**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. BNPL-20000607ABG    |
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| **ANCHORAGE CHRISTIAN LIFE**     | ** | Facility ID No. 124523       |
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| **ORGANIZATION FOR NORTHERN      | *  | File No. BNPL-20000602AFS    |
| DEVELOPMENT**                    | *) |                              |
|                                  | ** | Facility ID No. 124266       |
| Applications for a Construction  |    |                              |
| Permit for a New LPFM Station at | *  |                              |
| Anchorage, Alaska                | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 6, 2008 Released: February 8, 2008**

By the Commission:

# I. INTRODUCTION 

1\. The Commission has before it the captioned, mutually exclusive
applications of Anchorage Christian Life ("ACL") and Organization for
Northern Development ("OND"), each seeking a construction permit for a
new station in the Low Power FM ("LPFM") Broadcast Service at Anchorage,
Alaska. In accordance with our procedures,[^1] the staff tallied the
comparative point totals claimed by each applicant and listed those
point totals in a Public Notice accepting the applications for filing,
establishing a petition to deny period, and specifying the applications'
tentative selectee status.[^2] Therein, OND and ACL were designated as
the tentative selectees for the subject authorization. Also on file are
two pleadings directed to the ACL application, the February 27, 2004,
Petition to Deny ("Petition") filed by OND[^3] and the May 19, 2004,
Informal Objection ("Objection") filed by WTL Communications, Inc.
("WTL").[^4] For the following reasons, we grant the Petition and the
Objection to the extent indicated, grant the OND application, and
dismiss the ACL application.

**II. DISCUSSION**

2\. OND and ACL filed mutually exclusive applications for a construction
permit to build a new LPFM station in Anchorage, Alaska. The ACL and OND
applications were accepted for filing and each applicant was tentatively
awarded three points under the selection procedure set forth in Section
73.872 of the Commission's Rules (the "Rules").[^5] OND timely filed its
Petition; because WTL submitted its Objection after the petition period,
its untimely pleading will be considered as an informal objection under
Section 73.3587 of the Rules.[^6]

3\. *OND Petition to Deny*. We have evaluated the merits of OND's
Petition and ACL's Opposition, and conclude that ACL is not entitled to
the point that it claimed for "established community presence."
Accordingly, for the reasons discussed herein, we disallow that point
and reevaluate the applications on a comparative basis.

4\. Section III, Item 1 of the low power construction permit application
form, FCC Form 318, requests that the applicant demonstrate that it has
an "established community presence" by certifying that "\[the
applicant\], for a period of at least two years prior to application,
has been physically headquartered, has had a campus, or has had
seventy-five percent of its board members residing within 10 miles of
the coordinates of the proposed transmitting antenna." ACL indicated
"Yes" to that certification, attaching a supporting Exhibit "certifying"
that four of its five directors had lived within 10 miles of the
proposed antenna site at least two years before the application was
filed.

5\. In its Petition, OND argues that it is the "comparatively superior
applicant" because ACL should not have been awarded the point for
certifying that it had an "established community presence."
Specifically, OND maintains that ACL did not exist as an entity for two
years prior to filing its application, as prescribed by the Rules, but
rather based its certification on the two-year residence of the members
of its governing board, which by itself, is not sufficient to establish
a community presence under Section 73.872(b)(1) of the Rules. OND
challenges this certification because ACL had not existed as an entity
for two years prior to filing its application, as required by Section
73.872(b)(1). In support, OND submits a copy of ACL's Educational
Programs application exhibit,[^7] wherein ACL specifies that it was
incorporated on May 5, 2000, only a month prior to the June 7, 2000,
filing of its application.

6\. In its Opposition to OND's Petition, ACL states that Section 73.872
is silent as to the requirement that an applicant be in existence for at
least two years prior to filing its application, and that there "is no
logical reason" that the language in the *LPFM Report and Order*,
*infra*, should not apply also to individuals. In this regard, ACL
submits that community presence can only be attained by the actions of
the individuals that comprise the corporation, not the corporate entity
itself, and therefore maintains that it claimed the "established local
presence" point "on the strength of the local residence" of at least 75%
of its governing board members within 10 miles of the proposed antenna
site for two years prior to filing the application. ACL concludes that
the residence of its governing board, alone, is sufficient to
demonstrate "established community presence." We disagree.

7\. Section 73.872 of the Rules, entitled "Selection Procedure for
Mutually Exclusive LPFM Applications," provides, in pertinent part,
that:

> \[e\]ach mutually exclusive application will be awarded one point for
> each of the following criteria, based on application certification
> that the qualifying conditions are met: (1) *Established community
> presence*. An applicant must, for a period of at least two years prior
> to application, have been physically headquartered, have had a campus,
> or have had seventy-five percent of its board members residing within
> 10 miles of the coordinates of the proposed transmitting antenna. . .
> .[^8]

8\. Thus, the language of the Rule requires that, in order to be
entitled to a point for community presence, the applicant must be in
existence for at least two years prior to filing the application.
Further, in the proceeding establishing the LPFM service,[^9] the
Commission discussed the underpinning for its requirement that such a
LPFM applicant must make a threshold showing that it existed two years
prior to filing its application. Therein, the Commission contemplated
that the organization filing the application would have been in
existence and based in the community for at least two years at the time
of filing. For example, the Commission stated that the criterion for
demonstrating established community presence favors *organizations* that
have been operating in the communities where they propose to construct
an LPFM station and thus have track records of community service and
established constituencies within their communities.[^10] The Commission
expressed its belief that such applicants, because of their
"longstanding organizational ties" to their communities, are likely to
be more attuned to, and have "organizational experience" addressing, the
needs and interests of their communities.[^11] Further, the Commission
stated that "preferring organizations that have been in existence and
physically present in the community for two years would help prevent
maneuvering of the point system by those who might otherwise establish
multiple organizations to file the LPFM applications."[^12]

9\. Further, the Instructions to FCC Form 318, regarding claiming the
point for established community presence, expressly provide that:

> To qualify for a point under this criterion, the applicant must have
> an established community presence of at least two years duration in
> the community it proposes to serve. Educational institution and
> organization applicants must be able to certify that, during the two
> years prior to application, (a) it has been in existence as a
> nonprofit educational institution or organization, **and** (b) has
> been physically headquartered, has had a campus, or has had
> seventy-five percent of its governing board members residing within 10
> miles of the coordinates of the proposed transmitting antenna. [^13]

10\. Thus, we must reject ACL's interpretation of Section 73.872. The
Rule language, the Commission's Order adopting the Rule, and the
instructions to the application for an LPFM construction permit all
contradict ACL's contention that Section 73.872 is silent regarding the
two-year prior existence prescription for applicants. If an applicant
desires to claim the point for establishment of a community presence, it
must meet the threshold requirement of existing as an entity for at
least two years prior to filing its application. ACL's incorporation one
month before filing its application does not demonstrate the
"longstanding organizational ties" to Anchorage envisioned by the
Rule.[^14] Although the information that ACL has submitted regarding the
local residence of members of its governing board demonstrates that ACL
is community-based for purposes of fulfilling the basic eligibility
requirement under Section 73.853(b), it is not sufficient to demonstrate
that it had an "established community presence" for two years prior to
the filing of the application, entitling ACL to claim the comparative
point for the criterion set forth in Section 73.872(b)(1).

11\. Finally, ACL's contention that a corporation, as a legal entity, is
incapable of establishing a community presence, as opposed to the
actions of individuals comprising the corporation, is devoid of merit.
Indeed, OND has done so in this case. For these reasons, the point
claimed by ACL for "established community presence" will be disallowed.

12\. *WTL Informal Objection.* In its Objection, WTL asserts, as did
OND, that ACL improperly claimed a comparative point for "established
community presence" because it did not exist for at least two years
prior to filing the application. WTL also argues that: (1) ACL failed to
prove that it is a nonprofit legal entity because the application did
not provide "a document showing its articles of incorporation or the
status of its incorporation as of the filing date, and does not give an
exact date of its incorporation;"[^15] and (2) ACL "appears" to be
controlled by a central organization and "will not" serve Anchorage,
based on the similarity of the language and generic references found in
ACL's and other applications.[^16]

13\. Initially, and for the reasons stated above, we agree that ACL is
not entitled to a comparative point for "established community
presence." We note, however, that pursuant to the applicable Rules and
procedures, an applicant for an LPFM station must certify its
eligibility to own and operate such station at the time it files its
application.[^17] Section 73.853(a)(1) of the Rules states that an LPFM
station may be licensed to a noncommercial educational ("NCE")
organization for the advancement of an educational program.[^18] Because
individuals are not eligible to own and operate LPFM stations,[^19] the
certification requires that the applicant be a noncommercial educational
institution, corporation, or entity that is recognized under state
law.[^20] Thus, an LPFM applicant must be incorporated, registered, or
otherwise organized as a nonprofit entity under state law at the time
its application is submitted.[^21] However, there is no requirement that
LPFM applicants submit documentation of their corporate status with
their original applications. Furthermore, mere allegations are
insufficient to rebut such a certification. WTL's attack on ACL's
corporate status is without merit. ACL's original application indicates
that ACL was incorporated on May 5, 2000, and WTL offers no evidence
beyond mere allegations that ACL fails to comply with Section
73.853(a)(1). Finally, we cannot credit WTL's speculative allegation
that it "appears" that ACL is controlled by a central organization. WTL
does not identify this "central organization," nor any rule violation
that would warrant dismissal of the application.[^22]

14\. *LPFM Selection Process.* Before applying the LPFM mutually
exclusive selection procedure preference to determine the number of
merit points to be awarded to each applicant, we first ascertain the
basic eligibility of the applicants. In order to further our diversity
goals and foster local, community-based service, we do not allow any
broadcaster or other media entity subject to our ownership rules to
control or to hold an attributable ownership interest in an LPFM station
or enter broadcast-related operating agreements with an LPFM
licensee.[^23] Additionally, to foster the local nature of LPFM service,
we have limited eligibility to local entities during the first two years
that LPFM licenses are available.[^24] Based on the record before us, we
conclude that ACL and OND are each qualified to hold an LPFM
authorization.

15\. Mutually exclusive LPFM applications of qualified applicants are
subject to the comparative selection procedures set forth in Section
73.872 of the Rules.[^25] This procedure awards a maximum of three
points based on three criteria deemed to be most relevant to predicting
the applicant that is best qualified to provide the service for which
LPFM spectrum has been allocated, with the highest points awarded named
the tentative selectee :[^26]

-   Each applicant that certified that it has had an *established
    community presence* *of at least two years\'* *duration* is awarded
    one point. An applicant is deemed to have an established community
    presence if, for a period of at least two years prior to
    application, the applicant has been physically headquartered, has
    had a campus, or has had 75 percent of its board members residing
    within 10 miles of the reference coordinates of the proposed
    transmitting antenna.

-   An applicant that has *pledged to operate at least 12 hours per day*
    is awarded one point.

-   An applicant that has *pledged to originate locally at least eight
    hours of programming per day* is awarded one point. For purposes of
    this criterion, local origination is defined as the production of
    programming within 10 miles of the reference coordinates of the
    proposed transmitting antenna.[^27]

16\. Under this comparative selection process, the applicants here are
awarded the following points:

-   *Established Community Presence.* OND is entitled to a point because
    it has certified that, for a period of at least two years prior to
    the filing date of its application, it has existed as an educational
    institution or organization and has been physically headquartered,
    has had a campus, or has had 75 percent of its board members
    residing within 10 miles of the coordinates of the proposed
    transmitting antenna.[^28] ACL is not entitled to a point because,
    as discussed above, it did not exist for at least two years prior to
    filing its application.[^29]

-   *Proposed Operating Hours.* OND and ACL are each entitled to a point
    because they each pledge to operate at least 12 hours per day.[^30]

-   *Local Program Origination.* OND and ACL are each entitled to one
    point because they have each pledged to originate at least eight
    hours of local programming per day.[^31]

*Total Points*. Accordingly, OND is entitled to three points, and ACL is
entitled to two points. Thus, OND is the prevailing tentative selectee
in LPFM Mutually Exclusive Group No. 1. We conclude that grant of OND's
application would serve the public interest, convenience and necessity.

**III. ORDERING CLAUSES**

17\. Accordingly, IT IS ORDERED that the application of Organization for
Northern Development (File No. BNPL-20000602AFS ) IS GRANTED.

18\. IT IS FURTHER ORDERED that the application of Anchorage Christian
Life (File No. BNPL-20000602AFS) IS DISMISSED.

19\. IT IS FURTHER ORDERED, that the Petition to Deny the application of
Anchorage Christian Life filed by Organization for Northern Development
IS GRANTED, to the extent indicated herein and is otherwise DENIED.

20\. IT IS FURTHER ORDERED, that the Informal Objection to the
application of Anchorage Christian Life filed by WTL Communications,
Inc. IS GRANTED to the extent indicated herein and is otherwise DENIED.

21\. Finally, IT IS FURTHER ORDERED that copies of this *Memorandum
Opinion and Order* shall be sent, by First Class and Certified Mail,
Return Receipt Requested, to Anchorage Christian Life, 6100 O'Malley
Road, Anchorage, Alaska 99516, and to its counsel, Donald E. Martin,
Esq., P.O. Box

8433, Falls Church, Virginia 22041; and to the Organization for Northern
Development, 1325 Primrose Street, Anchorage, Alaska 99508, and WTL
Communications, Inc., P.O. Box 1199, Merlin, Oregon 97532, and to its
counsel Dan J. Alpert, Esq., 2120 N. 21^st^ Rd., Arlington, Virginia
22201.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *See Creation of a Low Power Radio Service*, Report and Order, 15
    FCC Rcd 2205 (2000) ("*LPFM Report and Order*"); *recon. generally
    denied*, Memorandum Opinion and Order on Reconsideration, 15 FCC Rcd
    19208 (2000); *regulation modification granted by* Second Report and
    Order, 16 FCC Rcd 8026 (2001); Third Report and Order and Second
    Further Notice of Proposed Rulemaking, FCC 07-204 (rel. Dec. 11,
    2007) ("*Third Report and Order*").

[^2]: *See Closed Groups of Pending Low Power FM Mutually Exclusive
    Applications Accepted for Filing,* Public Notice, 19 FCC Rcd 1034
    (MB Jan. 28, 2004) ("*LPFM Notice of Acceptance Public Notice*").

[^3]: ACL filed an Opposition to the Petition on March 18, 2004, to
    which OND filed a Reply on March 30, 2004.

[^4]: WTL, an applicant for a new LPFM facility in Grants Pass, Oregon
    (File No. BNPL-20010615BDF), claims to have discovered deficiencies
    in a number of pending LPFM applications to which it has filed
    objections, including that of ACL here.

[^5]: 47 C.F.R. § 73.872(a) and (b) require that following the close of
    each window for new LPFM stations and for modifications in the
    facilities of authorized LPFM stations, the Commission is to issue a
    public notice identifying all groups of mutually exclusive
    applications. Such applications will be awarded points to determine
    the tentative selectee. Unless resolved by settlement, the tentative
    selectee will be the applicant within each group with the highest
    point total. Each mutually exclusive application is awarded one
    point, based on application certification, for: (1) established
    community presence (*see* discussion *infra*); (2) proposed
    operating hours (if the applicant proposes operation for at least 12
    hours per day); and (3) local program origination (if the applicant
    pledges to originate locally at least eight hours of programming per
    day). Each applicant in this proceeding was tentatively awarded
    three points. *LPFM Notice of Acceptance Public Notice*, 19 FCC Rcd
    at 1036, Attachment A, at 1.

[^6]: 47 C.F.R. § 73.3587.

[^7]: ACL captioned application, Attachment A, Exhibit 1 ("Anchorage
    Christian Life Educational Programs").

[^8]: 47 C.F.R. § 73.872(b)(1).

[^9]: *LPFM Report and Order*, *supra*, 15 FCC Rcd 2205.

[^10]: *Id*. at 2260 ¶ 140 (emphasis added).

[^11]: *Id.*

[^12]: *Id*. at 2260 ¶ 140.

[^13]: Page 8, A. Question 1: Established Community Presence (emphasis
    added).

[^14]: *Id*. We do not question whether ACL's listed principals have
    lived in Anchorage for more than two years. However, the Commission
    does not license LPFM stations to individuals, and the ACL
    principals' individual ties to the community do not provide the
    "organizational ties" valued by the Commission for LPFM applicants.

[^15]: WTL is incorrect in this assertion; ACL's original application
    indicates that ACL was incorporated on May 5, 2000.

[^16]: WTL states that, while doing research against an application
    mutually exclusive with its LPFM application for Grants Pass,
    Oregon, it discovered that the applicant there used "almost the
    identical text to state their educational purpose" and used the same
    rationale and text to claim a comparative point for Established
    Local Presence. WTL observes that there is nothing in the statement
    to demonstrate any connection to Anchorage, only to "the proposed
    service area." WTL charges that it cannot be a coincidence that the
    same text and "flawed reasoning" could be used in multiple
    applications unless it was directed by a "central organization." WTL
    does not identify that "central organization."

[^17]: *See* Instructions for FCC Form 318, Section II, Question 2. *See
    also* FCC Form 318, Section II, Question 2.

[^18]: 47 C.F.R § 73.853(a)(1).

[^19]: *LPFM Report and Order*, 15 FCC Rcd 2205 at paragraph 20,
    footnote 40. *See also* Instructions for FCC Form 318, Section II,
    Question 2(b).

[^20]: ^?^ *Id.* at paragraph 18 and 19. *See also* 47 U.S.C.
    §397(6)(A).

[^21]: The Commission restricted the initial LPFM filing windows to
    "local" applicants. 47 C.F.R. 73.853(b). *See also, LPFM Report and
    Order,* 15 FCC Rcd at 2215.

[^22]: *See, e.g.*, 47 C.F.R. § 73.858(b) and the Instructions to FCC
    Form 318, pp. 5-6, which reads:

    Under this provision, a local chapter of a national organization
    will not have the attributable media interests of the national
    organization attributed to it, provided that the local chapter: (1)
    is incorporated in its local area separately from the national
    organization with which it is affiliated; and (2) has a distinct
    local presence and mission. To satisfy the second element of this
    standard, an applicant must demonstrate that it has significant
    membership within its local area and that it has a local purpose
    that can be distinguished from the purpose of the national
    organization with which it is affiliated.

[^23]: *See* 47 C.F.R. § 73.860.

[^24]: *See* 47 C.F.R. § 73.853(b). The *Third Report and Order* amends
    this rule section. Pursuant to the amended 47 C.F.R. § 73.853(b),
    \"\[o\]nly local applicants will be permitted to submit
    applications.\" The amended rule takes effect on March 17, 2008.

[^25]: 47 C.F.R. § 73.872.

[^26]: ^?^ *Id.*

[^27]: *See id.*

[^28]: *See* captioned OND application at Section III, Question 1(a).

[^29]: *See* ¶¶ 7-11, *supra.*

[^30]: *See* captioned OND application at Section III, Question 2; *see*
    *also* captioned ACL Application at Section III, Question 2.

[^31]: *See* captioned OND application at Section III, Question 3; *see
    also* captioned ACL Application at Section III, Question 3.