Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In re Applications of            | * | MB Docket No. 04-144         |
|                                  | * |                              |
| **PISCATAWAY BOARD OF            | ) | Facility ID No. 52686        |
| EDUCATION**                      | * |                              |
|                                  | * | File No. BRED-19980427WA     |
| For Renewal of License           |   |                              |
|                                  | * | Facility ID No. 91347        |
| For Noncommercial Educational    | * |                              |
|                                  | ) | File No. BPED-19980805MB     |
| Station WVPH(FM), Piscataway,    | * |                              |
| New Jersey                       | * |                              |
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| and                              | * |                              |
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| **KING'S TEMPLE MINISTRIES,      | ) |                              |
| INC.**                           | * |                              |
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| For a Construction Permit        |   |                              |
|                                  | * |                              |
| For a New Noncommercial          | * |                              |
| Educational                      | ) |                              |
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| FM Station, Plainfield, New      | * |                              |
| Jersey                           |   |                              |
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**ORDER**

**Adopted: July 13, 2005 Released: July 13, 2005**

By the Chief, Audio Division, Media Bureau:

1.  The Commission, by the Chief, Audio Division, acting pursuant to
    delegated authority, has before it the Petition for Reconsideration
    filed May 6, 2004, by Piscataway Board of Education ("PBE")
    regarding the *Hearing Designation Order* released April 9, 2004
    (the "*HDO*").[^1] For the reasons set forth below, we dismiss the
    Petition under Section 1.106(a)(1) of our rules.[^2] However, as
    also explained below, on our own motion we modify the *HDO* to
    vacate our conditional grants of the above-captioned applications,
    return both applications to pending status, expand the issue
    designated for hearing, and order certain action by the presiding
    Administrative Law Judge.[^3]

**\
**

**BACKGROUND**

2.  PBE timely filed the above-captioned renewal of license application
    for noncommercial educational ("NCE") FM station WVPH(FM) on Channel
    212 in Piscataway, New Jersey. KTM timely filed the above-captioned
    application for authority to construct a new NCE FM station on
    Channel 212 in Plainfield, New Jersey, on a time sharing basis with
    WVPH(FM). KTM stated that PBE had not operated WPVH(FM) at least 12
    hours per day each day of the year during the renewal period, and
    thus asserted that it should be permitted to share time with PBE
    pursuant to Section 73.561(b) of our rules.[^4] PBE failed to
    contest KTM's proposal until after the *HDO* was released, and
    neither PBE nor KTM submitted any other information to the
    Commission while their respective applications remained pending.

3.  In the *HDO*, the staff construed Section 73.561(b) to require,
    under the circumstances presented in this case, that the current
    licensee "share use of the frequency upon grant of an appropriate
    application proposing \[a\] share time arrangement."[^5] Noting that
    the parties had attempted without success to reach an agreement on a
    schedule of times to be used by each, the staff further concluded
    that, "if no qualifications issues arise regarding the renewal or
    new station applicant(s), the rules require the Commission to set
    the matter for expedited hearing on the issue of sharing time."[^6]
    The staff examined the applications and found no qualifications
    issues regarding either party. Further, the staff found "that
    conditional grant of both Piscataway Board's renewal application and
    King's Temple's application for a new NCE FM station . . . will
    serve the public interest, convenience, and necessity."[^7] Pursuant
    to Section 73.561(b)(2) as construed by the staff, the matter was
    designated "for an expedited hearing limited solely to the issue of
    sharing time."[^8]

4.  In its Petition, PBE asserts that KTM's competing application must
    be dismissed under Section 73.3573 of our rules[^9] because KTM's
    ownership allegedly changed significantly during the pendency of
    that application. Moreover, PBE argues that insofar as KTM failed to
    notify the Commission of such ownership changes, KTM violated
    Section 1.65 of the rules.[^10] In addition, notwithstanding the
    fact that WVPH(FM)'s license term under review ended on June 1,
    1998, PBE proffers that the station has operated on a full-time
    schedule since May 1999 and that its license should therefore be
    renewed without the imposition of an involuntary time sharing
    arrangement. Citing Commission decisions,[^11] PBE also argues that
    Section 73.561(b) does not require PBE to share time with KTM under
    any circumstances. Rather, PBE asserts, the rule requires that the
    Commission designate for hearing the issue of whether a time sharing
    arrangement would best serve the public interest. Finally, PBE
    contends that because the staff failed to send an inquiry letter
    prior to issuing the *HDO*, PBE was deprived of due process.

**DISCUSSION**

5.  Under Section 1.106(a)(1), the Commission will entertain a petition
    for reconsideration of a hearing designation order only as to an
    adverse ruling with respect to petitioner's participation in the
    proceeding.[^12] PBE, of course, has not been excluded from
    participation in the proceeding here. Its Petition does not even
    address the procedural restrictions of Section 1.106(a)(1) or
    attempt to justify interlocutory review, nor do we find any reason
    to depart from the rule in this case. The Petition is therefore
    dismissed as unauthorized.

6.  We do, however, take this opportunity to consider on our own motion
    whether we should modify the issue designated for hearing in light
    of the Commission's Seattle Public Schools ("SPS") decisions.[^13]
    The Commission had before it the school system's renewal application
    and a competing application of Jack Straw Memorial Foundation
    ("Straw"). The facts presented there differed somewhat from those in
    this case. For example, the school system had operated the station
    full time during a significant portion of the renewal period and had
    reduced operations for only seven months. Nonetheless, we conclude
    that our actions in the *HDO* for the instant proceeding are
    inconsistent with the Commission's pronouncements in the SPS
    decisions regarding Section 73.561(b).

7.  In the SPS initial designation order, the Commission stated that
    Section 73.561(b) does not "mandate" time sharing where the parties
    have been unable to agree on operating hours.[^14] The Commission
    construed the rule to mean that the school system was "not exempt
    from the *possibility* of forced time sharing under Section
    73.561(b)" and designated the applications for hearing on the time
    sharing issue.[^15] On reconsideration, Straw maintained that
    "Section 73.561(b) is a *per se* rule requiring an inefficient
    station to share time if an appropriate application is filed, and
    that the share time issue should have been limited to determining
    the amount of time to be allocated to each party under a time
    sharing arrangement."[^16] The Commission rejected that
    argument.[^17] When it subsequently adopted (with certain
    modifications) the ALJ's Initial Decision, affirming grant of the
    school system's renewal application without imposition of a time
    sharing arrangement, the Commission described Straw's "rehash of its
    prior assertion that Section 73.561(b) is mandatory rather than
    permissive" as a contention "flatly rejected by the Commission . . .
    ."[^18]

8.  In light of the Commission's construction of Section 73.561(b), we
    now conclude that the *HDO* should include the issue of whether
    granting PBE's and KTM's applications would serve the public
    interest, convenience, and necessity. Accordingly, we vacate the
    grants of both applications and return them to pending status. We
    also expand the issue previously specified, as set forth below.

**CONCLUSION**

9.  IT IS ORDERED, That pursuant to 47 C.F.R. Section 1.106(a)(1), the
    Petition for Reconsideration filed by Piscataway Board of Education
    on May 6, 2004, IS DISMISSED.

10. IT IS FURTHER ORDERED, That the conditional grant of Piscataway
    Board of Education's application for renewal of license of WVPH(FM),
    Piscataway, New Jersey, File No. BRED-19980427WA, and the
    conditional grant of the mutually exclusive application of King's
    Temple Ministries, Inc. for authority to construct a new NCE FM
    station on Channel 212 in Plainfield, New Jersey, File No.
    BPED-19980805MB, on a time sharing basis with WVPH(FM), as ordered
    in Paragraph 4 of the *Hearing Designation Order,* ARE VACATED, and
    the applications are RETURNED TO PENDING STATUS.

11. IT IS FURTHER ORDERED, That Paragraph 6 of the *Hearing Designation
    Order* IS MODIFIED to read as follows:

> "6. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C. Section 309(e),
> the application of Piscataway Board of Education for renewal of
> license of WVPH(FM), Piscataway, New Jersey, File No. BRED-19980427WA,
> and the mutually exclusive application of King's Temple Ministries,
> Inc. for authority to construct a new NCE FM station on Channel 212 in
> Plainfield, New Jersey, File No. BPED-19980805MB, on a time sharing
> basis with WVPH(FM), ARE DESIGNATED FOR HEARING IN A CONSOLIDATED
> PROCEEDING, at a time and place to be specified in a subsequent Order,
> upon the following issue:
>
> To determine whether a time sharing arrangement between Piscataway
> Board of Education and King's Temple Ministries, Inc. would result in
> more effective use of the specified channel than would operation
> restricted to Piscataway Board of Education and thus better serve the
> public interest, and, if so, the terms and conditions of a time
> sharing arrangement, including the hours of the day throughout the
> year during which each licensee is to operate, and to set forth such
> terms and conditions in a written document. Such arrangement shall not
> include simultaneous operation of the stations."[^19]

12. IT IS FURTHER ORDERED, That in the event the applicants are
    otherwise qualified, the presiding Administrative Law Judge shall
    take the following action:

> a\. If it is determined, pursuant to the issue specified above, that a
> time sharing arrangement between Piscataway Board of Education and
> King's Temple Ministries, Inc. would result in more effective use of
> the specified channel than would operation restricted to Piscataway
> Board of Education, grant the applications of both Piscataway Board of
> Education and King's Temple Ministries, Inc. to the extent consistent
> with the terms and conditions of the arrangement determined pursuant
> to that issue; or
>
> b\. If it is determined pursuant to the issue specified above that
> operation restricted to Piscataway Board of Education would result in
> more effective use of the specified channel than would a time sharing
> arrangement between Piscataway Board of Education and King's Temple
> Ministries, Inc., grant the application of Piscataway Board of
> Education and deny the application of King's Temple Ministries, Inc.

13. IT IS FURTHER ORDERED, That pursuant to 47 C.F.R. Section 1.221(b),
    the Commission's Consumer and Governmental Affairs Bureau, Reference
    Information Center, SHALL SEND copies of this Order, by certified
    mail, return receipt requested, to the parties through counsel, as
    listed below:

> Cary S. Tepper, Esquire
>
> Booth, Freret, Imlay & Tepper, PC
>
> 7900 Wisconsin Avenue, Suite 304
>
> Bethesda, MD 20814-3628
>
> Counsel for Piscataway Board of Education
>
> John M. Pelkey, Esquire
>
> Garvey Schubert Barer
>
> Flour Mill Building, Fifth Floor
>
> 1000 Potomac Street, N.W.
>
> Washington, D.C. 20007-3501
>
> Counsel for King's Temple Ministries, Inc.

14. IT IS FURTHER ORDERED, That the Secretary of the Commission,
    pursuant to 47 C.F.R. Section 1.221(b), SHALL HAVE this Order or a
    summary thereof PUBLISHED in the Federal Register.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: *Piscataway Board of Education*, 19 FCC Rcd 6291 (MB 2004). The
    presiding Administrative Law Judge issued an Order on his own
    motion, staying the hearing pending action on PBE's Petition.
    *Order*, MB Docket No. 04-144 (FCC 04M-18) (rel. May 13, 2004). On
    May 19, 2004, King's Temple Ministries, Inc. ("KTM") filed an
    Opposition to Petition for Reconsideration ("Opposition"). KTM
    indicated in its Opposition that it has changed its name to King's
    Temple Ministries World Outreach Church, Inc. For clarity, we
    continue to use the name King's Temple Ministries, Inc. herein. PBE
    filed a Reply to Opposition to Petition for Reconsideration on May
    24, 2004.

[^2]: 47 C.F.R. § 1.106(a)(1).

[^3]: *See, e.g., Richard Bott II,* 8 FCC Rcd 7303 (1993) (dismissing
    petition for reconsideration and modifying initial designation
    order). *See also infra* note 11.

[^4]: *See* 47 C.F.R. § 73.561(b).

[^5]: *HDO*, 19 FCC Rcd at 6292 (citing 47 C.F.R. § 73.561(b)).

[^6]: *Id.* (citing 47 C.F.R. §§ 73.561(b)(1) and (2)).

[^7]: *Id.* (citing 47 C.F.R. § 73.561(b)(2)).

[^8]: *Id.*

[^9]: 47 C.F.R. § 73.3573.

[^10]: 47 C.F.R. § 1.65.

[^11]: PBE cites to *Seattle Public Schools*, 60 R.R.2d 1073 (1986)
    ("*SPS II*") (modifying on reconsideration issues specified in the
    initial hearing designation order), and *Seattle Public Schools*, 4
    FCC Rcd 625 (Rev. Bd. 1989) (affirming the ALJ's ultimate grant of
    the School System's renewal application) (*"SPS Final Decision"*).
    *See* Petition at 10-12.

[^12]: 47 C.F.R. § 1.106(a)(1). *See, e.g., Trinity Broadcasting of
    Florida, Inc.,* 9 FCC Rcd 2567 (1994).

[^13]: *Cf. Pillar of Fire*, 2 FCC Rcd 519 (1987) (denying Application
    for Review but finding applicant raised important matter warranting
    further discussion and clarification).

[^14]: *Seattle Public Schools,* 103 F.C.C.2d 862, 865 (1986).

[^15]: *Id.* (emphasis added).

[^16]: *SPS II,* 60 R.R.2d at 1074.

[^17]: *Id.* at 1075-76.

[^18]: *SPS Final Decision,* 4 FCC Rcd at 645.

[^19]: As indicated in the *HDO,* our action in specifying the time
    sharing issue is not intended to preclude the parties, either before
    commencement of the hearing or during the hearing, from negotiating
    a settlement on their own.