$//Lion's Share Broadcasting Lompoc, Cal. MM 91-210 FCC 95-111//$ $/ 1.115 Applications for review /$ $/ 73.215 Contour protection for short-spaced assignments /$ ///newjob/// $///FCC 95-111,3/20/95///% BEFORE THE FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 95-111 In re Applications of ) MM DOCKET NO. 91-210 ) Robert D. Janecek d/b/a ) File No. BPH-900504MD LION'S SHARE BROADCASTING ) ) LOMPOC MINORITY BROADCASTERS ) File No. BPH-900518MO PARTNERSHIP ) ) For Construction Permit for a ) New FM Station on Channel 285A ) in Lompoc, California ) MEMORANDUM OPINION AND ORDER Adopted: March 13, 1995 Released: March 23, 1995 By the Commission: 1. Lion's Share Broadcasting (Lion's Share) and Lompoc Minority Broadcasters Partnership (LMBP) are mutually exclusive applicants for a new FM station in Lompoc, California. LMBP seeks Commission review of Hearing Designation Order, 6 FCC Rcd 4465 (MMB 1991), which accepted Lion's Share's application, and of a Review Board decision, Lion's Share Broadcasting, 8 FCC Rcd 8423 (Rev. Bd. 1993), which granted Lion's Share's application on comparative grounds. In addition, Lion's Share seeks to have this case remanded for consideration of questions relating to LMBP's basic qualifications. For the reasons set forth below, we find that Lion's Share's application was unacceptable for filing under the Commission's "hard look" processing guidelines, and that it should not have been designated for hearing. This Memorandum Opinion and Order therefore grants in part LMBP's application for review, dismisses Lion's Share's application, and remands this proceeding to the Review Board for consideration of basic qualifying issues involving LMBP. BACKGROUND 2. Lion's Share filed its application using the provisions of 47 C.F.R.  73.215, which permits the acceptance of applications proposing short-spaced antenna locations if they afford protection to all affected stations. In this manner, Lion's Share proposed to protect KOHD(FM), a third-adjacent channel Class A station station operating in Guadalupe, California. By its Hearing Designation Order, the Mass Media Bureau found that, because section 73.215(e) required a minimum of 25 kilometers between the two facilities whereas Lion's Share's proposed site was only 22.5 kilometers from KOHD(FM)'s transmitter site, its application could not be processed under the provisions of section 73.215 and that it was technically unacceptable for filing. 6 FCC Rcd at 4466-4467  10, 12. The Bureau determined, however, that "the wording of  73.215(b)[2](ii) does not, for 'hard look' processing purposes, afford applicants full and explicit notice of the prerequisites they must meet in order to avoid summary dismissal." Id. at 4467  12. Accordingly, it afforded Lion's Share, as well as another applicant, Great Scott Broadcasting, an opportunity to file curative amendments with the ALJ. By Order (FCC 92M-449, released April 13, 1992), the ALJ accepted Lion's Share's curative site amendment, which specified a fully spaced site. Id. Great Scott's application was subsequently dismissed with prejudice for reasons unrelated to section 73.215 of the rules. Order, FCC 92M-78 (released November 21, 1992). 3. In an Initial Decision, Administrative Law Judge Joseph P. Gonzalez concluded that Lompoc Minority Broadcasters Partnership (LMBP) was financially qualified but disqualified it on a site certification issue. Lion's Share Broadcasting, 8 FCC Rcd 916 (I.D. 1993). Alternatively, the ALJ concluded that, even if LMBP was basically qualified, Lion's Share would prevail on the standard comparative issue by virtue of its integration and diversification preferences. Id. at 918  18. 4. LMBP filed exceptions with the Review Board arguing that Lion's Share's application should have been returned without consideration, that Lion's Share's curative site amendment was untimely and should not have been accepted, and that the ALJ should not have disqualified it on the site certification issue. Lion's Share filed limited exceptions to the initial decision urging that LMBP should have also been disqualified on the financial issue. 5. The Review Board deemed the question of whether Lion's Share's application should have been returned without consideration pursuant to the Commission's "hard look" processing standards to be beyond its jurisdiction under Atlantic Broadcasting Co., 5 FCC 2d 717, 721 (1966), inasmuch as the HDO specified reasons for not returning Lion's Share's application. 8 FCC Rcd 8423 at  3. With regard to whether the site amendment was untimely, however, the Board found that the ALJ had not abused his discretion in accepting it. Id. at 8423-24  5. Turning to the initial decision, the Board agreed with the ALJ that, even if LMBP were basically qualified, Lion's Share would be the clear comparative winner. Id. at 8424-25  6. Accordingly, the Board affirmed the initial decision without resolving the issues relating to LMBP's basic qualifications. 6. In its application for review, LMBP argues that Lion's Share's original application was patently defective and that it should have been returned without consideration under the Commission's "hard look" processing standards. LMBP also challenges the determination of the ALJ and of the Review Board that Lion's Share's curative site amendment was diligently filed under 47 C.F.R.  73.3522(b)(1) of the rules. LMBP further disputes its disqualification on the site certification issue. 7. Acting under delegated authority, the Office of General Counsel issued an Order (FCC 94I-041, released May 4, 1994) requesting that the Bureau provide a fuller explanation of its rationale for designating Lion's Share's application for hearing. In doing so, the Order indicated that "it [wa]s not apparent from the Hearing Designation Order how section 73.215(b)(2)(ii) pertained to Lion's Share's application or why an ambiguity in the language of section 73.215(b)(2)(ii) would warrant permitting Lion's Share to amend to a transmitter site that meets the minimum mileage separation requirements set forth in section 73.215(e)." 8. In response, the Bureau indicates that the reference to section 73.215(b) in  12 of the Hearing Designation Order was an oversight. The Bureau submits that it had recognized that the defect in Lion's Share's application involved section 73.215(e), whereas the ambiguity was in section 73.215(b) of the rule. It notes, however, that, having determined that one subsection of the rule failed to provide adequate notice and thus warranted allowing a curative amendment, it had concluded that, in the interest of fairness, all applicants that were deficient under any subsection of that same rule should be afforded an opportunity to amend. 9. In the Bureau's view, allowing Great Scott -- a then mutually exclusive applicant for Lompoc whose application was deficient under section 73.215(b) of the rules -- to file a curative amendment while at the same time rejecting Lion's Share's application for a failure to comply with a subsection of that same rule would draw too fine a line. In support of this approach, the Bureau cites Radio Lompoc Limited Partnership, 7 FCC Rcd 3798, 3800 (1992), in which the Commission observed that "the wording of Section 73.215 of the rules does not afford applicants full and explicit notice of certain technical requirements necessary to avoid dismissal under the hard look policy" without distinguishing between the different provisions of sections 73.215(b) and 73.215(e) of the rules. 10. Lion's Share endorses the Bureau's approach as being "clear and logical," and urges that this approach was ratified by the full Commission in Radio Lompoc. It notes that section 73.215 is a complex rule dealing with the circumstances in which applicants may specify short-spaced transmitter sites, and that its subsections are interrelated. It contends further that the acceptance of its curative site amendment did not prejudice LMBP, and that the public interest is best served by having the widest possible choice of applicants. See Crosthwait v. FCC, 584 F.2d 550, 555 (D.C. Cir. 1978); Azalea Corp., 31 FCC 2d 561, 563 (1971). Finally, Lion's Share claims justifiable reliance on the Bureau's action, as reflected in the fact that it has devoted almost three years and tens of thousands of dollars to the prosecution of its application. DISCUSSION 11. Based upon the pleadings before us, we conclude that, due to the short-spacing with station KOHD(FM), Lion's Share's application was unacceptable for filing and should have been returned without consideration pursuant to the Commission's "hard look" processing guidelines. We therefore dismiss Lion's Share's application and remand this proceeding for consideration of the unresolved issues relating to LMBP's basic qualifications. 12. Under the Commission's "hard look" processing guidelines, an FM application found to be sufficient for tender is studied to determine its acceptability for filing, that is, its compliance with the technical requirements for FM facilities. Processing of FM and TV Broadcast Applications, 50 Fed. Reg. 19936, 19941  32 (1985). To be acceptable for filing, FM applications must comply with distance separation standards. Public Notice, FCC 84-366 (Aug. 2, 1984). Applications that do not comply with these requirements and do not contain an appropriate waiver request are returned, and returned applications may not be amended even if the acceptance of curative amendments would not result in prejudice to any competing applicant. 50 Fed. Reg. at 19941  31-32. The adoption of stringent processing standards reflects a determination by the Commission that expediting the initiation of new service to the public is of greater importance than maximizing the choice of qualified applicants. The courts have generally upheld our authority to adopt such rigid processing guidelines, provided clear guidance is given of the prerequisites that an application must meet in order to receive full consideration. See, e.g., Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991); Salzer v. FCC, 778 F.2d 869 (D.C. Cir. 1985), citing Radio Athens, Inc. v. FCC, 401 F.2d 398, 401 (D.C. Cir. 1968). 13. Turning to the facts of this case, the applications filed by Lion's Share and Great Scott were substantially complete at tender in that both sought processing under section 73.215 and both included exhibits intended to demonstrate compliance with that rule with respect to stations with which their original proposals were short-spaced. However, both applications were unacceptable for filing because they did not comply with the Commission's minimum distance separation rules. 14. In the case of Great Scott, the Bureau found that its engineering data failed to establish that the contours of existing station KCAQ would be protected according to the technical specifications of section 73.215(b)(2)(ii). HDO, 6 FCC Rcd at 4466-67  11. Inadequate protection was proposed because Great Scott had improperly determined the contours of station KCAQ, thereby underestimating the amount of the overlap that would exist between the two facilities. Because the wording of section 73.215(b)(2)(ii) did not afford applicants "full and explicit notice of the prerequisites they must meet to avoid summary dismissal," however, the Bureau permitted Great Scott to file a curative amendment. Id. at 4467  12. 15. In contrast, the defect rendering Lion's Share's application technically unacceptable for filing under section 73.215 involved no determination as to the contours of third- adjacent channel Class A station KOHD(FM). Rather, the defect in Lion's Share's application was readily discernible from the Table contained in section 73.215(e), which lists the exact minimum separation distances of antenna locations that an application filed pursuant to section 73.215 must meet in order to be accepted for filing. According to that Table, the antenna locations of a class A FM station and a third adjacent FM station had to be separated by at least 25 kilometers. 16. Notwithstanding this unambiguous requirement, the original transmitter site for Lion's Share's proposed class A FM station in Lompoc was only 22.5 kilometers from that of station KOHD(FM) in Guadalupe. Id. at 4466  10. Because the minimum distance separation requirement was readily discernible from the Table, we conclude that the Bureau erred in permitting Lion's Share to amend to a properly spaced site. Such action was, in our view, contrary to the plain meaning of section 73.215(e) that "[t]he Commission will not accept applications [filed pursuant to section 73.215] that specify a short-spaced antenna location for which the following minimum separation requirements, in kilometers (miles), are not met." (emphasis added). 17. By the same token, we reject the suggestion that fairness required that Lion's Share be allowed to amend its application to comply with the unambiguous distance separation requirements set forth in section 73.215(e) simply because a mutually exclusive application found to be deficient under 73.215(b)(2)(ii) was allowed to amend. Notwithstanding the Bureau's claim, the Commission did not affirm such an approach in Radio Lompoc, which concerned the previously dismissed application filed in this proceeding by Radio Lompoc Limited Partnership (RLLP). RLLP's application had been returned as untenderable due to the lack of a full scale transmitter site map. RLLP challenged the return of its application, alleging disparate treatment vis-a-vis Lion's Share and Great Scott, both of which were found to be technically unacceptable but were permitted to file curative amendments. 18. In rejecting the claim of disparate treatment in Radio Lompoc, we noted that, in contrast to the inadequacies in the wording of section 73.215 as to the requirements for a contour overlap showing, the "hard look" processing standards regarding the tenderability of FM applications always required the submission of a full-scale site map. Faced with the contention that RLLP should have been permitted to amend its application to submit a site map under the same rationale that the Bureau articulated in the HDO for allowing Great Scott and Lion's Share to file curative amendments, we distinguished their situations from that of RLLP. In this regard, however, no argument was presented and we did not focus on the fact that the deficiencies in the applications filed by Lion's Share and Great Scott involved different subsections of section 73.215. 19. Rather, we considered the two applications together and characterized both as having "defects [that] relat[e] to deficiencies in contour overlap showings ... that ordinarily would have rendered the applications in question unacceptable for filing." Radio Lompoc, 7 FCC Rcd at 3800  9. As explained above, however, the defect in Lion's Share's application had nothing to do with a contour overlap showing. Because we had no occasion to consider the critical difference between the deficiency in Lion's Share's application and the deficiency in Great Scott's application, our general observation regarding inadequacies in the wording of section 73.215 should not be construed as an affirmative ruling that any deficiency under that rule, no matter how clear the language of the particular subsection involved, may be cured by amendment. Such a construction of the rule would frustrate the objectives underlying the "hard look" processing guidelines that were in effect when Lion's Share filed its application. This would not serve the public interest. 20. Finally, we reject Lion's Share's claim of equities based on detrimental reliance. Although the Bureau's erroneous acceptance of its application may have permitted Lion's Share to devote substantial resources to the prosecution of that application, this circumstance creates no equities that warrant affirming the Bureau's action. We have consistently held that under the "hard look" processing guidelines the ultimate responsibility to review an application to determine its acceptability rests, not with the processing staff, but with the applicant. Pueblo Radio Broadcasting Service, 5 FCC Rcd 6278  5 (1991) (applicant not permitted to avoid dismissal of an application, which exceeded the height restrictions for antennas within 199 miles of the Mexican border, because the staff inadvertently failed to return the application). 21. Having determined that Lion's Share's should not have been designated for hearing, we remand this case to the Review Board for consideration of the site certification and financial issues previously specified against LMBP. Exceptions filed with the Review Board challenged the ALJ's findings on both issues, but neither issue was resolved by the Board because it agreed with the ALJ that Lion's Share would prevail on the comparative issue even if LMBP was fully qualified. 22. With the dismissal of Lion's Share's application, LBMP is the only remaining applicant for an FM station on Channel 285A in Lompoc, California. The unresolved issues relating to its basic qualifications are therefore ripe for consideration. To the extent that LMBP urges in its application for review that the Commission should review the ALJ's determinations with respect to the site and financial issues, we believe that the public interest would be best served by remanding this case to the Review Board so that it may determine in the first instance whether LMBP is basically qualified. In order to allow the Commission to devote its time to major matters of policy and to more significant adjudicatory matters, the Commission has delegated authority to the Review Board to review exceptions to Initial Decisions. 23. ACCORDINGLY, IT IS ORDERED, That the application for review, filed January 6, 1994, by Lompoc Minority Broadcasters Partnership IS GRANTED in part. 24. IT IS FURTHER ORDERED, That the application filed by Lion's Share Broadcasting (File No. BPH-900504MD) IS DISMISSED. 25. IT IS FURTHER ORDERED That the petition to reopen the record and for leave to amend, filed January 6, 1994, by Lompoc Minority Broadcasters Partnership IS GRANTED; and that the attached amendment IS ACCEPTED. 26. IT IS FURTHER ORDERED, That the request for remand, filed March 10, 1994, by Robert D. Janecek d/b/a Lion's Share Broadcasting IS GRANTED; and that this proceeding IS REMANDED to the Review Board for such further proceedings as may be warranted to resolve the following issues: (1) To determine whether LMBP made a material misrepresentation, or lacked candor, when it certified in its application that it had reasonable assurance that its proposed transmitter site was available; (2) To determine whether LMBP made a material misrepresentation, or lacked candor, when it certified in its application that it had reasonable assurance of the availability of funds that it estimated that it would need to construct and operate its proposed station; (3) To determine in light of the evidence adduced under the foregoing issues whether LMBP is basically qualified to be a Commission licensee. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary