![](media/image1.wmf){width="1.375in" height="1.5in"}**Federal
Communications Commission**

**Washington, D.C. 20554**

February 24, 2009

**DA 09-433**

*In reply refer to*:

1800B3-MJW/PHD

Released: February 24, 2009

University and Community College System of Nevada

℅ John Crigler, Esq.

Garvey Schubert Barer

Fifth Floor, Flour Mill Building

1000 Potomac Street, NW

Washington, DC 20007

Living Proof, Inc.

℅ Gary S. Smithwick, Esq.

Smithwick and Belendiuk, P.C.

Suite 301

5028 Wisconsin Ave., NW

Washington, DC 20016

Mr. Stephen Kalish

829 Rimrock Drive

Bishop, CA 93514

In re: **Living Proof, Inc.**

> Big Pine, California
>
> Facility No. 173373
>
> File No. BNPED-20071018AJI
>
> **Application for new NCE FM Station**
>
> **Petitions to Deny**
>
> **Joint Request for Approval of Settlement Agreement.**

Dear Counsel and Mr. Kalish:

Before us are the captioned application (the "Application") of Living
Proof, Inc. ("Living Proof") for a new NCE FM station at Big Pine,
California, a Petition to Deny (the "Kalish Petition") filed by Stephen
Kalish, a Petition to Deny filed by the University and Community College
System of Nevada (the "University") and related pleadings.[^1] For the
reasons set forth below, we deny the University Petition, deny the
Kalish Petition, grant the First, Second and Third Extension Motions,
grant the Joint Request, and grant the Application, as amended.

**Background.** The University alleges that Living Proof's proposed
station would cause interference to its FM translator station, K215BQ,
Bishop, California.[^2] It also claims that Living Proof lacks
reasonable assurance of site availability[^3] and that there are defects
in Living Proof's local newspaper public notice that the Application had
been filed.[^4]

Kalish alleges that Living Proof falsely certified that it would comply
with the local public notice publication requirements of Section 73.3580
of the Commission's Rules (the "Rules")[^5] and misrepresented that
Kalish was engaged in settlement negotiations with Living Proof and the
University.[^6] These matters, in combination, Kalish claims, show that
Living Proof lacks "forthrightness and candor"[^7] and has made a
"possible material misrepresentation."[^8] Therefore, Kalish argues that
the Application should be dismissed with prejudice.[^9] Finally, in his
Reply, Kalish alleges that Living Proof violated Section
73.3526(e)(2)[^10] of the Rules by not placing, in the Living Proof
local public inspection file, a statement that the University and Kalish
had filed Petitions to Deny, and a list of the names and addresses of
the Petitioners.[^11]

Living Proof claims that its defective local public notice was
attributable to a "scrivener's error"[^12] and that it subsequently
published a correct notice. It argues that the Commission does not
dismiss applications if local public notice is deficient; it only
requires that the applicant publish a corrected notice and so advise the
Commission.[^13]

In their Joint Request, the University and Living Proof seek dismissal
of the University Petition, approval of the Joint Request and grant of
the Living Proof Application, as amended.[^14] The amendment substitutes
Channel 212 for the originally requested Channel 214 to avoid potential
interference to the University's translator station.[^15]

**Discussion**. We accept the Living Proof amendment to specify Channel
212 in lieu of Channel 214 and grant the Joint Request. The University
and Living Proof have provided the requisite "no consideration,"
declarations[^16] and assert that there are no longer any disputed
matters that require resolution by the Commission.[^17] Accordingly, as
Living Proof and the University request, we are dismissing the
University Petition. Nonetheless, we are obliged to consider the
University Petition on its merits.[^18]

SBA Network Services manages the transmitter site specified in the
Living Proof application pursuant to a special use permit issued by the
U. S. Forest Service (the "Forest Service"). The site is located on
Mazourka Peak, a major electronics site, in the Inyo National
Forest.[^19] The University contends that Living Proof has not contacted
the Forest Service, received "reasonable assurance" from the Forest
Service that the proposed use of the site would be acceptable, or
submitted the forms necessary to obtain permission to construct and
operate a broadcast transmission system at the site.[^20] In support of
those allegations, the University provides a declaration from Michael
Levine.[^21]

Mr. Levine[^22] recites that, at the request of Kalish, he contacted
Forest Service Land Specialist, Frances Alvarado, who told Mr. Levine
that "SBA was told that they had to submit a \[Form\] 2700-10 to the
Forest Service."[^23] Mr. Levine states that "Frances Alvarado has not
received any further phone calls or documentation from them."

The Declaration also states that Mr. Levine spoke to "State of
California radio tech Sam Blum" and asked Mr. Blum "if he \[Mr. Blum\]
or any of the state agencies received a \[Form\] 2700-10 for a potential
new user at Mazourka Peak."[^24] Mr. Levine claims that "the agencies
always forward this \[the Form 2700-10\] to their technicians."[^25] Mr.
Levine states that Mr. Blum told him that he \[Mr. Blum\] had not
received the form and was unaware of "the potential new user."[^26] Mr.
Levine recites that he made the same inquiry of another technician who
denied receiving "any information on a new user."[^27] Finally, Mr.
Levine claims that "the applicant and site manager by not following site
management procedure, has \[sic\] not met the conditions of the Mazourka
site plan and the application should be denied."[^28]

Mr. Levine's declaration is primarily hearsay and cannot be credited for
that reason.[^29] Assuming, *arguendo*, however, that the information in
the declaration is correct, the fact that SBA may not yet have notified
other site tenants or submitted a completed Form 2700-10 to the Forest
Service does not undercut Living Proof's reasonable assurances to its
proposed site. The Commission generally assumes that applicants will be
able to obtain local land use permits and has not typically required
applicants to obtain, or apply for, advance approval from local land use
authorities in order to certify, in their applications, that they have
reasonable assurance of site availability.[^30] Critically, the
University has failed to show how SBA's alleged failure to initiate the
process of notifying the Forest Service and site tenants of the Living
Proof proposal puts in issue Living Proof's reasonable assurance of its
proposed site. The Commission generally has designated site availability
issues only where it has been shown that permits already had been, or
likely would be, denied by local land use authorities.[^31] The
University has made no such showing. Thus, Mr. Levine's claim--that
Living Proof and SBA have not followed "site management procedure"--is
not sufficient to justify further inquiry into Living Proof's site
assurances.[^32] Accordingly, we find that the University has not
established, *prima facie*, that Living Proof, at the time it filed its
Application, did not have reasonable assurances of its site.

We also decline to consider Kalish's Reply to the extent that it also
questions whether Living Proof has reasonable assurance of its proposed
site.[^33] Section 1.45(c) of the Rules[^34] dictates that a "reply
shall be limited to matters raised in the oppositions." Living Proof did
not refer to site availability in its Opposition. Thus, Kalish is barred
from raising that issue for the first time in his Reply.[^35]

Both Kalish and the University challenged the sufficiency of Living
Proof's local public notice.[^36] However, we agree with Living Proof
that the precedent established in *Helen Broadcasting* applies here. We
are not persuaded by Kalish's attempt to distinguish that case on its
facts. The holding in *Helen Broadcasting*--that inadvertently deficient
local public notice may be remedied by publication of a correct
notice--applies here notwithstanding the immaterial factual differences
between the two cases.[^37] As Living Proof did publish a corrected
notice and has notified the Commission of its action, no Commission
action is necessary.

With regard to Kalish's misrepresentation allegation, Living Proof's
explanation of why its local public notice was deficient is plausible.
Kalish has not shown, and we cannot perceive, any motive to misrepresent
or intent to deceive[^38] by Living Proof when it incorrectly certified,
in its Application, that it had complied with the public notice
requirements of Section 73.3580 of the Rules.[^39] Moreover, we find
that Living Proof's use of a tri-weekly, instead of daily, newspaper for
publication of its local public notice substantially complied with
Section 73.3580(c)(1)(iii) of the Rules.[^40] Finally, even assuming,
*arguendo*, that the Second Extension Motion incorrectly implied that
Kalish was a party to settlement discussions, such an implication,
absent evidence of deceptive intent, does not rise to the level of
misrepresentation and thus lacks legal significance.[^41]

Kalish claims that Living Proof's public inspection file did not contain
a statement that the Petitions to Deny had been filed or a list of the
names and addresses of the petitioners.[^42] This claim could not have
been raised at an earlier stage of this proceeding.[^43] Commission
staff therefore afforded Living Proof an opportunity to respond to the
allegation which we are considering as an objection to the Application.
On May 5, 2008, Living Proof filed a response in which it (a) admitted
the violation, (b) attributed it to inadvertence on the part of a Living
Proof employee, and (c) stated that it placed the requisite information
in its local public inspection file as soon as it became aware of the
violation.[^44]

Section 73.3526 of the Rules[^45] serves the important purpose of
"facilitating citizen monitoring of a station's operations and public
interest performance, and fostering community involvement with local
stations, thus helping to ensure that stations are responsive to the
needs and interests of their local communities. In this regard, where
lapses occur in maintaining the public file, neither the negligent acts
or omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a licensee\'s rule
violation."[^46]

Section 503(b) of the Communications Act of 1934, as amended (the
"Act")[^47] and Section 1.80(a) of the Rules[^48] state that persons who
willfully[^49] or repeatedly[^50] fail to comply with the provisions of
the Act or the Rules are liable for forfeiture penalties. The
Commission\'s Forfeiture Policy Statement[^51] and Section 1.80 of the
Rules set a base forfeiture amount of \$10,000 for public file
violations.[^52] In determining the appropriate forfeiture amount, if
any, in the instant case, we must consider the factors enumerated in
Section 503(b)(2)(D) of the Act,[^53] including "the nature,
circumstances, extent and gravity of the violation, and, with respect to
the violator, the degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may require." [^54]

We conclude that Living Proof has willfully and repeatedly violated
Section 74.3526(e)(2) of the Rules. Considering the record as a whole,
including Living Proof's lack of a history of earlier violations and the
nature and duration of the violation, we believe admonishment, rather
than a monetary forfeiture, is sufficient.[^55]

**Decision/Action.** Accordingly, IT IS ORDERED that the Petition to
Deny filed by Steven Kalish IS DENIED.

IT IS FURTHER ORDERED that the Petition to Deny filed by the University
and Community College System of Nevada IS DENIED.

IT IS FURTHER ORDERED that the Joint Request for Approval of Settlement
Agreement, filed by Living Proof, Inc. and the University and Community
College System of Nevada IS GRANTED.

IT IS FURTHER ORDERED that the Reply to Opposition to Consolidated
Motion for Further Extension of Time filed by Living Proof, Inc. IS
DISMISSED as an unauthorized pleading.

IT IS FURTHER ORDERED that Living Proof, Inc. IS ADMONISHED for willful
violation of Section 73.3526(e)(2) of the Commission's Rules.

IT IS FURTHER ORDERED that Application, File No. BNPED-20071018AJI, as
amended, IS GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

Sincerely,

[^1]: Opposition to Petition to Deny (the "Opposition") filed by Living
    Proof; a Reply to Opposition to Petition to Deny (the "Reply") filed
    by Kalish; a Consolidated Motion for Extension of Time (the "First
    Extension Motion") filed by Living Proof; a Consolidated Motion for
    Further Extension of Time ("the Second Extension Motion") and a
    Consolidated Motion for One-Day Further Extension of Time (the
    "Third Extension Motion"), filed by Living Proof; an Opposition to
    Consolidated Motion for Further Extension of Time (the "Opposition
    to Extension") filed by Kalish; a Reply to Opposition to
    Consolidated Motion for Further Extension of Time (the "Reply to
    Opposition to Extension Motion") filed by Living Proof; and a Joint
    Request for Approval of Settlement Agreement (the "Joint Request")
    filed by Living Proof and the University. The Commission does not
    routinely grant extensions of time in which to file pleadings. *See*
    47 C.F.R. § 1.46(a). It has done so, however, when, as here, parties
    require additional time to conclude a settlement agreement. *See*,
    *e.g., Port Huron Family Radio, Inc.*, Memorandum Opinion and Order,
    4 FCC Rcd 5617 (Rev. Bd. 1989). Accordingly, we grant the First,
    Second and Third Extension Motions. We dismiss Living Proof's Reply
    to Opposition to Extension Motion because § 1.45(d) of the
    Commission's Rules ("Rules") makes no provision for the submission
    of replies to oppositions to motions. *See* 47 C.F.R. § 1.45(d).

[^2]: *See* University Petition at 1.

[^3]: *Id.* at 1-2.

[^4]: *See* *id.* at 3.

[^5]: 47 C.F.R. § 73.3580. *See* Application, Section II, Item 12
    ("Local Public Notice: The applicant certifies compliance with the
    public notice requirements of 47 C.F.R. § 73.3580."). Kalish
    asserts, and Living Proof does not dispute, that the initial local
    public notice of the filing of the Application was published five
    days after the thirty-day period specified in 47 C.F.R. § 73.3580(c)
    and did not contain information on the power and antenna height of
    the proposed station as required by 47 C.F.R. § 73.3580(f)(5).

[^6]: In the Second Extension Motion, Living Proof represented that
    "\[t\]he parties have been discussing a resolution of the matter."
    Second Extension Motion at 1. Kalish, however, asserts that he "has
    never heard from \[Living Proof's\] counsel of any settlement offer
    or engaged in any resolution discussions with applicant's counsel
    whatsoever." Opposition to Extension at 1.

[^7]: Reply at 4.

[^8]: *Id.* at 1.

[^9]: See *id*. at 8.

[^10]: 47 C.F.R. § 73.3526(e)(2).

[^11]: *See* Kalish Reply at 6 and Exhibit C.

[^12]: Opposition at 3. (Living Proof asserts that the error was made
    "by a paralegal employed by \[Living Proof's\] former counsel.")

[^13]: *Id.* at 2 (citing *Helen Broadcasting Co. L.P.,* Memorandum
    Opinion and Order, 5 FCC Rcd 2829, 2830 (1990) ("Helen
    Broadcasting")).

[^14]: *See* Joint Request at 2 and Exhibit A.

[^15]: *See* *id.*

[^16]: The parties to the agreement have provided declarations under
    penalty of perjury that neither party has received compensation, in
    excess of their reasonable and prudent expenses, in exchange for
    entering into the Joint Request. *See* *id.* at 2, Declaration of
    Daniel McClenaghan and Declaration of Daniel J. Klaich. *See* *also*
    47 C.F.R. § 73.3588.

[^17]: *See* Joint Request at 2.

[^18]: *See* *Booth American Co*., Memorandum Opinion and Order, 58 FCC
    2d 553, 554 (1976).

[^19]: *See* *id.* at 2 and Attachment 2.

[^20]: *Id.* The Forest Service issues special use permits to "facility
    owners" at designated sub-sites. Facility owners, such as SBA, may
    lease tower space or land for a new tower to tenants. A prospective
    tenant may contact either the facility owner or the Forest Service
    (which then directs the prospective tenant to a facility owner). The
    facility owner is required to provide 30-day notice to other tenants
    at the site, and other facility owners, whenever it adds new
    frequencies at a site, either for itself or its tenants. *See*
    *id.*, Attachment 2, Ex. A (Mazourka Peak Communications Site
    Management Plan). The notification must be accompanied by Forest
    Service Form 2700-10. *Id.*

[^21]: *See* University Petition at 2. According to the University, Mr.
    Levine believes that "an application by Living Proof to use the site
    would be denied." We note, however, that Mr. Levine makes no such
    statement in his declaration. He only opines that Living Proof's FCC
    application should be denied. *See* *id.* at Attachment 2.

[^22]: Mr. Levine states that he retired in 2004 as the Inyo National
    Forest Radio System Manager. *See* University Petition, Attachment 2
    at 1.

[^23]: *Id.*

[^24]: *Id.* at 3.

[^25]: *Id.*

[^26]: *Id*.

[^27]: *Id.*

[^28]: *Id.*

[^29]: 47 U.S.C. § 309(d)(1). Section 309(d)(1) of the Communications
    Act of 1934, as amended (the "Act"), states, in pertinent part, that
    petitions to deny must be supported with an affidavit from a "person
    or persons with personal knowledge" of facts alleged in the
    petition. The University's declarant lacks personal knowledge of the
    status of Living Proof's proposed site. He relies, instead, on
    hearsay information he obtained in telephone conversations with
    others. Declarations that rely on hearsay are inadequate to support
    a petition to deny. *See,* *e.g.*, *Excellence in Education
    Network*, Memorandum Opinion and Order, 8 FCC Rcd 6269, 6272 n.9
    (1993) ("an affidavit of a party attesting to another person\'s
    assertions . . . is hearsay and as such has no probative value under
    Section 309(d)").

[^30]: *See*, *e.g., Artichoke Broadcasting Corp.*, 10 FCC Rcd 12631,
    12633 (1995) (rejecting "supposition or opinion" about whether
    zoning approval would be granted (citing *San Francisco Wireless
    Talking Machine Co., Inc*., 47 RR2d 889, 893-94 (1980) (site issue
    not added where applicant had not sought land use approval from
    various government agencies and may have difficulty in obtaining
    such approval); *W. Gordon Allen*, 13 RR 1120, 1122-23 (1956) (site
    issue not added where site was zoned residential and applicant had
    not sought variance); *Chronicle Publishing Co.*, 45 FCC 1545 1546
    (Rev. Bd. 1964) (site issue not added where applicant had not
    applied for zoning change).

[^31]: *See* *Teton Broadcasting, L.P.*, Memorandum Opinion and Order, 1
    FCC Rcd 518 (1986) (site issue added where petitioner showed that
    local zoning board had previously refused to approved the proposed
    site, that the board\'s composition had not changed, and that the
    board\'s chairman had provided an affidavit stating that the board
    would not reverse its decision); *El Camino Broadcasting Corp*.,
    Memorandum Opinion and Order, 14 FCC 2d 361, 352-353 (1968) (site
    issue added where petitioner showed it had filed a similar permit
    request which had been denied by the local land use authority).

[^32]: *Cf.* *John Hutton Corp.*, Memorandum Opinion and Order, 27 FCC
    2d 214, 215-216 (Rev. Bd. 1971) (site issue not added where
    petitioner offered affidavit of a local land use administrator,
    stating he was \"pessimistic and discouraging\" regarding ultimate
    zoning approval).

[^33]: *See* Reply at 9.

[^34]: 47 C.F.R. § 1.45(c).

[^35]: Kalish's argument, which is based on Living Proof's lack of an
    executed lease agreement, is without merit. As explained *supra*,
    Living Proof was not required to have executed such a site lease or
    even initiated the Forest Service application process with SBA at
    the time the Application was filed.

[^36]: *See* University Petition at 2-3.

[^37]: *Helen Broadcasting*, 5 FCC Rcd at 2830.

[^38]: *See* *Liberty Productions, L.P.,* Memorandum Opinion and Order,
    16 FCC Rcd 12061, 12079-12080 (2001). ("To raise a substantial and
    material question of deceit, it is necessary to show that the
    statement was inaccurate or materially incomplete and that there was
    an intent to deceive."); *Fox River Broadcasting, Inc*., Order, 93
    FCC 2d 127, 129 (1983) (same).

[^39]: Living Proof responded "yes" to FCC Form 340, Section I, line 12.
    ("Local Public Notice. Applicant certifies compliance with the
    public notice requirements of 47 C.F.R. Section 73.3580.")

[^40]: Section 73.3580(c)(1)(iii) of the Rules contemplates publication
    in either daily or weekly newspapers and thus makes no reference to
    the publication of notices in tri-weekly newspapers. The tri-weekly
    Inyo Register, which Living Proof used for its notice, is equivalent
    to a daily newspaper to the extent that it allows a notice to be
    published twice a week for two consecutive weeks within a three week
    period, as required by 47 C.F.R. § 73.3580(c)(1)(iii).

[^41]: *See* *supra* n.Error: Reference source not found.

[^42]: *See* 47 C.F.R. § 73.3526(e) ("\[i\]f petitions to deny are filed
    against the application, a statement that such a petition has been
    filed shall be maintained in the file together with the name and
    address of the party filing the petition.")

[^43]: *See* 47 C.F.R. §§ 1.106(b)(2)(ii), 1.106(c)(1). (Petition for
    reconsideration acceptable when it "relies on facts unknown to the
    petitioner until after his last opportunity to present such matters
    which could not, through the exercise of ordinary diligence, have
    been learned prior to such opportunity.")

[^44]: *See* Response to Informal Objection, May 5, 2008.

[^45]: 47 C.F.R. § 73.3526.

[^46]: *Citadel Broadcasting Co.*, Memorandum Opinion and Order and
    Notice of Apparent Liability, 22 FCC Rcd 7083, 7097 (2007).

[^47]: 47 U.S.C. § 305.

[^48]: 47 C.F.R. § 1.80(a).

[^49]: Section 312(f)(1) of the Act defines "willful" as "the conscious
    and deliberate commission or omission of \[any\] act, irrespective
    of any intent to violate" the law. 47 U.S.C. § 312(f)(1). The
    legislative history of Section 312(f)(1) of the Act clarifies that
    this definition of "willful" applies to Sections 312 and 503(b) of
    the Act, H.R. REP. No. 97-765, 51 (Conf. Rep.), and the Commission
    has so interpreted the terms in the Section 503(b) context. *See
    Southern California*, 6 FCC Rcd at 4387-88.

[^50]: Section 312(f)(1) of the Act defines "repeated" as "the
    commission or omission of \[any\] act more than once or, if such
    commission or omission is continuous, for more than one day." 47
    U.S.C. § 312(f)(1). *See also Southern California*, 6 FCC Rcd at
    4388 (applying this definition of "repeated" to Sections 312 and
    503(b) of the Act).

[^51]: See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines, Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997), recon. denied 15 FCC Rcd
    303 (1999).

[^52]: *See* 47 C.F.R. § 1.08(b)(4) (Note to Paragraph (b)(4):
    Guidelines for Assessing Forfeitures).

[^53]: 47 U.S.C. § 503(b)(2)(D).

[^54]: *See* *Southern California Broadcasting Co*., Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991) *recon. denied*, 7 FCC Rcd
    3454 (1992).

[^55]: *See Tabback Broadcasting Co.,* Memorandum Opinion and Order, 15
    FCC Rcd 11899, 11900 (2000) (citing *EZ New Orleans, Inc.*
    Memorandum Opinion and Order, 15 FCC Rcd 7164, 7165 (1999) (finding
    that the licensee's single violation of the local public inspection
    file rule warranted admonishment, but not denial of its renewal
    application).