DA 22-548 In Reply Refer to: 1800B3-ATS Released May 18, 2022 Mr. Jeff Cotton Open Sky Radio Corporation 42528 County Road 1 Lake City, CA 96115 (sent by electronic mail to: jc@openskyradio.org) Mr. Keenan Meredith Full Potential Ministry 170 Weston Street Imlay City, MI 48444 (sent by electronic mail to: keno_tiger@yahoo.com) Mr. Kyle R. Laferty Community Service Broadcasting Foundation 188 Ridgeview Auxier, KY 41602 (sent by electronic mail to: rlaferty@yahoo.com) In re: NCE MX Group 130 Community Service Broadcasting Foundation New NCE, Clarksdale, Mississippi Facility ID No. 767183 File No. 0000167371 Open Sky Radio Corporation New NCE, Clarksdale, Mississippi Facility ID No. 765274 File No. 0000166988 Full Potential Ministry New NCE, Coahoma, Mississippi Facility ID No. 768007 File No. 0000167883 Petition to Deny Dear Mr. Cotton, Mr. Meredith, and Mr. Laferty, We have before us three mutually exclusive applications filed by Community Service Broadcasting Foundation (CSBF), Open Sky Radio Corporation (OSRC), and Full Potential Ministry (FPM) for construction permits for new noncommercial educational (NCE) FM stations in various communities in Mississippi, which the Media Bureau (Bureau) designated as NCE MX Group 130. Media Bureau Identifies Groups of Mutually Exclusive Applications Submitted in the November 2021, Filing Window for New Noncommercial Education Stations; Opens Window to Accept Settlements and Technical Amendments, MB Docket No. 20-343, Public Notice, DA 21-1476 (MB Nov. 29, 2021); see also File Nos. 0000167371 (CSBF Application), 0000166988 (OSRC Application), and 0000167883 (FPM Application). The Bureau identified the FPM Application as the tentative selectee of the group. Threshold Fair Distribution Analysis of 16 Groups of Mutually Exclusive Applications for Permits to Construct New Noncommercial Educational FM Stations, Memorandum Opinion and Order, DA 22-356 at 6-7, para. 19 (MB Apr. 4, 2022) (Third Fair Distribution Order). NCE MX Group 130 originally included a fourth application filed by Elijah Radio (ER). See File No. 0000167031. Following the adoption of the Third Fair Distribution Order, ER filed an amendment that resolved its application’s mutual exclusivities and rendered it a singleton. We also have before us the Petition to Deny (Petition) the FPM Application filed by OSRC. Pleading File No. 0000189644 (filed Apr. 23, 2022). For the reasons set forth below, we grant the Petition, rescind our tentative selection of the FPM Application, and identify the OSRC Application as the new tentative selectee of NCE MX Group 130. Background. The subject applications were filed during the 2021 NCE filing window, which was open from November 2, 2021, until November 9, 2021. Media Bureau Announces NCE FM New Station Application Filing Window; Window Open from November 2, 2021, to November 9, 2021, MB Docket No. 20-343, Public Notice, 36 FCC Rcd 7449 (MB 2021). In the Third Fair Distribution Order, the Bureau conducted a fair distribution analysis pursuant to section 307(b) of the Communications Act of 1934, as amended (Act), See Third Fair Distribution Order at 2-3, paras. 3-6. determined that both the OSRC Application and the FPM Application were eligible for a fair distribution preference, and because the FPM Application’s proposed second NCE service exceeded the OSRC Application’s second NCE service by more than 5,000 people, identified the FPM Application as the tentative selectee of NCE MX Group 130. Id. at 6-7, para. 19. In the Petition, OSRC argues that the Bureau improperly relied on a revised fair distribution document that FPM provided after the close of the window. OSRC notes that the document originally attached to the FPM Application did not include population numbers. Petition at 1-2. See also FPM Application at Attachment “First-Second Service Population Served.docx”. This document stated: First Service Population Served (White Area) = First & Second Service Population Served (White + Gray Area) = Total Population = 72446 (Ten Percent of Population = ) Total Area = OSRC also notes that on November 12, 2021, after the close of the window, the Bureau staff uploaded to the FPM Application a revised document containing population figures. Petition at 2-3. See also FPM Application at Attachment “167883 First-Second Service Population Served.pdf”. This document stated: First Service Population Served (White Area) = 0 First & Second Service Population Served (White + Gray Area) = 26425 Total Population = 61257 (Ten Percent of Population = 6125) Total Area = 5058 OSRC argues that in the 2007 NCE filing window, the Bureau consistently rejected fair distribution claims where population numbers were missing, Petition at 3, note 9 (citations omitted). and that the filing instructions for the 2021 NCE Filing Window stated that any supporting documents must be filed prior to the close of the filing window. Petition at 5 (citing Media Bureau Announces NCE FM New Station Filing Procedures and Requirements for November 2-9, 2021 Window, MB Docket No. 20-343, Public Notice, 36 FCC Rcd 11458 (MB 2021)). Accordingly, OSRC argues that the Bureau should reject FPM’s fair distribution claim and declare the OSRC Application the tentative selectee of NCE MX Group 130. FPM did not file an opposition to the Petition. See 47 CFR § 1.45(b) (oppositions must be filed with 10 days of a petition to deny). Discussion. Pursuant to section 309(d) of the 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). After the close of the filing window, the Bureau staff received an email from FPM’s engineer stating that he had experienced problems with the LMS filing system, and asked to replace the original fair distribution exhibit with a revised one. Email from Ed Czelada to Rodolfo Bonacci, Audio Division, FCC Media Bureau (Nov. 10, 2021, 4:29 PM). The Bureau staff misconstrued this email as suggesting that LMS had not accepted the original fair distribution exhibit. However, LMS had in fact accepted this exhibit, which was missing several population figures, and it is clear that FPM simply uploaded the incorrect attachment. “The Commission and the Bureau have consistently rejected similar post-window amendments, which claim, for the first time, a fair distribution preference, or which attempt to correct population figures.” Comparative Consideration of Seven Groups of Mutually Exclusive Applications for Permits to Construct New Noncommercial Educational FM Stations, Memorandum Opinion and Order, 30 FCC Rcd 5161, 5170, paras. 26-27 (2015); compare Threshold Fair Distribution Analysis of 13 Groups of Mutually Exclusive Applications for Permits to Construct New Noncommercial Educational FM Stations, Memorandum Opinion and Order, DA 22-477 at n.38 (MB May 2, 2022) (Bureau affords applicant whose attachments were corrupted opportunity to provide supporting documents). We therefore agree with OSRC that the Third Fair Distribution Order erred in relying on FPM’s post-window revised population exhibit. Accordingly, we grant the Petition and rescind our tentative selection of the FPM Application. We will therefore conduct a new fair distribution analysis. NCE MX Group 130 currently consists of three applications to serve different communities in Mississippi. CSBF and OSRC each proposes to serve Clarksdale; and FPM proposes to serve Coahoma. OSRC and FPM each asserts that it is eligible for a fair distribution preference. See OSRC Application and FPM Application, Fair Distribution of Service Section, and associated exhibits. . OSRC’s 60 dBu contour encompasses 19,479 people, and its claimed combined first and second NCE service is 18,718 people. Therefore, OSRC would provide a combined first and second NCE service to at least 10% of the population within its 60 dBu contour and to more than 2,000 people. CSBF does not and is therefore eliminated. Additionally, because FPM did not provide complete population figures before the close of the filing window, we will not consider its fair distribution claim, and FPM is also eliminated. OSRC is therefore the tentative selectee for NCE MX Group 130. Conclusion/Action. Accordingly, IT IS ORDERED that the Petition to Deny filed on April 23, 2022, by Open Sky Radio Corporation IS GRANTED. IT IS FURTHER ORDERED, that the tentative selection of the application of Full Potential Ministry (File No. 0000167883) for a construction permit for a NCE FM station in Coahoma, Mississippi, IS RESCINDED. IT IS FURTHER ORDERED, that the Application filed by Open Sky Radio Corporation (File No. 0000166988) is TENTATIVELY SELECTED to be awarded a construction permit for a new NCE FM station in Clarksdale, Mississippi, and its application IS ACCEPTED FOR FILING, establishing a deadline thirty (30) days hereafter for the filing of petitions to deny. If, after the petition to deny period has run, there is no substantial and material question concerning the grantability of the tentative selectee’s application, we intend, by public notice, TO DISMISS the mutually exclusive applications of Community Service Broadcasting Foundation, Inc. (File No. 0000167371) and Full Potential Ministry (File No. 0000167883), and TO GRANT the application of Open Sky Radio Corporation (File No. 0000166988) CONDITIONED UPON that selectee’s compliance with section 73.7002(c) of the Commission’s rules, 47 CFR § 73.7002(c), which sets forth a four-year period of on-air operations substantially as proposed. Sincerely, Albert Shuldiner Chief, Audio Division Media Bureau cc (via electronic mail): Edward T. Czelada (sent by electronic mail to: ed@voicetracking.com) (Contact Representative for Full Potential Ministry)