******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Black Media Works, Inc. ) File Nos. BPFT-960722TB and ) BPFT-960927TD For Permits to Construct ) FM Translator Stations W230AL, Cocoa, FL) and W296AW, Mangonia Park, FL ) ) MEMORANDUM OPINION AND ORDER Adopted: June 1, 1998 Released: June 5, 1996 By the Commission: 1. The Commission has before it an Application for Review filed by Midway Broadcasting Company ("Midway"), licensee of commercial radio station WFLM(FM), White City, Florida. Midway argues that the staff should have revoked an authorization which allowed Black Media Works, Inc., a noncommercial educational FM licensee, to construct two new noncommercial educational translator stations. Midway's arguments are based on a pending complaint, in which Midway has alleged rule violations at WJFP(FM), the primary noncommercial educational FM station licensed to Black Media Works, Inc., that the translators will rebroadcast. For the reasons below, we affirm the staff's decision which found that Midway's petition was procedurally defective and that its allegations would more appropriately be considered in its separate complaint against WJFP(FM) pending in our Mass Media Bureau. Background 2. Black Media Works, Inc., permittee of the two translator stations at issue here, is also the licensee of noncommercial educational station WJFP(FM), Fort Pierce, Florida. It would use the two noncommercial educational translators to extend WJFP's service to Mangonia Park and Cocoa, Florida. Although WJFP is licensed as a noncommercial educational station on a channel specifically reserved for noncommercial use, Midway alleges that WJFP's programming and sponsorship announcements are similar to that of Midway's own nearby commercial station. Midway therefore argues that WJFP should be treated as a commercial station for purposes of our translator rules, and that the translators, so considered, are not permissible. Our rules permit only noncommercial stations to operate translators like those at issue, which would extend a primary station's signal beyond the station's ordinary service contours. 47 C.F.R.  74.1232(d). 3. Midway originally expressed its concerns about the alleged commercial nature of WJFP's programming in a complaint against that station. Midway apparently expected that the staff would resolve its complaint against WJFP before taking any action on the later-filed applications by WJFP's licensee to construct translators. Upon learning that the staff had granted the unopposed translator applications, Midway filed a petition for reconsideration seeking to participate in the translator proceeding for the first time. The staff dismissed the reconsideration request as procedurally defective, because our rules limit the ability of persons who were not parties to the original proceeding to seek reconsideration, and Midway had not shown that it could not have participated in the translator proceeding earlier. See 47 C.F.R.  1.106(b)(1). Midway anticipated that procedural outcome, and asked the staff to nevertheless examine the merits of its arguments pursuant to an independent public interest analysis. The staff found that, even under such an analysis, it would have denied the petition on the merits. In that respect, the staff stated that it was considering Midway's allegations in the context of its pending complaint against WJFP(FM), but that the alleged rule violations would not negate the station's noncommercial licensing status or eligibility to operate translator stations. Midway seeks our review, arguing that the staff's statement about the merits of its substantive argument conflicts with 47 C.F.R.  74.1232(d), our translator eligibility rule. Discussion 4. The staff's procedural dismissal of Midway's petition is consistent with our rules. 47 C.F.R  1.106(b)(1). The noncommercial educational translator applications granted by the staff were uncontested. Midway's earlier filing of an enforcement complaint against a co-owned station did not make it a party to the translator applications or otherwise confer on it any right to participate in the translator proceeding. As a non-party to the earlier proceeding, Midway's request for reconsideration would be properly rejected if Midway did not demonstrate why earlier participation was not possible. Id. The staff reasonably concluded that Midway had not met these requirements. Midway provides no discussion of the procedural issue to us now, focussing only on its substantive allegations. Accordingly, we will affirm the staff's procedural dismissal. 5. Having found that the staff correctly dismissed this matter procedurally, we find no need to reach Midway's substantive arguments. To the extent that those arguments contain allegations of rule violations at WJFP, including allegations that WJFP airs commercial sponsorship announcements, we are satisfied that the staff's action was without prejudice to its ongoing consideration of those matters in a pending enforcement proceeding, initiated in response to the complaint from Midway. We also note that Midway has raised similar allegations against Black Media Works in another pending proceeding and that Midway has requested that we direct that all of its allegations against Black Media Works be consolidated into one larger proceeding. We find it best, however, to leave to the staff the logistics of considering these matters, which are within its delegated authority. 6. Accordingly, IT IS ORDERED that the Application for Review filed by Midway Broadcasting Company IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary