**DA 05-2908**

In Reply Refer to:

1800B3-JWR

John Jason Bennett

Box 700042

Tulsa, Oklahoma 74170

David D. Oxenford, Esquire

Shaw Pittman LLP

2300 N Street NW

Washington, DC 20037-1128

In re: **(NEW), K255BE (FM Translator)**

**Tulsa, OK Facility No. 147372** File No. BNPFT-20030807AIX

Petition for Reconsideration

Gentlemen:

This letter refers to the August 9, 2004, "Joint Petition For
Reconsideration" (the "Petition") filed by John Jason Bennett, Rick
Covington and Angela Leigh (collectively the "Petitioners") directed to
the July 2, 2004, action of the Chief, Audio Division (the "Staff
Decision"), granting the above-referenced Educational Media Foundation
("EMF") application for construction permit (the "Application") to build
new FM translator station K255BE at Tulsa, Oklahoma.[^1] For the reasons
set forth below, we dismiss the petition for reconsideration.

Petitioners state that the subject application violates Sections
74.1232, 1.17 and 1.65 of the Commission's rules.[^2] Specifically,
Section III-A, Item 14 of the application for authority to construct an
FM Translator, FCC Form 349, requests that the applicant certify that it
does not have any interest in an application or an authorization for an
FM translator station that serves substantially the same area and
rebroadcasts the same signal as the proposed FM translator station. EMF
indicated "Yes" to that certification, however, Petitioners state that
EMF owns FM translator station K293AP, Sand Springs, Oklahoma, which
serves substantially the same area and will rebroadcast the same signal
as K255BE in violation of Section 74.1232.[^3] In this regard,
Petitioners maintain that EMF also violates both Section 1.17, by its
incorrect certification,[^4] and Section 1.65, by EMF's failure to amend
the Application with the corrected information.[^5] In its response, EMF
states that the certification was an "innocent mistake," attributed to
its filing of numerous translator applications, and that when it
discovered its error, it promptly filed an application to relocate the
station to a new site, which would serve a different area and eliminate
the vast majority of the contour overlap.

*Procedural Matter*. Because Petitioners did not file a petition to deny
the Application, and are therefore not a party to this proceeding,[^6]
the Commission\'s rules require that they \"state with particularity the
manner in which \[their\] interests are adversely affected by the action
taken," and that they "show good reason why it was not possible . . . to
participate in the earlier stages of the proceeding.\"[^7]

Petitioners state that they are adversely affected "as individuals" and
Tulsa residents, and that the grant of the Application will be "adverse
to the public interest" of all the individuals residing in Tulsa,
because K255BE will rebroadcast the same signal to substantially the
same area as commonly owned K293AP. Petitioners also state that it was
not possible to participate in the earlier stages of the proceeding by
filing a petition to deny or informal objection because of EMF's
"willful and repeated violations" of Sections 1.17 and 1.65 of the
Commission's rules. Specifically, Petitioners assert that by
inaccurately certifying its compliance with Section 74.1232(b), and thus
violating Section 1.17, EMF prevented members of the public from
identifying and bringing the defect to the Commission's attention.[^8]
Petitioners further assert that, by failing to file a corrective
amendment, EMF violated Section 1.65 and thereby prevented the
generation of public notices that would have given the Petitioners
actual or constructive notice that the application warranted additional
scrutiny.

In the instant case, Petitioners have not demonstrated a valid reason
for not filing a petition to deny against the subject application.[^9]
The public notice announcing that the Application had been accepted for
filing was published on February 20, 2004;[^10] therefore, Petitioners
had constructive notice of its filing.[^11] Further, the public notice
specified that the Application was accepted for filing and established a
deadline for filing petitions to deny. The public notice also indicated
that EMF had applied to construct a new FM translator station, and
specified the station\'s community of license and frequency. Hence, the
public notice provided sufficient information to alert Petitioners that
the Application could potentially impact their service area.[^12]

Moreover, the staff granted the Application on July 2, 2004, five months
after the release of the public notice of acceptance. With the exercise
of reasonable diligence, Petitioners had sufficient time to review the
application to ensure that the interests they now posit were not
adversely affected by the application and raise issues.[^13] Petitioners
cite no authority to support their proposition that EMF's allegedly
false certification deprived them of the opportunity to present the
"false certification" argument prior to grant of the Application.
Petitioners\' assertion that they had no basis on which to file a
petition to deny against the application is not \"good reason\" to
justify the untimely filing of its petition. Accordingly, we dismiss the
petition.[^14]

*Merits*. Even assuming that Petitioners had met the requirements of
Section 1.106(b)(1) of our rules, as discussed below, we would deny
their petition for reconsideration.[^15] EMF admits that it incorrectly
certified that the application complied with Section 74.1232(b), but
claims that the erroneous certification was inadvertent and attributes
it to EMF's filing of numerous FM translator applications when the
subject Application was filed.[^16] EMF states that its desire "is to
serve as many people as possible with its service, not to duplicate
listeners," and once EMF discovered its error, "it promptly filed an
application to relocate the Tulsa translator station to a new tower site
servicing a different area."[^17] It states that its certification of
compliance with Section 74.1232(b) in the Application was the result of
an "innocent mistake," not misrepresentation, and it has no motive to or
interest in providing substantially duplicative service to any area.

We find that EMF's certification of compliance with Section 74.1232(b)
was in fact false. We do not find, however, that the evidence presented
by Petitioners or the record as a whole is sufficient to raise a
substantial and material question as to whether EMF intended to deceive
the Commission by making a false certification. An intent to deceive is
a necessary component of a finding of misrepresentation or lack of
candor that would underlie a challenge to an applicant's basic
qualifications.[^18] There is no evidence in the record that EMF
knowingly misstated that the Application complied with Section
74.1232(b), and there is no apparent motive from which we might infer an
intent to deceive.

Nevertheless, because EMF falsely certified that the Application
complied with Section 74.1232(b), it violated Section 1.17 of the
rules.[^19] We will admonish EMF for that violation. Moreover, we
caution EMF to be attentive to its application certifications in the
future, because a false statement, even absent an intent to deceive, may
constitute an actionable violation of Section 1.17 of the rules.[^20]

Accordingly, Petitioners' petition for reconsideration IS DISMISSED, and
Educational Media Foundation IS ADMONISHED for its violation of Section
1.17 of the Commission's rules and cautioned to be more attentive to its
application certifications in the future.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

[^1]: An Opposition and Reply were filed on August 30, and September 15,
    2004, respectively.

[^2]: 47 C.F.R. §§ 74.1232, 1.17 and 1.65.

[^3]: 47 C.F.R. § 74.1232, "Eligibility and licensing requirements,"
    provides in pertinent part that:

    \(b\) More than one FM translator may be licensed to the same
    applicant, whether or not such translators serve substantially the
    same area, upon an appropriate showing of technical need for such
    additional stations.

[^4]: 47 C.F.R. § 1.17, "Truthful and accurate statements to the
    Commission," provides in pertinent part that:

    \(a\) . . . no \[Applicant for any Commission authorization\] shall;

    \(1\) In any written or oral statement of fact, intentionally
    provide material factual information that is incorrect or
    intentionally omit material information that is necessary to prevent
    any material factual statement that is made from being incorrect or
    misleading; and

    \(2\) In any written statement of fact, provide material factual
    information that is incorrect or omit material information that is
    necessary to prevent any material factual statement that is made
    from being incorrect or misleading without a reasonable basis for
    believing that any such material factual statement is correct and
    not misleading.

[^5]: 47 C.F.R. § 1.65, "Substantial and significant changes in
    information furnished by applicants to the Commission," provides in
    pertinent part:.

    \(a\) Each applicant is responsible for the continuing accuracy and
    completeness of information furnished in a pending application . . .
    Whenever the information furnished in the pending application is no
    longer substantially accurate and complete in all significant
    respects, the applicant shall as promptly as possible and in any
    event within 30 days, unless good cause is shown, amend or request
    the amendment of his application so as to furnish such additional or
    corrected information as may be appropriate.

[^6]: 47 C.F.R. § 1.106(b)(1); *see also* *Gulfcoast Broadcasting and
    University of North Carolina supra* (to qualify as a party, a
    petitioner for reconsideration must have filed a valid petition to
    deny).

[^7]: 47 C.F.R. § 1.106(b)(1); see also Robert Lewis Thompson,
    University of North Carolina and Gulfcoast Broadcasting supra; Eagle
    Radio, Inc., 12 FCC Rcd 5105 (1997) and Midwest Bell Communications,
    15 FCC Rcd 11,005 (2000).

[^8]: Petitioners state that "the failure of EMF to exercise the
    diligence required of licensees and applicants before the Commission
    deprived the Petitioners and others of the opportunity to
    participate in these matters previously . . . ." Petition at 6.

[^9]: *Id*.

[^10]: Report No. 25676 ("Broadcast Applications").

[^11]: *See* *R&S Media*, 19 FCC Rcd 6300 (2004).

[^12]: *Id*.

[^13]: *Id.*

[^14]: *Id*. Petitioners assert that it may circumvent the procedural
    requirements of Section 1.106 by requesting that the information in
    its Petition be considered as an "Informal Request" for Commission
    Action under Section 1.41, citing *National Science and Technology
    Network, Inc.*, 17 FCC Rcd 11133, 11136 (WTB 2002) ("*National
    Science*") and *Pacific Gas & Electric Co.,* 17 FCC Rcd 98, 101 (WTB
    2001) ("*PG&E*"). Notwithstanding that precedent from the Wireless
    Telecommunications Bureau ("WTB") is not binding on the Media Bureau
    staff, the WTB in *National Science* clearly stated that the
    petitioner had filed an objection to the proposal prior to grant,
    was entitled to receive notice of the Commission's decision and did
    not, and therefore "extraordinary circumstances" existed which
    warranted consideration of the petitioner's ostensibly untimely
    petition. Additionally, in *PG&E*, the petitioner filed a Petition
    to Revoke the Trunked Industrial/Business Pool Radio Service Station
    WPMU363, Milpitas, California; the WTB indicated that it would treat
    the request as an informal request for Commission action under
    Section 1.41 and did not have to characterize the pleading as a
    "petition for reconsideration" to take remedial action. *PG&E* has
    no relevance here.

[^15]: *Cf.* *US West Communications, Inc*., 12 FCC Rcd 4644, 4649
    (1997) (Commission addresses merits of procedurally defective
    petition for reconsideration).

[^16]: EMF Opposition at 1-2.

[^17]: *Id*. at 2. *See* Application No. BMPFT-20040719ADL. On September
    15, 2004, Petitioners filed an Informal Request to defer processing
    that application until after the instant Petition had been resolved.
    The staff denied that request and granted the modification
    application on January 21, 2005.

[^18]: *See Liberty Productions, A Limited Partnership*, 16 FCC Rcd
    12061, 12079-80 (2001) (in determining the merits of a false
    certification issue, substantial evidence of an intent to deceive is
    necessary to support a finding of misrepresentation or otherwise
    raise a question as to an applicant's basic qualifications);
    *Georgia Public Telecommunications Commission*, 7 FCC Rcd 2942 (Rev.
    Bd. 1992), *review denied*, 7 FCC Rcd 7996 (1992) (disqualification
    for false certification not warranted unless the applicant intended
    to deceive the Commission).

[^19]: ^?^ It is unclear how Section 1.65(a) is relevant to this matter.
    As quoted in Note 5, *supra*, that rule requires that applicants
    apprise the Commission of any decisionally significant changes in an
    application. *See, e.g*., *Manahawkin Communications Corporation*,
    17 FCC Rcd 342, 353 (2001) (pursuant to 47 C.F.R. § 1.65, an
    applicant is required to amend its application within 30 days
    whenever there has been a substantial change to any matter which may
    be of decisional significance). Petitioners assert no unreported,
    decisionally significant change to EMF's proposal, but simply argue
    that its certification of compliance with Section 74.1232(b) is
    inaccurate. The failure to amend allegedly erroneous information in
    an application is more properly within the purview of Section 1.17
    of the rules.

[^20]: *San Francisco Unified School District*, 19 FCC Rcd 13326, 13337
    (2002), citing *Amendment of Section 1.17 of the Commission's Rules
    Concerning Truthful Statements to the Commission*, 18 FCC Rcd 4016
    (2003). Intentional false certifications may, of course constitute
    misrepresentations and may result in severe penalties. *San
    Francisco Unified School District, supra* (license renewal
    application designated for evidentiary hearing on false
    certification issue); *Rancho Palos Verdes Broadcasters, Inc.*, 18
    FCC Rcd 5043 (MB 2003) (\$20,000 Notice of Apparent Liability issued
    for violation of Section 73.1015 for false certification that
    application would result in compliance with rule requiring provision
    of city grade signal to community of license).