WPCW 2BJ Z Courier#|x2x6X@`7X@HP LaserJet 4_230_1HPLAS4.PRS 4x  @\oe@2#6FZqX#|xCourierCourier Boldrier New (Bold) (TT)HP LaserJet 4/4MtScript ROOM 224HPLAS4.WRSSx  @,,P@<?xxx,2x6X@`7X@?xxx,)x `7X``*****2U[FZU $//Lion's Share Broadcasting Lompoc, Cal. MM 91210 FCC 95111//$ $/ 1.115 Applications for review /$ $/ 73.215 Contour protection for shortspaced assignments /$ ///newjob/// $///FCC 95111,3/20/95///% ,BEFORE THE@pp  ? < 0 FEDERAL COMMUNICATIONS COMMISSION  ? < Washington, D.C. 20554 FCC 95111  ?<In re Applications ofhh@h)ppMM DOCKET NO. 91210 x` ` hh@h)  ?h<Robert D. Janecek d/b/ahh@h)ppFile No. BPH900504MD  ?0<LION'S SHARE BROADCASTING@h) x` ` hh@h)  ?<LOMPOC MINORITY BROADCASTERS@h)ppFile No. BPH900518MO  ?<PARTNERSHIP hh@h) x` ` hh@h)  ?<For Construction Permit for a h)  ?<New FM Station on Channel 285Ah)  ?<in Lompoc, Californiahh@h)  ?< \ MEMORANDUM OPINION AND ORDER  ?< xAdopted: March 13, 1995 Released: March 23, 1995 By the Commission:   x1. 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"h)0*0*0*1" Memorandum Opinion and Order therefore grants in part LMBP's"h)0*0*0*1" application for review, dismisses Lion's Share's application, and"h)0*0*0*1" remands this proceeding to the Review Board for consideration of"h)0*0*0*1"  ?h)<basic qualifying issues involving LMBP. "h)0*0*0*1"Ԍ"h)0*0*0*1"Ԍ,BACKGROUND"h)0*0*0*1"Ԍ"h)0*0*0*1"Ԍx2. Lion's Share filed its application using the provisions"h)0*0*0*1" of 47 C.F.R.  73.215, which permits the acceptance of applications proposing shortspaced antenna locations if they afford protection to all   affected stations. In this manner, Lion's Share proposed to protect KOHD(FM), a thirdadjacent 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 44664467  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 92M449, 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 92M78 (released November 21, 1992).  ?< x3. 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. x4. 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. x5. 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 842324  5.  ?(<Turning to the initial decision, the Board agreed with the ALJ that, even if LMBP were basically qualified, Lion's Share would"h)0*0*0*1"  ?<be the clear comparative winner. Id. at 842425  6. Accordingly, the Board affirmed the initial decision without resolving the issues relating to LMBP's basic qualifications. x6. 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. x7. Acting under delegated authority, the Office of General Counsel issued an Order (FCC 94I041, 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)." x8. 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. x9. 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. x   @<x10. Lion's Share endorses the Bureau's approach as being"'0*((@@/"  xx<"clear and logical," and urges that this approach was ratified by  ?< xh<the full Commission in Radio Lompoc. It notes that section 73.215  x<is a complex rule dealing with the circumstances in which  xh<applicants may specify shortspaced transmitter sites, and that its  x0<subsections are interrelated. It contends further that the  xx<acceptance of its curative site amendment did not prejudice LMBP,  x<and that the public interest is best served by having the widest  ?x< x<possible choice of applicants. See Crosthwait v. FCC, 584 F.2d  ?@< xh<550, 555 (D.C. Cir. 1978); Azalea Corp., 31 FCC 2d 561, 563 (1971).  ?< xx<Finally, Lion's Share claims justifiable reliance on the Bureau's  xx<action, as reflected in the fact that it has devoted almost three  x<years and tens of thousands of dollars to the prosecution of its application. ,DISCUSSION T  ? <  {< x11. Based upon the pleadings before us, | ?< xk<ԍ The Commission has before it: (a) an application for  x<review, filed January 6, 1994, by LMBP; (b) a petition to reopen  x<the record and for leave to amend, filed January 6, 1994, by LMBP;  x<(c) an opposition to application for review, filed January 21,  xh<1994, by Lion's Share; (d) an opposition to application for review,  xh<filed January 11, 1994, by the Mass Media Bureau; (e) a request for  xh<remand, filed March 10, 1994, by Lion's Share; (f) an opposition to  x<the request for remand, filed March 21, 1994, by LMBP; and (g) a  xx<reply to opposition, filed March 30, 1994, by Lion's Share. Also  xh<pending before the Commission are the following pleadings that were  x<filed in response to the delegated authority order, FCC 94I041  x<(May 4, 1994): (a) Comments, filed May 19, 1994, by the Mass Media  x<Bureau; (b) Comments filed on May 26, 1994, and an Erratum thereto  x<filed on May 27, 1994, by LMBP; and (c) Response, filed May 31, 1994, by Lion's Share. we conclude that,  x<due to the shortspacing with station KOHD(FM), Lion's Share's  x <application was unacceptable for filing and should have been  xx<returned without consideration pursuant to the Commission's "hard  xx<look" processing guidelines. We therefore dismiss Lion's Share's  x<application and remand this proceeding for consideration of the unresolved issues relating to LMBP's basic qualifications.  ?<  <x12. Under the Commission's "hard look" processing guidelines,  xx<an FM application found to be sufficient for tender is studied to  x<determine its acceptability for filing, that is, its compliance  ?< xx<with the technical requirements for FM facilities. Processing of  ?< x<FM and TV Broadcast Applications, 50 Fed. Reg. 19936, 19941  32  xx<(1985). To be acceptable for filing, FM applications must comply  ?p< x<with distance separation standards. Public Notice, FCC 84366"pH 0*((@@ "  ?< x<(Aug. 2, 1984).| ?X< x<ԍ See also 47 C.F.R.  73.207(a), providing that "The  ? < xh<Commission will not accept applications for new stations ... unless  xh<transmitter sites meet the minimum distance separationrequirements  xx<of this section, or such applications conform to the requirements  ?x<of  73.213 or 73.215." (emphasis added. ) Applications that do not comply with these  xx<requirements and do not contain an appropriate waiver request are  x<returned, and returned applications may not be amended even if the  x<acceptance of curative amendments would not result in prejudice to  ? < x<any competing applicant. 50 Fed. Reg. at 19941  3132. The  xh<adoption of stringent processing standards reflects a determination  x<by the Commission that expediting the initiation of new service to  xx<the public is of greater importance than maximizing the choice of  ?@< x<qualified applicants.@x| ?H < xk<ԍ See, e.g., Report and Order, id. at  32, in which the  xx<Commission indicated that permitting untimely curative amendments  x<of applications deemed to be unacceptable for filing "poses too  x<great a threat to the orderly functioning of our new processing  ?h< x<procedures." Cf. Imagists, 8 FCC Rcd 2763, 2764  1011 & nn.46  x<(1993), and the cases cited therein, in which the Commission noted  x<that its original concern with maximizing the choice of applicants  x<has been tempered by its obligation to expedite service to the  ?< xx<public. Accord Star Signal Corp., 1 FCC Rcd 450, 451  8 (1986);  ?P<Chudy Broadcasting Corp., 58 RR 2d 133, 134 n.7 (1985).  The courts have generally upheld our  xh<authority to adopt such rigid processing guidelines, provided clear  x<guidance is given of the prerequisites that an application must  ?< x<meet in order to receive full consideration. See, e.g., Malkan FM  ?` < x<Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991); Salzer v. FCC,  ?( < x<778 F.2d 869 (D.C. Cir. 1985), citing Radio Athens, Inc. v. FCC, 401 F.2d 398, 401 (D.C. Cir. 1968).   <x13. Turning to the facts of this case, the applications filed  x<by Lion's Share and Great Scott were substantially complete at  xh<tender in that both sought processing under section 73.215 and both  xh<included exhibits intended to demonstrate compliance with that rule  xx<with respect to stations with which their original proposals were  ?h< x<shortspaced.h| ? < xK<ԍ See Amendment of Part 73 to Permit Shortspaced FM Station  ? < xx<Assignments by Using Directional Antennas, 4 FCC Rcd 1681, 1686   xh<35 (1988) (The submission of a contour protection exhibit intended  x<to demonstrate compliance with section 73.215 is an additional  x<element of substantial completeness at tender.) There is no merit  xh<to LMBP's repeated claim that Lion's Share did not study or provide  x<contour protection to station KOHD(FM). Application for review at  xh<3; Comments at 4. Lion's Share's application specifically proposed  x0<to use a directional antenna to provide equivalent contour  x<protection to station KOHD(FM), as contemplated by section 73.215,  x<and its engineering exhibit included a "Tabulation and Map Showing"'0*((h)"  x<Allocation Conditions with KOHD(FM)." Lion's Share's Application, Engineering Exhibit, Figures 5A and 5B. However, both applications were unacceptable for"h 0*((@@"  x<filing because they did not comply with the Commission's minimum distance separation rules.   0<x14. In the case of Great Scott, the Bureau found that its  x<engineering data failed to establish that the contours of existing  x0<station KCAQ would be protected according to the technical  ?< x<specifications of section 73.215(b)(2)(ii). HDO, 6 FCC Rcd at  x<446667  11. Inadequate protection was proposed because Great  x<Scott had improperly determined the contours of station KCAQ,  x<thereby underestimating the amount of the overlap that would exist  x<between the two facilities. Because the wording of section  x<73.215(b)(2)(ii) did not afford applicants "full and explicit  x<notice of the prerequisites they must meet to avoid summary  x<dismissal," however, the Bureau permitted Great Scott to file a  ? <curative amendment. Id. at 4467  12.   <x15. In contrast, the defect rendering Lion's Share's  x<application technically unacceptable for filing under section  x<73.215 involved no determination as to the contours of third xx<adjacent channel Class A station KOHD(FM). Rather, the defect in  xx<Lion's Share's application was readily discernible from the Table  x<contained in section 73.215(e), which lists the exact minimum  xh<separation distances of antenna locations that an application filed  x<pursuant to section 73.215 must meet in order to be accepted for  ?< x;<filing.t  | ?p< xk<ԍ Lion's Share suggests that the subsections of section  x<73.215 are so interrelated that the ambiguity in subsection  xx<(b)(2)(ii) is a basis for allowing a curative amendment involving  xh<a deficiency under any subsection of the rule. However, the Report  xx<and Order adopting section 73.215 reflects a definite purpose for  xx<retaining mandatory spacing restrictions that must be met without  x0<regard to a contour overlap showing. In this regard, the  x<Commission noted that the record did not clearly indicate the  x<fullest extent to which FM directional antennas could be employed.  ?x< x<Amendment of Part 73, 4 FCC Rcd at 1685  32. Accordingly, it  x<determined that "shortspaced locations w[ould] be allowed, but  xx<only to the extent that would be feasible if the stations were to  x<operate with the approximate minimum facilities permitted their  ?!< x<class." Id. It stated that "[t]he exact distances involved are  ?`"< x<given in a table in new section 73.215." Id. That table is set forth in section 73.215(e) of the rule. t According to that Table, the antenna locations of a class  xh<A FM station and a third adjacent FM station had to be separated by  ?P<at least 25 kilometers.XPh| ?H&< x<ԍ When Lion's Share filed its application on May 4, 1990, and  ?'< x <at the time of the HDO, section 73.215(e) required a minimum  xh<spacing between antenna locations of 25 kilometers (16 miles). The"'0*(((("  x <rule was subsequently amended, and it now requires a minimum distance between antenna locations of 29 kilometers (18 miles).  "P 0*((@@`"Ԍ  P<ԙx16. Notwithstanding this unambiguous requirement, the  x<original transmitter site for Lion's Share's proposed class A FM  x<station in Lompoc was only 22.5 kilometers from that of station  ?X< x<KOHD(FM) in Guadalupe. Id. at 4466  10. Because the minimum  x<distance separation requirement was readily discernible from the  xh<Table, we conclude that the Bureau erred in permitting Lion's Share  x<to amend to a properly spaced site. Such action was, in our view,  x<contrary to the plain meaning of section 73.215(e) that "[t]he  ?@< x<Commission will not accept applications [filed pursuant to section  x<73.215] that specify a shortspaced antenna location for which the  xx<following minimum separation requirements, in kilometers (miles), are not met." (emphasis added).   <x17. By the same token, we reject the suggestion that fairness  xx<required that Lion's Share be allowed to amend its application to  x<comply with the unambiguous distance separation requirements set  x<forth in section 73.215(e) simply because a mutually exclusive  x <application found to be deficient under 73.215(b)(2)(ii) was  x0<allowed to amend. Notwithstanding the Bureau's claim, the  ?< xx<Commission did not affirm such an approach in Radio Lompoc, which  x <concerned the previously dismissed application filed in this  ?h< x<proceeding by Radio Lompoc Limited Partnership (RLLP). RLLP's  x<application had been returned as untenderable due to the lack of a  xh<full scale transmitter site map. RLLP challenged the return of its  x<application, alleging disparate treatment visavis Lion's Share  x<and Great Scott, both of which were found to be technically unacceptable but were permitted to file curative amendments.  ?<  0<x18. In rejecting the claim of disparate treatment in Radio  ?< x<Lompoc, we noted that, in contrast to the inadequacies in the  x<wording of section 73.215 as to the requirements for a contour  xh<overlap showing, the "hard look" processing standards regarding the  x<tenderability of FM applications always required the submission of  x<a fullscale site map. Faced with the contention that RLLP should  xx<have been permitted to amend its application to submit a site map  xh<under the same rationale that the Bureau articulated in the HDO for  x<allowing Great Scott and Lion's Share to file curative amendments,  ?< x<we distinguished their situations from that of RLLP. In this  x<regard, however, no argument was presented and we did not focus on  x<the fact that the deficiencies in the applications filed by Lion's  x<Share and Great Scott involved different subsections of section 73.215.    <x19. Rather, we considered the two applications together and  x@<characterized both as having "defects [that] relat[e] to  x<deficiencies in contour overlap showings ... that ordinarily would  x<have rendered the applications in question unacceptable for  ?$< x<filing." Radio Lompoc, 7 FCC Rcd at 3800  9. As explained"$ 0*((@@,"  x <above, however, the defect in Lion's Share's application had  x<nothing to do with a contour overlap showing. Because we had no  xh<occasion to consider the critical difference between the deficiency  xx<in Lion's Share's application and the deficiency in Great Scott's  x<application, our general observation regarding inadequacies in the  xh<wording of section 73.215 should not be construed as an affirmative  xh<ruling that any deficiency under that rule, no matter how clear the  x<language of the particular subsection involved, may be cured by  x<amendment. Such a construction of the rule would frustrate the  x<objectives underlying the "hard look" processing guidelines that  xh<were in effect when Lion's Share filed its application. This would not serve the public interest.   <x20. Finally, we reject Lion's Share's claim of equities based  x<on detrimental reliance. Although the Bureau's erroneous  x<acceptance of its application may have permitted Lion's Share to  x<devote substantial resources to the prosecution of that  x<application, this circumstance creates no equities that warrant  x<affirming the Bureau's action. We have consistently held that  x@<under the "hard look" processing guidelines the ultimate  x@<responsibility to review an application to determine its  x<acceptability rests, not with the processing staff, but with the  ?0< xx<applicant. Pueblo Radio Broadcasting Service, 5 FCC Rcd 6278  5  x@<(1991) (applicant not permitted to avoid dismissal of an  xx<application, which exceeded the height restrictions for antennas  x<within 199 miles of the Mexican border, because the staff inadvertently failed to return the application).   0<x21. Having determined that Lion's Share's should not have  x<been designated for hearing, we remand this case to the Review  x<Board for consideration of the site certification and financial  x<issues previously specified against LMBP. Exceptions filed with  x<the Review Board challenged the ALJ's findings on both issues, but  x<neither issue was resolved by the Board because it agreed with the  xx<ALJ that Lion's Share would prevail on the comparative issue even  ?X<if LMBP was fully qualified.`xX| ?< xK<ԍ Nonetheless, the Board indicated that a remand to the ALJ  x<might be required on the site issue. 8 FCC Rcd at 8424  6 & n.5.  x<It noted that with regard to whether LMBP had made a material  x<misrepresentation or lacked candor in certifying reasonable  x<assurance of a transmitter site, the ALJ had not made any findings  xh<as to whether the intent of the principal of LMBP that executed the  ?`"<certification was fraudulent. Id. at n.5.`   <x22. With the dismissal of Lion's Share's application, LBMP is  xx<the only remaining applicant for an FM station on Channel 285A in  x<Lompoc, California. The unresolved issues relating to its basic  xh<qualifications are therefore ripe for consideration. To the extent  xx<that LMBP urges in its applicationfor review that the Commission  xh<should review the ALJ's determinations with respect to the site and" 0*((@@`'"  xh<financial issues, we believe that the public interest would be best  x<served by remanding this case to the Review Board so that it may  x<determine in the first instance whether LMBP is basically  x<qualified. In order to allow the Commission to devote its time to  x <major matters of policy and to more significant adjudicatory  xh<matters, the Commission has delegated authority to the Review Board  ?<to review exceptions to Initial Decisions.| ?< x<ԍ See Horne Industries, Inc., FCC 83205, 53 RR 2d 1647, 1648  ?< 3 (1983); Alexander S. Klein, Jr., 67 FCC 2d 894, 895  2 (1977).    <x23. ACCORDINGLY, IT IS ORDERED, That the application for  x<review, filed January 6, 1994, by Lompoc Minority Broadcasters  ?<Partnership IS GRANTED in part.z  | ? < x<ԍ Because the Review Board did not resolve the questions  x<relating to LMBP's basic qualifications, we have not considered  xx<that portion of LMBP's application for review urging that it made  x0<no material misrepresentation when it certified reasonable assurance of a site.z   <x24. IT IS FURTHER ORDERED, That the application filed by Lion's Share Broadcasting (File No. BPH900504MD) IS DISMISSED.   0<x25. IT IS FURTHER ORDERED That the petition to reopen the  x<record and for leave to amend, filed January 6, 1994, by Lompoc  xh<Minority Broadcasters Partnership IS GRANTED; and that the attached  ?<amendment IS ACCEPTED.Y | ?p< x.<ԍ By its amendment, filed January 6, 1994 pursuant to 47  xh<C.F.R.  1.65 of the rules, LMBP submits a "Lease Option" agreement  x<to its original transmitter site that was executed January 5, 1994  x<by landowners William R. Sudden and Stanley O. Hollister and by  x<LMBP partner Richard Keating. No comments have been received  x <concerning the amendment; good cause has been shown; and the  x<amendment may therefore be accepted. However, the amendment is  xx<accepted for reporting purposes only, and its acceptance involves  x<no determination as to what effect, if any, the amendment may have on the site and misrepresentation issues specified against LMBP. Y   <x26. IT IS FURTHER ORDERED, That the request for remand, filed  x<March 10, 1994, by Robert D. Janecek d/b/a Lion's Share  x<Broadcasting IS GRANTED; and that this proceeding IS REMANDED to  xx<the Review Board for such further proceedings as may be warranted to resolve the following issues:   <Xx(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;(# "p h 0*((@@ "Ԍ  <Xx(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;(#   <x(3) To determine in light of the evidence adduced under the    <Xxforegoing issues whether LMBP is basically qualified to be a Commission licensee.(#   XxX` ` X XXhhFEDERAL COMMUNICATIONS COMMISSION(#h XxX` ` X XXhhWilliam F. Caton(#h  ? <XxX` ` X XXhhActing Secretary` X  XxxX 0 0 0