Federal Communications Commission FCC 14-193
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Educational Media Foundation
Application for a Construction Permit for a
Minor Change to a Licensed Facility
Station W267AT, Sherburne, New York
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File No. BPFT-20130416AAG
Facility ID No. 140739
MEMORANDUM OPINION AND ORDER
Adopted:  December 10, 2014 Released: December 10, 2014
By the Commission:
1. In this Memorandum Opinion and Order, we deny the Application for Review filed by 
Educational Media Foundation (“EMF”) on December 2, 2013.  EMF seeks review of an October 31, 
2013, action by the Media Bureau (“Bureau”),
1
which denied EMF’s Petition for Reconsideration of a 
June 10, 2013, letter decision dismissing the above-captioned application (“Application”) of EMF to 
move the transmitter site for its FM translator Station W267AT, Sherburne, New York, (“Station”) to a 
new site at Oneonta, New York.
2
  At the proposed site, the Station would rebroadcast EMF’s primary 
noncommercial educational (NCE) Station WKVU(FM), Utica, New York.  The Station’s proposed 
facilities do not overlap the 60 dBu contour of its existing facilities, so the Application is considered a 
major change under Section 74.1233(a)(1) of the Rules.
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  However, the Application includes a request for 
waiver of Section 74.1233(a)(1) to permit the proposed move using a minor change application (“Waiver 
Request”).
2. EMF seeks waiver based on the Bureau’s 2011 Mattoon case.
4
  In Mattoon, the Bureau
found that waiver of Section 74.1233(a)(1) was in the public interest because: (1) the translator 
modification applicant did not have a history of filing serial minor modification applications; (2) the 
proposed site was mutually exclusive with the licensed facility; (3) the proposed move was not in an 
LPFM spectrum-limited market; and (4) the translator would rebroadcast an AM station as an AM fill-in 
translator.
5
  EMF concedes that its subject proposal would not be used to rebroadcast an AM station.  
However, it contends that it satisfies the fourth criterion because “the public interest of the grant of the 
Application would be in many ways like the benefits enjoyed by the applicant in [Mattoon], saving 
                                                     
1
David D. Oxenford, Esq., Letter, 28 FCC Rcd 14913 (MB 2013) (“Reconsideration Decision”).
2
Educational Media Foundation, Letter, Ref. No. 1800B3-RG (MB 2013) (“Staff Decision”). 
3
47 C.F.R. § 74.1233(a)(1). The purpose of the overlap requirement is “[t]o prevent . . . FM translator stations from 
abandoning their present service areas.”  1998 Biennial Regulatory Review, Notice of Proposed Rulemaking, 13 
FCC Rcd 14859, 14872 (1998); First Report and Order, 14 FCC Rcd 5272, 5277 (1999).
4
See John F. Garziglia, Letter, 26 FCC Rcd 12685 (MB 2011) (“Mattoon”).
5
Mattoon, 26 FCC Rcd at 12686.
Federal Communications Commission FCC 14-193
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resources of the applicant and the Commission in processing multiple applications, and resulting in the 
‘efficient use of limited spectrum.’”
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3. We uphold the Bureau’s decision not to expand Mattoon to include the waiver of Section 
74.1233(a)(1) to allow the proposed modification of an FM translator to rebroadcast a station in the FM 
(rather than the AM) service as a minor modification.  We reject EMF’s untethered reading of the 
Mattoon waiver criteria, which explicitly included the requirement to rebroadcast an AM station.  We 
agree with the Bureau that the AM/FM distinction was crucial to the outcome in Mattoon which was 
expressly based, in part, on the public interest goal of AM revitalization.  The Commission’s 2009 
deregulatory rule change
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to permit AM/FM translator rebroadcasting has been an “unqualified success.”
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That action, coming six years after the first FM translator window, instantly created a gap between the 
demand for FM translator licenses and supply.  The AM “fill-in” restriction further exacerbated this 
problem.
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  A further supply impediment, subsequently eliminated by the Commission,
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was that Mattoon 
waivers were initially limited to already-authorized translator stations.
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  None of these factors is relevant 
for NCE FM stations, such as EMF’s Station WKVU(FM) here, which for decades have had the ability to 
use new and existing FM translators to extend their signal distribution systems.
12
  
4. We also agree with the Bureau that EMF has failed to identify any special circumstances 
in this case that would warrant a deviation from the general rule.
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  Rather, grant of the Waiver Request, 
as EMF acknowledges, would affect not only EMF but “many other like-situated licensees.”
14
  
Furthermore, the public interest benefits cited by EMF—the inherent public interest benefit in expanding 
noncommercial educational service  and eliminating the resource-intensive processing of serial translator 
“hops” applications —are neither particularized nor compelling enough to warrant waiver.  Not only 
could these arguments be asserted for any station in any service, but the Bureau has determined that the 
serial modification applications EMF warns of are not mere administrative inconveniences but rather 
disallowed as an abuse of process.
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5. In the Application for Review, EMF cites a number of waiver requests that likewise did 
not comply with the fourth criterion of Mattoon, because they involved modification of FM translator 
                                                     
6
Application for Review at 3.
7
See Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations, Report and Order, 24 FCC 
Rcd 9642 (2009) (“AM/FM Translator R&O)”.  
8
See Revitalization of the AM Radio Service, Notice of Proposed Rulemaking, 28 FCC Rcd 15221, 15229 (2013)
(“AM Revitalization NPRM”).
9
See id. at 15229.
10
See Creation of a Low Power Radio Service, Fourth Report and Order and Third Order on Reconsideration, 27 
FCC Rcd 3364, 3395 (2012).
11
See AM/FM Translator R&O, 24 FCC Rcd at 9650.
12
In this case, the Media Bureau has identified numerous FM translator authorizations which would not require 
waivers to rebroadcast the signal of WKVU(FM).  EMF does not discuss these rule-compliant alternatives.
13
  Reconsideration Decision, 28 FCC Rcd at 14913, n.6; see 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).
14
Application for Review at 1.
15
See Mattoon, 26 FCC Rcd at 12687 (citing Amendment of Sections 1.420 and 73.3584 of the Commission's Rules 
Concerning Abuses of the Commission's Processes, Notice of Proposed Rulemaking, 2 FCC Rcd 5563 ¶ 2 (1987)
(“We believe that ‘abuse of process' may be characterized as any action designed or intended to manipulate or take 
improper advantage of a Commission process, procedure or rule in order to achieve a result which that process, 
procedure or rule was not designed or intended to achieve; or to subvert the underlying purpose of that process, 
procedure or rule.”).  See also AM Revitalization NPRM, 28 FCC Rcd at 15226.
Federal Communications Commission FCC 14-193
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facilities to rebroadcast FM stations, but were nevertheless granted by Bureau staff.  These grants were 
made in error and without written decisions during a period of high volume FM translator modification 
application filings.  In 2013, the Bureau directed staff to cease granting such waivers, for the reasons 
noted in paragraph three, supra.  However, as stated in the Reconsideration Decision, those grants are 
final and cannot be rescinded.
16
  It is well established, however, that erroneous staff actions do not bind 
the Commission.
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6. Upon review of the Application for Review and the entire record, we conclude that EMF
has not demonstrated that the Bureau erred.  The Bureau, in the Reconsideration Decision, properly 
decided the matters raised, and we uphold its decision for the reasons stated therein and in paragraphs
three to five, supra.
7. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the 
Communications Act of 1934, as amended,
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and Section 1.115(g) of the Commission’s rules,
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the 
Application for Review IS DENIED.  
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
                                                     
16
Reconsideration Decision, 28 FCC Rcd at 14914.
17
See, e.g., Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) (Commission is not bound by staff actions 
granting allegedly inconsistent waivers if Commission has not endorsed those actions); 65 Applications for 
Authority to Construct and Operate Multipoint Distribution Service Stations at Three Transmitter Sites, 
Memorandum Opinion and Order on Reconsideration, 10 FCC Rcd 11162, 11175 (1995) (erroneous and 
unexplained staff actions are not precedent that binds the Commission); Birach Broadcasting Corporation, Letter, 
24 FCC Rcd 8945, 8951 (MB 2009) (same); North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) 
(“The initial improvident grant of a waiver in this case, now described as an error, does not deprive the agency of 
authority to require future applicants to meet certain standards in order to obtain such a waiver”).
18
47 U.S.C. § 155(c)(5).
19
47 C.F.R. § 1.115(g).