DA 24-384 In Reply Refer to: 1800B3-IB Released April 25, 2024 Mr. Darrick Servis, CFO Common Frequency, Inc. P.O. Box 4301 Davis, CA 95617 (via email to darrick@commonfrequency.org) Donald E. Martin, Esq. P.O. Box 8433 Falls Church, VA 22041 (via email to dempc@prodigy.net) Re: KQCF(FM), Chiloquin, OR Facility ID No: 176407 File Nos. 0000162427 Petition for Reconsideration Dear Messrs. Servis and Martin: The Media Bureau (Bureau) is considering a petition from Common Frequency, Inc. (CFI) CFI, Petition for Reconsideration, Pleading No. 0000239553 (rec. Feb. 20, 2024) (Petition). which seeks reconsideration of a January 2024 Letter Order. Darrick Servis, Letter Order, DA 24-63 (Jan. 19, 2024) (Decision). The Bureau ruled therein that CFI’s license for KQCF(FM), Chiloquin, Oregon (Station) terminated as a matter of law and, therefore, dismissed the referenced application for license renewal as moot. CFI argues that the Bureau erred in applying the license termination provisions of section 312(g) of the Communications Act of 1934, as amended (Act) 47 CFR § 312(g). to the Station’s operation from an unlicensed location and in finding no grounds for reinstatement. For the reasons set forth below, we deny reconsideration. Background Section 312(g) provides that a broadcast station’s license expires automatically as a matter of law if it fails to transmit broadcast signals for twelve consecutive months. Id. (“If a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of that period, notwithstanding any provision, term, or condition of the license to the contrary…”). Section 312(g) is codified in the Commission’s rules as 47 CFR § 73.1740(c) (“The license of any broadcasting station that fails to transmit broadcast signals for any consecutive 12-month period expires as a matter of law at the end of that period, notwithstanding any provision, term, or condition of the license to the contrary.”). Transmissions from an unauthorized location are not considered “broadcast signals” and, thus, are treated as equivalent to silence under section 312(g). See Eagle Broad. Group, Ltd., Memorandum Opinion and Order, 23 FCC Rcd 588, 592, para. 9, aff’d sub nom. Eagle Broad. Group, Ltd. v. FCC, 563 F.3d 543, 553 (D.C. Cir. 2009) (Eagle); Absolute Broad., LLC, Memorandum Opinion and Order, FCC 23-38, n.69 and cases cited therein (rel. May 17, 2023); Great Lakes Community Broad., Inc., Memorandum Opinion and Order, 24 FCC Rcd 8239, 8244-47 (MB 2009). The Station is a noncommercial educational (NCE) facility that was licensed to operate with an antenna attached to a tree in the yard of a residence (Licensed Site). Such an arrangement is uncommon but permissible if the licensee demonstrates compliance with the Commission’s rules (Rules) on RF radiation. See generally FCC Form 854, Instructions, Item 39 (identifying many different types of structures that can be used to support communications antennas); 47 CFR § 1.1307(b). In 2021, the owner of the Licensed Site sold the property and required CFI to vacate. CFI obtained Special Temporary Authority (STA) to operate temporarily from a site about 540 meters away, also from a tree. See File No. BSTA-20220425AAI (filed Apr. 25, 2022, granted May 9, 2022, and expired Nov. 5, 2022). On November 1, 2022, when the STA was about to expire, CFI moved the antenna and began to operate from a different tree on a parcel adjacent to the Licensed Site. CFI purportedly believed that the Rules required no STA or other Commission consent for relocations of that smaller distance. Language in section 73.1690(b) of the Rules, which governs modification of transmission systems, is central to this case. 47 CFR § 73.1690(b) (“The following changes may be made only after the grant of a construction permit application (1) Any construction of a new tower structure for broadcast purposes, except for replacement of an existing tower with a new tower of identical height and geographic coordinates. (2) Any change in station geographic coordinates, including coordinate corrections of more than 3 seconds latitude and/or 3 seconds longitude….”). Under subsection (b)(1) of that Rule, a construction permit is required for any new tower structure except for an identical replacement at the exact same geographic coordinates. Id. § 73.1690(b)(1). Similarly, under subsection (b)(2), a construction permit is required for any change in geographic coordinates. Id. § 73.1690(b)(2). However, subsection (b)(2) contains an exemption where the purpose of a coordinate modification is to correct an error in coordinates by less than three seconds longitude and latitude (Three-Second Exemption). Id. CFI reportedly found section 73.1690(b)(2) confusing. Although CFI was moving to a new structure, not correcting the Station’s licensed coordinates, it interpreted the Three-Second Exemption as applicable because the licensed and modified sites were within three seconds latitude and longitude of each other. CFI operated from the new location until January 9, 2024 when, following receipt of a Bureau letter of inquiry, Letter of Inquiry (MB Nov. 20, 2023) (Inquiry); CFI, Response to Letter of Inquiry (Jan. 3, 2024). The Bureau inquired into the Station’s operations because it had been silent for considerable periods within the last license term and the location of/purported authority for any current operations was unclear. The Renewal Application identifies the following as periods of silence: August 10, 2016 to August 10, 2017, June 3, 2018 to June 3, 2019, and October 27, 2019 to October 27, 2020. Those periods of silence, representing about 34 percent of the license term, would have been relevant if the Bureau were to consider whether the Station met the criteria for license renewal. See Decision at 2, n.4. For example, the Bureau noted that Licensee’s extended periods of silence at other stations had warranted short-term renewals of one-year instead of the standard eight-year license term. Id., citing Darrick Servis, Letter Order, DA 24-5 (MB Jan. 3, 2024) (KCFH(FM), Two Harbors, CA). The Bureau also noted an inconsistency between CFI’s assertion that it recently returned to the Station’s Licensed Site and CFI’s prior statements that the Licensed Site was no longer available. it voluntarily removed the Station from the air while awaiting clarification. See File No. 0000235039 (rec. Jan. 9, 2024) (request for authority to remain silent, describing reason for silence as a Bureau suggestion of “inadvertent out-of-compliance” with section 73.1690(b)(2) and stating that Licensee “awaits communication/direction”). The Bureau’s Decision rejected CFI’s interpretation of the Three-Second Exemption and ruled that operations from the new site were unauthorized. Because the Station had operated solely from the unauthorized location from November 1, 2022 onward, the Bureau found that its license expired after 12 consecutive months, i.e., on November 1, 2023. See supra note 5. The Bureau reasoned that CFI had been required to obtain a construction permit under sections 73.1690(b)(1), which governs new structures, Decision at 2, citing 47 CFR § 73.1690(b)(1). and 73.1690(b)(2), which governs new coordinates. The Bureau determined that CFI’s reliance on the Three-Second Exemption was an error because that exemption pertains only to stations correcting the coordinates of their existing locations, such as those discovering an inadvertent surveying error. CFI was not correcting the coordinates of the Station’s existing location but, rather, was moving to a new one. The Bureau stated that the inapplicability of the Three-Second Exemption to site moves is also evident from a parallel use of three-second language in section 73.1690(c)(11), which applies the exemption only where there is no change in location. 47 CFR § 73.1690(c)(11) (construction permit unnecessary for “[c]orrection of geographic coordinates where the change is 3 seconds or fewer in latitude and/or 3 seconds or fewer in longitude, provided there is no physical change in location and no other licensed parameters are changed”). The Bureau found no merit to CFI’s contention that construction permit requirements for new antenna mounts apply only to man-made structures such as communications towers and that trees are exempt because they are neither “towers” The Bureau noted that Part 73 of the Rules does not define “tower structure” but that Part 17, which is applicable to communications structures including those associated with broadcast stations, uses and defines the term “antenna structure.” Decision at 5. That term is defined as a structure that is constructed or used to transmit radio energy, or that is constructed or used for the primary purpose of supporting antennas to transmit and/or receive radio energy, and any antennas and other appurtenances mounted thereon, from the time construction of the supporting structure begins until such time as the supporting structure is dismantled. 47 CFR § 17.2(a). nor newly “constructed.” Decision at 5. The Decision noted that section 73.1690 uses the term “new tower structure” rather than the longer phrase “new antenna support structure” because support structures other than traditional towers are uncommon for reasons based on engineering standards and practices. Id. The Bureau stated that, nevertheless, a tree used to hold a broadcast antenna for the first time is a new antenna support structure, and that new placement of an antenna in a tree is no different for licensing purposes than placement on a man-made tower at that location. Id. The Decision held that there is nothing about the nature of a tree that would subject it to different regulations or allow trees in different locations to be considered interchangeable. The Decision stated that the Bureau needs to know the precise location of any structure upon which a broadcast antenna is mounted to ensure adequate interference protection to other stations and safety of air navigation. When a broadcaster applies for a construction permit, the Commission announces the application by public notice, thereby enabling potentially interested parties to comment on such matters. Finally, the Bureau observed that the Three-Second Exemption, even when applicable, merely condenses the Commission approval process from two steps to one. Ordinarily a licensee must: (1) apply for a construction permit; and then (2) apply for a modification of license upon completion. A licensee that qualifies for the Three-Second Exemption can skip the first step and proceed directly to the second step in which it demonstrates that operation from the corrected coordinates complies with applicable Rules such as those pertaining to protection from RF radiation. The Decision observed that CFI skipped both steps of the process entirely. Id. at 4. After determining that the Station’s license terminated under section 312(g), the Bureau considered on its own motion whether there was any basis for reinstatement. Section 312(g) affords the Commission limited discretion to reinstate licenses when needed to promote “equity and fairness.” 47 U.S.C. § 312(g). The Commission has exercised that discretion only rarely, generally where station operations have been impacted by natural disasters or compelling circumstances of a similar magnitude beyond the licensee’s control. Decision at 6-7, n. 40 and cases cited therein. The Bureau determined that the record of the instant proceeding contained no such support for reinstatement. The Bureau acknowledged that the Station was the sole radio station licensed to Chiloquin but noted that Chiloquin also received multiple radio signals licensed to other communities. CFI now contends that the Bureau made several errors. Petition at 1-2. First, it argues that the Bureau’s application of section 312(g) was “overbroad,” “irrational,” and “draconian” because the Station was not completely off-air or warehousing spectrum. Id. at 2, 6. Rather, CFI emphasizes that it was providing service from a location relatively close to the Licensed Site, and did not receive any interference complaints. Id. at 2-5. Second, although CFI now concedes that its interpretation of the Three-Second Exemption was erroneous, it again maintains that the Rule’s language is confusing and that CFI’s interpretation was reasonable. Id. at 5-6. CFI also repeats its argument that stations using trees as support structures are not subject to rules pertaining to placement of communications equipment on man-made structures. Id. at 5. Finally, it makes a new argument for reinstatement—that the Station provided a second, noncommercial educational signal to its service area, which is home to a Native American population. Discussion The Commission will consider a petition for reconsideration only when the petitioner shows either a material error in the original order 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, para. 2 (1964), aff'd sub nom., Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966)). Petitions for reconsideration which rely on facts not previously presented to the Commission may be granted only if the Commission determines that consideration is in the public interest. See 47 CFR § 1.106(c)(2). We affirm the Decision for the reasons stated therein. The Bureau appropriately applied section 312(g) to the Station’s failure to operate from an authorized location. As CFI acknowledges, the Commission’s position that transmissions from unauthorized sites are not “broadcast signals” for purposes of section 312(g) dates back to the 2008 Eagle case, which the U.S. Court of Appeals for the D.C. Circuit affirmed. Petition at 2-3, citing Eagle Broad. Group, Ltd., Memorandum Opinion and Order, 23 FCC Rcd 588, 592, para. 9 (2008), aff’d sub nom., Eagle Broad. Group, Ltd. v. FCC, 563 F.3d 543 (D.C. Cir. 2009) (Eagle). We do not accept CFI’s contention that the instant proceeding warrants a different approach. Although, as CFI argues, its authorized and unauthorized transmitter locations are considerably closer to each other than those in Eagle, Petition at 3, 5. There was a distance of 229 miles between locations in Eagle. the Commission has applied section 312(g) consistently to locations of various distances, including those characterized as “nearby.” See Chinese Voice of Golden City v. FCC, 2021 WL 6102191 (D.C. Cir. 2021) (transmissions from an unauthorized location two miles away did not constitute “broadcast signals” for purposes of § 312(g)); Kingdom of God, Inc. v. FCC, 719 Fed. Appx. 19, 19-20 (D.C. Cir. 2018) (Mem.) (where station was authorized to “transmit broadcasts from only one specific location in Indianapolis” but transmitted instead from “nearby Beach Grove” the “transmissions from its unauthorized location in Beech Grove do not constitute ‘broadcast signals’ for purposes of § 312(g)”). As we stated in the Decision, the filing of applications for approval of site changes is important even for relatively short moves because the Bureau needs the opportunity to consider any resulting changes in spacing, compliance with international agreements, and terrain shielding. See Decision at 5, n.30, citing 1998 Biennial Regulatory Review – Streamlining of Mass Media Applications, Second Report and Order, 15 FCC Rcd 21649, 21667, para. 38 (2000) (Streamlining) (de minimis changes in a short-spacing context may raise technical or international issues appropriately considered in an application for construction permit). Cf. Amendment of Parts 73 and 74 of the Commission’s Rules to Establish Rules for Digital Low Power Television, Report and Order, FCC 23-25, paras. 40-41 (rel. Apr. 17, 2023) (modifying rules applicable to low power television stations to match those for full service stations in section 73.1690(b)(2) which “apply only to coordinate corrections and not to relocations”); Amy Meredith, Letter Order, 37 FCC Rcd 7266 (MB 2022), recon. denied, DA 22-1352 (MB rel. Dec. 22, 2022) (rejecting argument that construction 30 yards from permitted location was sufficiently close to satisfy requirements of original construction permit for FM translator under 47 CFR § 74.1254(b)(4)). We also reject CFI’s argument that there should be special equities for antennas mounted on trees which, unlike those on man-made structures, must be located where they grow rather than where they can be built. See Petition at 5. CFR’s purported belief that the tree it selected was “close enough” to the Licensed Site to be rule-compliant See id. was erroneous, as we will discuss below in our analysis of section 73.1690(b). Nor do we accept CFI’s contention that Eagle has been superseded or modified by a subsequent Commission ruling. See id. at 4, citing Absolute Broad., LLC, FCC No. 23-38 (rel. May 17, 2023) (Absolute). That case, Absolute, found that transmissions using a two-bay rather than the licensed one-bay antenna, though unauthorized, were broadcast signals sufficient to avert the consequences of section 312(g). Absolute acknowledged Eagle and its progeny as the established, ongoing standard for failure to operate from an authorized site but found that the infractions in the two cases differed materially. Central to the Commission’s distinguishing of Absolute from Eagle was that the broadcasts in Absolute originated from the correct, authorized site. Absolute did not establish any exception to the longstanding section 312(g) holdings applicable to unauthorized sites as discussed in Eagle and, thus, the Bureau continues, after Absolute, to rely upon Eagle when addressing operations from unauthorized locations. See, e.g., Omni Broad, LLC, Letter Order, DA 23-1208 (MB rel. Dec. 28, 2023). We find that a different outcome is not warranted based on CFI’s mistaken interpretation of the Three-Second Exemption. As explained in the Decision and noted again above, the Three-Second Exemption provides a streamlined application process for correcting discrepancies in coordinates up to three seconds if later measurements indicate an error on a station's authorization. The exemption provides no authority to relocate physically or to forego the application process entirely. As the Bureau observed, the Three-Second Exemption only eliminates the need for construction permits; it does not provide any exception to the requirement to apply for a license modification. CFI’s failure to apply for a construction permit and license modification potentially placed the public at risk because it operated without demonstrating that its modified facility complied with RF radiation requirements. Had CFI filed a license application without first obtaining a construction permit, the Bureau would have dismissed the application as premature. Such a dismissal would have alerted CFI to the need for a construction permit so that it could have obtained a permit or STA prior to section 312(g) termination. There is no merit to CFI’s argument that the language of section 73.1690(b)(2), which contains the Three-Second Exemption, is confusing. CFI contends that it is plausible to read the Rule as providing, in the context of site moves, that “no application is necessary if the actual site is within three seconds of the authorized site.” Petition at 6. We disagree. The scope and purpose of the Rule is evident from the language of the Rule itself, the history of its adoption, language of the immediately preceding subsection 73.1690(b)(1), and parallel three-second language in section 73.1690(c)(11). The Commission adopted the Three-Second Exemption more than 20 years ago and has applied it consistently only to coordinate corrections. The Decision noted that section 73.1690(b)(2) originally required construction permits for “Any change in station geographic coordinates, including coordinate corrections.” Decision at 4, n.29, citing Amendment of Parts 73 and 74 of the Commission’s Rules to Permit Certain Minor Changes in Broadcast Facilities Without a Construction Permit, Report and Order, 12 FCC Rcd 12371, 12435, 12405-06 (1997). The Commission later added the language at issue to exempt corrections of three seconds or less.  See Streamlining, 15 FCC Rcd at 21667, paras. 34-35. CFI’s relocation is unrelated to the exemption’s purpose of simplifying correction of inadvertent coordinate errors by use of a single license modification application See 47 CFR §§ 73.1690(b)(2), 73.1690(c)(11). rather than the longer two-step process previously in effect. CFI fails to cite any case law supporting its interpretation of section 73.1690(b)(2), and further fails to explain how its interpretation can be squared with the immediately preceding language of section 73.1690(b)(1), which requires submission and approval of a minor change application for all new structures “except for replacement of an existing tower with a new tower of identical height and geographic coordinates.” 47 CFR § 73.1690(b)(2). Although CFI characterizes its situation as a case of first impression, the Bureau rejected a similar argument in the 2019 Mooresville proceeding. See DW243AP, Mooresville, AL, Letter Order, 34 FCC Rcd 6202 (MB 2019), cited in Absolute at para. 19, n.68. There, a licensee argued that the coordinates of an unauthorized site were only slightly beyond three seconds from its authorized location and maintained that section 73.1690(b)(2) allows a three-second “tolerance” for site relocations. The Bureau ruled that there is no such tolerance, that the station’s license had expired pursuant to section 312(g), and found no basis for reinstatement. The Bureau also noted that the licensee’s decision to build at an unauthorized location was deliberate. Id. at 6205. As in the instant case, the Bureau stated that section 73.1690(b)(2) pertains only to correction of errors in coordinates, such as where subsequent measurements find a discrepancy. Id. Nor do we find any merit to CFI’s argument that its inability to avail itself of the Three-Second Exemption amounts to disparate treatment. See Petition at 6. CFI considers its own situation similar to that of licensees that are able to use the Three-Second Exemption, emphasizing that each lacks a construction permit, is operating from a location within three seconds of licensed coordinates, is not causing interference, and has no intent to warehouse spectrum. Id. CFI, thus, believes that its own license should not terminate while the licensees to which it compares itself can make corrections. We acknowledge the well-established principle that the Commission may not, without adequate explanation, treat similarly-situated applicants differently. See Melody Music, Inc. v. FCC, 345 F.2d 730, 733 (D.C. Cir. 1965). CFI, however, is comparing dissimilar situations. A licensee that consciously moves away from its licensed site is unlike one making a correction to remain at its existing site after discovering that the license contains an inadvertent coordinate error. The Rules appropriately provide greater flexibility to correction of inadvertent mistakes than to conscious decisions to relocate, especially where, as here, a station is moving from a location known to be rule-compliant to one for which the licensee has not provided the Commission any information. Finally, we find that CFI’s arguments for reinstatement of the Station’s license are procedurally defective and/or without merit. As stated above, newly-raised factors are not appropriately raised on reconsideration absent a public interest need. See supra, note 29, citing 47 CFR § 1.106(c)(2). Accordingly, we dismiss CFI’s new argument that the Chiloquin area would lose its second NCE signal if the Bureau does not reinstate the Station’s license. CFI does not provide an adequate public interest need for considering this argument, which was not before the Bureau at the time of the Decision. See Petition at 7. CFI recognizes that another applicant could apply for the spectrum in a future NCE window but argues that such a window may not occur in the foreseeable future. Id. As CFI recognizes, Id. levels of NCE service are generally relevant when the Commission compares proposals to bring new NCE service to different communities. In that context, the Commission conducts a threshold analysis under section 307(b) of the Act, which requires fair distribution of radio service among communities. 47 U.S.C. § 307(b). Accordingly, if the Commission receives mutually exclusive proposals, one seeking a new license in a community that already has two or more NCE signals and the other in a community where a significant portion of the population is without that level of NCE service, the Commission prefers the latter. See 47 CFR § 73.7002 (level of NCE service considered in threshold analysis of applications for new NCE stations proposing service to different communities); Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Second Report and Order, 18 FCC Rcd 6691, 6705 (2003) (level of NCE service considered in determining whether to reserve spectrum in the non-reserved FM band for NCE use). Such an analysis is inapplicable here, where the Bureau is not comparing the relative merits of two or more new service proposals for different communities. Moreover, a station’s provision of a first or second NCE service is neither an exemption from rule compliance nor a basis for reinstatement under section 312(g). Similarly, we find an insufficient public interest basis in CFI’s contention that failure to reinstate will result in loss of programming for Native Americans, and thereby “negatively impact the civic and cultural life of this minority community.” Petition at 8. At the time of the Decision, the Bureau was aware of, but did not specifically address, CFI’s claimed service to Native Americans. The Inquiry asked for more information about CFI’s statements in requests to remain silent that the Station provides programming to Native Americans. In response, CFI reported that, when operating, it aired several informational programs aimed at Native American audiences. While the Commission has recognized benefits of programming to minority populations, it has stated that such benefits do not outweigh the Commission’s statutory responsibility to prevent unauthorized broadcasts. Found. For a Beautiful Life, Memorandum Opinion and Order, 36 FCC Rcd 15933, 15949, para.24 (2021). The amount of weight to be given to this factor in the instant proceeding is further diminished by the fact that the Station was off-air for more than one-third of the last license term, making its history of service to Native Americans sporadic, at best. Conclusion Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by Common Frequency, Inc., Pleading File No. 0000239553, IS DISMISSED IN PART to the extent that it makes new arguments for license reinstatement AND IS DENIED in all other respects. It is FURTHER ORDERED that the January 19, 2024 decision finding that the license for KQCF(FM), Chiloquin, Oregon cancelled automatically pursuant to section 312(g) of the Act, deleting the call sign, and dismissing its application for license renewal, File No. 0000162427, as moot IS AFFIRMED. Sincerely, Albert Shuldiner Albert Shuldiner Chief, Audio Division Media Bureau cc (via electronic mail): Todd Urick (todd@commonfrequency.org) (Technical Representative for Common Frequency, Inc.) 6