DA 24-253 In Reply Refer to: 1800B3-ARR Released: March 14, 2024 Christian Recovery Foundation c/o Carlos Cabrera 205 Salem St. Boston, MA 02113 cbreraboston3030@gmail.com Re: Christian Recovery Foundation New LPFM, Dracut, Massachusetts Facility ID No. 787847 Application File No. 0000231555 Petition for Reconsideration Dear Applicant: We have before us the Petition for Reconsideration (Petition) Pleading File No. 0000237949 (filed Feb. 1, 2024). filed by Christian Recovery Foundation (Petitioner), seeking reconsideration of the Media Bureau’s (Bureau) dismissal of Petitioner’s application (Application) for a construction permit for a new low power FM (LPFM) station at Dracut, Massachusetts. Application File No. 0000231555 (filed Dec. 6, 2023). For the reasons set forth below, we deny the Petition. Background. Petitioner filed the Application during the 2023 LPFM Filing Window, Media Bureau Announces Filing Procedures and Requirements for November 1 – November 8, 2023, Low Power FM Filing Window, Public Notice, DA 23-642 (MB July 31, 2023) (Procedures Public Notice). Based on a request from LPFM advocates, the Bureau subsequently delayed the window until December 6, 2023. Media Bureau Announces Revised Dates for LPFM New Station Application Filing Window, Public Notice, DA 23-984 (MB Oct. 17, 2023). The Bureau subsequently extended the close of the window until December 15, 2023. Media Bureau Announces Extension of LPFM New Station Application Filing Window, Public Notice, DA 23-1150 (MB Dec. 11, 2023). and certified that “the proposed facility complies with the engineering requirements of 47 CFR [s]ection 73.807(a) through (g), and 73.825.” Application at Technical Certifications, Interference. On January 23, 2024, Bureau staff dismissed the Application for failure to meet the minimum distance spacing requirements enumerated in section 73.807(a) See 47 CFR § 73.807(a). of the Commission’s rules (Rules), with respect to the co-channel license of station WSHK(FM), Kittery, Maine, and noted that an amendment was not permitted under section 73.870(c) of the Rules. See Broadcast Actions, Public Notice, Report No. PN-2-240125-01 (MB Jan. 25, 2024) (citing 47 CFR § 73.870(c)). See also Application File No. BLH-19921030KC (license application for WSHK(FM)). On February 1, 2024, Petitioner filed the Petition, seeking reinstatement of the Application and a waiver of section 73.870(c) in order to amend the Application to correct the proposed Station coordinates to meet the minimum spacing requirements of section 73.807. Specifically, Petitioner characterizes the co-channel spacing error as a “simple data entry error” on the part of its consulting engineer, and argues that a minor amendment could correct the coordinates, which were off by less than one kilometer, to make the Application a singleton, and warrants reinstatement of the Application nunc pro tunc. Petition at 1. Discussion. The Commission will consider a petition for reconsideration only when the petitioner shows either a material error in the Commission’s original determination, or raises additional facts not known or existing at the time of the petitioner’s last opportunity to present such matters. See 47 CFR § 1.106(c), (d); see also WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964). Petitioner has not demonstrated any legal error in the Bureau’s dismissal of the Application, nor has it cited any precedent that warrants reinstatement. Section 73.807 Violation. Bureau staff correctly dismissed the Application for failure to meet the co-channel spacing requirements, as outlined in section 73.807(a). Specifically, LPFM applicants must protect authorized FM stations, pending applications for new and existing FM stations filed prior to the release of the Procedures Public Notice, authorized LPFM stations, and vacant FM allotments, by meeting the minimum distance separation requirements specified in section 73.807 of the Commission’s rules. See 47 CFR § 73.807(a)(1). Pursuant to section 73.870(c), any application submitted during an LPFM filing window that fails to meet the spacing requirements of section 73.807 will be dismissed without opportunity to amend. See 47 CFR § 73.870(c). Moreover, the Procedures Public Notice warned LPFM applicants that, “[c]onsistent with established processing rules, an LPFM application that fails to protect these authorizations, applications, and vacant FM allotments will be dismissed with no opportunity to correct the deficiency.” See Procedures Public Notice at 3 and n.14 (emphasis in original) (citing Low Power FM Filing Window, Public Notice, 15 FCC Rcd 24817, 24818 (MB 2000); Media Bureau Announces Availability of the Revised FCC Form 318 and the Filing Procedures for October 15-October 29, 2013 Low Power FM Filing Window, Public Notice, 28 FCC Rcd 8854, 8855 (MB 2013); 47 CFR §73.870(c)); see also Christian Charities Deliverance Church, Memorandum Opinion and Order, 30 FCC Rcd 10548, 10552-53, paras. 11-12 (2015) (Christian Charities) (affirming section 73.870(c) dismissal of applications for failure to meet minimum spacing requirements). In addition, section 3(b)(1) of the Local Community Radio Act of 2010 (LCRA) statutorily bars the Commission from “amend[ing] its rules to reduce the minimum co-channel and first-and second-adjacent channel distance separation requirements” in effect on the date of its enactment, and the Commission cannot waive the co-channel minimum distance spacing requirements imposed by statute. Pub. L. No. 111-371, 124 Stat. 4072 (2011). See also Rural Health Care Support Mechanism, Order, 22 FCC Rcd 20360, 20415, para. 106 (2007) (“although the Commission has authority to waive regulatory requirements, it does not have authority to waive a requirement imposed by statute”); Federal-State Joint Board on Universal Service, Memorandum Opinion and Order, 15 FCC Rcd 7170, 7178, para. 13 (1999) (rejecting request to waive statute); see also Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (“[T]he exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to the limitations which that body imposes.”). Here, the Bureau correctly dismissed the Application because Petitioner failed to meet the minimum spacing requirements of section 73.807(a)(1) with respect to co-channel station WSHK(FM). The Commission has previously held that the Bureau may properly prohibit dismissed LPFM applicants that did not comply with the co-channel spacing rules in the filing window from filing amendments to correct violations of section 73.807. See Calvary Chapel of Bremerton, Letter Order, 28 FCC Rcd 15537, 15538-39 (MB 2013) (dismissing LPFM applications that fail to meet minimum co-channel spacing requirements, and noting that the Commission does not have authority to waive co-channel spacing requirements); see also Christian Charities 30 FCC Rcd at 10552-53, paras. 11-12. Additionally, typographical error claims cannot be used to justify filing an otherwise prohibited amendment. NCE MX Group 82, Letter Order, DA 23-348 (MB Apr. 25, 2023) (rejecting argument to correct typographical error where corrective amendment was prohibited because it would result in increased mutually exclusivity and was a major amendment). Petitioner has not demonstrated any basis to contravene the rules and established precedent and reinstate the Application. Section 73.870(c) Waiver Request. We reject Petitioner’s request of a waiver of section 73.870(c) to allow it to amend the Application to correct the proposed Station coordinates to meet the minimum spacing requirements of section 73.807. The Commission's Rules may be waived only for good cause shown. 47 CFR § 1.3. The Commission must give waiver requests “a hard look,” but an applicant for waiver “faces a high hurdle even at the starting gate” WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (subsequent history omitted). and must support its waiver request with a compelling showing. Greater Media Radio Co., Inc., Memorandum Opinion and Order, 15 FCC Rcd 7090 (1999) (citing Stoner Broadcasting System, Inc., Memorandum Opinion and Order, 49 FCC 2d 1011, 1012 (1974)). Waiver is appropriate only if both (1) special circumstances warrant a deviation from the general rule, and (2) such deviation better serves the public interest. NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990). Petitioner fails to meet this burden. Petitioner states generally that a waiver “is justified and aligns with the public interest,” Petition at 1. but offers no other justification, circumstance, or precedent warranting grant of the request. Petitioner likewise fails to assert a “special circumstance” warranting the waiver beyond the error of its engineer. The Commission, however, has long held that errors made by engineering consultants are not an excuse for failure to adhere to the Rules. See Roy E. Henderson, Memorandum Opinion and Order, 33 FCC 3385, 3387-88, para. 6 (2018) (rejecting argument that licensee’s engineer was to blame for station’s unauthorized operations); Whidbey Island Ctr. for the Arts, Forfeiture Order, 25 FCC Rcd 8204, 8205, para. 6 and n.12 (MB 2010) (“the Commission has long held that ‘licensees are responsible for the acts and omissions of their employees and independent contractors’”); Vista Services Corporation, Forfeiture Order, 15 FCC Rcd 20646, 20650 para. 9, n.24 (2000) (“[e]mployers are routinely held liable for breach of statutory duties, even where the failings are those of an independent contractor”). Additionally, the Commission has held that the fact that an application is a singleton An application which is not in conflict with any other application is deemed a singleton application. is not a special circumstance that justifies a waiver of the Rules. See NCE MX Group 543, Memorandum Opinion and Order, 31 FCC Rcd 1358, 1360-61, para. 6 (2016). Moreover, permitting applicants to file application amendments to resolve section 73.807 minimum distance separation requirements after the close of the filing window and the Commission’s dismissal of their application would frustrate the processing efficiencies which sections 73.807 and 73.870(c) were designed to promote, be unfair to the many applicants who fully complied with the rules and filing requirements, and is therefore, contrary to the public interest. See Creation of a Low Power Radio Service, Report and Order, 15 FCC Rcd 2205, 2257 (2000) (“In accordance with our window filing procedure for commercial broadcast applications, after the LPFM window closes, the staff initially will screen applications for the purpose of identifying those that are mutually exclusive and those that fail to protect existing broadcast stations in accordance with the standards adopted herein. Applications that fail to properly protect these existing stations will be dismissed without the applicant being afforded an opportunity to amend. This will increase the speed and efficiency with which LPFM applications can be processed by the staff.”). Accordingly, we find Petitioner fails to show that special circumstances warrant a deviation from our rules or that such deviation would serve the public interest. Conclusion. For the reasons set forth above, IT IS ORDERED that the Petition for Reconsideration filed by Christian Recovery Foundation, on February 1, 2024 (Pleading File No. 0000237949), IS DENIED. Sincerely, Albert Shuldiner Chief, Audio Division Media Bureau 2