**DA 06-1925**

*In Reply ReferTo*:

1800B3-JWR

Bruce H. Klemesrud

Sarah Marie Klemesrud Foundation

1936 Hythe Road

Columbus, Ohio 43220-4815

Alan Korn, Esquire

National Lawyers Guild Center\
on Democratic Communications

1771 Alcatraz Avenue

Berkeley, California 94703

Howard M. Weiss, Esquire

Fletcher Heald & Hildreth, PLC

1300 N. 17th Street, 11^th^ Floor

Arlington, Virginia 22209

In re: **(NEW), Low Power FM, Columbus, OH**

**Facility ID No. 132332**

File No. BNPL-20010122AFS

Application for Construction Permit

Petition to Deny & Informal Objection

Gentlemen:

We have before us the above-referenced January 22, 2001, application
filed by M&M Community Development, Inc., Columbus Branch ("M&M") for a
construction permit to build a new low power FM ("LPFM") station in
Columbus, Ohio. Also before us are the Bruce H. Klemesrud and Sarah
Marie Klemesrud Foundation ("Klemesrud") September 18, 2001, Petition to
Deny ("Klemesrud Petition") and the June 10, 2003, National Lawyers
Guild Center on Democratic Communications ("NLG") Informal Objection
("NLG Objection"), both directed to the subject application, as well as
related responsive pleadings.[^1] For the reasons set forth below, the
NLG Objection is granted to the extent indicated, the subject
application is dismissed, and the Klemesrud Petition and Motion to
Strike and the M&M Motion for Leave are dismissed as moot.

In its Objection, NLG states, among other things, that the M&M
application violates section 73.853(b) of the Commission's Rules (the
"Rules").[^2] Specifically, NLG states that the subject application is
defective because M&M's proposed transmitter site is more than 10 miles
from M&M's headquarters and more than 10 miles from the residences of
75% of its board members (the "10 Mile Rule").[^3]

Section 73.853(b) of the Rules ("Licensing Requirements and Service")
provides, in pertinent part, that:

> \(b\) only local applicants will be permitted to submit applications
> \[for low power FM stations\] for a period of two years from the date
> that LP100 and LP10 stations, respectively, are first made available
> for application. For the purposes of this paragraph, an applicant will
> be deemed local if it can certify that:
>
> \(1\) the applicant, its local chapter or branch is physically
> headquartered or has a campus within 16.1 km (10 miles) of the
> proposed site for the transmitting
>
> antenna; or
>
> \(2\) it has 75% of its board members residing within 16.1 km (10
> miles) of the proposed site for the transmitting antenna.

In its Opposition to the NLG Objection, M&M concedes that the location
of its proposed transmitter site was more than 10 miles from its
headquarters, and that the subject application therefore did not comply
with 73.853(b) at the time the application was filed.[^4] In
explanation, M&M states that, prior to the relevant filing window, M&M's
consulting engineer had located an initial site that complied with both
the LPFM spacing requirements and the 10-Mile Rule. M&M states that when
the Commission implemented the spacing provisions affording protection
to third adjacent channels,[^5] the initial site became no longer
suitable, and the engineer located an alternate site. The M&M
application specified that new site. While the new site complied with
the new spacing provisions, M&M states that the engineer, by
"inadvertent oversight," failed to recalculate the distances of the new
site to determine if it complied with the 10 Mile Rule, which it did
not. As a consequence, the subject application, as filed, certified M&M
was "community based," thereby complying with 73.853(b), when, in fact,
it did not so comply.

M&M argues that, notwithstanding this oversight, its application should
not be considered defective. It points out that the Commission adopted
the local residency requirement and the 10-Mile Rule in an effort to
establish LPFM as a community-based, local broadcast service. M&M argues
that (1) each of its principals reside, at most, 16.5 miles from its
proposed transmitter site; (2) its principals all live in Columbus,
Ohio, the proposed community of license; (3) M&M's headquarters are
located in Columbus; and (4) its proposed transmitter site is located in
downtown Columbus. These "key factors," states M&M, mitigate the "slight
variance" from the requirements of the Rules, especially given M&M's
good faith efforts to comply with the third-adjacent-channel transmitter
site restrictions.[^6]

The Commission adopted and intended the 100-Watt LPFM service to be a
truly community-based broadcast service. It stated that, given the small
coverage areas of LPFM stations, and the intention that the particular
needs and interests of these small areas be served, local familiarity is
more significant than for stations serving larger populations.[^7] The
Commission attempted to facilitate this "local familiarity" by requiring
that, for LPFM filing windows opened within two years after the opening
of the first LPFM filing window:

> \[a\]ll LPFM applicants must be based within 10 miles of the station
> they seek to operate. This means that the applicant must be able to
> certify that it or its local chapter or branch is physically
> headquartered, has a campus, or has 75 percent of its board members
> residing within 10 miles of the reference coordinates of the proposed
> transmitting antenna. We chose the 10-mile distance as proportionate
> to most stations' likely effective reach. We are concerned that a
> larger distance, in many areas of the country, could lead to ownership
> outside the bounds of the stations real community and the people they
> will actually serve.[^8]

The Commission did not, however, indicate that it would deviate from or
be willing to waive the 10-mile distance requirement in circumstances in
which the principals and headquarters are, as claimed here, within the
proposed community of license but more than 10 miles from the
transmitter site.

We disagree with M&M's description of the defects in its proposal as a
"slight variance" from the requirements of Section 73.853(b). M&M's
proposal met none of the provisions of the rule, and locations in excess
of three and six miles beyond the geographic parameters specified in the
rule are not minor deviations. Moreover, we believe it inappropriate to
countermand the Commission's statement that LPFM applicants be
headquartered or have 75 percent of its principals residing within the
station's "likely effective reach," and we will not rule that a
headquarters office located or principals residing anywhere in the
proposed community of license, irrespective of the distance from the
transmitter location, will satisfy the requirement that an LPFM
applicant be "community based."[^9]

When an applicant seeks waiver of the rules, it must plead with
particularity the facts and circumstances which warrant such
action.[^10] Although M&M did not file its request for waiver of Section
73.853(b) until nearly fifteen months after it filed the subject
application, we have afforded the waiver request the \"hard look\"
called for under *WAIT Radio*.[^11] We find that the facts and
circumstances presented are not sufficient to demonstrate that waiver,
rather than strict application, of Section 73.853(b) would further the
public interest.[^12] Accordingly, M&M's request for waiver of this rule
IS DENIED.

Based on the above discussion, we find that the subject application does
not comply with Section 73.853(b) and was therefore inadvertently
accepted for filing. Accordingly, the NLG Objection IS GRANTED to the
extent indicated herein, and the M&M application (File No.
BNPL-20010122AFS) IS HEREBY DISMISSED AS INADVERTENTLY ACCEPTED FOR
FILING.[^13] Additionally, the Klemesrud Petition to Deny and "Motion to
Strike Opposition to Petition to Deny" and the M&M "Motion for Leave to
File Surreply" ARE DISMISSED AS MOOT.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: M&M filed an opposition to the NLG Objection on October 3, 2005,
    and an Opposition to the Klemesrud Petition on December 31, 2001.
    Also on file is the Klemesrud January 11, 2002, "Motion to Strike
    Opposition to Petition to Deny" (the "Motion to Strike"); M&M filed
    an Opposition to the Motion to Strike on January 24, 2002, to which
    Klemesrud filed a Reply on March 12, 2002. Additionally, M&M filed a
    "Motion for Leave to File Surreply" (the "Motion for Leave") and
    accompanying "Surreply" on April 12, 2002.

[^2]: 47 C.F. R. § 73.853(b).

[^3]: NLG attaches printouts from a service entitled "Geocode.com"
    indicating that M&M's headquarters at 32 Brunson Avenue, Columbus,
    Ohio, is 13.82 miles from the proposed transmitter site. It also
    indicates that M&M principals Kimberly Lee Minor and Marc Minor, who
    reside at the Brunson Avenue address, live more than 10 miles from
    the transmitter site, and that M&M principal Greg Dukes, whose
    address is 5394 Meadow Court, Columbus, Ohio, resides 16.1 miles
    from the proposed transmitter site. M&M does not take issue with
    those distances.

[^4]: In Section II, Item 4(a) of FCC Form 318 ("Application For
    Construction Permit For A Low Power FM Broadcast Station") M&M
    originally certified that it was "community based" in that it is
    physically headquartered or has a campus within 10 miles of its
    proposed transmitter site and that 75% of its board members resided
    within 10 miles of the proposed transmitter site. It affirmed that
    certification in amendments filed on November 20 and December 18,
    2001. However, in an amendment filed on April 16, 2002, prior to
    NLG's Objection, M&M admitted that it could not certify that that it
    is physically headquartered or has a campus within 10 miles of its
    proposed transmitter site and that 75% of its board members resided
    within 10 miles of the proposed transmitter site. It therefore
    stated that it no longer wished to claim a comparative point for
    "Established Community Presence." M&M requested a waiver of the
    basic eligibility requirement contained in Section 73.853(b),
    arguing that: (1) its headquarters and the residence of its sole
    director were 11 miles from the proposed transmitter site; (2) the
    applicant is based in Columbus, its director is a long-time Columbus
    resident, and its programming will serve Columbus; and (3) its
    non-compliance was inadvertent.

[^5]: *See Creation of Low Power Radio Service, Second Report & Order*,
    16 FCC Rcd 8026 (2001).

[^6]: M&M Opposition to Informal Objection at 3.

[^7]: *See Creation of a Low Power Radio Service, Report & Order*, 15
    FCC Rcd 2205, 2219 (2000) ("*Report and Order*"). In recognition of
    the small areas served by LPFM stations, the Commission also
    exempted LPFM stations from the requirement that a minimum field
    strength of 70 dBµ (3.16 mV/m) be provided over the entire principal
    community to be served. *See* 47 C.F.R. §§ 73.315, 73.801. Columbus
    has a geographic land area of 225.9 square miles. *See*
    [http://www.columbusinfobase.org/areas/cityof.asp]{.underline}

[^8]: *Report and Order,* 15 FCC Rcd at 2219.

[^9]: Neither will we entertain waiver requests based on a showing that
    the headquarters location or principals' residences are within the
    proposed station's predicted coverage area utilizing either the
    standard prediction methodology of 47 C.F.R. § 73.313 or alternative
    prediction methodologies. The "10-mile Rule" is, as the Commission
    indicated, a "simple, straightforward requirement" for ensuring that
    LPFM applicants are based in the local community. *Report and
    Order*, 15 FCC Rcd at 2220.

[^10]: *Columbia Communications Corp. v. FCC*, 832 F.2d 139, 192 (D.C.
    Cir. 1987) (quoting *Rio Grande Family Radio Fellowship, Inc. v.
    FCC*, 406 F.2d 644, 666 (D.C. Cir. 1968 (*per curiam*)).

[^11]: *WAIT Radio v. FCC*, 418 F.2d 1153 (D.C. Cir. 1969).

[^12]: *Delta Radio, Inc. v. FCC*, 387 F.3d 897, 900-01 (D.C. Cir.
    2004).

[^13]: Because the dismissal of the M&M application is premised on its
    eligibility to be an LPFM licensee under Section 73.853(b), we need
    not address the remainder of NLG's allegations or those of
    Klemesrud.