**DA 07-1838**

In Reply Refer to:

1800B3-RDH

Released: April 26, 2007

Mr. Martin L. Hensley

Hoosier Public Radio Corporation

15 Wood Street

Greenfield, Indiana 46140

In re: Franklin Township Community School Corp.

> Station WRFT(FM), Indianapolis, Indiana

Facility ID No. 22366

File No. BRED-20040414AAO

Hoosier Public Radio Corporation

File No. BPED-20040701AAC

> **Petition for Reconsideration**

Dear Mr. Hensley:

We have before us the "Petition for Reconsideration and Reinstatement
Nunc Pro Tunc; Petition for Reconsideration Nunc Pro Tunc WRFT Renewal
and License Grant; Motion to Correct Errors; Petition for Hearing" (the
"Petition") filed March 29, 2005, by Hoosier Public Radio Corporation
("Hoosier").[^1] The Petition asks us to reconsider our March 2, 2005,
letter[^2] granting the above-noted license renewal application of
Franklin Township Community School Corporation ("Franklin Township") for
noncommercial educational Station WRFT(FM) (the "Station") Indianapolis,
Indiana (the "Renewal Application"), and dismissing Hoosier's
above-noted application seeking time-share operation of the Station (the
"Time-Share Application").[^3] For the reasons set forth below, we deny
the Petition and affirm the *Staff Decision*.

**Background.** On April 14, 2004, Franklin Township filed the Renewal
Application for the Station. On July 1, 2004, Hoosier filed its
Time-Share Application, seeking involuntary time-share operation of the
Station pursuant to Section 73.561(b) of the Commission's Rules.[^4] On
August 9, 2004, Hoosier filed a Petition to Deny the Renewal
Application.[^5] In the *Staff Ruling*, the Media Bureau granted the
Renewal Application, dismissed Hoosier's Time-Share Application, and
denied Hoosier's Petition to Deny and its other filings.[^6]

The Petition contains a compendium of claims, alleging *inter alia*,
that the Licensee does not exist as a legal entity, is engaged in
extortion and collusion with others in violation of the "RICO\"
(Racketeer Influenced and Corrupt Organizations) and Sherman Anti-Trust
Acts, has, together with unidentified Commission staff, engaged in
violations of the Commission's *ex parte* rules through "unscrupulous
dealings behind closed doors at the Commission,"[^7] has not presented
any programming concerning issues facing its community of license, has
misrepresented the number of its employees, has denied access to its
public inspection file,[^8] and did not have its application signed by a
person authorized to do so under Indiana state law.

**Discussion.** "\[R\]econsideration 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."[^9] A
petition that simply reiterates arguments previously considered and
rejected will be denied. In this case, Petitioner has neither
demonstrated material error or omission nor presented such new matters
to the staff, simply repeating allegations that were rejected in the
*Staff Decision*. Accordingly, we will deny Hoosier's Petition.

As an initial matter, the Petition is procedurally defective.[^10] Even
ignoring these infirmities, however, "\[r\]econsideration will not be
granted to debate matters upon which the Commission has already
deliberated and spoken."[^11] The *Staff Ruling* fully and accurately
addressed Hoosier's Time-Share Application and clearly stated the basis
for its dismissal.[^12] Hoosier has demonstrated no error in this
action. Similarly, the *Staff Ruling* fully addressed Hoosier's claims
concerning the alleged incorporation defects of Franklin Township, the
signing of its renewal application by one Greg Case, its claims
concerning asserted violations of the RICO and Sherman Anti-Trust Acts,
and other matters. Hoosier's attempt to reargue these matters that it
raised in its Petition to Deny, allegations rejected in the Staff
Decision, is contrary to Section 1.106 of the Rules and the precedent
cited above.[^13]

**Conclusion/Actions.** For the reasons set forth above, Hoosier Public
Radio Corporation's

"Petition for Reconsideration and Reinstatement Nunc Pro Tunc; Petition
for Reconsideration Nunc Pro Tunc WRFT Renewal and License Grant --
Motion to Correct Errors; Petition for Hearing" IS DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Kathryn R. Schmeltzer, Esq., Counsel for Franklin Township Community
School Corporation

[^1]: Hoosier also filed a "Supplement Petition for Reconsideration
    Petition to Deny" (the "Supplement") on May 9, 2005. We will dismiss
    the "Supplement" because it was untimely filed. *See* 47 C.F.R. §
    1.106(f). That provision of the Commission's Rules requires that
    "\[t\]he petition for reconsideration [and any supplement
    thereto]{.underline} shall be filed within 30 days from the date of
    public notice of the final Commission action, as that date is
    defined in § 4(b) of these rules . . . ." (emphasis added). The
    Supplement was filed more than two months after the March 7, 2005,
    Public Notice of the decision of which reconsideration is being
    sought. Thus, even if we considered the Supplement to be a reply to
    the Licensee's Opposition, it would not have been timely pursuant to
    47 C.F.R. § 1.106(h). That Section requires replies to oppositions
    to be filed within seven days after the last day for filing
    oppositions, making the reply deadline April 15, 2005.

[^2]: Letter from Peter H. Doyle, Chief, Audio Division, Media Bureau to
    Kathryn Schmeltzer, Esq., Reference 1800B3-CLR (Mar.2, 2005) (the
    "Staff Decision").

[^3]: Also before us are the April 8, 2005, "Opposition to Petition for
    Reconsideration of Hoosier Public Radio Corporation (the
    "Opposition") and the May 13, 2005, "Response to 'Supplement' of
    Hoosier Public Radio Corporation" (the "Response"), both of which
    were filed by Franklin Township.

[^4]: 47 C.F.R. § 73.561(b).

[^5]: Hoosier subsequently filed a number of other requests, motions and
    petitions.

[^6]: Public Notice of the *Staff Decision* was released on March 7,
    2005. *Broadcast Actions*, Public Notice, Report No. 45935 (Mar. 7,
    2005).

[^7]: Petition at unnumbered page 2.

[^8]: 47 C.F.R. § 73.3527.

[^9]: *WWIZ, Inc.*, 37 FCC at 686; *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).

[^10]: The Hoosier Petition fails to comply with 47 C.F.R. § 1.49(a)
    (containing specifications for pleadings filed with the Commission),
    47 C.F.R. § 1.49(c) (requiring that pleadings exceeding ten pages
    include as part of the pleading, "a succinct, but accurate and clear
    condensation of the substance of the filing"), and 47 C.F.R. §§
    1.106(d)(1) and (2) (requiring petitions for reconsideration to
    "state with particularity the respects in which petitioner believes
    the action taken by the Commission or the designated authority
    should be changed;" "cite the findings of fact and/or conclusions of
    law which petitioner believes to be erroneous;" and "state with
    particularity the respects in which he believes such findings and
    conclusions should be changed").

[^11]: ^?^ *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). *See also*
    *William L. Carroll,* Memorandum Opinion and Order, 8 FCC Rcd 6279
    (1993).

[^12]: The Staff Decision noted that Hoosier had failed to attempt to
    negotiate a voluntary time-share arrangement with Franklin County
    prior to filing its time-share application, in violation of 47
    C.F.R. § 73.561(b). *Staff Decision* at 2-3.

[^13]: Hoosier complains in its Petition that the *Staff Decision* "does
    not address the denied access to the WRFT Public File during the
    License period and more recently in 2004." Petition at unnumbered
    page 8. Hoosier's August 9, 2004, Petition to Deny the Renewal
    Application did not allege that Franklin Township had denied it such
    access or had otherwise violated the relevant public file rule, 47
    C.F.R. § 73.3527. We note, however, that, on September 20, 2004,
    Hoosier filed a "Motion to Join the Parties; Request for Review and
    Declaratory Ruling-RICO Act and Sherman Antitrust Act-Market
    Allocation; Request for Review and Declaratory Ruling-Ex Parte
    Applicant Communications; Motion to Compel-Request for Discovery;
    Petition to Deny-Request for Moratorium" which, in its caption,
    referenced the renewal applications for seven stations, including
    that for Station WRFT(FM). This pleading is referred to in footnote
    3 of the *Staff Decision* as directed to Franklin Township and
    "several other NCE FM radio stations that are also the subject of
    time share applications filed by Hoosier." In its September 20
    filing, Hoosier alleged that its principal Martin Hensley "attempted
    to look at the Public Inspection Files of each of the stations. In
    certain cases the officials responsible for each public inspection
    file were particularly upset at the 'affront' of being asked to show
    their public inspection file to a member of the public, Hensley."
    Elsewhere in the filing, Hoosier alleged that the licensees in
    question "opposed efforts to see their Public Files." However,
    because Hoosier failed to specifically allege that Franklin Township
    had denied it or Hensley access to the WRFT(FM) public file, much
    less provide the details of such wrongdoing, the Staff Decision
    correctly denied the Hoosier pleadings and granted the Renewal
    Application. *See* 47 U.S.C. § 309(d)(1)(petition to deny renewal
    application must contain specific allegations of fact sufficient to
    show that a grant of the application would be *prima facie*
    inconsistent with Section 309(k) of the Act, which requires grant,
    absent a determination that there have been serious violations of
    the Act or the Rules or other such violations that, taken together,
    constitute a pattern of abuse).