**DA 08-1313**

*In Reply Refer To:*

1800B3-RDH

Released: June 4, 2008

WIOO Radio, Inc.

180 York Road

Carlisle, PA 17013

In Re: WIOO(AM), Carlisle, PA

Facility ID Number: 72985

File No.: BP-20040809AAO

**Petition for Reconsideration**

Dear Applicant:

This letter is in reference to the Petition for Reconsideration
("Petition") filed by WIOO Radio, Inc. (the "Licensee") on April 20,
2007, seeking reconsideration of the staff's March 19, 2007, action
dismissing the referenced application for the modification of facilities
for station WIOO(AM), Carlisle, Pennsylvania (the "Station"). Also
before Media Bureau staff are an Opposition to Petition for
Reconsideration ("Opposition") filed May 2, 2007, by Radio One Licenses,
LLC ("Radio One"), and a Reply to Opposition to Petition for
Reconsideration ("Reply") filed by Licensee on May 14, 2007.

**Background.** On August 9, 2004, Licensee filed an application seeking
to change the Station's frequency and operating power. On March 19,
2007, the application was returned[^1] because it failed to provide
daytime protection to co-channel stations WCST(AM), Berkeley Springs,
West Virginia, and WOLB(AM), Baltimore, Maryland, in violation of
Section 73.37 of the Commission's Rules (the "Rules").[^2]

In its Petition, Licensee asserts that Radio One has abandoned
WOLB(AM)'s licensed site and sold it to a developer who has constructed
various buildings on it. Radio One, it continues, has pending an
application for license to cover its WOLB(AM) construction permit and,
in fact, is currently operating WOLB(AM) from that site. Licensee
contends that its proposal now meets all Commission protection
requirements with respect to WOLB(AM)'s new site and, therefore, the
Commission should reconsider its prior action. Additionally, Licensee
submits WCST(AM) signal strength measurements. It contends that these
measurements establish that Licensee's proposal fully meets the
Commission's Rules with respect to WCST(AM) and that no waiver with
respect to that station is necessary.

In its Opposition, Radio One argues that the Petition should be
dismissed because it relies on facts not previously presented that do
not involve circumstances that have changed since Licensee's last
opportunity to present such matters. Nor, it continues, does it rely on
facts that were unknown earlier in the proceeding and could not
reasonably have been learned by Licensee through the exercise of
ordinary diligence.[^3] Finally, it argues that consideration of the
facts relied on is not required by the public interest. Accordingly,
Radio One asserts that the Petition contravenes Section 1.106 of the
Rules[^4] and should be dismissed.

Moreover, Radio One contends that the Petition merely reargues issues
already decided and that WIOO(AM) must protect licensed facilities
regardless of the existence of a construction permit to operate
different facilities until a license to cover has been granted. This, it
continues, was already decided in this proceeding with respect to
WCST(AM) and there should be no different result with respect to
WOLB(AM). Finally, Radio One asserts that the Licensee's application
should be summarily dismissed as it would result in the construction of
a facility that would receive significant prohibited interference from
and cause interference to WOLB(AM)'s "currently" licensed facility[^5]
It concludes that the Licensee has failed to demonstrate good cause for
a waiver of the Commission's interference protection rules.

**Discussion.** Pursuant to Section 1.106 of the Rules, as interpreted
by established case law, "reconsideration is appropriate only when the
petitioner either shows a material error or omission in the original
order or raises additional facts not known or not existing until after
the petitioner's last opportunity to present such matters."[^6]
Consideration of new facts not previously presented, however, is also
appropriate when such consideration is required in the public
interest.[^7] Given the following, we believe that consideration of the
Licensee's Petition on its merits is required in the public interest.

Radio One is correct that Commission case law requires applications to
continue to protect the formerly licensed facilities of a station until
the grant of the covering license application for the modified
facility.[^8] In the instant case, however, we take note *sua sponte*
that, subsequent to the filing of the pleadings herein, Commission
staff, on May 14, 2008, granted Radio One's application[^9] for a
license to cover its modified WOLB(AM) facility.[^10] Accordingly, the
Rules no longer protect the formerly licensed WOLB(AM) facility and
Radio One's objection to the Licensee's Petition on this basis is now
moot. An engineering review of the amended WIOO(AM) application reveals
that the proposed station's daytime operation would afford full
protection to Stations WOLB(AM), as now licensed, and WCST(AM), and
satisfies all other Commission's Rules.

The staff may reinstate applications *nunc pro tunc* where the original
application was dismissed and where a minor curative amendment was filed
within 30 days of the date of the dismissal.[^11] The Petition was
timely filed and contains an amended application which, together with
the grant of the Radio One application, corrects the deficiency noted in
the *Dismissal* Letter. Accordingly, reinstatement is warranted.

Accordingly, IT IS ORDERED, that the Petition for Reconsideration filed
by WIOO Radio, Inc., IS GRANTED. IT IS FURTHER ORDERED, that the WIOO
Radio, Inc., modification application, File No. BP-20040809AAO, IS
REINSTATED *nunc pro tunc* and IS HEREBY GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Jerrold Miller, Esq.

Richard J. Bodorff, Esq.

R. Morgan Burrow, Jr. PE

Timothy Z. Sawyer

[^1]: *See Letter to Jerrold Miller, Esq. and Richard J. Bodorff, Esq.,*
    Ref. No. 1800B3 (Asst. Chief, Audio Division, March 19, 2007)
    ("*Dismissal Letter*").

[^2]: 47 C.F.R. § 73.37. The dismissed application had requested a
    waiver of this rule with respect to WCST(AM) but not with regard to
    WOLB(AM). WCST(AM) did not oppose the waiver request.

[^3]: Indeed, Radio One asserts that the signal measurements of WCST(AM)
    relied on by Licensee in its Petition were taken prior to the
    Commission's previous decision in this matter. Opposition at 3-4.

[^4]: 47 C.F.R. § 1.106.

[^5]: Radio One claims that Licensee has attempted to convert this issue
    into a factual dispute over whether WOLB(AM) is operating from its
    "currently" licensed site. Opposition at 8.

[^6]: *WWIZ, Inc.*, Memorandum Opinion and Order, 37 FCC 685, 686
    (1964), *aff'd sub. nom Lorain Journal Co. v. FCC*, 351 F.2d 824
    (D.C. Cir. 1965), *cert. denied* 383 U.S. 967 (1966)("*WWIZ,
    Inc.*"); *see also National Association of Broadcasters,* Memorandum
    Opinion and Order, 18 FCC Rcd 24414, 24415 (2003). *See also* 47
    C.F.R. § 1.106(c).

[^7]: 47 C.F.R. § 1.106(c)(2).

[^8]: Radio One cites *Application of the State of Oregon*, Memorandum
    Opinion and Order, 15 FCC Rcd 15456,15457 (2000)(quoting *Southern
    Oregon University*, FCC 99-315 (rel. Oct. 28, 1999)) and
    *Applications for Station WKVE*, Memorandum Opinion and Order and
    Notice of Apparent Liability, 18 FCC Rcd 23411, 23423 (2003).

[^9]: BL-22070220ADT

[^10]: *See* Public Notice, *Broadcast Actions,* Report No. 46739 (May
    19, 2008).

[^11]: *See Commission States Future Policy on Incomplete and Patently
    Defective AM and FM Construction Permit Applications*, Public
    Notice, FCC 84-366 (rel. Aug. 2, 1984).