**DA 06-1480**

In Reply Refer to:

1800B3-JP

Released: July 20, 2006

M&M Community Development, Inc.

4529 Lansmore Drive

Dayton, OH 45415

National Lawyers Guild Center

on Democratic Communications

1840 Woolsey Street

Berkeley, CA 94703

In re: M&M Community Development, Inc.,

Dayton Branch

(NEW) Low Power FM, Englewood, OH

Facility ID: 132271

File No. BNPL-20010122AGM

Dear Sir or Madam:

We have before us the above-referenced application filed by M&M
Community Development, Inc., Dayton Branch ("M&M Dayton") for a
construction permit to build a new low power FM ("LPFM") station in
Englewood, Ohio. The Commission dismissed this application on July 18,
2005, as inadvertently accepted for filing.[^1] M&M Dayton filed a
timely Petition for Reconsideration on August 22, 2005. Also on file are
the June 10, 2003, Informal Objection filed by the National Lawyers
Guild Center on Democratic Communications ("NLG"), M&M Dayton's
Opposition to Informal Objection filed on February 6, 2006, and NLG's
Opposition to Petition for Reconsideration filed on March 1, 2006. For
the reasons set forth below, the Petition for Reconsideration is
granted, the application is reinstated and the Informal Objection and
Opposition to Petition for Reconsideration are denied. Furthermore, M&M
Dayton's application for a construction permit is granted.

**DISCUSSION**

*M&M Dayton Petition for Reconsideration*. The Commission will consider
a petition for reconsideration when the petitioner shows either a
material error in the Commission's original order, or raises additional
facts, not known or existing at the time of the petitioner's last
opportunity to present such matters.[^2] M&M Dayton's petition alleges
that the dismissal of the original application was in error because M&M
Dayton was in fact a legally recognized entity in Ohio at the time of
its application.

According to the Commission's rules and procedures, an LPFM applicant
must certify its eligibility to own and operate such station at the time
it files its application.[^3] This certification requires that the
applicant be a non-profit educational institution, corporation or entity
recognized under state law.[^4] The instruction to FCC Form 318, Section
II, Question 2, Subsection 2(b) regarding non-profit educational
organizations states that "\[a\]pplicants must be prepared to furnish
supporting documentation for their statement upon request by the
Commission staff." Such documentation may, for example, include a letter
signed by a local attorney licensed to practice in the state where the
applicant proposes to operate, the citation and text of a state statute
permitting unincorporated entities, or any other official documentation
showing applicant's existence as a separate legal entity.

The Commission dismissed M&M Dayton's original application because M&M
Dayton was not incorporated at the time of its application. Although M&M
Dayton indicated in its application that it was a not-for-profit
corporation, it did not submit further evidence regarding its legal
status recognized under state law. On reconsideration, M&M Dayton
asserts that it was an unincorporated association recognized under Ohio
state law at the time it filed its application. In support of its
position, M&M Dayton submits a letter from an attorney licensed in Ohio
stating that unincorporated associations are authorized by Ohio state
law and that an unincorporated association is any non-profit
organization that is not incorporated. M&M Dayton also references Ohio
Revised Code § 1745.01.[^5] Additionally, M&M Dayton provides evidence
that it "has had an active presence" in Dayton since 1995, as
represented in its original application.[^6]

*NLG Opposition to Petition for Reconsideration*. In its opposition to
M&M Dayton's Petition for Reconsideration, NLG first states that M&M
Dayton failed to submit any admissible evidence showing M&M Dayton's
existence as a legally recognized unincorporated association at the time
of application filing.[^7] As noted above, however, an applicant is
required to furnish documentation only upon request. We conclude that
M&M Dayton has shown it was an unincorporated association recognized
under Ohio state law at the time of its application and that it was
engaged in non-profit activities in Dayton since 1995, well before it
filed the subject application. We believe these to be sufficient indices
that M&M Dayton was a non-profit educational entity recognized under
Ohio law for purposes of filing an LPFM application.

NLG asserts that granting M&M Dayton an LPFM license would violate the
ownership limits of Section 73.855 of the Commission's Rules[^8] (the
"Rules") because M&M Dayton's parent organization, M&M Community
Development, Inc. ("M&M CD"), has an interest in two other LPFM
stations. While M&M Dayton's original application stated that M&M CD
held a 52 percent voting and equity interest in M&M Dayton, subsequent
amendments to the application have corrected this information. M&M
Dayton states that as a non-profit, non-stock entity it does not have
any voting or equity interests, and that, in reality, M&M CD has no
ownership, equity, or voting interest in M&M Dayton. M&M Dayton
characterizes its amendments as a "correction," not a report of a major
change in ownership structure under Section 73.871(a) of the Rules.[^9]
We accept M&M Dayton's amendments as a correction of an error under
Sections 1.65 and 73.871(c)(4) of the Rules.[^10] M&M CD could have no
equity or voting rights in M&M Dayton because the latter entity is an
unincorporated association. Moreover, we note that when M&M Dayton
eventually incorporated on December 12, 2001, as a non-profit, non-stock
corporation, M&M CD did not have any listed equity or voting rights in
M&M Dayton.

NLG contends M&M Dayton does not qualify for the attribution exception
contained in Section 73.858(b) of the Rules[^11] and, therefore, that
the interests of M&M Community Development, Inc. be attributed to M&M
Dayton. Section 73.858(b) of the Rules states that "\[a\] local chapter
of a national or other large organization shall not have the
attributable interests of the national organization attributed to it
provided that the local chapter is separately incorporated and has a
distinct local presence and mission." NLG claims that M&M Dayton cannot
qualify for the exemption because it was not incorporated, much less
separately incorporated, when the application was filed. Under the
Rules, LPFM applicants may be unincorporated entities or
organizations.[^12] The *LPFM Report and Order*[^13] states that the
establishment of LPFM as a noncommercial service requires that LPFM
licensees comply with the eligibility requirements of Section 397(6) of
the Act, which defines a "noncommercial educational broadcast station"
as a station which "(A) ... is owned and operated by a public agency or
a non-profit private foundation, corporation, or association...."[^14]
The record establishes that M&M Dayton was organized separately from any
national entity and had a distinct local presence and mission at the
time it filed the Englewood LPFM application; it later incorporated and
maintained that local presence and mission. Accordingly, we find that it
is eligible for the exemption contained in Section 73.358(b) of the
Rules.

Next, NLG alleges that the Commission should not reconsider that
dismissal of M&M Dayton's application because the application fails to
identify the citizenship, percentage of votes, and percentage of assets
of all purported members. M&M Dayton's November 20, 2001, amendment to
its application lists the following four officers: Stan Tompkins, Larry
Brown, Brenda Reeves, and Jamita Tompkins. In its original application
dated January 22, 2001, M&M Dayton identified the citizenship and
percentage interests of Stan Tompkins and Larry Brown. However, it did
not indicate the citizenship of its listed director and officers in the
November 20, 2001, amendment. Failure to report the citizenship of an
applicant's principals is a defect requiring amendment, not dismissal of
an application.[^15] M&M Dayton's February 6, 2006, Opposition to
Informal Objection lists the members of its Board of Trustees as Andrew
Davis, Diana Feldhaus, David Mattingly, and Patricia Moran and
identifies each as a citizen of the United States.[^16] Accordingly, we
conclude that dismissal is unwarranted in these circumstances.

The February 27, 2006, amendment reflects a complete change in ownership
and control of M&M Dayton from its original application. M&M Dayton
states that the change in board members was not sudden or substantial,
but rather occurred gradually during the pendency of its application.
Normally such change in the ownership of an LPFM applicant would be
considered a major change impermissible outside of a filing window.[^17]
However, the Media Bureau will waive Section 73.871 of the Rules[^18]
upon a finding that the public interest would be served and no change in
the organization's mission has occurred. Particularly in light of the
substantial time that the application has been pending, we find that
waiver of the requirements of Section 73.871 of the Rules in this case
would serve the public interest.

Finally, NLG alleges that M&M Dayton lacks the character qualifications
necessary to receive an LPFM license based on the above allegations and
alleged misrepresentations regarding M&M Dayton's incorporation status.
M&M Dayton responds that there is no evidence of deliberate
misrepresentation or lack of candor. NLG has presented no probative
evidence to support its allegations regarding M&M Dayton's fitness to be
a Commission licensee. NLG's arguments regarding the allegedly fatal
defects in M&M Dayton's proposal here have been considered and rejected
above. With respect to NLG's misrepresentation allegation, it is true
that M&M Dayton presented information in its original application --
concerning, *inter alia*, its corporate status and ownership -- that was
inaccurate. Nevertheless, an essential element of misrepresentation is
an intent to deceive the Commission.[^19] NLG has presented no evidence
that M&M Dayton submitted the erroneous information with such an intent.
Accordingly, although it is clear that M&M Dayton has made numerous
filing errors, NLG has not established a substantial or material
question of fact to warrant further inquiry into M&M Dayton's basic
qualifications to hold a Commission authorization.

*NLG Informal Objection*. As a result of our reinstatement of the
application, we must consider the NLG informal objection. Most of the
allegations contained in this filing were addressed in the discussion of
NLG's Opposition to the Petition for Reconsideration above.

The NLG Informal Objection also argues that the application is defective
because M&M CD, M&M Dayton's alleged "parent" organization, did not
exist as a legal entity at the time of application. The Section
397(6)(A)[^20] eligibility requirement applies only to the applicant,
M&M Dayton, not to an affiliated national organization, such as M&M CD.
As discussed above, M&M Dayton has established its existence as a legal
entity separate and distinct from M&M CD at the time its application was
filed. Accordingly, the legal status of M&M CD has no bearing on the
acceptability of the M&M Dayton application.

**CONCLUSIONS/ACTIONS**

Accordingly, IT IS ORDERED that, the M&M Dayton Petition for
Reconsideration IS GRANTED, its application is HEREBY REINSTATED and
NLG's Informal Objection is DENIED. Additionally, we have evaluated M&M
Dayton's proposal and we find both that it complies with all pertinent
statutory and regulatory requirements and that the public interest,
convenience, and necessity will be served by its grant. IT IS FURTHER
ORDERED that, the application of M&M Community Development, Inc., Dayton
Branch for a new Low Power FM radio station at Englewood, Ohio (File No.
BNPL-20010122AGM) is GRANTED. The authorization is enclosed.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Howard M. Weiss, Esquire

Alan Korn, Esquire

Christian Community Broadcasters

[^1]: *Letter to Alan Korn, Esq. and Howard M. Weiss, Esq.*, Reference
    1800B3-JWR (MB Jul. 18, 2005). M&M Dayton filed its original
    application on January 22, 2001. On September 24, 2001, Christian
    Community FM ("CCF") filed an informal objection to the application.
    M&M Dayton filed an opposition to CCF's objection on December 31,
    2001, to which CCF replied on March 14, 2002. CCF subsequently
    withdrew its objection to M&M Dayton's application on February 23,
    2004.

[^2]: 47 C.F.R § 1.106. *See* *also* *WWIZ, Inc*., 37 FCC 685, 686
    (1964), *aff'd sum nom*., *Lorain Journal Co. v. FCC*, 351 F.2d 824
    (D.C. Cir. 1965), *cert. denied*, 387 U.S. 967 (1966).

[^3]: *See* Instructions for FCC Form 318, Section II, Question 2. *See
    also* FCC Form 318, Section II, Question 2.

[^4]: *Id*. at paragraphs 18 and 19. *See also* Section 397(6)(A) of the
    Communications Act of 1934, as amended (the "Act"). 47 U.S.C. §
    397(6)(A).

[^5]: *See* Petition for Reconsideration, Exhibits 2 and 3. *See* *also*
    *Miazga v. Int'l Union of Operating Engineers*, 196 N.E.2d 324, 327
    (Ohio Ct. App. 1964) ("Proper interpretation of the statute shows
    that it was the legislative intent in adopting the act to make
    unincorporated associations legal entities for all purposes of
    law."); Ohio Revised Code §§ 1745.02 to 1745.04.

[^6]: Petition for Reconsideration, Exhibit 3 indicating that M&M Dayton
    has been active in youth mentoring in the Dayton area since 1995.

[^7]: NLG notes that it was not served with a copy of M&M Dayton's
    Petition for Reconsideration. We find the failure to serve by M&M
    Dayton does not prejudice NLG since both its Opposition to Petition
    for Reconsideration and its Informal Objection will be considered.
    *See In re Josephine Broadcasting*, 5 FCC Rcd 3162, 3163 (1990).

[^8]: 47 C.F.R. § 73.855.

[^9]: 47 C.F.R. § 73.871(a).

[^10]: 47 C.F.R §§ 1.65, 73.871(c)(4).

[^11]: 47 C.F.R. § 73.858(b).

[^12]: *See* 47 C.F.R. § 73.853. *See also* Instructions for FCC Form
    318, Section II, Question 2 and FCC Form 318, Section II, Question 2
    ("Organizational NCE applicants are private, non-profit entities
    such as non-profit foundations, corporations or associations.
    Individuals cannot qualify as organizational applicants.")

[^13]: *Creation of a Low Power Radio Service, Report and Order*, 15 FCC
    Rcd 2205, 2213 (2005) ("*LPFM Report and Order*").

[^14]: 47 U.S.C. § 397(6). *See* *Blue Lake Academy, Inc*., 20 FCC Rcd
    12060 (MB 2005).

[^15]: *See Atlantic City Community Broadcasting*, 3 FCC Rcd 5595, 5598
    (MMB 1988) and *Ecola Broadcasting Co.*, 5 FCC Rcd 2556, 2557 (MMB
    1990).

[^16]: *See* Opposition to Informal Objection at 5. M&M Dayton further
    amended its application on June 23, 2006, to reflect that each board
    member holds a 25% voting interest in the organization.

[^17]: 47 C.F.R. § 871(c)(3).

[^18]: 47 C.F.R § 73.871. *See* *Center* *for Community Arts, Inc*., 20
    FCC Rcd 11164, 11165 (2005) (waiving 47 C.F.R. § 73.871 with respect
    to changes in a majority of an LPFM applicant's board of directors).
    *See also Creation of Low Power Radio Service, Second Order on
    Reconsideration and Further Notice of Proposed Rulemaking*, 20 FCC
    Rcd 6763, 6772 (2005).

[^19]: *See San Francisco Unified School District*, 19 FCC Rcd 13326,
    13335 (2004) and *Liberty Productions, LP*, 16 FCC Rcd 12061,
    12079-80 (2001) (substantial evidence of an intent to deceive is
    necessary to support a finding of misrepresentation or otherwise
    raise a question as to an applicant\'s basic qualifications).

[^20]: ^?^ 47 U.S.C. § 397(6)(A).