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Commission Denies Review - Jet Fuel Broadcasting, Orchard Homes, MT

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Released: February 20, 2014

Federal Communications Commission

FCC 14-15

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

File No. BNP-20040130AQP
Facility ID No. 161341
Application for a New AM Broadcast Station
at Orchard Homes, Montana


File No. BNP-20040130ARV
File No. BNP-20071221ACG
Application for a New AM Broadcast Station
Facility ID No. 160981
at Black Hawk, South Dakota


Adopted: February 20, 2014

Released: February 20, 2014

By the Commission:
In this Memorandum Opinion and Order, we address the December 7, 2009, Application
for Review (“AFR”) filed by Jet Fuel Broadcasting (“JFB”), applicant for a new AM broadcast station at
Orchard Homes, Montana.1 JFB seeks review of the Media Bureau’s (“Bureau”) November 6, 2009,
order dismissing JFB’s Petition for Reconsideration of the Bureau’s grant of a preference under Section
307(b) of the Communications Act of 1934, as amended,2 to Bott Communications, Inc. (“Bott”).3 Bott
filed an application for a new AM broadcast station at Black Hawk, South Dakota, that is mutually
exclusive with JFB’s Orchard Homes application.4
Upon review of the Application for Review and the entire record, we conclude that JFB
has not demonstrated that the Bureau erred. The Bureau dismissed JFB’s Petition for Reconsideration on
the ground that a determination under Section 307(b) is not a final decision, and Section 1.106(a)(1) of
the Rules states that petitions for reconsideration of interlocutory actions generally will not be
entertained.5 An interlocutory action by definition is non-final, one that neither denies nor dismisses an
application nor terminates an applicant’s right to participate in the proceeding.6 For an agency action to

1 File No. BNP-20040130AQP.
2 47 U.S.C. § 307(b) (“Section 307(b)”).
3 Mr. Dave Garey and Harry C. Martin, Esq., 24 FCC Rcd 13668 (MB 2009) (“Staff Decision”), dismissing Petition
for Reconsideration of Bott Communications, Inc. and Jet Fuel Broadcasting, Letter, Ref. No. 1800B3-LAS/JP (MB
Oct. 31, 2007) (“Letter Decision”).
4 File No. BNP-20040130ARV.
5 47 C.F.R. § 1.106(a)(1).
6 Cf. Fresno FM Limited Partnership, et al., Memorandum Opinion and Order, 5 FCC Rcd 7261, 7261 (1990)
(former 47 C.F.R. § 1.115(e)(1) specifically provided that applications for review of interlocutory Review Board

Federal Communications Commission

FCC 14-15

be “final,” first, the action must mark the “consummation” of the agency’s decision making process, and
not be merely of a tentative or interlocutory nature; and second, the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.7
In the instant case, Jet Fuel sought reconsideration of a Letter Decision that was not final.
The application process is consummated only when an authorization, such as a construction permit, is
issued, or when an application is dismissed or denied. The Bureau, in the Letter Decision, neither
awarded Bott an authorization nor denied or dismissed JFB’s application. Instead, the Bureau stated that
it would conduct a complete legal and technical analysis of the Bott application after issuing a public
notice announcing the application’s acceptance for filing and soliciting petitions to deny the application.
The Bureau noted further that the staff would dismiss the competing Jet Fuel application “upon action
taken on the application filed by Bott.”8 Moreover, as pointed out by the Bureau in the Staff Decision, our
Rules provide clear procedures by which a competing applicant may challenge the Form 301 application
filed by a party receiving a dispositive Section 307(b) preference.9 Thus, it is inaccurate for JFB to assert
that its right to challenge Bott’s Section 307(b) preference has been compromised, given that JFB had the
ability to present its arguments challenging the Bureau’s Section 307(b) determination before any
authorization could be awarded to Bott.10 The Media Bureau properly decided the matters raised, and we
uphold its action for the reasons stated in the Staff Decision.11
ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the
Communications Act of 1934, as amended,12 and Section 1.115(g) of the Commission’s rules,13 the
Application for Review IS DENIED.
Marlene H. Dortch

(Continued from previous page)
rulings could only be filed as part of an application for review of the Board’s final decision; Memorandum Opinion
and Order from which applicant sought review was interlocutory, as it neither terminated applicant’s right to
participate in the proceeding nor denied applicant’s application, thus Motion for Leave to File Application for
Review was denied, and accompanying Application for Review dismissed).
7 Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 1168 (1997).
8 Letter Decision supra at n. 11.
9 Staff Decision, 24 FCC Rcd at 13670; see 47 C.F.R. §§ 1.2108, 73.5006.
10 See Sharon Berlin Ingles, Powell Meredith Communications Company, and TELNS Broadcasting Company, Inc.,
Memorandum Opinion and Order, 23 FCC Rcd 8815 (2008) (dispositive Section 307(b) preference for one of three
members of MX group overturned on grant of petitions to deny; all members of group designated for auction). In
fact, Bott’s long-form application was accepted for filing on May 16, 2012. See Broadcast Applications, Public
Notice, Report No. 27739, at 32 (MB May 16, 2012). However, despite the Bureau’s notation of JFB’s opportunity
to file a petition to deny Bott’s FCC Form 301 application upon acceptance for filing (consistent with statements in
other contemporaneous Bureau actions; see, e.g., George M. Arroyo and Dennis J. Kelly, Esq., Letter, 24 FCC Rcd
11010, 11012-13 (MB 2009)), JFB failed to so file.
11 Although JFB, in its Application for Review, makes several arguments regarding the merits of the staff’s Section
307(b) decision, we decline to entertain those arguments here, as our review is limited to the Bureau’s dismissal of
the Petition for Reconsideration as interlocutory.
12 47 U.S.C. § 155(c)(5).
13 47 C.F.R. § 1.115(g).

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