**DA 08-349**

*In Reply Refer to:*

1800B3-JP

Released: February 12, 2008

Gabriel Arango

Siga Broadcasting Corporation

1302 N. Shepherd Drive

Houston, TX 77008

JNE Investments, Inc.

PO Box 60991

Palo Alto, CA 94306

In re: Siga Broadcasting Corporation

KTMR(AM), Edna, Texas

Facility ID: 28191

File No. BP-20040108ALC

Gentlemen:

We have before us (1) a Petition for Reconsideration ("Petition") filed
by JNE Investments, Inc. ("JNE") on April 1, 2005, asking for
reconsideration of a March 8, 2005, staff decision[^1] dismissing JNE's
informal objection against a minor change application for Station
KTMR(AM) as untimely; (2) Siga Broadcasting Corporation's ("Siga") April
11, 2005, Opposition to the Petition for Reconsideration; and (3) JNE's
April 25, 2005, Reply to Opposition to Petition for Reconsideration. For
the reasons discussed below we dismiss the Petition for Reconsideration.

**Background**. Siga filed the above-captioned minor change application
("Application") on January 8, 2004, which the staff granted on December
1, 2004. JNE filed an Informal Objection against the minor change
application on December 2, 2004, after the grant of the application, but
before public notice of the grant was issued on December 6, 2004. JNE
objected to grant of the Application stating: (1) it was unacceptable
for filing as a minor change application because it proposed a change in
the station's community of license from Edna, Texas, to Bulverde, Texas;
and (2) the minor change application is mutually exclusive with a major
change application filed by Siga on January 28, 2004. On March 8, 2005,
the staff dismissed JNE's informal objection as untimely because it was
filed after the Commission had taken action on the application.[^2]

**Discussion**. Section 1.106(b)(1) of the Commission's Rules (the
"Rules") allows a petition for reconsideration to be filed by any party
to the original proceeding or any party whose interests will be
adversely affected by the action taken by the Commission.[^3] If the
petitioner was not party to the original proceeding it must show good
reason for why it was unable to participate in the earlier proceeding.

JNE's Informal Objection was filed nearly eleven months after the Siga
Application was filed. JNE provides no explanation for why it was unable
to participate in the original proceeding. JNE attempts to excuse the
delay by pointing out that Section 73.3587 of the Rules contains no
deadline for the filing of an informal objection and that it could not
have known of the grant of Siga's application since the informal
objection was filed before public notice of the Commission's action was
published. While Section 73.3587 of the Rules does not contain a filing
deadline for informal objections, it specifically states that informal
objections must be filed before Commission action on the application.

The Commission has afforded reconsideration to petitioners where the
grant of an application occurred shortly after the application was
filed.[^4] In these instances, the Commission found that an expedient
grant of the applications had not allowed sufficient time for potential
objections to be filed, and thus, that it was in the public interest to
allow those parties to file petitions for reconsideration. However, in
each of those cases, the time period between the filing of the
application and the grant was less than a week. In cases where the grant
of an application has occurred over 30 days from the filing of the
application, the Commission has found that late filers do not have
standing to file petitions for reconsideration because they failed to
participate in the earlier proceeding, despite having had adequate time
to do so.[^5] We find that JNE had ample opportunity to object to Siga's
application, prior to the staff action. As a result, JNE does not have
standing to file a petition for reconsideration in this proceeding. For
these reasons, the Petition for Reconsideration will be dismissed.

Moreover, even if we were to consider the merits of JNE's Petition and
underlying Informal Objection, each would be denied. First, the
captioned minor change application never proposed a change in Station
KTMR(AM)'s community of license; the original application and all
subsequent amendments list Edna, Texas, as the community of license.[^6]
In addition, the filing of a minor change application proposing a change
in a station's technical facilities does not preclude a licensee from
later filing a major change application proposing a new community of
license, even if the minor change application has not yet been granted.
No Commission rule or policy prevents a licensee from completing the
proposed minor change and then implementing the proposed major change,
should both be granted.[^7]

**Conclusion/Actions**. Accordingly, IT IS ORDERED, that JNE's Petition
for Reconsideration is DENIED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Christopher D. Imlay, Esq.

Peter Tannenwald, Esq.

[^1]: *Letter to Christopher D. Imlay, Esq. from Peter H. Doyle*,
    reference 1800B2-JBS (MB Mar. 8, 2005).

[^2]: Section 73.3587 of the Commission's Rules allows informal
    objections to be filed any time "*before* Commission action on any
    application for an instrument of authorization." 47 C.F.R. § 73.3587
    (emphasis supplied).

[^3]: 47 C.F.R. § 1.106(b)(1).

[^4]: *See Ted and Jana Tucker*, Memorandum Opinion and Order, 4 FCC Rcd
    2816, 2816 (1989) (standing to file a petition for reconsideration
    found when application granted four days after public notice issued)
    and *Aspen FM, Inc*., Memorandum Opinion and Order, 12 FCC Rcd
    17852, 17854-55 (1997) (standing to file a petition for
    reconsideration found when application granted five days after
    acceptance).

[^5]: *See* *Association for Community Education*, Memorandum Opinion
    and Order, 19 FCC Rcd 12682, 12684 (2004) (standing to file
    reconsideration not found when petitioner had more than 30 days to
    object to the application and failed to do so).

[^6]: *See* CDBS Public Access,
    *http://svartifoss2.fcc.gov/cgi-bin/ws.exe/prod/cdbs/pubacc/prod/app_list.pl*.
    The most recent version and all superceded versions of the
    application are available on the Commission's public access
    database.

[^7]: For example, because both applications can be effectuated, the
    applications are not "inconsistent" under 47 C.F.R. § 73.3518. 47
    C.F.R. § 73.3520 prohibits multiple applications for service in the
    same community, in this instance, each application concerns service
    in a different community.