DA 22-346 In Reply Refer to: 1800B3-ATS Released April 1, 2022 Mr. Tom Michael Idaho State Board of Education Boise State University 1910 University Drive Boise, ID 83725 (sent by electronic mail to: tommichael@boisestate.edu) Mr. Steven L. White Triangle Access Broadcasting, Inc. 7813 Highlandview Circle Raleigh, NC 27613-4109 (sent by electronic mail to: steven@triacces.org) In re: Idaho State Board of Education New NCE, Stanley, Idaho Facility ID No. 762197 File No. 0000166875 New NCE, Stanley, Idaho Facility ID No. 762198 File No. 0000166882 Informal Objection Dear Mr. Michael and Mr. White: We have before us two applications filed by Idaho State Board of Education (ISBE), for construction permits for new noncommercial education (NCE) FM stations at Stanley, Idaho (collectively, Applications). File Nos. 0000166875 (First Stanley Application) and 0000166882 (Second Stanley Application). We also have before us the Informal Objection to the Second Stanley Application filed by Triangle Access Broadcasting, Inc. (Triangle). Pleading No. 0000176819 (filed Dec. 6, 2021) (Objection). Triangle also electronically filed the Objection against the First Stanley Application, even though it does not seek dismissal of that application. Pleading No. 0000176818 (filed Dec. 6, 2021). The Objection also seeks the dismissal of two additional applications filed by ISBE, even though it was not electronically filed against those application in LMS, and the Objection does not reference them in its caption. Objection at 2. See also File Nos. 0000166769 (Cambridge Application) and 0000166762 (Salmon Application). If a pleading is filed against multiple applications, each application must be identified in LMS. See How Do I File a Pleading or Appeal in LMS or CDBS?, https://www.fcc.gov/sites/default/files/lms-how-to-file-pleadings-and-appeals.pdf (“If filing the same pleading against multiple related applications, use the "Enter File Number" button to select additional file numbers”); see also 47 CFR § 0.401(a)(1)(iii) (“Electronic filings, where required, recommended, or permitted, must be transmitted as specified by the Commission or relevant Bureau or Office.”). Accordingly, we dismiss the Objection to the extent it seeks dismissal of the Cambridge Application and the Salmon Application. Alternatively, we would have denied the Objection with regards to the Cambridge Application and the Salmon Application for the same reason we are denying it against the Second Stanley Application. For the reasons set forth below, we deny the Objection and grant both Applications. Background. ISBE filed the Applications during the 2021 NCE Filing Window, and both identified Stanley, Idaho, as the community of license. On December 6, 2021, Triangle filed the Objection seeking dismissal of the Second Stanley Application. Triangle argues that the latter-filed application should be dismissed on the basis of section 73.3520 of the Commission’s rules (Rules) because both the First Stanley Application and the Second Stanley Application will serve the same community. Objection at 1-2 (citing 47 CFR § 73.3520 (“Where there is one application for new or additional facilities pending, no other application for new or additional facilities for a station of the same class to serve the same community may be filed by the same applicant, or successor or assignee, or on behalf of, or for the benefit of the original parties in interest. Multiple applications may not be filed simultaneously.”) (Multiple Application Rule)). Triangle also argues that “[m]ultiple applications create advantages for applicants who have had proposals determined to be mutually exclusive with other applications who are blocked from submitting similar alternate proposals” and “interfere with the Commission’s goals of competition and diversity.” Objection at 2. ISBE did not file an opposition to Triangle’s objection. Discussion. Pursuant to section 309(d) of the Communications Act of 1934, as amended (Act), 47 U.S.C. § 309(d). petitions to deny and informal objections must provide properly supported allegations of fact that, if true, would establish a substantial and material question of fact that grant of the application would be prima facie inconsistent with the public interest. See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990), aff'd sub nom. Garden State Broad. L.P. v. FCC, 996 F. 2d 386 (D.C. Cir. 1993), rehearing denied (Sep. 10, 1993); Gencom, Inc. v. FCC, 832 F.2d 171, 181 (D.C. Cir. 1987); Area Christian Television, Inc., Memorandum Opinion and Order, 60 RR 2d 862, 864, para. 6 (1986) (petitions to deny and informal objections must contain adequate and specific factual allegations sufficient to warrant the relief requested). The Commission has held that the Multiple Application Rule is not applicable to applications for new NCE stations. Open Media Corporation, Memorandum Opinion and Order, 8 FCC Rcd 4070, 4073, para. 16 (1993). In Open Media, the Commission unambiguously stated that “[section] 73.3520 is premised on there being a limit to the number of stations which may be owned by any one licensee in the same community. However, since the multiple ownership rules do not apply to NCE–FM operations, neither [applicant] is precluded from owning and operating more than one NCE–FM facility in the market. Thus, it follows that each [applicant] may have more than one application pending at the same time for a given market.” Id. Accordingly, ISBE’s multiple applications for Stanley do not violate the Multiple Application Rule. We also reject Triangle’s argument that enforcement of the Multiple Application Rule would be beneficial to mutually exclusive applicants and further the Commissions goals of competition and diversity. In this situation, both Applications are singletons and not prejudicial to other applicants. Additionally, the Multiple Application Rule reflects the Commission's intent to expedite its processing procedures “by avoiding the disruption of having two inconsistent applications contemporaneously being studied by the staff' when only one can be granted.’” WGBH Education Foundation, Letter Order, DA 22-138 at 5 (MB 2022) (citing Radio Representatives, Inc., Hearing Designation Order, 5 FCC Rcd 1894, 1896, para. 16 (1990)). The Commission has never held, and Triangle cites to no authority, that the goal of this rule was to promote competition and diversity. The Commission did not address the Multiple Application Rule in the rulemaking procedures adopting the current NCE comparative point system. See Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Notice of Proposed Rulemaking, 10 FCC Rcd 2877 (1995), Further Notice of Proposed Rulemaking, 13 FCC Rcd 21167 (1998), Report and Order, 15 FCC Rcd 7386 (2000), vacated in part on other grounds sub nom., National Public Radio v. FCC, 254 F.3d 226 (D.C. Cir. 2001), clarified, Memorandum Opinion and Order, 16 FCC Rcd 5074 (2001) (NCE MO&O), Erratum, 16 FCC Rcd 10549, recon. denied, Memorandum Opinion and Second Order on Reconsideration, 17 FCC Rcd 13132 (2002), aff’d sub nom., American Family Ass’n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004), cert. denied, 543 U.S. 1000 (2004); Reexamination of the Comparative Standards and Procedures for Licensing Noncommercial Educational Broadcast Stations and Low Power FM Stations, Notice of Proposed Rulemaking, 34 FCC Rcd 851 (2019), Report and Order, 34 FCC Rcd 12519 (2019). Moreover, the Commission has implemented other policies to achieve these important goals, such as the adoption of a ten application cap for the 2007 and 2021 NCE filing windows. FCC Adopts Limit for NCE FM New Application in October 12-October 19, 2007 Window, Public Notice, 22 FCC Rcd 18699 (2007); FCC Adopts 10-Application Limit for NCE FM New Stations in Upcoming 2021 Filing Window, MB Docket No. 21-343, Public Notice, 36 FCC Rcd 7754 (2021). Accordingly, we deny the Objection and grant the Applications. Conclusion/Action. Accordingly, IT IS ORDERED that the Informal Objection filed on December 6, 2021, by Triangle Access Broadcasting, Inc., IS DISMISSED to the extent indicated above an IS OTHERWISE DENIED. IT IS FURTHER ORDERED that the applications of Idaho State Board of Education for construction permits for new noncommercial educational FM stations at Stanley, Idaho (File Nos. 0000166875 and 0000166882), ARE GRANTED. Sincerely, Albert Shuldiner Chief, Audio Division Media Bureau cc (via electronic mail): Ernest T. Sanchez, Esq. (ernestsanchez2348@gmail.com) (Contact Representative for Idaho State Board of Education)