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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 ) ) LifeTalk Broadcasting Association) ) For a Construction Permit for a New ) File No. BPFT-961107TB Noncommercial Educational FM Translator ) Station at Collgedale, Tennessee) ) ) For a Construction Permit for a New ) File No. BPFT-970311TB Noncommercial Educational FM Translator ) Station at Sacramento, California) MEMORANDUM OPINION AND ORDER Adopted: July 9, 1998 Released: July 15, 1998 By the Commission: 1. The Commission has before it two applications for review filed by LifeTalk Broadcasting Association ("LifeTalk"), filed on March 6, 1998 and March 9, 1998, seeking re-examination of adverse actions by the Mass Media Bureau ("Bureau") with respect to Lifetalk's applications for new noncommercial educational FM ("NCE-FM") translator stations to serve Collegedale, Tennessee and Sacramento, California, respectively. The applications for review, which are unopposed, have been consolidated here because they present identical issues. For the reasons set forth below, we will deny review in each case. 2. Background. On January 10, 1997, LifeTalk filed its application for a new NCE-FM translator station on Channel 253 (98.5 MHz) at Collegedale, Tennessee; on March 11, 1997, LifeTalk filed for a new NCE-FM translator station on Channel 259 (98.5 MHz) at Sacramento, California. In each case, LifeTalk proposed to rebroadcast the signal of its full-service noncommercial educational station, KSOH(FM), Wapato, Washington; the KSOH signal would be delivered via satellite. Because satellite (or indeed any other than off- the-air) signal delivery is prohibited for any licensee-owned translator proposing to operate in the commercial band (Channels 221-300, 92.1 MHz - 107.9 MHz) by 47 C.F.R. 74.1231(b), LifeTalk requested a waiver, noting that there are no noncommercial channels available at either Collegedale or Sacramento for the construction of a new FM translator station. LifeTalk proffered that waiver would further the public interest because it would enable the community of Collegedale to receive a new noncommercial FM service which would otherwise not be available. 3. In each case, the Bureau denied waiver and dismissed the application. The Bureau noted that the Commission had addressed the issue presented by LifeTalk's waiver request in the context of the rule making proceeding in the Report and Order in MM Docket No 86-112, 3 FCC Rcd 2196 (1988), specifically permitting alternative signal delivery methods only for licensee-owned NCE-FM translators operating in the "reserved band" (Channels 201-220, 88.1 MHz - 91.9 MHz). The Bureau also noted the Commission's previous refusal to allow translator licensees operating on commercial channels to use alternative signal delivery methods, even if operation on the reserved channel was precluded by other full-service stations (including television Channel 6 stations), citing Report and Order in MM Docket No 88-140, 5 FCC Rcd 7212, 7221 (1990). 4. LifeTalk subsequently sought reconsideration, which the Bureau denied. The instant appeals followed. In each of its applications for review, LifeTalk states that it "continues to assert its argument that a waiver of Section 74.1231(b) would be appropriate and in the public interest." Nevertheless, LifeTalk tendered with its Collegedale application for review an amendment changing the primary station that its proposed translator would rebroadcast from KSOH to WSGM(FM), Coalmont, Tennessee, which had consented to the retransmission of its signal. LifeTalk indicates that its proposed translator would receive and rebroadcast WSGM(FM)'s over-the-air signal and would need no waiver. Similarly, LifeTalk tendered with its Sacramento application for review an amendment changing the primary station from KSOH to KASK(FM), Fairfield, California, which had consented to the retransmission of its signal. Again, LifeTalk indicates the its proposed translator will receive and rebroadcast KASK(FM)'s over-the-air signal and would need no waiver. LifeTalk therefore states in each case that the proposal fully complies with the Commission's rules and requests that the Commission reinstate the applications nunc pro tunc and process them promptly. 5. Discussion. LifeTalk's applications for review appear to be proffering amendments to its applications, rather than contesting the merits of the Bureau's decision. To the extent the applications for review can be construed as seeking re-examination of the actions below, the Commission agrees with the Bureau that a waiver of Section 74.1231(b) is not justified in this case. We base this conclusion on several factors. First, LifeTalk has not demonstrated that there are no reserved-band frequencies available for operating an NCE-FM translator in Collegedale; on the contrary, the Bureau staff identified five possible alternate reserved-band frequencies which potentially could be used for an FM translator in the Collegedale area. Second, even assuming arguendo the LifeTalk had demonstrated that there were no reserved-band frequencies in the Sacramento area, we note that this argument was specifically considered and rejected by the Commission in the Report and Order in MM Docket No. 88-140, 5 FCC Rcd at 7221,  60 (comments of Temple University) and 62 (rejection of alternative signal delivery for any non-fill-in translator in the commercial band). LifeTalk has presented no reason to deviate from those conclusions. 6. Lifetalk amendments. Submission of the amendments together with the application for review is inappropriate, and the amended applications will not be considered. Consistent with Commission practice, LifeTalk could have submitted the amendments within 30 days of dismissal of the original application, during the petition for reconsideration period, and the staff would have considered the amended application nunc pro tunc. See Public Notice, "Commission States Future Policy on Incomplete and Patently Defective AM and FM Construction Permit Applications," FCC 84-366, 56 RR 2d 776 (released August 2, 1984); Kenny D. Hopkins, 5 FCC Rcd 604, 605 (1990). However, there is no provision permitting submission of such amendments at the application for review stage. Indeed, 47 C.F.R. 1.115(c) explicitly provides that no application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass. Considering LifeTalk's amendment at this stage of the proceeding would both contravene the provisions of Section 1.115(c) and undermine the public interest benefit in discouraging the filing of defective applications. See Hopkins, id. Specifically, permitting such "last minute" remedies would be costly in terms of delaying the institution or improvement of broadcast service by signaling applicants that they can amend flawed applications repeatedly without penalty. It would also be costly in terms of Commission resources expended in analyzing new proposals without the benefit of prior staff review. LifeTalk may refile its amended proposal at any time following the termination of the filing freeze on, inter alia, applications for new translator service imposed by the Report and Order in MM Docket No. 97-234, 12 FCC Rcd 22,363, 22,388 (1997). 7. Conclusion/orders. LifeTalk has presented no facts or arguments which warrant reversal or re- examination of the subject Bureau actions. Accordingly, in light of the above discussion, the March 6, 1998 (Collegedale, Tennessee) and March 9, 1998 (Sacramento, California) applications for review filed by LifeTalk Broadcasting Association ARE HEREBY DENIED, and retendered applications nos. BPFT-961107TB (Collegedale) and BPFT-970311TB (Sacramento) ARE HEREBY DISMISSED WITHOUT PREJUDICE. FEDERAL COMMUNICATIONS COMMISSION Magalie Rom n Salas Secretary