TSP with two points; and
GPR with zero points.
5 See Broadcast Actions, Public Notice, Report No. 47505 (June 10, 2011).
6Comparative Consideration Order at ¶ 136.
7 Petition at 2.
8 The proposed tower site listed in the original BSCC Application is 44-22-57.4 N 117-24-52.1 W.
9 Petition at 2.
10 Id. at n.1.
11 Opposition at 4.
12 See Opposition at Exhibit A.
13 Opposition at 4.
14 Id. at 4.
15 The June 30, 2011, amendment specifies a tower location of 44-22-41.6N 117-24-39.9W. We have previously
found that inadvertent typographical errors regarding tower location can be corrected by minor amendment. See
Union Valley Baptist Church, Letter, 23 FCC Rcd 9161 (MB 2008) (finding that applicant’s clerical error
misidentifying its proposed tower was not fatal to its application). We therefore accept the amendment. But see
Letter to Dennis J. Kelly, Esq. and Richard S. Myers, Esq., 24 FCC Rcd 2410 (MB 2009), recon. denied, 25 FCC Rcd
(continued . . .)
coordinates reflect that the proposed tower site is on private land owned by Harry Bettis, and not the
federally owned land managed by BLM.
In its Reply, TSP asserts that BSCC did not furnish proof of reasonable assurance of the amended
tower coordinates at the time BSCC filed its initial application in February 2010.16
Discussion. Pursuant to Section 309(d) of the Communications Act of 1934, as amended (the
“Act”), a petition to deny must provide properly supported allegations of fact that, if true, would establish
a substantial and material question of fact that grant of the application would be prima facie inconsistent
with Section 309(a) of the Act.17 We find that the Petition presents specific factual allegations sufficient to
meet this standard.
Site Assurance. An applicant seeking a new broadcast facility must, in good faith, possess
“reasonable assurance” of a transmitter site at the time it files its application.18 It is well-established that
specification of a transmitter site in an application is an implied representation that the applicant has
obtained reasonable assurance that the site will be available.19 While some latitude is afforded such
reasonable assurance, there must be, at a minimum, a “meeting of the minds resulting in some firm
understanding as to the site’s availability.”20 A mere possibility that the site will be available is not
(Continued from previous page)
14352 (MB 2010) (stating that a clerical error cannot be corrected if the corrective amendment would constitute a
16 Reply at 2.
17 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 (DC 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.).
18 See, e.g., Les Seraphim and Mana’o Radio, Memorandum Opinion and Order, 25 FCC Rcd 2785 (MB 2010); Port
Huron Family Radio, Inc., Decision, 66 RR 2d 545 (1989); Radio Delaware, Inc., Memorandum Opinion and Order,
67 RR 2d 358 (1989).
19 See, e.g., William F. Wallace and Anne K. Wallace, Memorandum Opinion and Order, 49 FCC 2d 1424, 1427
(1974) (“Wallace”) (“Some indication by the property owner that he is favorably disposed toward making an
arrangement is necessary”).
20 Genesee Communications, Inc., Memorandum Opinion and Order, 3 FCC Rcd 3595, 3595 (1988). The applicant
need not own the proposed site and may even work out the final details for a lease sometime in the future. The
“reasonable assurance” standard is satisfied by “[s]ome clear indication from the landowner that he is amenable to
entering into a future arrangement with the applicant for use of the property as its transmitter site, on terms to be
negotiated . . . ”. Elijah Broadcasting Corp., Memorandum Opinion and Order, 5 FCC Rcd 5350, 5351 (1990).
21 See Wallace, 49 FCC 2d at 1425. The Commission does not require (and has never required) NCE broadcast
applicants to certify the availability of the transmitter site in its application procedures. See, e.g., Carnegie-Mellon
Student Government Corp., Hearing Designation Order, 7 FCC Rcd 3914 (MB 1992). Nonetheless, when an NCE
applicant proposes a site, it must do so with reasonable assurance in good faith that the site will be available. See,
e.g., Midland Educational Broadcasting Foundation, Hearing Designation Order, 4 FCC Rcd 5207 ¶ 4 (MB 1989)
(holding that applicant for noncommercial educational FM station had reasonable assurance of site availability
because it paid for a lease option on transmitter site). Cf. Alabama Citizens for Responsive Public Television, Inc.,
Memorandum Opinion and Order, 62 FCC 2d 755 (Rev. Bd. 1977) (issue designated against noncommercial
educational television broadcast application as to whether applicant had reasonable assurance of the site proposed in
We find that BSCC did not have reasonable assurance of its tower site when it filed the BSCC
Application because Pettyjohn’s letters to Bettis demonstrate that the parties did not reach an
understanding as to the site’s availability. For example, Pettyjohn’s February 10, 2010, letter states,
“[s]ince I have not heard otherwise from you or Mr. Bean, I trust that, in principle, you are amenable to
discussing a leasehold of some kind, should the FCC grant the Construction Permit.”22 Pettyjohn further
states, “[t]o summarize our discussion and the proposal, please note the following points . . . ”.23
Pettyjohn’s letters constitute an offer with no evidence of acceptance. They establish that a “meeting of
the minds” never occurred between BSCC and Bettis; instead, we have simply an inquiry followed by a
letter taking the position that there is a deal in principle unless the landowner affirmatively rejects the idea.
The “reasonable assurance” standard is a liberal one,24 but BSCC has failed to meet it. Therefore, we find
that BSCC failed to obtain reasonable site assurance at the time of its original application filing.
Moreover, BSCC may not amend to cure this fatal defect following the close of the NCE FM filing
window.25 Thus, we will dismiss the BSCC Application.
Tool Shed PDX Petition. TSP seeks reinstatement of its application pending the staff’s review of
its Petition. Because we had not ruled on TSP’s Petition – and therefore had not made a finding that there
was “no substantial and material question concerning the grantability of the tentative selectee’s
application” – dismissal of the competing applications was premature.26 Therefore, we will grant TSP’s
petition for reconsideration and reinstate its application. Moreover, with the dismissal of the BSCC
Application, TSP is the sole remaining applicant.27 Accordingly, TSP is the new tentative selectee.
Conclusion/Actions. Accordingly, IT IS ORDERED, that the June 1, 2011, Petition to Deny filed
by Tool Shed PDX, IS GRANTED.
IT IS FURTHER ORDERED, that the application of Blessed Sacrament Catholic Church of
Ontario, Inc. (BNPED-20100226ACY), for a new noncommercial educational FM Station in Weiser
Idaho, IS DISMISSED.
22 See Opposition at Exhibit B.
23 Id. (emphasis added).
24 Elijah Broadcasting Corporation, Memorandum Opinion and Order, 5 FCC Rcd 5350, 5351 (1990); Anderson
Radio Broadcasting, Inc., Memorandum Opinion and Order, 23 FCC Rcd 578, 584 n.46 (2008).
25 Edward A. Schober, Memorandum Opinion and Order, 23 FCC Rcd 14263, 14265 (2008) (“The Commission,
however, has repeatedly held that ‘an applicant will not be permitted to amend where it did not have the requisite
reasonable assurance to begin with. . . .’”). See also Indiana Community Radio Corp., Memorandum Opinion and
Order, 23 FCC Rcd 10963 (MB 2008) (same).
26 Hawaii Public Radio, Inc., Letter, 25 FCC Rcd 3967 (MB 2010).
27 Although HFCN had more points than TSP in the points hearing, HFCN did not file a petition for reconsideration
of the dismissal of its application. That dismissal is now final.
IT IS FURTHER ORDERED, that the Petition for Reconsideration filed by Tool Shed PDX on
July 7, 2011 IS GRANTED, and the application of Tool Shed PDX (BNPED-20100226AJX) for a new
noncommercial educational FM station at Weiser, Idaho, IS REINSTATED AND ACCEPTED FOR
Peter H. Doyle
Chief, Audio Division
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