> **DA 08-2361** *In Reply Refer to:*

1800B3-MJW

Released: October 28, 2008

Family Life Ministries, Inc.

c/o Joseph C. Chautin, III, Esq.

Hardy, Carey Chautin & Balkin, LLP

1080 West Causeway Approach

Mandeville, LA 70471

In re: **Family Life Ministries, Inc.**

DW245AV, Northeast, Pennsylvania

Facility ID No. 14451

File No. BPFT-20070720ABM

**Petition for Reconsideration**

**Application for Modification of License**

Dear Counsel:

We have before us a Petition for Reconsideration (the "Petition") filed
by Family Life Ministries, Inc. ("FLM") seeking reconsideration of two
staff letters, the first notifying FLM that the license for translator
station DW245AV (the "Translator") had expired,[^1] the second notifying
FLM that its application for renewal of the Translator license had been
dismissed.[^2] We also have before us an application for modification of
the Translator license (the "Application") specifying a new site. For
the reasons set out below, we deny the Petition and dismiss the
Application.

**Background.** The Commission granted FLM a license for the Translator
on April 26, 2005. FLM claims that, immediately thereafter, it
discovered that the Translator "utterly failed" to provide its intended
coverage.[^3] FLM then removed the Translator equipment and canceled its
"prohibitively expensive"[^4] tower lease.

FLM pursued a lease for another tower (the "Second Tower") owned by
Adelphia Communications Corporation, which FLM knew was in bankruptcy
and attempting to sell its tower to a third party.[^5] By March 29,
2006, when FLM filed an application for renewal of the Translator's
license, the Translator remained inoperative.[^6] At that time, FLM was
attempting to identify the new owner of the Second Tower.[^7] Over a
year passed and, on April 5, 2007, the staff advised FLM that the
Translator license would be deemed expired by operation of law unless
FLM demonstrated that the Translator had resumed operation before March
30, 2007.[^8] On May 1, 2007, FLM responded and reported that the
translator was still silent and that FLM had encountered difficulty in
locating a new site.[^9] It asked the Commission to reinstate the
Translator license pursuant to the provision in Section 312(g) of the
Communications Act of 1934, as amended (the "Act")[^10] that gives the
Commission discretion to reinstate licenses "to promote equity and
fairness." The staff rejected FLM's request, finding, (a) that the
Translator had been silent for "considerably longer than 12 consecutive
months," (b) that there was no "persuasive evidence . . . that the
Station's silence was due to circumstances beyond its control." and (c)
that "the record in this case discloses that the Station was taken off
the air due to Family Life's desire to meet its goals for the station in
a more economical manner."[^11]

In its Petition, FLM reports that its attempt to relocate to the Second
Tower has failed because it was "not able to reach a satisfactory
agreement" with the tower's new owner, Time-Warner.[^12] FLM does not
state whether it was cost, or some other factor, that led it to conclude
that the agreement was unsatisfactory. FLM claims, however, that it now
has permission to locate the Translator at another new site. The
Application, tendered with the Petition, specifies that new site.[^13]

The Petition essentially restates the arguments made in FLM's May 1,
2007, letter to the staff: (a) that maintaining operation of the
translator at the original site was a matter outside its control because
the coverage was inadequate and the lease payments were "prohibitively
expensive," and "exorbitant,"[^14] and (b) FLM was diligent in pursuing
a lease for the Second Tower but encountered unforeseen obstacles, for
example, that Adelphia referred FLM's representative to Comcast which
"strung him along for several months before sending him to
Time-Warner."[^15] FLM claims that, but for the "appalling lack of
responsiveness of the telecom companies, FLM probably would have been
able to get on the tower within the 12-month period."[^16]

FLM urges the Commission to exercise its discretion in favor of
reinstating the Translator license, citing the *V.I. Stereo
Communications Corporation* decision in which the Commission reinstated
the license of WVIS(FM), Vieques, Puerto Rico, when that station had
remained off the air for more than twelve months due to circumstances
beyond its control \-- damage from successive hurricanes.[^17] FLM
claims that its situation is comparable because the "bankruptcy
proceedings against Adelphia and the subsequent reassignment of the
tower" were circumstances beyond FLM's control.[^18]

**Discussion.** FLM has not explained why the Translator "utterly
failed" to provide its intended coverage from its original site.[^19]
Moreover, we are unpersuaded that the cost of the lease at the original
site was so "prohibitively expensive" that FLM's discontinuing operation
of the Translator was beyond its control.[^20] Had the cost been
"exorbitant," - as FLM asserts[^21] - it is not apparent why FLM would
have agreed to the lease in the first instance.

We are likewise unpersuaded that FLM's inability to timely locate a new
site was a matter outside its control. Sites other than the Second Tower
were available. Thus, after FLM was unable to reach a "satisfactory
agreement" with Time-Warner for the Second Tower, it "went door-to-door
and was able to find an acceptable location elsewhere."[^22] With
diligence, FLM would have begun that "door-to-door" tower search as soon
as it knew that it was unlikely that negotiations for the Second Tower
would be completed in time to return the Translator to service before
the license expired, *e.g.,* when it realized it was being "strung along
. . . for several months"[^23] in its efforts to identify the new owner
of the Second Tower.

The short answer to FLM's claim that its circumstances are comparable to
those encountered by WVIS(FM) in Puerto Rico[^24] is that a hurricane is
an act of God and not within a licensee's control. FLM's choosing an
unsuitable and/or uneconomic site initially, and then failing timely to
find a replacement site, however, were FLM's own acts, well within its
control.

FLM's attempt to distinguish the *Zacarias Serrato* decision[^25] is
unpersuasive. There, the licensee claimed it was unable to locate an
affordable transmitter site within twelve months after terminating
operations at its original site. The Commission declined to reinstate
the license, finding that the licensee's failure to return the station
to service within twelve months was "essentially due to a business
decision on the part of the licensee not to find an alternative site
promptly."[^26] Similarly, FLM's deactivating the Translator and
pursuing the Second Tower to the exclusion of all other available sites
was a business decision for which FLM, alone, is responsible.

**Decision/Action**. Section 312(g) of the Act and Section 73.1750 of
the Rules provide for automatic termination of inactive licenses so that
scarce broadcast spectrum does not lie fallow and unavailable to others
capable of instituting and maintaining service to the public.[^27] In
furtherance of that objective, and in accord with precedent,[^28] we
decline to exercise our discretion under the Section 312(g) "equity and
fairness" provisions to reinstate FLM's license which expired by
operation of law due to circumstances within FLM's control.[^29]

Accordingly IT IS ORDERED that the Petition for Reconsideration filed by
Family Life Ministries IS DENIED. IT IS FURTHER ORDERED that the
Application for Modification of License, File No. BPFT-20070720ABM,
tendered by Family Life Ministries, IS DISMISSED AS MOOT.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: The "D" prefix to the call sign signifies that the authorization
    has been canceled.

[^2]: *See* *Letter to Family Life Ministries, Inc*., Apr. 5, 2007
    ("*License Expiration Notice*"); *Letter to Family Life Ministries*,
    Jun. 26, 2007 ("*Renewal Dismissal*").

[^3]: Petition at 2. ("Almost as soon as it obtained the license,
    however, FLM realized that the tower site that was the only site
    that appeared suitable at the time, was incapable of fulfilling the
    two functions FLM had intended for the translator.") *Id.* at 6.
    ("\[T\]he site that it had originally used for Northeast's
    translator utterly failed in this regard.")

[^4]: *Id.* at n.2.

[^5]: *Id.*

[^6]: *See* *id.* at 3.

[^7]: *Id.*

[^8]: *See* *License Expiration Notice* at 1.

[^9]: *See* Petition at 4.

[^10]: 47 U.S.C. § 214(g).

[^11]: *Renewal Dismissal* at 2.

[^12]: Petition at 3.

[^13]: *See* *id.*

[^14]: *Id.* at 5, n.3.

[^15]: *Id.* at 3.

[^16]: *Id.* at 5.

[^17]: *Id.* (citing *V.I. Stereo Communications, Corp.,* Memorandum
    Opinion and Order, 21 FCC Rcd 14259 (2006)).

[^18]: Petition at 6.

[^19]: FLM states that "\[g\]iven its time constraints, FLM could find
    only one suitable tower from which to operate the translator." *Id.*
    at 2.

[^20]: Petition at 2, n.2.

[^21]: *Id.* at 5, n.3.

[^22]: *Id.* at 3.

[^23]: *Id.*

[^24]: *Id.* at 5.

[^25]: *Id.* (citing *Zacarias Serrato (KHOS-AM)*, Letter, 20 FCC Rcd
    17232 (MB 2005)).

[^26]: 20 FCC Rcd at 17232

[^27]: *Cf. 1998 Biennial Review - Streamlining of Mass Media
    Applications, Rules and Processes,* Report and Order, 13 FCC Rcd
    23056, 23093 (1998), *recon. granted in part,* Memorandum Opinion
    and Order, 15 FCC Rcd 17525 (1999). (Commission construction
    deadlines "strike a balance between our fundamental interests in
    expediting new service to the public and preventing the warehousing
    of scarce spectrum . . . .")

[^28]: *See Eagle Broadcasting,* Memorandum Opinion and Order, 23 FCC
    Rcd 588, 601 (2008) (licensee's "securing local permissions \[and\]
    filing the . . . Application with the Commission" for a new site did
    not justify discretionary relief under 47 U.S.C. 312(g) when station
    had remained silent for more than a year). *See* *also* *Kirby
    Young,* Letter, 23 FCC Rcd 35 (MB 2008) (discretionary relief under
    47 U.S.C. 312(g) denied when station remained silent for more than a
    year and no "natural disasters or other compelling circumstances
    forced the cessation of the Station\'s operations."); *but see*
    *Mark Chapman,* Letter, 22 FCC Rcd 6578, 6580 (MB 2007) (relief
    granted under 47 U.S.C. 312(g) to accommodate court ruling).

[^29]: Once the FLM license expired, there was no authorization
    remaining for FLM to "modify." Therefore, we are dismissing the
    modification Application. *See* *WCYQ Inc.,* Memorandum Opinion and
    Order, 18 FCC Rcd 16900, 16904 (2003) ("by operation of law, there
    no longer existed any translator station license to modify, and the
    modification application had become null and void").