**DA 06-1326**

In Reply Refer To

1800B3-ALM

Released: June 29, 2006

Donald E. Martin, Esquire

6527 Bay Tree Court

Falls Church, Virginia 22041

**In re: NEW (NCE FM), Winnetka, Illinois**

RB Schools

Facility ID No. 164010

File No. BNPED-20041101AHA

Petition For Reconsideration

Dear Mr. Martin:

This is in reference to the July 1, 2005, Petition for Reconsideration
(the "Petition") regarding the captioned application in which RB Schools
("RB") claims that its application was incorrectly dismissed by the
staff. In a letter of May 31, 2005,[^1] the Audio Division dismissed the
application of RB for failure to timely respond to a staff inquiry
letter dated March 24, 2005.[^2] The Petition demonstrates, however,
that RB provided a timely response on April 25, 2005. The filing was not
brought to the staff's attention prior to issuance of the May 31, 2005,
letter. We will therefore grant reconsideration to review the RB
response.

The application of RB for a new noncommercial educational ("NCE") FM
station in Winnetka, Illinois, was filed pursuant to Section 73.561 of
the Commission's rules and proposed to share time with WNTH(FM),
licensed to Board of Education, New Trier Township District #203 ("New
Trier"). NCE FM radio stations, such as WNTH(FM), are licensed to
operate for an unlimited number of hours each day, unless they operate
pursuant to a time sharing arrangement with another qualified NCE
broadcaster.[^3] Under Section 73.561(b) of the Commission's rules, the
Commission will consider non-consensual proposals for time sharing only
in connection with renewal of the NCE FM station's license and only if
the station has operated for less than 12 hours per day during the
preceding license term.[^4] In addition, the party seeking to share time
must first attempt to reach agreement with the licensee. If the licensee
and share time proponent fail to reach agreement, the share time
proponent must file its application no later than the deadline for
filing petitions to deny the renewal application of the existing
licensee.[^5]

The Commission will not entertain proposals that do not conform to these
requirements.[^6] RB's does not. We find that the record establishes
that RB did not attempt to reach an agreement with New Trier prior to
filing its time share application, as is required by the Commission's
rules. Thus, RB's application is subject to dismissal.

In its April 25, 2005 response to the staff inquiry letter, RB states
that it disagrees with the staff's contention that it had an obligation
to initiate share-time negotiations with High School prior to filing its
application. To the extent *Westchester* imposes such a requirement,
states RB, the case "is not consistent with the text of Section 73.561
itself, which does not explicitly require such negotiations . . . ."[^7]
We reject RB's argument, as the Commission has spoken directly to this
issue in *Westchester*: it requires a share-time proponent to attempt to
negotiate an agreement with the incumbent licensee prior to filing a
share-time application. The staff is, of course, bound by Commission
precedent.[^8]

Accordingly, in light of the above discussion, RB's Petition for
Reconsideration IS GRANTED to the extent indicated and IS DENIED in all
other respects. The application of RB Schools (BNPED-20041101AHA)
REMAINS DISMISSED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: RB Schools

[^1]: *Letter to Donald E. Martin, Esquire, and Board of Education for
    New Trier Township District #203,* Reference 1800B3-ALM (MB May 31,
    2005)

[^2]: *Letter to Donald E. Martin, Esquire,* Reference 1800B3-ALM (MB
    March 24, 2005)

[^3]: 47 C.F.R. § 73.561(a).

[^4]: 47 C.F.R. § 73.561(b); *Nassau Community College*, 12 FCC Rcd
    12234 (1997) ("*Nassau*").

[^5]: 47 C.F.R. § 73.561(b); *Westchester Council for Public
    Broadcasting*, 8 FCC Rcd 2213, 2214 (1993) ("*Westchester*")
    ("\[E\]fforts to negotiate \[must be\] initiated prior to the filing
    of the application, so that either a share-time agreement, or a
    statement that no agreement could be reached, \[may be\] filed with
    \[the\] application.").

[^6]: *Nassau*, 12 FCC Rcd at 12238 (citing *Westchester*, 8 FCC Rcd at
    2214).

[^7]: April 8, 2005 RB response at 1.

[^8]: *See, e.g., WLDI, Inc.,* 17 FCC Rcd 14750, 14752 (EB 2002) ("the
    Bureau has no authority to alter or depart from Commission
    precedent").