Federal Communications Commission
Washington, D.C. 20554
March 29, 2016
Anthony T. Lepore, Esq.
P.O. Box 823662
South Florida, FL 33082
Kathleen Victory, Esq.
Fletcher, Heald & Hildreth PLC
1300 North 17th Street, 1 1th Floor
Arlington, VA 22209
DA 16-324
In Reply Refer to:
1800B3-CEG
Released: March 29, 2016
In re: KPTJ(FM), Grape Creek, Texas
Facility ID No. 164190
File No. BLH-201 1O8O4ABM
Dear Counsel:
Petition for Reconsideration
We have before us a Petition for Reconsideration (Petition) filed by Frank Vaquera, Sr. (Vaquera) on
September 7, 2011, seeking reconsideration of the August 11, 2011, grant of the above-referenced application
for a license to cover (Application) of Castle Holdings, LLC (Castle) . We also have before us an Opposition
to the Petition filed by Castle on September 22, 2011 (Opposition), and a Reply filed by Vaquera on October
4, 2011 (Reply). For the reasons stated below, we deny the Petition.
Background. On October 8, 2010, Castle purchased a construction pennit (Construction Pennit)
for a new commercial FM station on Channel 283 at Grape Creek, Texas (Station).2 The Construction
Permit expired on August 5, 2011. Castle states that on August 2, 2011, it completed construction of the
Station's facilities and conducted equipment tests.4 On August 4, 2011, Castle filed the Application for a
license to cover. The Station was then silent for nearly a year, filing an STA request to operate with
reduced power on July 17, 20l2. Castle assigned the Station to the current licensee, La Unica
Broadcasting Co. (La Unica), on May 27, 2014.6
The Construction Permit contained the following special operating condition (Special Operating
Condition #3):
Grant of the Application was announced by public notice released August 16, 2011. Broadcast Actions, Public
Notice, Report No. 47551 (Aug. 16, 2011).
2 See File No. BAPH-2O100819ABA.
File No. BNPH-20050103ABC, as modified by File No. BMPH-201 1 0627A1BX.
Opposition at 1.
File Nos. BLSTA-201 109 15ADG; BSTA-20120717ACM.
File No. BALH-20140228AHJ (granted on May 23, 2014, and consummated on May 27, 2014).
The permittee/licensee shall, upon completion of construction and during the equipment test
period, make proper radiofrequency electromagnetic (RF) field strength measurements
throughout the transmitter site area to determine if there are any areas that exceed the FCC
guidelines for human exposure to RF fields. If necessary, a fence must be erected at such
distances and in such a manner as to prevent the exposure of humans to RF fields in excess of the
FCC Guidelines (OET Bulletin No. 65, Edition 97-01, August 1997). The fence must be a type
which will preclude casual or inadvertent access, and must include warning signs at appropriate
intervals which describe the nature of the hazard. Any areas within the fence found to exceed the
recommended guidelines must be clearly marked with appropriate visual warning signs.
In the Petition, Vaquera claims that Castle failed to satisfy Special Operating Condition #3 in two
respects: (1) it did not perform RF field strength measurements to determine if there were any areas at the
Station's transmitter site that exceeded the FCC guidelines; and (2) it did not post appropriate RF safety
signs on the fence surrounding the site.7 Rather than take field strength measurements, Vaquera objects,
Castle used the Office of Engineering Technology's FM Model program to evaluate the Station's RF
power density.8 Vaquera expresses concern that this evaluation might not have included RF emissions
from a co-located FM station, KSJT(FM) (now KGKL-FM), San Angelo, Texas, as well as from two
nearby stations, KDCD(FM) and KMDX(FM), both San Angelo, Texas.9 Finally, Vaquera contends,
because Castle did not satisfy Special Operating Condition #3, its certifications in the Application that all
the tenns, conditions, and obligations in the underlying Construction Permit had been met and that the
facility was constructed as authorized were "false and misleading."°
In its Opposition, Castle argues that the Petition should be dismissed because Vaquera did not
demonstrate good cause for failing to participate earlier in the proceeding, as required by Section
1.106(b)(1) of the Rules." Castle also claims that Vaquera lacks standing because grant of the
Application would not "harm or affect him in any way whatsoever."12 Substantively, Castle asserts that
the Application was filed in full compliance with the Commission's Rules and the terms of the
Construction Pennit. Nothing in the Petition, according to Castle, contradicts the sworn statements of
Castle's engineers that the Station was constructed and underwent equipment testing on August 2, 2011.13
With respect to the field strength measurements, Castle states that "it is the standard practice of broadcast
engineers to utilize the Commission's approved software to ensure that, once the specific antenna is
identified and installed, the facility satisfies the RF exposure criteria."4 Castle notes that Stations
KDCD(FM) and KMDX(FM) need not be considered in the RF calculation, because they are more than
1,034 feet from the evaluated facility.'5 Furthermore, Castle points out, the FM Model program is
' Petition at 3-4, 6-7.
FM Model, a program created by Commission staff, is based on a model originally developed by the
Environmental Protection Agency to predict ground-level RE power density in the vicinity of towers supporting FM
radio broadcast antennas. See Federal Communication Commission, FMModelfor Windows,
http://transiiion.fcc.gov/oet/info/software/fin,nodel/ (last visited March 23, 2016).
Petition at 5-6.
'° Petition at 3, 9.
"Opposition at 2; 47 CFR § 1.106(b)(1) ("If the petition is filed by a person who is not a party to the proceeding, it
shall state with particularity the manner in which the person's interests are adversely affected by the action taken,
and shall show good reason why it was not possible for him to participate in the earlier stages of the proceeding.")
12 Opposition at 2.
' Opposition at 3.
14 Opposition at 6.
' Opposition at 7; FCC Form 301 Worksheet 3, at 2.
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designed to account for any additional sources of RE emissions in the area. Lastly, Castle states that no
RF safety signs were required to be put on the outside perimeter fence of the property on which the
Station's facilities were located, and that a second interior fence and gate not visible from the public road
displayed the necessary signage.'6
In its Reply, Vaquera explains that it was unable to participate earlier in the proceeding because
the Application was granted only six days after it was "available for viewing in CDBS."7 Furthermore,
Vaquera states, it was busy gathering evidence during this time so that a complete record would be before
Bureau staff.18 Vaquera alleges that no signal was broadcast from the Station between 11:00 AM and
12:01 PM on August 2, 2011-the time period Castle claims to have "energized" the equipment-and
provides data recorded by various monitoring devices in support of its claim.19 Even if the Station had
operated during this interval, Vaquera argues, it was impossible for it to perform RF field strength tests in
so brief a time.2° With respect to signage, Vaquera disputes the existence of a second interior fence on the
property and provides photographs and video footage in support of this claim.
Discussion. Procedural issues. Section 1.106(b)(1) of the Commission's Rules allows a petition for
reconsideration to be filed by any party to the original proceeding or any party whose interests will be
adversely affected by the action taken by the Commission.2' If a petitioner was not a party to the original
proceeding, it must show good reason for why it was unable to participate in the earlier proceeding.22
However, the Commission has accepted petitions for reconsideration when the grant of an application
occurred shortly after the application was placed on public notice, finding that such expedient grant
effectively precluded participation during the initial consideration of an application.23 Here, the Bureau
granted the Application on August 11, 2011, two days after public notice of acceptance for filing.24 We
find that this brief interval effectively precluded Vaquera's participation in the earlier proceeding.
Therefore, we will not dismiss the Petition due to Vaquera's failure to file an informal objection to the
Application. With respect to standing, the Commission accords party-in-interest status to a petitioner
who demonstrates that he resides in the service area of the station that is the subject of the petition.25 In
the Petition, Vaquera states that he resides within the proposed 60 dB1.t service area of the Station. Castle
does not dispute this fact. Therefore, we find that Vaquera has standing to file the Petition.
Substantive issue. The Commission will consider a petition for reconsideration only when the
petitioner shows either a material error in the Commission's original order or raises additional facts not
16 Opposition at 8.
Reply at 2.
18 Reply at 2.
19 Reply at 3.
20 Reply at 5-6.
2! 47 CFR § 1.106(b)(l).
22 Id.
23 See Ted and Jana Tucker, Memorandum Opinion and Order, 4 FCC Rcd 2816, 2816 (1989) (standing to file a
petition for reconsideration found when application granted four days after public notice issued); Aspen FM, Inc.,
Memorandum Opinion and Order, 12 FCC Rcd 17852, 17854-55 (1997) (standing to file a petition for
reconsideration found when application granted five days after acceptance).
24 See Broadcast Applications, Public Notice, Report No. 27546 (Aug. 9, 2011); Broadcast Actions, Public Notice,
ReportNo. 47551 (Aug. 16, 2011).
25 Chet-5 Broadcasting, L.P., Memorandum Opinion and Order, 14 FCC Rcd 13041, 13042 (1999) ("[W]e will
accord party-in-interest status to a petitioner who demonstrates either residence in the station's service area or that
the petitioner listens to or views the station regularly, and that such listening or viewing is not the result of transient
contacts with the station") (emphasis in original).
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known or existing at the time of the petitioner's last opportunity to present such matters.26 Vaquera has
failed to meet this burden.
Vaquera argues that if the Station were silent, Castle's engineers could not have taken RF field
strength measurements in compliance with Special Operating Condition #3. However, Castle correctly
observes that "it is the standard practice of broadcast engineers to utilize the Commission's approved
software to ensure that, once the specific antenna is identified and installed, the facility satisfies the RF
exposure criteria."27 The RF field strength measurement condition in Special Operating Condition #3 is
routinely issued to any applicant for a construction permit that does not specify an antenna model in its
initial application. If the antenna specifications are provided initially, then the applicant and Bureau
engineering staff use the FM Model program to predict ground level RF power density in the vicinity of
the proposed facility, and no special operating condition requiring additional RF evaluation is imposed. If
the applicant does not submit antenna specifications until the licensing stage, then it may-as at the
permitting stage-demonstrate compliance with the RF exposure limits using the FM Model program,
with the applicant's analysis confirmed by Bureau staff. Here, Castle has provided an RF exposure
analysis using the FM Model and submitted sufficient technical information for the Bureau to confirm
this analysis, thus satisfying Special Operating Condition #3.
Regarding Castle's alleged failure to erect appropriate signage along its perimeter fence, we find
that the facilities as specified in the Application were not predicted to result in any areas at or near ground
level exceeding the FCC guidelines for human exposure to RF fields. Therefore, Castle was not required
to erect a fence or post RF safety signs to comply with Special Operating Condition #3. We conclude that
there is no need to take action at this time other than to caution the current licensee, La Unica, to ensure
ongoing compliance with the RF exposure guidelines as restated and clarified in the RFExposure Policy
Order.28
Conclusion/Actions. We find that Vaquera has not shown a material error in the Bureau's grant
of the Application. Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by Frank
Vaquera, Sr. on September 7, 2011, IS DENIED.
Sincerely,
Peter H. Doyle
•
	
.Chief, Audio Division
Media Bureau
26 See 47 CFR § l.106(c),(d); see also WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), afj'd
sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 387 U.S. 967 (1966).
27 Opposition at 6.
28 See Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies, First
Report and Order, Further Notice of Proposed Rulemaking, and Notice of Inquiry, 28 FCC Rcd 3498, 3564 et seq.
(2013) (RF Exposure Policy Order).
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