Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. BNPED-20040901ADQ   |
|                                  | * |                              |
| **R B Schools**                  | ) | File No. BNPED-20040901ADR   |
|                                  | * |                              |
| Applications for Construction    | * | File No. BNPED-20040901ADT   |
| Permits for New Noncommercial    |   |                              |
| Educational FM Stations:         | * | File No. BNPED-20040901ADU   |
|                                  | * |                              |
| Channel 201 at Plymouth,         | ) | File No. BNPED-20040901ADW   |
| Michigan                         | * |                              |
|                                  | * | File No. BNPED-20041001AWW   |
| Channel 202 at Southfield,       |   |                              |
| Michigan                         | * | File No. BNPED-20041101AHS   |
|                                  | * |                              |
| Channel 217 at Bay City,         | ) | File No. BNPED-20041101AHT   |
| Michigan                         | * |                              |
|                                  | * | File No. BNPED-20041101AHU   |
| Channel 210 at Kalamazoo,        |   |                              |
| Michigan                         | * | File No. BNPED-20041101AHV   |
|                                  | * |                              |
| Channel 215 at Wooster, Ohio     | ) | File No. BNPED-20041101AHW   |
|                                  | * |                              |
| Channel 201 at Bloomfield Hills, | * | File No. BNPED-20050103AJW   |
| Michigan                         |   |                              |
|                                  | * | File No. BNPED-20050301AEU   |
| Channel 201 at Winnetka,         | * |                              |
| Illinois                         | ) | File No. BNPED-20040706ACK   |
|                                  | * |                              |
| Channel 205 at Elgin, Illinois   | * |                              |
|                                  |   |                              |
| Channel 203 at Glenview,         | * |                              |
| Illinois                         | * |                              |
|                                  | ) |                              |
| Channel 203 at Flossmoor,        | * |                              |
| Illinois                         | * |                              |
|                                  |   |                              |
| Channel 208 at Decatur, Illinois | * |                              |
|                                  | * |                              |
| Channel 204 at St. Charles, Iowa | ) |                              |
|                                  | * |                              |
| Channel 214 at Longmont,         | * |                              |
| Colorado                         |   |                              |
|                                  | * |                              |
| **Health Radio, Inc.**           | * |                              |
|                                  | ) |                              |
| Application for Construction     | * |                              |
| Permit for a New                 | * |                              |
|                                  |   |                              |
| Noncommercial Educational FM     | * |                              |
| Station on                       | * |                              |
|                                  | ) |                              |
| Channel 216 at Knoxville,        | * |                              |
| Tennessee                        | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 24, 2008 Released: September 26, 2008**

By the Commission:

# Introduction

1.  R B Schools and Health Radio, Inc. (individually, a "Time-Share
    Applicant" and, collectively, the "Time-Share Applicants") have
    filed an Application for Review of the dismissal of each of their
    captioned applications for new noncommercial educational ("NCE") FM
    construction permits (individually, a "Time-Share Application" and,
    collectively, the "Time-Share Applications").[^1] Certain NCE FM
    station licensees have opposed those Applications for Review.[^2] In
    each case, the question presented is whether the Audio Division of
    the Media Bureau (the "Bureau") erred by dismissing the Time-Share
    Applications because the Time-Share Applicants failed to demonstrate
    in each instance that they attempted to reach a time-sharing
    agreement with the existing NCE FM station licensee before filing
    their Time-Share Application.[^3] For the reasons set forth below,
    we affirm the Bureau's dismissals of the Time-Share Applications.

# Background

2.  The licensees of certain existing NCE FM radio stations filed
    license renewal applications for their stations in 2004. With
    respect to each of those applications, either R B Schools or Health
    Radio, Inc., pursuant to Section 73.561(b) of the Rules, timely
    filed one of the captioned applications proposing to share time on
    the station's frequency.

3.  Section 73.561(b) establishes the requirements for proposing a
    time-sharing arrangement with an NCE FM station, including the
    non-consensual arrangements proposed by the Time-Share
    Applicants.[^4] The application filed by a non-consensual
    time-sharing proponent must be filed no later than the deadline for
    filing a petition to deny the license renewal application of the
    existing licensee. The existing licensee and the time-sharing
    proponent must endeavor to reach an agreement on a time-sharing
    schedule.[^5] If such an agreement is reached, the agreement must be
    filed "in triplicate with each application to the Commission for
    initial construction permit or renewal of license."[^6] If the
    parties "are unable to agree on a division of time, the Commission
    shall be so notified by statement to that effect [filed with the
    application proposing time sharing]{.underline}."[^7]

4.  None of the Time-Share Applications contained either a time-sharing
    agreement or a statement that efforts to reach a time-sharing
    agreement were unsuccessful, as required by the Rules.[^8] In each
    instance, the Time-Share Applicant confirmed that it had made no
    effort to reach a time-sharing agreement with the existing licensee
    prior to filing the Time-Share Application.[^9] The Bureau dismissed
    the Time-Share Applications based on failure to meet the requirement
    of Section 73.561(b)(2) to submit, with the application, a statement
    that efforts to reach a time-sharing agreement with the existing NCE
    FM licensee were unsuccessful.[^10]

    **III. DISCUSSION**

5.  In order to obtain relief through an application for review of
    action taken pursuant to delegated authority, the aggrieved party
    must meet at least one of the criteria set forth in Section
    1.115(b)(2) of the Rules.[^11] The Time-Share Applicants fail to
    make the required showing.

6.  The Time-Share Applicants do not contest any of the facts cited in
    the Letter Decisions, as summarized above. Rather, they criticize
    the Bureau's interpretation of Section 73.561(b) and its reliance on
    the Commission's decision in *Westchester*. The Time-Share
    Applicants claim that Section 73.561(b) does not explicitly require
    that a time-share proponent initiate an attempt to reach a
    time-sharing agreement prior to filing a non-consensual time-sharing
    application.[^12] They claim that the Bureau's reliance on the
    *Westchester* decision is misplaced because that decision actually
    turned on the applicant's failure to prosecute its application.[^13]
    The Time-Share Applicants claim that the analysis of Section
    73.561(b) in *Westchester* accordingly is *dicta*. They also claim
    that the Bureau imposed a new requirement in a rule outside the
    context of a rulemaking.[^14]

7.  We disagree. The requirement that a non-consensual time-share
    application include a statement that the applicant was unsuccessful
    in negotiating a time-share arrangement with the existing NCE FM
    licensee is explicitly set forth in Section 73.561(b)(2), as quoted
    above in Paragraph 3. The *Westchester* decision did not inject a
    new requirement into the rule, as the Time-Share Applicants claim,
    but only affirmed the requirement as a basis for dismissing a
    non-compliant application.[^15] Moreover, this requirement serves
    the important public policies of encouraging licensees to consider
    the possibility of sharing their existing frequency and preventing
    the filing of non-feasible applications that will tie up Commission
    resources unnecessarily.[^16] The Time-Share Applicants cite no
    contrary precedent to support their arguments. Accordingly, pursuant
    to Section 1.115(b)(2) of the Rules, we deny the Applications for
    Review filed by the Time-Share Applicants.

# ORDERING CLAUSE

8.  ACCORDINGLY, IT IS ORDERED, that the Applications for Review filed
    by R B Schools and Health Radio, Inc. listed in the Appendix ARE
    DENIED, and those listed in Paragraphs G and K of the Appendix also
    ARE DISMISSED as untimely.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

**Letter Decisions, Parties and Pleadings**

**A. Plymouth, Michigan**

*Letter to Plymouth-Canton Community Schools and Donald E. Martin, Esq.
from Peter H. Doyle, Chief, Audio Division* (MB May 12, 2005), public
notice summary as described in 47 C.F.R. § 1.4(b)(4) released on May 17,
2005.

"Application for Review" filed by R B Schools ("RBS") on June 16, 2005;
"Opposition of Plymouth-Canton Community Schools to Application for
Review" filed by Plymouth-Canton Community Schools, licensee of
WSDP(FM), Plymouth, Michigan, on June 30, 2005.

**B. Southfield, Michigan**

*Letter to Board of Education of Southfield Public Schools and Donald E.
Martin, Esq. from Peter H. Doyle, Chief, Audio Division* (MB May 12,
2005), public notice summary as described in 47 C.F.R. § 1.4(b)(4)
released on May 17, 2005.

"Application for Review" filed by RBS on June 16, 2005; "Opposition to
Application for Review" filed by Board of Education of Southfield Public
Schools, licensee of WSHJ(FM), Southfield, Michigan on July 11, 2005.

**C. Bay City, Michigan**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB June 29, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on July 5, 2006.

"Application for Review" filed by RBS on August 2, 2006; "Opposition to
Application for Review" filed by School District, Bay City, Michigan,
licensee of WCHW-FM, Bay City, Michigan, on August 18, 2006.

**D. Kalamazoo, Michigan**

*Letter to David Tillotson, Esq. and Donald E. Martin, Esq. from Peter
H. Doyle, Chief, Audio Division* (MB May 9, 2005), public notice summary
as described in 47 C.F.R. § 1.4(b)(4) released on May 12, 2005.

"Application for Review" filed by RBS on June 13, 2005; "Opposition to
Application for Review" filed by Board of Education of Kalamazoo,
Michigan, licensee of WKDS(FM), Kalamazoo, Michigan, on June 28, 2005.

**E. Wooster, Ohio**

*Letter to Cary S. Tepper, Esq. and Donald E. Martin, Esq. from Peter H.
Doyle, Chief, Audio Division* (May 12, 2005), public notice summary as
described in 47 C.F.R. § 1.4(b)(4) released on May 17, 2005.

"Application for Review" filed by RBS on June 16, 2005; "Opposition to
Application for Review" filed by The College of Wooster on June 21,
2005; "Reply to Opposition to Application for Review" filed by RBS on
July 15, 2005.

**F. Bloomfield Hills, Michigan**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB Aug. 18, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on August 23, 2006.

"Application for Review" filed by RBS on September 22, 2006.

**G. Winnetka, Illinois**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division*, 21 FCC Rcd 6945 (MB 2006), public notice of full text of
decision as described in 47 C.F.R. § 1.4(b)(2) released on June 29,
2006.

"Application for Review" filed by RBS on September 27, 2006.

Pursuant to 47 C.F.R. §§ 1.4(b)(2) and 1.115(d), the Application for
Review was due on or before July 31, 2006. There was also a public
notice summary of the decision as described in 47 C.F.R. § 1.4(b)(4)
released on August 28, 2006. *See* Public Notice, "Broadcast
Applications," Report No. 26308 (August 28, 2006). However, 47 C.F.R. §
1.4(b)(2) establishes the public notice date where the full text of the
decision is released, as in this case.

**H. Elgin, Illinois**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB June 29, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on July 26, 2006.

"Application for Review" filed by RBS on August 23, 2006; "Opposition to
Application for Review" filed by Board of Education for School District
U-46, licensee of WEPS(FM), Elgin, Illinois, on September 5, 2006;
"Reply to Opposition to Application for Review" filed by RBS on
September 15, 2006.

**I. Glenview, Illinois**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB June 29, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on July 26, 2006.

"Application for Review" filed by RBS on August 23, 2006; "Opposition to
Application for Review" filed by Glenbrook High School District,
licensee of WGBK(FM), Glenview, Illinois, on September 7, 2006.

**J. Flossmoor, Illinois**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB June 29, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on July 26, 2006.

"Application for Review" filed by RBS on August 23, 2006.

**K. Decatur, Illinois**

*Letter to John F. Garziglia, Esq., and Donald E. Martin, Esq., from
Peter H. Doyle, Chief, Audio Division*, DA 07-1952 (MB, rel. April 30,
2007), public notice of full text of decision as described in 47 C.F.R.
§ 1.4(b)(2) released on April 30, 2007.

"Application for Review" filed by RBS on June 4, 2007; "Opposition to
Application for Review" filed by Millikin University on June 19, 2007;
"Reply to Opposition to Application for Review" filed by RBS on July 5,
2007.

Pursuant to 47 C.F.R. §§ 1.4(b)(2) and 1.115(d), the Application for
Review was due on or before May 30, 2007. There was also a public notice
summary of the decision as described in 47 C.F.R. § 1.4(b)(4) released
on May 3, 2007. *See* Public Notice, "Broadcast Actions," Report No.
46478 (May 3, 2007). However, 47 C.F.R. § 1.4(b)(2) establishes the
public notice date where the full text of the decision is released, as
in this case.

**L. St. Charles, Iowa**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB June 29, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on July 26, 2006.

"Application for Review" filed by RBS on August 23, 2006.

**M. Longmont, Colorado**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division* (MB Oct. 25, 2006), public notice summary as described in 47
C.F.R. § 1.4(b)(4) released on October 31, 2006.

"Application for Review" filed by RBS on November 30, 2006; "Opposition
to Application for Review" filed by Longmont Community Radio, licensee
of WGUD(FM), Longmont, Colorado, on December 14, 2006; "Reply to
Opposition to Application for Review" filed by RBS on December 26, 2006.

**N. Knoxville, Tennessee**

*Letter to Donald E. Martin, Esq. from Peter H. Doyle, Chief, Audio
Division*, 21 FCC Rcd 1258 (MB 2006), public notice of full text of
decision as described in 47 C.F.R. § 1.4(b)(2) released on February 6,
2006.

"Application for Review" filed by Health Radio, Inc. on March 3, 2006;
"Opposition of Fulton High School to Health Radio, Inc.'s Application
for Review" filed by Fulton High School, licensee of WKCS(FM),
Knoxville, Tennessee, on March 13, 2006.

Pursuant to 47 C.F.R. §§ 1.4(b)(2) and 1.115(d), the Application for
Review was due on or before March 8, 2006 and therefore was timely
filed. There was also a public notice summary of the decision as
described in 47 C.F.R. § 1.4(b)(4) released on March 9, 2006. *See*
Public Notice, "Broadcast Applications," Report No. 26188 (March 9,
2006). However, 47 C.F.R. § 1.4(b)(2) establishes the public notice date
where the full text of the decision is released, as in this case.

[^1]: The Applications for Review were filed on the dates set forth in
    the Appendix, pursuant to Section 5(c)(4) of the Communications Act
    of 1934, as amended, 47 U.S.C. § 155(c)(4), and Section 1.115 of the
    Commission's Rules (the "Rules"), 47 C.F.R. § 1.115.

[^2]: The opposing licensees are listed in the Appendix. The letter
    decisions of the Bureau ("Letter Decisions") and pleadings under
    consideration herein also are listed in the Appendix. Except as
    indicated in the next paragraph of this Note and in the Appendix,
    each request for extension of time or motion to accept a late-filed
    pleading with respect to any of such pleadings is hereby granted. To
    the extent that any of the parties have raised any other issues
    concerning the acceptability of any of the Time-Share Applications,
    those issues are rendered moot by our decision here.

    The Applications for Review listed in Paragraphs G and K of the
    Appendix were untimely filed. *See* Appendix, Paragraphs G and K
    (stating the governing sections of the Rules, the public notice
    and/or Letter Decision release dates, and the Application for Review
    due dates). Those Applications for Review are dismissed as untimely.
    Although this *Memorandum Opinion and Order* will also address the
    merits of those Applications for Review on the core issue presented
    here, we do not address any collateral issues presented therein.

[^3]: *See, e.g., Letter to Donald E. Martin, Esq.*, 21 FCC Rcd 6945 (MB
    June 29, 2006) (dismissing a Time-Share Application); *see also* 47
    C.F.R. § 73.561(b)(1)-(2) (requiring that an application proposing
    time-sharing with an existing NCE FM station that operates for less
    than 12 hours per day include either a time-sharing agreement with
    the existing NCE FM station or a statement that the parties were
    unable to agree on such an arrangement).

[^4]: Pursuant to Section 73.561(b), NCE FM stations "which do not
    operate 12 hours per day each day of the year . . . will be required
    to share use of the frequency upon the grant of an appropriate
    application proposing such share time arrangement." *See Piscataway
    Board of Education*, Order, 20 FCC Rcd 12150 (MB 2005) (if a party
    files an appropriate application proposing time-sharing with an NCE
    FM station that was on the air less than 12 hours a day during its
    last license term, Section 73.561(b)(2) requires that the
    time-sharing application be designated for hearing with the NCE FM
    station's license renewal application to determine whether the
    public interest would be better served by a time-sharing arrangement
    or by renewal of the NCE FM station's license).

[^5]: 47 C.F.R. § 73.561(b)(1).

[^6]: *Id*.

[^7]: 47 C.F.R. § 73.561(b)(2) (emphasis added).

[^8]: 47 C.F.R. § 73.561(b)(1)-(2).

[^9]: *See, e.g., Letter to Donald E. Martin, Esq.*, 21 FCC Rcd at 6946
    (Time-Share Applicant, in response to the Bureau's inquiry letter,
    acknowledged that it did not initiate time-sharing negotiations
    prior to filing the Time-Share Application, but argued that this was
    not required).

[^10]: *See, e.g., id*. (citing *Westchester Council for Public
    Broadcasting*, Memorandum Opinion and Order, 8 FCC Rcd 2213, 2214
    (1993) ("*Westchester*")).

[^11]: 47 C.F.R. § 1.115(b)(2).

[^12]: *See, e.g.*, Application for Review cited in Paragraph A of the
    Appendix, at 4-6.

[^13]: *Id*. at 3 and 6.

[^14]: *Id*. at 6-7.

[^15]: *See Westchester*, 8 FCC Rcd at 2214: "\[P\]ursuant to Section
    73.561, these efforts to negotiate \[a time-share agreement\] should
    have been initiated prior to the filing of the application, so that
    either a time-share agreement, or a statement that no agreement
    could be reached, could have been filed with WCPB's application."
    The analysis of Section 73.561(b) was an independent basis for the
    dismissal of the time-share application in *Westchester* and has
    been cited subsequently by the Commission as precedent on this
    issue. *See Nassau Community College*, Memorandum Opinion and Order,
    12 FCC Rcd 12234, 12238 (1997) (citing *Westchester* as "upholding
    dismissal of share-time request where the applicant did not indicate
    whether it attempted to reach an agreement with the existing
    licensee"). Accordingly, we disagree with the Time-Share Applicants
    that the Bureau was free to ignore *Westchester* as precedent for
    the Letter Decisions. *See* 47 C.F.R. § 0.283(c); *Quinnipiac
    College*, Memorandum Opinion and Order, 8 FCC Rcd 6285 (1993);
    *Walter P. Faber, Jr.*, Memorandum Opinion and Order, 4 FCC Rcd
    5492, 5493 (1989), *recon. denied*, 6 FCC Rcd 3601 (1991), *aff'd
    mem. sub nom. Faber v. FCC*, 962 F.2d 1076 (D.C. Cir. 1992).

[^16]: For instance, R B Schools filed a non-consensual time-sharing
    application against the license renewal application of WXTS-FM,
    Toledo, Ohio, which already had a time-sharing agreement in place.
    *See* FCC File No. BNPED-20040901ADV. (R B Schools did not seek
    review of the dismissal of that application.) Similarly, R B Schools
    filed a Time-Share Application against the license renewal
    application of WGBK-FM, Glenview, Illinois, which was operating for
    more than 12 hours per day, thereby negating any obligation to share
    time under Section 73.561(b). *See* FCC File No. BNPED-20041101AHU;
    *see also* note 4 *supra*. Had R B Schools engaged in discussions
    with the licensees prior to filing these applications, it would have
    known that neither licensee could be required to share time pursuant
    to Section 73.561(b) and the Bureau would not have been required to
    analyze and dismiss the applications, as well as address subsequent
    pleadings arising from the faulty applications.