DA 05-2243

***In Reply Refer to:***

1800B3-DT

David A. O'Connor, Esq.

Holland & Knight LLP

2099 Pennsylvania Ave., N.W., Suite 100

Washington, D.C. 20006

> In Re: Application for New LPFM Station,
>
> Manitowac, WI
>
> Calvary Chapel of Manitowac, Inc.
>
> File No. BNPL-20010122ABQ
>
> Facility ID No. 132217
>
> Petition for Reconsideration

Dear Mr. O'Connor:

This letter refers to the captioned application of Calvary Chapel of
Manitowac, Inc., ("CCMI") for a new Low Power FM ("LPFM") station in
Manitowac, Wisconsin. CCMI filed its application on January 22, 2001.
National Lawyers Guild Center on Democratic Communications, Microradio
Implementation Project, and Prometheus Radio Project ("Lawyers Guild")
filed an Informal Objection against CCMI's application on September 27,
2001.[^1] On March 16, 2004, the Bureau dismissed CCMI's application as
inadvertently accepted for filing, and dismissed the Lawyers Guild
objection as moot.[^2] On April 13, 2004, CCMI filed a Petition for
Reconsideration. For the reasons set forth below, we reinstate CCMI's
application, reinstate and deny the Lawyers Guild objection, and grant
CCMI's application.

**Background**

CCMI and other Calvary Chapel applicants located around the country
participated in the first round of the LPFM filing windows. The first
LPFM filing windows permitted only local applicants to apply for new
LPFM stations and limited each non-governmental applicant to a single
application filing.[^3] Item 4 requires an applicant to certify that it
**either** (1) is an educational institution or organization that is
physically headquartered within 16.1 kilometers (10 miles) of the
proposed transmitter site; (2) is an educational institution or
organization with seventy-five percent (75%) of its board members
residing within 16.1 kilometers from the transmitter site; or (3)
proposes a public safety radio service and has jurisdiction within the
service area of the proposed LPFM station. Item 5(a) requires an
applicant to certify that "No party to this application has an
attributable interest in any non-LPFM station, including any full power
AM or FM station, FM translator station, full or low power television
station, or any other media subject to the Commission's ownership
restrictions." There are exceptions to this ownership restriction for
"local chapters" of a national or other large organization set forth in
the attribution provisions of Section 73.858 of the Commission's
rules.[^4] The Instructions for FCC Form 318 summarize these exceptions
as follows:

> 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.[^5]
>
> Each of the Calvary Chapel-named applicants, including CCMI, submitted
> information to establish that it qualified for the "local chapter"
> exemption, certifying its local presence and submitting an exhibit to
> demonstrate a distinct local purpose. In dismissing the applications,
> the staff stated that it is undisputed that each applicant is
> separately incorporated and that it has a headquarters within the
> proposed broadcast community. However, the staff found that the
> submitted statements of educational purpose failed to distinguish the
> applicant from the other Calvary Chapel applicants which filed very
> similar applications for LPFM stations, or from national Calvary
> Chapel radio companies such as CSN International and Calvary Chapel of
> Twin Falls that own numerous full-service and FM translator radio
> stations throughout the country.[^6] Nothing in the educational
> purpose of the applications referenced the respective communities of
> license in any way or demonstrated "a local purpose that can be
> distinguished from the purpose of the national organization with which
> it is affiliated." Without this evidence, the staff could not find
> that the purported "local chapter" had a distinct local presence and
> mission. Accordingly, the staff determined, pursuant to Section
> 73.853(b) and 73.858 of the Commission's rules, that the applications
> were patently defective and the applications, including that of CCMI,
> were dismissed as inadvertently accepted for filing. The informal
> objections that were filed against these applications were dismissed
> as moot.[^7] On April 13, 2004, CCMI filed its Petition for
> Reconsideration.

**Discussion**

*Petition for Reconsideration.* In its Petition for Reconsideration,
CCMI argues that the Letter Decision incorrectly assumes that CCMI "is
part of a national organization, in which all affiliates or local
chapters share the name 'Calvary Chapel.'"[^8] CCMI claims that it is
not affiliated with any other Calvary Chapel organization.[^9] Because
it is not affiliated with Calvary Chapel, CCMI argues, its application
should be analyzed "under the criteria set forth in Section 73.853 of
the rules, under which CCMI qualifies as an LPFM applicant."[^10]
Nevertheless, CCMI contends, if it is considered an affiliate it
qualifies for the attribution exemption under Section 73.858(b) because
it was separately incorporated and has a distinct local presence and
mission in its proposed community of license. In support of this
contention, CCMI provided a Revised Statement of Educational Purpose
that details its relationship with Manitowac, Wisconsin, and outlines
the proposed educational purpose of its LPFM station.[^11] For all these
reasons, CCMI argues, the Commission should reinstate its
application.[^12]

CCMI formally and voluntarily identifies itself with the Calvary Chapel
organization and has submitted an application substantially identical to
those of other Calvary Chapel applicants. While these facts are highly
probative on the issue of whether CCMI should be treated as a "local
chapter" of Calvary Chapel, we need not resolve that matter here. We
agree with CCMI that even if it is considered a local chapter of a
"national" Calvary Chapel organization, it qualifies for the attribution
exemption of Section 73.858(b) in that the Revised Statement
demonstrates that CCMI has a distinct local presence and mission in
Manitowac. According to this Revised Statement, CCMI provides Manitowac
with a variety of programs and activities including bible studies,
abstinence counseling, employment counseling, free concerts, and a
prison ministry. Thus, we find that CCMI has demonstrated a "distinct
local presence and mission" within Manitowac and is therefore eligible
to become an LPFM station licensee.[^13]

*Lawyers Guild Informal Objection.* Reinstatement of CCMI's application
requires us to consider the Lawyers Guild's September 27, 2001, Informal
Objection and all related pleadings. We reinstate the Lawyers Guild's
pleadings for this purpose. We first consider CCMI's Motion to Dismiss
the Lawyers Guild's Informal Objection. In its Motion to Dismiss and
Reply to Opposition to Motion to Dismiss, CCMI argues that the Lawyers
Guild's objection should not have been submitted until CCMI had been
named a tentative selectee, citing paragraph 132 of the Commission's
first LPFM *Report and Order.*[^14] For this reason, CCMI argues, the
objection should be dismissed. In its Opposition to CCMI's motion, the
Lawyers Guild notes that the cited language discusses only when
particular filings will be considered, not when they may or must be
submitted to the Commission. On this procedural point, the Lawyers Guild
is correct. Informal Objections, in particular, may be filed at any time
before FCC action on license applications.[^15] For this reason, we deny
CCMI's motion to dismiss the Lawyers Guild objection.

The objection itself deals primarily with the identical issue for which
the CCMI application was dismissed, namely the attribution to CCMI of
other Calvary Chapel radio stations.[^16] Because this issue has been
adequately addressed on reconsideration, it requires no further
discussion here. Additionally, the Lawyers Guild notes in its objection
that "the board of this applicant is composed of three persons, with the
pastor holding 100% of the 'entity's' votes."[^17] The Lawyers Guild
states that "the ability of one person to control this entity raises
significant questions concerning whether this applicant meets the FCC's
eligibility criterion" for LPFM licensees.[^18] There is no provision in
our rules that prohibits one person from controlling 100% of the votes
of the board of an LPFM licensee, and the Lawyers Guild cites no other
authority for why this arrangement should affect an LPFM applicant's
basic qualifications. For these reasons, we deny the Lawyers Guild's
Informal Objection.

**Conclusion/Actions**

Accordingly, Calvary Chapel of Manitowac, Inc.'s Petition for
Reconsideration IS GRANTED and its application for a new LPFM station IS
REINSTATED. Furthermore, the September 27, 2001, Informal Objection of
the Lawyers Guild IS REINSTATED. Calvary Chapel of Manitowac, Inc.'s
October 25, 2001, Motion to Dismiss and the Lawyers Guild Informal
Objection ARE DENIED, and Calvary Chapel of Manitowac's application
(File No. BNPL-20010614AIW) for a new LPFM station IS GRANTED. The
authorization will follow under separate cover.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Calvary Chapel of Manitowac, Inc.

National Lawyers Guild Center on Democratic Communications

[^1]: On October 25, 2001, CCMI filed a Motion to Dismiss the Lawyers
    Guild Informal Objection. On November 2, 2001, the Lawyers Guild
    filed an Opposition to CCMI's Motion to Dismiss. On November 15,
    2001, CCMI filed a Reply to Opposition to Motion to Dismiss.

[^2]: *Letter to Listed Applicants*, Reference 1800B3-GDG/SW (MB Mar.
    16, 2004) ("*Letter Decision")*. By the same letter a number of
    other applications, all filed by other Calvary Chapel applicants,
    were also dismissed.

[^3]: *See* 47 C.F.R. § 73.853(b). *See also* FCC Form 318, Section II,
    Items 4 and 5, and Instructions for FCC Form 318 at 6.

[^4]: 47 C.F.R. § 73.858, "Attribution of LPFM Station Interests."

[^5]: ^?^ Instructions for FCC Form 318, pp. 5-6.

[^6]: ^?^ *See, e.g.,*
    [http://www.csnradio.com](http://www.csnradio.com/).

[^7]: Informal objections against several of these applications filed by
    Lawyers Guild alleged that they did not demonstrate a "distinct
    local presence and mission," and therefore, they do not fall under
    the exceptions to the ownership restrictions pursuant to Section
    73.858 of the Commission's rules. These objections were dismissed as
    moot in the letters dismissing the applications.

[^8]: *CCMI Petition for Reconsideration* ("*CCMI Petition*") at 1.

[^9]: *Id*. at 1-2. In support of this assertion, CCMI attaches to its
    Petition three letters. The first letter, from Pastor Joe Guglielmo,
    President of CCMI, declares that CCMI has "no financial or ownership
    ties to any other organization" and that "there is no controlling
    entity that has legal or financial authority over CCM\[I\]." *CCMI
    Petition*, Exhibit 1. The second letter, from Pastor Michael
    Kestler, President of Calvary Chapel Twin Falls ("CCTF") and Vice
    President of CSN International, declares that "neither CCTF nor CSN
    has any legal partnership or control over any of the applicants
    cited in the letter." *CCMI Petition*, Exhibit 2 at 1. The third
    letter, from Pastor Chuck Smith, Senior Pastor at Calvary Chapel
    Costa Mesa, Inc., who started the first "Calvary Chapel" thirty
    years ago, declares that other Calvary Chapel churches "operate
    totally and separate \[sic\] from any relationship to us, as they
    minister to their local community" and explains that "the name
    'Calvary Chapel' would merely be used to refer to a style of
    ministry and teaching alone, for the sake of clarity...." *CCMI
    Petition*, Exhibit 3 at 1, 2.

[^10]: *Id*. at 2. *See* notes 3 and 4, *supra*, and accompanying text.

[^11]: ^?^ *Educational Purpose: Use of Station, Calvary Chapel of
    Manitowac* (filed April 15, 2004) ("*Revised Statement*").

[^12]: ^?^ *CCMI Petition* at 7-8.

[^13]: As stated above, it is undisputed that CCMI was separately
    incorporated within Manitowac.

[^14]: *In the Matter of Creation of Low Power Radio Service* (MM Docket
    No. 99-25), 15 FCC Rcd 2205 (2000). Paragraph 132 states in relevant
    part: "Petitions and informal objections will not be considered
    unless and until the application has been tentatively selected for
    processing and found acceptable for filing."

[^15]: *See* 47 C.F.R. § 73.3587.

[^16]: In its informal objection, the Lawyers Guild argues that CCMI
    "fails to satisfactorily establish that it has a distinct local
    mission that can be distinguished from the purpose of the national
    Calvary Chapel." *Lawyers Guild Informal Objection* at 4. To support
    this allegation, the Lawyers Guild references portions of CCMI's
    statement of educational purpose, which it claims is "nearly
    word-for-word identical to the generic form Exhibits submitted" by
    various other Calvary Chapel applicants. *Id.* Therefore, the
    Lawyers Guild argues, CCMI should not be granted a license for a new
    LPFM station because, unless CCMI establishes its distinct local
    purpose, "it must be considered an affiliate of the National Calvary
    Chapel under the Commission's attribution rules." *Id*. at 5-6. If
    considered an affiliate, the Lawyers Guild argues, CCMI would hold
    attributable interests in numerous LPFM, full service, and
    translator stations, and the grant of an LPFM license would violate
    Sections 73.855 and 73.860(a) of the Commission's rules. *Id.*

[^17]: *Id.* at 6.

[^18]: *Id.* at 6-7.