*Pages 1--5 from D:\Pdf2Text\Ready4Text_in\pdf\23493.pdf* Lauren A. Colby, Esq. 10 East Fourth Street P. O . Box 113 Frederick, MD 21705 Jerrold Miller, Esq. Miller and Miller, P. C. P .O. Box 33003 Washington, D. C. 20033 Dear Applicants : ' File No. BPED- 19980713MD. 2 File No. BPED- 19981224MB. FEDERAL COMMUNICATIONS COMMISSION 44512 th STREET, S. W . WASHINGTON, DC 20554 December 4, 2002 In re : NEW NCE( FM), Spring Arbor, MI Facility ID No. 91139 Spring Arbor University Communications, Inc. BPED- 19980713MD New NCE( FM), Jackson, MI Facility ID No. 92547 GLCB Community Broadcasting, Inc . BPED- 19981224MB NCE MX Group 980701 In Reply Refer to: 1800133- MFW/ DEB The staff has before it (1) the captioned, mutually exclusive applications of Spring Arbor University Communications (" Spring Arbor") ' and GLCB Community Broadcasting, Inc . (" GLCB") 2 for new noncommercial educational (" NCE") FM stations in Spring Arbor, Michigan and Jackson, Michigan, respectively ; (2) various pleadings filed contesting the acceptance and grant of the GLCB application; 3 (3) the parties' July 19, 2001, "Joint Request for Approval of [Settlement] 3 These include : (1) Spring Arbor's March 29, 1999, "Petition for Reconsideration and Motion to Dismiss Application"; (2) Spring Arbor's May 28, 1999, "Further Motion to Dismiss"; (3) Spring Arbor's. May 17, 2001 Informal Objection ; and (4) Spring Arbor's July 13, 2001 "Supplement to Informal Objection ." GLCB filed an opposition to each of these pleadings, to which in each case Spring Arbor filed a reply . 1 Agreement" (" Joint Request"), and (4) GLCB's September 3, 2002 petition for reconsideration of the staff's August 12, 2002 denial ofthe joint request and concurrent amendment to its application . In the August 12, 2002 letter, we advised the parties as follows : The subject Spring Arbor and GLCB applications comprise NCE- MX Group 980701 . Pursuant to the terms ofthe settlement, GLCB agreed to amend its Jackson, Michigan application to eliminate the mutual exclusivity with Spring Arbor's proposal and dismiss its application for a new NCE- FM station in Rives Junction, Michigan in exchange for $2,000 consideration from Spring Arbor. Despite its commitments to take these actions no later than July 19, 2001, however, GBLC has not yet filed either a technical amendment to its Jackson application or a request to dismiss its Rives Junction application . Accordingly, we cannot give effect to the settlement agreement, and we will deny the Joint Request. We then afforded GLCB an opportunity to file the requisite "point supplement" necessary to evaluate its application, and retained the instant Spring Arbor and GLCB applications in pending, mutually exclusive status. We advised that because GLCB chose to file the instant settlement rather than a point supplement - either of which was authorized by the Memorandum Opinion and Order in the NCE comparative criteria proceeding8 -- the applications in NCE MX Group 980701 could not be processed further at that time. Instead of submitting the point supplement requested by our August 12, 2002 letter, GLCB sought reconsideration of the denial of the joint request and submitted a minor change amendment to application BPED- 19981224MB on September 3, 2002, ostensibly to eliminate the conflict between the GLCB and Spring Arbor applications . 1n excuse, GLCB blames the post office for loss of an amendment allegedly filed within 30 days ofthe July 19, 2001 settlement agreement filings . GLCB states that acceptance ofthe amendment will "serve the public interest" and "no harm resulted from the delay in the Commission's receipt ." GLCB Petitionfor Reconsideration . Initially, we reject GLCB's September 3, 2002 filing as a petition for reconsideration. In order to prevail on reconsideration, a petitioner must demonstrate that the underlying action was based on errors of fact or law or present changed facts or circumstances which otherwise warrant reconsideration. 9 GLCB has not shown either staff error or changed circumstances which would warrant reconsideration of the staff s rejection of the incomplete settlement agreement. Accordingly, we will deny the petition for reconsideration below. 4 Letter to Lauren A. Colby, Esq. andJerrold Miller, Esq., Reference 1800B3- MFW (Audio Division, Media Bureau, Aug. 12, 2002). File No. BPED- 19990920MA. Letter to Lauren A. Colby, Esq. and Jerrold Miller, Esq., supra, page 2 . The GLCB application for Rives Junction likewise will remain in pending status and will be processed in due course . 8 Reexamination ofthe Comparative Standards for Noncommercial Educational Applicants, 16 FCC Rcd 5074, 5107- 08 (2001) ; see also Public Notice, "Supplements and Settlements to Pending Closed Group NCE Applications, 16 FCC Rcd 6893 (Mass Media Bureau 2001); Public Notice, "Deadline for NCE Settlements and Supplements Extended to July 19, 2001," 16 FCC Rcd 10892 (Mass Media Bureau 2001). See, e. g., Aspen FM, Inc., 12 FCC Rcd 17852, 17855 (1997) . See also 47 C. F .R . § 1 .106 . 2 GLOB amendment. As a procedural matter, the September 3, 2002 amendment proffered by GLCB is untimely. The Commission gave clear notice that mutually exclusive applicants were required to file settlement agreements, technical solutions (amendments), or point supplements on or before July 19, 2001 .' ° As a party to the timely filed settlement agreement, GLCB was clearly aware of this deadline. However, on the basis of the information before us, we cannot conclude that GLCB submitted the promised technical amendment by the July 19, 2001 deadline . It is well settled that an applicant bears the initial burden of demonstrating that the document in question was properly delivered to the Commission when there no record of such filing . If regular mail service was used, the applicant must submit proof that the document was properly addressed to the Commission, had sufficient postage, and was deposited in the mail. That a delivery service other than regular mail is used does not materially affect the type of proof that must be submitted." GLCB' self- serving claim that the amendment was lost is unsupported by any evidence. ' 2 In any event, the cover letter to the September 3, 2002 amendment indicates that the missing amendment was originally "sent" in August of 2001, which itself would be an untimely filing . Accordingly, the amendment submitted with the September 3, 2002 petition for reconsideration will be dismissed. Even were we to consider the merits of GLCB's proposed amendment, we find that reconsideration cannot be granted because the amendment fails to eliminate the conflict between the applications . Specifically, the proposed GLCB 100 dBu interfering contour overlaps the 60 dBu contour ofthe Spring Arbor application, in violation of 47 CFR Section 73 .509. ' 3 See the attached contour plot. This overlap is not shown in the in the amendment, which vastly understates the extent of the Spring Arbor application's 60 dBu contour. Consequently, the amendment, when considered as part of GLCB's petition for reconsideration, is technically unacceptable for filing and will be dismissed . 14 Conclusion. Accordingly, GLCB's September 3, 2002 filing, when considered as a petition for reconsideration, IS DENIED, and when considered as an untimely amendment, 1S DISMISSED, both because it is untimely and because it fails to eliminate the applicants' mutual exclusivity and 10 Public Notice, "Deadline for NCE Settlements and Supplements Extended to July 19, 2001," 16 FCC Rcd 10892 (M. M. Bur. 2001) (" Settlement Extension Public Notice") . 1 1 Hughes- Moore Associates, Inc. e t al., 7 FCC Rcd 1454, 1455 (1992) . ' z It is noteworthy that GLCB did not purport to file a copy of the allegedly missing amendment with it latest petition for reconsideration . The September 3, 2002 amendment is clearly a new filing, with signature dates of August 30 and 31, 2002, and the contour plots included with the amendment were dated August 26, 2002. There is no information that would lead us to conclude that any part ofthe amendment was created earlier than August 26, 2002 . " GLCB cannot simultaneously use the proposed transmitter site while avoiding prohibited contour overlap with application BPED- 19980713MD, andprovide 60 dBu coverage of 50% or more ofJackson (as is now required by 47 CFR Section 73 .515) . To properly cover Jackson without prohibited contour overlap with the Spring Arbor application (assuming no changes in the Spring Arbor proposal), GLCB would have to relocate the transmitter site northeastward (to move the interfering contour further away) while increasing power (to maintain coverage ofJackson) . We have not conducted an analysis to show whether this is feasible . 14 Additionally, we note that, because there is no "technical defect" that GLCB seeks to correct by virtue of this amendment, the Commission policy which allows NCE FM applicants one opportunity to amend to correct technical deficiencies does not apply in this case. See Public Notice, "Commission States Future Policy on Incomplete and Patently Defective AM and FM Construction Permit Applications," 56 RR 2d 776, 49 Fed Reg. 47331 (1984), referenced in 47 C. F .R. § 73 .4015. 3 fulfill the terms ofthe settlement agreement . The action taken in the August 12, 2002 letter, which denied the July 19, 2001 Joint Request for Approval of Agreement filed on behalf of Spring Arbor University Communications and GLCB Community Broadcasting, Inc. and disapproved the agreement, remains intact . Furthermore, because GLCB failed to submit the point supplement requested by the staff in the August 12, 2002 letter and required by the Settlement Extension Public Notice, its application IS DISMISSED pursuant to the terms ofthose documents. All pleadings filed against acceptance or grant of the GLCB application ARE DISMISSED AS MOOT. The dismissal of GLCB's application removes any conflict with the Spring Arbor application . Because that application complies with all pertinent statutory and regulatory requirements and we find that its grant will further the public interest, convenience, and necessity, application BPED- 19980713MD for a new noncommercial educational FM station at Jackson, Michigan IS GRANTED. Finally, the settlement agreement contemplated the dismissal of the GLCB Rives Junction, MI application (File Number BPED- 19990920MA), which is not part ofthe settlement group listed at the beginning of this letter. Because the settlement agreement was not approved, this application will remain pending. Further review on the Rives Junction application will be performed subsequent to the closing of an application filing window for noncommercial FM educational applications, to be opened at some future date. Enclosure cc: Spring Arbor University Communications GLCB Community Broadcasting, Inc. Chief Audio Division Media Bureau 4 25 LAMBERT EQUALAREA MAP KILOMETERS ENGINEER: dbickel THE FOLLOWING IS A LIST OF THEDATA WHICHAPPEARS ON THEABOVEMAP B0TTOM LATITUDE: 41 .81 TOP LATITUDE: 42. 57 LEFTLONGITUDE: -85. 01 RIGHT LONGITUDE: -84. 01 A1 - Number of radials wherefree space equation was used forfieldstrength calculation, A7 - Number of radials where a HAAT less than 30 meters was adjusted to 30 meters. NAP: ENLARGED CONUS MAP PROJECTION: Lambert Equal- area CENTER LAT: 42. 19 LONG: -84. 51 GRID SPACING: 0. 50 KILOMETERS/ INCH = 13. 83 PLOT MADE ON : 29 October, 2002 11 :04 HOURS call serv city, state application no. contour chan erp haat rcamsl overage area 981224 FM JACKSON, MI BPED- 19981224MB 60. 0 dBu (50,50) 209A 0. 500 40. 5 332. 0 30. 3 .3 sq km 981224 FM JACKSON, MI BPED- 19981224MB 100. 0 dBu (50,10) 209A 0. 500 40. 5 332. 0 7. 7 sq km 180713 FM SPRING ARBOR, Ml BPED- 19980713MD 60. 0 dBu (50,50) 207A 2. 500 83 .0 398. 0 1424. 0 sq km 98071. 3 FM SPRING ARBOR, MI BPED- 19980713MD 100. 0 dBu (50,10) 207A 2. 500 83 .0 398. 0 12 .9 sq km 5