10 FCC Red No. 22 Federal Communications Commission Record DA 95-2155
Before the
Federal Communications Commission 
Washington, D. C. 20554
LETTER
October 10,1995
Released: October 25,1995
In reply refer to: 
1800B3-RRC
Robert Lewis Thompson, Esquire 
Counsel for Cloud Nine Broadcasting, Inc. 
Taylor Thiemann and Aitken, L.C. 
908 King Street, Suite 300 
Alexandria, Virginia 22314
Dan J. Alpert, Esquire
Counsel for Frank Copsidas, Jr.
1250 Connecticut Avenue, N.W., Seventh Floor
Washington, D.C. 20036
Re:
Dear Counsel:
KCWX(FM), Columbia Falls, Montana 
Application for Minor Modification 
of Broadcast Station Construction 
Permit (File No. BPH-940713B)
By letter dated May 30, 1995, we granted the 
above referenced application filed by Frank Copsidas, Jr., 
permittee of KCWX(FM), Columbia Falls, Montana. We 
now have before us a petition for reconsideration of this 
decision, filed by Cloud Nine Broadcasting, Inc. ("Cloud 
Nine"),1 and Copsidas's opposition. For the reasons 
stated below, we deny reconsideration.
Background: On July 30, 1992, we granted 
Copsidas's application for a construction permit for a new 
FM Station on Channel 240A in Columbia Falls, 
Montana. Shortly thereafter, on October 22, 1992,
1 Cloud Nine is the licensee of KDBR(FM), Kalispell, 
Montana, a competitor of KCWX. Our May 30,1995, letter 
also granted Copsidas's application for extension of time to 
construct KCWX, BMPH-940128JE. On reconsideration, 
Cloud Nine does not challenge that decision.
Copsidas requested an upgrade to Channel 240C2. This 
application was granted over the opposition of Bee 
Broadcasting, Inc. ("Bee"),2 on March 2, 1993, 
Amendment of Section 73.202(B) (Columbia Falls, 
Montana), 8 FCC Red 1548 (MMB, Pol. and Rules Div., 
Alloc. Branch, 1993), reconsideration denied, 8 FCC 
Red 6647 (MMB, Pol. and Rules Div., 1993).
After the grant became final, Copsidas filed an 
application for minor modification of the KCWX 
construction permit to specify operation as a Class C2 
facility, BPH-940225IA. Thereafter, on July 13, 1994, 
he filed a minor amendment seeking to change the 
KCWX tower site; this amendment was resubmitted on 
October 17, 1994. Cloud Nine filed an informal 
objection to Copsidas's application on March 13,1995, 
alleging that: (1) Copsidas had misrepresented to the 
Commission that he had reasonable assurance of the 
availability of the tower site identified in the amendment; 
and (2) Copsidas had failed to notify the FAA of the 
proposed amendment. By letter dated May 30, 1995, we 
resolved these issues in favor of Copsidas, accepted the 
amendment, renumbered the application to correspond to 
the amendment date, and granted the modification, as 
amended.
Cloud Nine filed a petition for reconsideration 
of this decision, alleging two errors of law, as follows:
(1) We improperly accepted the July 13, 
1994, amendment because the time 
for "amendments as of right" had 
expired and Copsidas did not show 
good cause for acceptance as 
required; and
(2) We failed to afford the public the 
statutory 30-day period for filing 
petitions to deny by simultaneously 
accepting the July 13, 1994, 
amendment, renumbering the 
application, and granting it, as 
amended.
2 Bee was then the permittee of KDBR(FM), Kalispell, 
Montana. Bee consummated its transfer of control of the 
KDBR construction permit to Cloud Nine on January 3, 
1995, BTCH-940916GG, and we granted the KDBR 
broadcast license application, BLH-940914KF, on April 20, 
1995.
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Cloud Nine also reasserts its original argument that 
Copsidas lacks reasonable assurance of site availability.
Procedural Issues: As an initial matter, 
Copsidas argues that Cloud Nine lacks standing to file a 
petition for reconsideration, noting that Cloud Nine failed 
to file a petition to deny the modification application. We 
disagree. The Communications Act of 1934 provides 
that a petition for reconsideration may be filed by (1) a 
party to a proceeding or (2) "any other person aggrieved 
or whose interests are adversely affected by" the 
underlying decision. 47 U.S.C. § 405(a); see also 47 
C.F.R. § 1.106(b)(l). We conclude that, although Cloud 
Nine is not a party to this proceeding, it nevertheless may 
petition for reconsideration under the second, "aggrieved 
or adversely affected" test.
Status as a Parly: Unlike the filing of a petition 
to deny, the filing of an informal objection does not confer 
party status upon the objector. Montgomery County 
Broadcasting Corp., 65 F.C.C.2d 876,877 n.2 (1977); 
BarnesEnterprises, Inc., 55 F.C.C.2d 721,722 (1975). 
Therefore, Cloud Nine was legally precluded from 
becoming a party to this proceeding because a petition to 
deny an application for a minor modification of the 
facilities of an authorized station is procedurally 
inappropriate. 47 U.S.C. §§ 309(c)(2)(A) and 309(d)(l); 
Beasley Radio Co., 4 FCC Red 6344, 6344 (1989). 
However, our conclusion that Cloud Nine does not have 
standing to file a petition for reconsideration as a party is 
unchanged by the fact that it could not file a procedurally 
proper pre-grant petition to deny. Rainbow 
Broadcasting Co., 9 FCC Red 2839,2844 n.24 (1994) 
(citingMontgomery County Broadcasting, 65 F.C.C.2d 
at 877 n.2), affd in relevant part sub nom. Press 
Broadcasting Co., Inc. v. FCC, 59 F.3d 1365,1369 n.6 
(D.C. Cir. 1995).
"Aggrieved or Adversely Affected" Test: 
Because Cloud Nine is not a party to this proceeding, it 
must establish standing to file a petition for 
reconsideration under the "aggrieved or adversely 
affected" test of 47 U.S.C. § 405(a). The Commission's 
rules require that such a petitioner "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." 47 C.F.R. 
§ 1.106(b)(l).
As the licensee of an existing KCWX
competitor, Cloud Nine's interests have been adversely 
affected by our decision in this proceeding. FCC v. 
Sanders Bros. Radio Station, 309 U.S. 470,477 (1940); 
Rainbow, 9 FCC Red at 2844 n.24 (1994). In addition, 
Cloud Nine has demonstrated why it was not possible for 
it to participate as a petitioner to deny in the earlier stages 
of the proceeding, meeting the "good cause" standard of 
§ 1.106(b)(l). By filing a pre-grant informal objection, 
Cloud Nine participated in our processes to the fullest 
extent permitted. Where, as here, an informal objector 
would have had standing to file a petition to deny, but 
was legally precluded by the Communications Act or our 
rules from doing so, that informal objector has standing 
to file a petition for reconsideration. See Rainbow, 9 
FCC Red at 2844 n.24 (1994); Channel 41, Inc., 30 
F.C.C.2d 6 (1971) (considering the merits of a petition 
for reconsideration of Commission grant of minor 
modification where petitioner, a competitor, had filed 
pre-grant informal objection); cf. Davidson County 
Broadcasting Co., Inc., 8 FCC Red 1689, 1690 (1993) 
(competitor's petition for reconsideration "defective" 
where competitor had opportunity to file informal 
objection to minor modification application, but failed to 
do so); Louisiana Television Broadcasting Corp., 17 
F.C.C.2d 973, 974 (1969) (competitor's petition for 
reconsideration was "defective" where competitor 
acknowledged that it could have filed an informal 
objection to applicant's minor modification, but made no 
showing as to why it had failed to do so). Under these 
circumstances, consideration of the merits of Cloud 
Nine's petition is consistent with the Commission's 
interest in "orderliness, expedition and finality" reflected 
in§ 1.106. ParkellBroadcasting, Inc., 59 F.C.C.2d 811, 
812-13 (1976), affd sub nom. Southwest Broadcasting 
Co. v. FCC, 559 F.2d 188 (D.C. Cir. 1977); Ogden 
Television, Inc., 7 FCC Red 3116, 3117 (MMB, Vid. 
Serv.Div. 1992).
Discussion: Cloud Nine's petition for 
reconsideration asserts that we committed error of law by 
accepting Copsidas's July 13, 1994, minor amendment 
absent a showing of good cause under 47 C.F.R. 
§ 73.3522(a)(6). We disagree. This rule provides that 
such a late-filed amendment is "subject to return by the 
Commission without consideration." Id. However, under 
the specific circumstances presented here, it is our 
practice to waive the requirements of this rule, renumber 
and grant the application, and bill the applicant for the 
appropriate fee. This renumbering and billing process is 
used only in connection with FM processing under the 
"hard look" procedures unique to FM processing, and
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then, only in the context of applications to modify the 
facilities of existing stations or outstanding construction 
permits where the application, as amended, does not 
conflict with any other application filed prior to the date 
of amendment This process is used for the benefit of the 
Commission, not the applicant. However, both parties 
gain, because the Commission saves time and conserves 
resources, while acting more quickly on the applicant's 
filing.
When an applicant files such an untimely minor 
amendment to an application for minor modification of 
station facilities, without showing good cause under 
§ 73.3522(a)(6), the staff has two options:
(1) Return the amendment as 
unacceptable, being both untimely and 
without good cause. This option 
would delay action on an otherwise 
acceptable amendment, forcing the 
applicant to withdraw the original 
application and resubmit the 
amendment as a new application 
along with the appropriate filing fee.
(2) Alternately, we may associate the 
original application with the 
amendment and consider it as a new 
application filed on the date of the 
amendment, give it a file number 
corresponding to that date, and grant 
it conditional on the payment of the 
appropriate filing fee.
Based on considerations of efficiency and expedience, we 
believe that the second option is more consistent with our 
mandate to serve the public interest, convenience and 
necessity. 47 U.S.C. § 309(a). Because such "minor 
change" applications do not involve filing windows and 
are not subject to petitions to deny, waiving the good 
cause requirement of § 73.3522(a)(6) does not prejudice 
any other applicant, objector, or party. This practice is 
more fully discussed in an August 9, 1991, letter from 
Dennis Williams, Chief, FM Branch, Audio Services 
Division, Mass Media Bureau, to Henry E. Crawford, 
Esq., in the record of KRTS, Inc., Application for Minor 
Modification of Broadcast Station Construction Permit of 
KRTS(FM), Seabrook, Texas, File No. BPH-
910215MT.3
The petition for reconsideration also argues that 
we improperly granted Copsidas's amended application 
without affording the public the statutory 30 day period 
for filing petitions to deny. We disagree. The 30-day 
period provided by the Communcations Act, 47 U.S.C. 
§ 309(b), does not apply to minor change applications 
such as the one at issue here. 47 U.S.C. § 309(c)(2)(A). 
In addition, as discussed above, a petition to deny is not 
permitted against either an application for minor 
modification of a construction permit, Beasley Radio, 4 
FCC Red at 6344, or a minor amendment thereto, 
Davidson County Broadcasting, 8 FCC Red at 1690 
n.10.
Finally, the petition for reconsideration argues 
that Copsidas lacks reasonable assurance of the 
availability of the transmission site specified in his 
application amendment and that we committed error by 
failing to consider additional evidence offered in Cloud 
Nine's reply, filed May 1, 1995. We disagree. We 
considered and rejected this evidence in connection with 
our original, May 30,1995, decision. Cloud Nine's reply 
supplied two documents as attachments: (1) a letter, 
dated March 23, 1995, from J.R. Smith, Legal Affairs 
Administrator for MCII General Partnership d.b.a. 
Western Wireless, the owner of the proposed site; and (2) 
a declaration under penalty of perjury, dated April 28, 
1995, from Robert L. Thompson, Esquire, FCC Counsel 
to Cloud Nine. Smith's letter states that MCII "is unable 
to rent tower space to B-Broadcasting, Inc., for its radio 
antenna" on a tower in Whitefish, Montana. As such, the 
letter relates neither to Copsidas nor to his proposed site 
on an MCII tower in Lone Pine State Park, Kalispell, 
Montana. The letter does confirm MCII's general policy, 
also discussed in Thompson's declaration, not to lease 
tower space to any person or entity that is not classified 
as an emergency service provider.
Even if we were to accept this hearsay 
information, Cloud Nine fails to raise any substantial or 
material question of fact concerning the issue of 
reasonable assurance. The Commission does not require
3 Attached to Letter from Dennis Williams, Chief, FM 
Branch, Audio Services Division, Mass Media Bureau, to 
David S. Kier, Esq., John S. Neely, Esq., and Robert J. 
Buenzle, Esq., File Nos. BPH-910215MT and BLH- 
910802KE (KRTS(FM), Seabrook, Texas, Ref. No. 1800B3- 
GDG, January 26,1995).
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10 FCC Red No. 22 Federal Communications Commission Record DA 95-2155
an applicant to secure a binding commitment to use a 
proposed broadcast site, e.g., Elijah Broadcasting Corp., 
5 FCC Red 5350, 5351 (1990); rather, the "reasonable 
assurance" standard is a liberal one, requiring only that 
the applicant obtain "some clear indication from the 
landowner that he is amenable to entering into a future 
arrangement with the applicant for use of the property as 
its transmitter site, on terms to be negotiated, and that he 
would give notice of any change of intention." Id. The 
Thompson declaration specifically reflects Smith's 
indication that Copsidas's application would be 
considered under a "grandfather exception" to the general 
MCII policy. Therefore, on its face, the Thompson 
declaration is not in conflict with the Declaration of J.R. 
Smith, attached to Copsidas's opposition and dated April 
20, 1995, in which Smith confirms that he provided 
Copsidas with sufficient assurance to meet the legal 
standard. As such, we find no error in our May 30,1995, 
decision.
Conclusion: In sum, Cloud Nine has failed 
to demonstrate any errors of law or fact in our decision 
denying its informal objection, and has not otherwise 
demonstrated under 47 C.F.R. § 1.106 that 
reconsideration is warranted. Accordingly, the petition 
for reconsideration, filed by Cloud Nine Broadcasting, 
Inc., of our grant of Frank Copsidas's application for 
minor modification of the KCWX(FM) construction 
permit, BPH-940713D3, IS HEREBY DENIED.
Sincerely,
Linda Blair, Acting Chief 
Audio Services Division 
Mass Media Bureau
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