**DA 08-1945**

*In Reply Refer to:*

1800B3-TEC

Released: August 21, 2008

Barry P. Lunderville

195 Main Street

Lancaster, NH 03584-3035

Re: **AM Broadcast Auction 84 MX Group 84-45**

New(AM), Kearsarge, New Hampshire

Facility ID No. 160161

File No. BNP-20040129AOV

New(AM), Conway, New Hampshire

Facility ID No. 161077

File No. BNP-20040130APX

**Application for New AM Station**

**Construction Permits**

Dear Mr. Lunderville:

We have before us a Petition for Reconsideration ("Petition") filed by
Barry P. Lunderville ("Lunderville") on March 13, 2008, requesting
reinstatement of his application (the "Application") for a new AM
station at Kearsarge, New Hampshire ("Kearsarge").[^1] We also have an
Opposition to the Petition for Reconsideration (the "Opposition") filed
by Mt. Washington Radio & Gramophone, LLC, ("Mt. Washington") on March
26, 2008. For the reasons stated below, we deny the Petition.

**Background.** Lunderville submitted his FCC Form 175 application on
January 29, 2004, during the filing window for AM Auction 84.[^2] The
staff determined that the Application was mutually exclusive with an
application for a new AM station at Conway, New Hampshire, filed by Mt.
Washington.[^3] These two applications were designated MX Group 84-45 in
AM Auction 84.

The Commission previously determined that competitive bidding procedures
should be consistent with its statutory mandate under Section 307(b) of
the Communications Act of 1934, as amended (the "Act") to provide a
"fair, efficient, and equitable" distribution of radio service.[^4] To
this end, the Commission directed the staff to undertake a traditional
Section 307(b) analysis prior to conducting an auction for mutually
exclusive AM applications.[^5] The Commission also noted that the FM
allotment priorities fulfill its obligation under Section 307(b), and
would apply in making a Section 307(b) determination regarding mutually
exclusive AM applicants before conducting an auction.[^6] Accordingly,
the staff directed Lunderville and Mt. Washington to file Section 307(b)
showings after designating them as MX Group 84-45 in AM Auction 84.

In Lunderville's Section 307(b) showing, Kearsarge is described as an
"identifiable community that is a sub-division of the Town of
Conway."[^7] Lunderville based his claim that Kearsarge was a licensable
community on the fact that Kearsarge has a post office, residential
areas, and a cemetery, and is noted on maps and road signs.[^8] Mt.
Washington contested Kearsarge's community status in its own Section
307(b) showing, arguing that Kearsarge did not have any form of
government or a post office offering residential service, among other
considerations.[^9] After reviewing both of the applicants' Section
307(b) showings, we dismissed the Application on February 12, 2008,
finding that Kearsarge is not a licensable community.[^10]

In the Petition, Lunderville challenges the Staff Decision, contending
that the staff provided no basis for making its decision because the
"test for determining community status under Section 307(b) is 'not a
stringent one.'"[^11] Lunderville also claims that, because Kearsarge
has churches, businesses, and a post office, it hosts a "distinct
community of people," even if it is unincorporated.[^12] Furthermore,
Lunderville argues that Mt. Washington filed its Section 307(b) showing
late, without explanation, and therefore, its application should be
dismissed as untimely.[^13]

In its Opposition, Mt. Washington argues that the staff properly
dismissed the Application because it considered a totality of
determining factors in making its decision rather than just the criteria
highlighted by Lunderville.[^14] Mt. Washington also disputes
Lunderville's late-filing allegations, stating that the staff had
extended the filing deadline.[^15]

**Discussion.** The Commission will consider a petition for
reconsideration when the petitioner shows either a material error in the
original order, or raises additional facts not known or existing at the
time of the petitioner's last opportunity to present such matters.[^16]
A petition for reconsideration that simply reiterates arguments
previously considered and rejected will be denied.[^17] We find that
Lunderville's Petition neither demonstrates material error or omission
in the Staff Decision, nor raises any material new facts unavailable at
the time of the Section 307(b) submission.

*Licensable Community*. Pursuant to Section 307(b) of the Act, the
Commission "shall make \[the\] distribution of licenses . . . among the
several States and *communities* as to provide a fair, efficient, and
equitable distribution of radio service."[^18] A locale that is
incorporated or listed in the census reports is presumptively a
licensable community.[^19] When a locale meets neither of these
criteria, the "key ingredient in determining the existence of a
community is the presence of . . . \[a geographically\] identifiable
population grouping."[^20] The principal test for this finding is
whether the location's "residents function as and conceive of themselves
as a community around which their interests coalesce."[^21] This may be
proven by direct testimony of residents of the locality and by "indicia
of community."[^22] Such indicia include separate municipal services and
institutions, or significant political, commercial, social and religious
organizations serving the residents. Mere geographic location is
insufficient to establish community status.[^23] The Commission will
weigh all of these factors in determining whether a particular locale is
a licensable community.[^24]

In the Staff Decision, we determined that Kearsarge was not
presumptively licensable because it is neither incorporated nor listed
with the U.S. Census.[^25] We also found that Kearsarge did not have
enough indicia to demonstrate an identifiable population group
functioning as a community. To reach this conclusion, we considered a
number of factors including, but not limited to, the fact that Kearsarge
does not have its own government structure or a post office that offers
residential delivery. We also noted that, according to Conway Town
Manager Earl Sires ("Sires"), Kearsarge is considered "a lighting
precinct wholly located within the incorporated towns of Conway and
Bartlett."[^26]

In the Petition, Lunderville offers no direct testimony from the
residents of the locality that would suggest that they function and
conceive of themselves as a community. Furthermore, Lunderville does not
dispute the facts addressed in the Staff Decision. Instead, Lunderville
merely argues as he did in his Section 307(b) showing that Kearsarge
offers sufficient indicia to be considered a licensable community, as
evidenced by "churches, businesses, and a post office with its own zip
code."[^27] We find that these indicia alone are insufficient after
accounting for other determining factors. First, we reiterate that
Kearsarge has no mayor or legislative body. Second, Kearsarge does not
have a fire department or schools under its direction. Third,
Lunderville does not elaborate on what "businesses" are located in
Kearsarge. As Mt. Washington notes, Kearsarge does not have any banks,
restaurants, gas stations, or hospitals.[^28] We also find that Sires's
description of Kearsarge as simply a political sub-division of Conway
and Bartlett is underscored by the fact that residents of the locality
pay taxes to these two nearby towns. Taking all of these factors into
consideration, we find insufficient evidence to reconsider our prior
determination. Therefore, we affirm the determination that Kearsarge is
not a licensable community.

*Late Filing*. Contrary to Lunderville's allegations regarding the
timeliness of Mt. Washington's Section 307(b) showing, we note that on
September 5, 2005, the staff extended the applicants' filing deadline to
October 31, 2005.[^29] Mt. Washington filed its Section 307(b) showing
on October 28, 2005. Therefore, Lunderville's argument is without merit
because Mt. Washington filed a timely Section 307(b) showing.

**Conclusion.** For the aforementioned reasons, IT IS ORDERED, that the
Petition for Reconsideration is DENIED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Stephen T. Yelverton, Esq.

Mt. Washington Radio & Gramophone, LLC

[^1]: File No. BNP 20040129AOV.

[^2]: *See* *AM New Station and Major Modification Filing Window; Minor
    Modification Application Freeze*, Public Notice, 18 FCC Rcd 23016
    (MB/WTB 2003).

[^3]: File No. BNP-20040130APX.

[^4]: *See* 47 U.S.C. §307(b); s*ee also Implementation of Section
    309(j) of the Communications Act-Competitive Bidding for Commercial
    Broadcast and Instructional Television Fixed Services Licenses*,
    First Report and Order, 13 FCC Rcd 15920 (1998), *recon denied*,
    Memorandum Opinion and Order, 14 FCC Rcd 8724 (1999), *modified*,
    Memorandum Opinion and Order, 14 FCC Rcd 12541 (1999).

[^5]: *Id*. at 15964-65.

[^6]: *See Revision of FM Assignment Policies and Procedures*, Second
    Report and Order, 90 FCC 2d 88 (1982). The FM allotment priorities
    are as follows: (1) First fulltime aural service, (2) Second
    fulltime aural service, (3) First local transmission service, and
    (4) Other public interest matters. Co-equal weigh is given to
    Priorities (2) and (3). The FM allotment priorities were first
    applied to Section 307(b) determinations in mutually exclusive AM
    proceedings in *Alejandro Broadcasting Co.*, Decision, 55 RR 2d
    1568, 1568 (Rev. Bd. 1994).

[^7]: *See* *Letter to Barry P. Lunderville and Mt. Washington Radio &
    Gramophone, LLC*, Reference 1800B3-LAS/JP (MB February 12, 2008)
    ("Staff Decision").

[^8]: *Id*. at 2.

[^9]: *Id*.

[^10]: *Id*. at 1.

[^11]: Petition at 1 (quoting *Willows and Dunnigan, California*, Report
    and Order, 10 FCC Rcd 11522, 11523 (MMB 1995) ("*Willows and
    Dunnigan*")).

[^12]: *Id*. at 1-2.

[^13]: *Id*. at 2.

[^14]: Opposition at 3.

[^15]: *Id*. at 5.

[^16]: 47 C.F.R. § 1.106. The petition for reconsideration also must
    cite the "findings of fact and/or conclusions of law which \[the\]
    petitioner believes to be erroneous, and . . . state with
    particularity the respects in which he believes such findings and
    conclusions should be changed." *Id*. § 1.106(d)(2).

[^17]: *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*, 387 U.S. 967 (1966).

[^18]: 47 U.S.C. § 307(b) (emphasis added).

[^19]: *See* *Matagorda, Texas*, Report and Order, 21 FCC Rcd 1736 (MB
    2006).

[^20]: *Fortuna Foothills and Wellton, Arizona*, Memorandum Opinion and
    Order, 19 FCC Rcd 4619, 4620 (MB 2004).

[^21]: *See id*.

[^22]: *Central Florida Educational Foundation, Inc*., Letter, 23 FCC
    Rcd 1695, 1699 (MB 2008).

[^23]: *See*, *e.g.*, *Beacon Broadcasting*, Decision, 104 FCC 2d 808
    (Rev. Bd. 1986), *modified*, 2 FCC Rcd 3469 (1987), *aff'd sub nom.*
    *New South Broadcasting Corp. v. FCC*, 879 F.2d 867 (D.C. Cir. 1989)
    (specified location must be an identifiable population grouping,
    separate and apart from all others, and the geographic boundaries of
    the location must not enclose or contain areas or populations more
    logically identified or associated with some other location); *see
    also* *Hannibal, Ohio*, Report and Order, 6 FCC Rcd 2144 (MMB 1991).

[^24]: *See Willows and Dunnigan,* 10 FCC Rcd at 11523.

[^25]: Staff Decision at 2.

[^26]: *Id*. A lighting precinct or district is often located within
    another municipality and formed "upon the petition of 10 or more
    voters" organizing to bring lighting to their streets. *See* N.H.
    Rev. Stat. Ann. § 52:1 (2008).

[^27]: Petition at 1.

[^28]: Opposition at 4.

[^29]: *Auction No. 84 Settlement Period and Section 307(b) Submission
    Deadline Extended to October 31, 2005*, Public Notice, 20 FCC Rcd
    14492 (MB/WTB 2005) ("We therefore extend the period . . . to tender
    Section 307(b) submissions . . . to October 31, 2005").