Denial of Main Studio Staffing Rule Waiver Request
Washington, D.C. 20554
October 7, 2011
Released: October 7, 2011
Marissa G. Repp, Esq.
Repp Law Firm
1629 K Street, N.W., Suite 300
Washington, DC 20006
Request for Waiver of the Commission's
Main Studio Staffing RequirementsDear Ms. Repp:
We have before us a July 15, 2011, "Request for Main Studio Waiver" ("Waiver Request") filed
on behalf of Lakota Local School District (the "District"), licensee of noncommercial educational
("NCE") FM Station WLHS(FM), West Chester, Ohio (the "Station"). The District seeks a waiver of the
Commission's requirements regarding the staffing required at a broadcast station's designated main
studio. For the reasons set forth below, we deny the Waiver Request.
The District is the seventh-largest school district in Ohio, with a student population of over
18,000. Its total budget for the 2009-10 school year was $235,227,414.1 The District has operated the
Station since 1982. The Station is not co-owned with any other NCE station and is not part of a regional
or statewide NCE network.
In the Waiver Request, the District states that "[t]he recent economic climate has taken a toll on
the District and WLHS(FM)" and that "[f]or financial reasons," it can no longer retain a faculty advisor
on staff to supervise the Lakota High School Radio Club, members of which program the Station and
maintain its day-to-day operations. It indicates that it has executed an Operating Agreement with Maple
Knoll Communities, Inc. ("MKC"), licensee of NCE Station WMKV(FM), Reading, Ohio, which would
help alleviate many of the Station's recent difficulties.2 The Operating Agreement provides for the
collocation of the Station's studio with that of WMKV(FM) in Reading, Ohio, which will enable the
1 See the District's website (http://www.lakotaonline.com/district.cfm).
2 Pursuant to the Operating Agreement, MKC will, "subject to the District's ultimate control": (1) provide
programming for the Station: (2) staff the Station with a Chief Operator and monitor the Station's EAS equipment;
(3) provide technical support for the District's establishment of an internet-based programming service originating at
Lakota High School; (4) create internship opportunities for Lakota High School students and provide guest speakers
for the Lakota High School Radio Club; and (5) produce public service announcements for the District's events and
activities; and (6) produce quarterly 30-minute programs featuring those events and activities for broadcast over the
Station. Waiver Request at 1-2, Operating Agreement 1. Additionally, MKC will pay to the District $3,000 at the
beginning of the second year of term the Operating Agreement and $12,000 at the beginning of the third year of the
term of the Operating Agreement. Operating Agreement, 1G.
District to "realize valuable economies of scale which would allow it to restore and enhance the
noncommercial educational programming provided" by the Station. The District observes that the
WMKV(FM) studio is approximately 3.8 miles from the center of West Chester, Ohio, and within the
Station's principal community contour; it therefore complies with the geographic limitation specified in
Section 73.1125 of the Commission's Rules (the "Rules").3 However, the District seeks to "outsource"
the staffing requirements for the Station's main studio to MKC, and therefore requests waiver of the main
studio rules to permit the Station's designated main studio to be staffed by MKC employees.
In support of the waiver, the District argues that the Commission traditionally considers requests
for waivers of its main studio requirements by noncommercial educational stations on a case-by-case
basis. It argues that, in the context of noncommercial waiver requests, the Commission has expressly and
implicitly found "good cause" to exist in numerous instances based upon a showing that centralized
operations will provide an economic benefit to noncommercial stations which have limited funding,
provided that local service obligations are met. The District submits that the instant request presents
substantially the same showing of good cause and public interest benefits as did the applicant in a number
of other cases in which waiver of the main studio rules was granted,4 and it argues that allowing the
District to outsource its main studio staffing to MKC would enable WLHS to serve its listeners in a more
effective and efficient manner.
Discussion.An applicant seeking waiver of a Rule has the burden to plead with particularity the
facts and circumstances that warrant such action.5 Thus, an applicant for waiver "faces a high hurdle even
at the starting gate."6 Although the Commission must consider carefully all waiver requests, such
requests must be supported by a compelling showing in order to be granted.7 A waiver from the
Commission is appropriate if special circumstances8 warrant a deviation from the general rule, and such
deviation would better serve the public interest than strict adherence to the general rule.9 Generally, the
3 47 C.F.R. 73.1125.
4 The District cites The President and Board of Trustees of the Miami University, Hearing Designation Order, 7 FCC
Rcd 2902 (MMB 1992) ("Miami University"); The Cedarville College, Hearing Designation Order, 6 FCC Rcd 538
(MMB 1991) ("Cedarville College"); Sound of Life, Inc., Hearing Designation Order, 4 FCC Rcd 8273 (MMB
1989) ("Sound of Life"); Lift Him Up Outreach Ministries, Inc., Hearing Designation Order, 3 FCC Rcd 5571 (
MMB 1988) ("Outreach Ministries"); Georgia State Board of Education, Memorandum Opinion and Order, 70 FCC
2d 948 (1979), recon denied, 71 FCC 2d 227 (1979) ("Georgia State"); Nebraska Educational Tele Commission,
Memorandum Opinion and Order, FCC 65-220, 4 RR2d 771 (1965) ("NETC").
5 See Columbia Communications Corp. v. FCC, 832.F.2d 189, 192 (D.C. Cir, 1987) (citing Rio Grande Family
Radio Fellowship, Inc. v. FCC, 406 F.2d 644, 666 (D.C. Cir. 1968)).
6 See WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (1972), cert. denied, 93 S.Ct.
461 (1972) ("WAIT Radio") (finding that the Commission may decide in some instances that rule waiver serves the
public interest if an applicant's proposal will not undermine the policy served by the rule). See also Thomas Radio v.
FCC, 716 F.2d 921, 924 (D.C. Cir. 1983).
7 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)).
8 See, e.g., Gulf Coast Community College, 20 FCC Rcd 17157 (MB 2005) (finding special circumstances present
for waiver of a Form 301 filing deadline, but issuing a Notice of Apparent Liability for failure to timely file the
9 See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see also WAIT Radio, 418
F.2d at 1159 (stating that the Commission may take into account considerations of hardship, equity, or more
effective implementation of overall policy on an individual basis).
Commission may grant a waiver of its rules in a particular case only if the relief requested would not
undermine the policy objective of the rule in question, and would otherwise serve the public interest.10
Section 73.1125(a) of the Rules requires broadcast stations to maintain a main studio.11 The main
studio rules are intended to make broadcast stations readily accessible to the people and communities
which they are primarily licensed to serve, and they constitute one of the essential ways we have for
insuring that stations realistically meet their obligations to serve their communities of license as outlets
for local self-expression.12 In order to meet that goal, the Commission has explained that "[a] station
must equip the main studio with production and transmission facilities that meet applicable standards,
maintain continuous program transmission capability, and maintain a meaningful management and staff
presence." 13 The Commission has defined a minimally acceptable "meaningful presence" as managerial
and staff personnel present at the studio on a full-time basis.14 Although management personnel need not
be "chained to their desks" during normal business hours, they must "report to work at the main studio on
a daily basis, spend a substantial amount of time there and . . . use the studio as a home base."15 To
qualify as managerial, the Commission stated that the employee should be "authorized to make typical
managerial decisions pertaining to facilities, equipment, programming, sales and emergency
procedures."16 The staffing requirements apply equally to both NCE and commercial stations.17
We will deny the Waiver Request for several reasons. First, although the Commission has found
"good cause" for waiver of the main studio rule based upon a showing that centralized operations will
provide an economic benefit to NCE stations with limited funding, the District has cited no precedent for
waiving the studio staffing requirements on the facts presented here, and we are aware of none. The cases
cited by the District are either inapposite or clearly distinguishable. Miami University, Cedarville College,
Sound of Life, and Outreach Ministries were each Hearing Designation Orders involving mutually
exclusive applicants for an NCE frequency in which the staff found good cause for waiving the main
studio rule for applicants proposing "satellite" operation to duplicate the programming of a co-owned
station. The District does not, and indeed cannot, propose satellite operation here.18 Georgia State and
10WAIT Radio, 418 F.2d at 1157.
11 See 47 C.F.R. 73.1125(a).
12 FMTV Main Studio Rules, Report and Order, 27 FCC 2d 851, 852 (1971).
13 Main Studio and Program Origination Rules, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026 (1988).
14 Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6 FCC Rcd 3615, 3616 (1991),
clarified, 7 FCC Rcd 6800 (1992). To qualify as a main studio, the studio must be staffed by at least one
management-level employee and one staff-level employee at all times during "regular business hours." Id.
15 Jones Eastern of the Outer Banks, 7 FCC Rcd at 6802.
16 Id. at 6801 10.
17 See, e.g., First Baptist Church, Inc., Forfeiture Order, 23 FCC Rcd 919 (EB 2008) (forfeiture issued to NCE
licensee for, inter alia, failure to comply with main studio staffing requirements); Puget Sound Educational TV,
Inc., Forfeiture Order, 22 FCC Rcd 17326 (EB 2007) (same).
18 Waivers of Section 73.1125 for "satellite" operations are based on the recognition that the cost savings from a
single main studio for a regional or statewide network of stations can enable service to be provided to rural areas
that otherwise would lack such service. See, e.g., University of North Carolina, Letter, 23 FCC Rcd 1205, 1206
(MB 2008) ("grant of the waiver request will better serve the public interest, as it will allow UNC to provide quality
public television programming to viewers throughout the state of North Carolina"); F. William LeBeau, Esq., Letter,
22 FCC Rcd 2183, 2185 (MB 2007) (Rocky Mountain Public Broadcasting Network, Inc. "operates its network in
NETC also involved a "satellite" television station that were or would be part of a state-wide educational
Additionally, the principal financial reason for requesting the waiver is that the District can no
longer afford to retain a faculty advisor on staff to supervise the Lakota High School Radio Club,
members of which program the Station and maintain its day-to-day operations. Although the
Commission requires that licensees remain in control of their student-run stations, it does not require that
a dedicated faculty advisor be employed to supervise station operations. We also do not require that "full
time" employees perform station duties on a full-time basis. They may also take on other responsibilities
as their station duties permit and as long as the main studio remains attended during normal business
hours.19 In light of this flexibility accorded licensees, the unquantified cost savings of eliminating one
faculty advisor position are insufficient to justify the elimination of the Station's main studio and the
requested relief from staffing obligations as proposed in the Waiver Request.
Accordingly, the July 15, 2011, "Request for Main Studio Waiver" filed on behalf of Lakota
Local School District IS HEREBY DENIED.
Peter H. Doyle
Chief, Audio Division
widely scattered communities, often with small populations" and "grant of a waiver of the main studio rule [for a
station in Steamboat Springs, Colorado] will serve the public interest in that it will allow Rocky Mountain to use its
resources to provide superior television programming" throughout the region). The rationale for waivers of the main
studio rule for satellite stations does not apply to this case.
19 See, e.g., Michael R. Birdsill, Letter, 7 FCC Rcd 7891 (MMB 1992).
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