**DA 07- 1359**

In Reply Refer to:

1800B3-WW/MW

Released: March 20, 2007

Joseph C. Chautin, III, Esq.

Hardy, Carey & Chautin, LLP

110 Veterans Blvd., Suite 300

Metarie, LA 70005

###  In re: Educational Media Foundation 

FM Translator Station K224DK, Fontana, CA

###  Facility ID No.: 139831

File No. BNPFT-20030828ANS

**Petition for Reconsideration**

Dear Mr. Chautin:

The staff has under consideration: (1) the above-captioned application
of Educational Media Foundation ("EMF") for a new FM translator station
at Fontana, California, which was granted on March 7, 2005 (the
"Application"); (2) the April 6, 2005, "Petition for Reconsideration and
Request to Rescind Grant of FM Translator Permit" (the "Petition for
Reconsideration") regarding the Application filed by Amaturo Group of
L.A., Ltd. ("Amaturo"); and (3) related responsive pleadings.[^1]

**Background.** The Application was accepted for filing on March 11,
2004. Amaturo timely filed a Petition to Deny the Application on March
31, 2004, arguing that the proposed translator would cause prohibited
overlap to its co-channel Station KLIT(FM), Fountain Valley, California.
In response, on April 29, 2004, EMF amended the Application to reduce
the proposed effective radiated power to 0.01 kW, thereby eliminating
the complained-of overlap. On March 7, 2005, the staff denied Amaturo's
Petition to Deny and granted the Application, finding that no actual
interference was predicted to occur.[^2] On April 6, 2005, Amaturo
timely filed its Petition for Reconsideration of that decision (the
"Petition").[^3]

In its Petition, Amaturo asserts that EMF's Application grant should be
rescinded because: (1) the proposed translator station will cause
interference to Amaturo's co-channel Station KLIT(FM); and (2) EMF
lacked reasonable assurance of the availability to it of the antenna
site specified in its Application. For the following reasons, we deny
the Petition.

**Discussion.** Reconsideration is appropriate only when the petitioner
either shows a material error or omission in the original order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters.[^4] Amaturo has
failed to make such a showing in this case.

*Alleged Interference to Station KLIT(FM)*. As a component of the
staff's routine pre-grant review of the Application, as amended, the
staff concluded that there would be no predicted interference to
Amaturo's co-channel Station KLIT(FM) caused by the proposed translator.
In its Petition for Reconsideration, Amaturo seeks to demonstrate that
interference will actually occur to Station KLIT(FM) using a
supplemental engineering showing incorporating the Longley-Rice signal
propagation methodology. However, supplemental showings have not been
accepted, nor will they be, for the purpose of determining interference
between FM broadcast stations.[^5] Accordingly, we will not accept
Amaturo's supplemental showing to "extend" KLIT(FM)'s protected service
contour in this case. For this reason, Amaturo has not established in
its Petition for Reconsideration that the staff erred in processing or
granting the Application.

In this regard, we note that, the Commission's rules regarding FM
translator stations restrict such stations to operate strictly on a
secondary basis and limit their permissible service. Section
74.1203(a)(3) states that an FM translator station will not be permitted
to continue to operate if it causes any actual radio signal interference
to the direct reception by the public of the off-the-air signals of any
authorized broadcast station.[^6] Actual interference is based on
listener complaints indicating that the signal that the complainant
regularly receives is being impaired by the signal radiated by the FM
translator station. Section 74.1203(b) states that, if the interference
cannot be properly eliminated by the application of suitable techniques,
the operation of the offending FM translator station shall be suspended
and shall not be resumed until the interference has been eliminated.
Accordingly, should EMF's Fontana translator station cause any actual
interference to KLIT(FM) or any other authorized broadcast station, EMF
will be required to take appropriate steps to resolve that interference
or cease operation of the facility.[^7]

*Reasonable Site Assurance*. In its Petition, Amaturo also argues, for
the first time on reconsideration, that grant of the Application should
be reconsidered because EMF lacked reasonable assurance of the
availability to it of the antenna site proposed in that Application.
Amaturo states that EMF proposed to operate its station from the same
tower and at the same location on the tower as that previously occupied
by Amaturo's Station KELT(FM), Riverside, California. Amaturo maintains
that, although it sold the tower in 1998, it retained recorded easement
rights for KELT(FM)'s tower at the 70-foot level on the tower. Thus,
states Amaturo, the location specified in the Application for EMF's
antenna is within the tower space that Amaturo still controls, and EMF
never contacted Amaturo about the use of this location on the tower.
Amaturo maintains that, because it was the only entity from whom site
assurance at the site and elevation specified could have been obtained,
and no one connected with Amaturo provided such assurance, EMF did not
comply with the Commission's site availability requirements.[^8]

In its Opposition, EMF initially challenges the procedural propriety of
Amaturo's raising the site availability argument for the first time in
its Petition for Reconsideration.[^9] Additionally, EMF states that it
did obtain reasonable assurance of its proposed site's availability from
the owner of the tower, American Tower Corporation ("ATC"). In support
of this latter contention, EMF submits a letter from Peter Starke, Vice
President/General Manager of ATC's Broadcast Group, in which he states:

> American Tower owns the tower and has land easement rights to access
> the site and operate the building. Although I do not know the exact
> date of your application to the FCC to utilize this site, I would like
> to confirm that EMF did in fact receive permission from American Tower
> to use this facility in its application to the FCC. At the time,
> reasonable assurances were given to EMF that ATC would enter into a
> tenant lease with EMF to operate its equipment from this site.[^10]

In its Reply, Amaturo contends that EMF's site assurance documentation
is inadequate because it is from a company that does not control the
tower space in which EMF's translator is to be situated. It contends
that reasonable assurance can only be obtained from the owner of the
tower space at issue, and, since Amaturo, and not ATC, holds easement
rights over the tower space specified by EMF, EMF never received
reasonable assurance, yet represented on four separate occasions that it
had such rights.[^11] Additionally, Amaturo observes that the
"self-serving" ATC Letter was not prepared contemporaneously with the
filing of EMF's application, is based upon the recollection of an
individual who did not provide the actual assurance, and does not
establish the basis for his statements in the letter. For these reasons,
Amaturo claims the ATC Letter should be rejected as hearsay.[^12]
Additionally, it indicates that any implication in the ATC Letter that
Amaturo no longer has rights on the tower[^13] are untrue, and that it
has advised ATC that grant of a lease to EMF that violates Amaturo's
legal rights "will most assuredly result in legal action."[^14]

We will dismiss that portion of Amaturo's Petition that raises, for the
first time, the site availability argument. As noted *supra*, the
Commission's rules are clear that a petition for reconsideration relying
on facts not previously presented to the Commission may be entertained
only if the facts raised are new or involve changed circumstances
previously unknown to the petitioner (and which could not have been
ascertained by the exercise of ordinary diligence) at the time that the
petition was filed, or where consideration of the matter is required in
the public interest.[^15] Amaturo does not demonstrate that it could not
have timely discovered through the exercise of ordinary diligence that
EMF proposed to locate its Fontana translator at a location on the ATC
tower allegedly controlled by Amaturo, nor that our consideration of the
facts upon which Amaturo relies \"is required in the public interest,\"
as specified by Section 1.106(c)(2).[^16]

In this regard, Amaturo claims that it "did not discover until later
that EMF's application specified the exact parameters of Amaturo's
previously licensed location for KELT(FM)" and that it "would not have
had reason to anticipate" that the specified location would be the one
for which it allegedly held easement rights;[^17] it thus states that it
raised the argument only after confirming its easement rights. The
arguments are unpersuasive. EMF's Application was filed on August 28,
2003, and it was not granted until March 7, 2005, nearly 19 months
later, during which time it was available for public inspection. Amaturo
had ample time to study EMF's specific technical proposal.[^18] We note
that, on March 31, 2004, Amaturo timely filed its Petition to Deny the
Application, arguing that the proposed translator would create
impermissible overlap to Amaturo's Station KLIT(FM), including in
support an engineering showing study based on EMF's technical proposal
contained in the Application. That Amaturo did not realize that EMF had
specified the site that Amaturo allegedly controlled is, at best, due to
a lack of "ordinary diligence" on its part.

Moreover, even were we to consider the merits of Amaturo's site
availability argument, we would deny reconsideration on those grounds.
An allegation that an applicant has falsely certified availability of a
transmitter site raises two interrelated issues: (1) whether the
applicant had reasonable assurance of the availability to it of the site
at the time that the applicant so certified (*i.e.*, whether there was a
meeting of the minds sufficient to establish reasonable assurance of a
transmitter site's availability for its intended use); and (2) whether
the certification was deliberately false, or whether the applicant
believed, even if such belief was incorrect, that the site owner had
made a commitment to make the transmitter site available to the
applicant (*i.e.,* whether the applicant intended to deceive the
Commission, as established by substantial evidence).[^19]

With respect to the first issue, to demonstrate that it has obtained
reasonable assurance that its proposed site is available, an applicant
must provide proof of the property owner's favorable disposition toward
making an arrangement with the applicant, beyond simply a mere
possibility. This reasonable assurance may be acquired by informal
telephone contacts with a representative of the property owner or
prospective landlord, and rent and other details may be negotiated at a
future date.[^20] The unqualified statements in the May 3, 2005, ATC
letter that "EMF did in fact receive permission from American Tower to
use this facility in its application to the FCC" and "\[a\]t the time,
reasonable assurances were given to EMF that ATC would enter into a
tenant lease with EMF to operate its equipment from this site" are
sufficient to meet this standard. Contrary to Amaturo's claims, the ATC
letter is not "self-serving," as ATC is not even a participant in this
proceeding.[^21] With respect to the second issue of possible
misrepresentation by EMF, both ATC and EMF believe that ATC did provide
reasonable assurance to EMF. Under these circumstances, there is no
evidence of any false certification or untrue statements to the
Commission by EMF regarding the specified site.

**Conclusion/Action.** In light of the foregoing, IT IS ORDERED, that
the August 26, 2005, Motion for Leave to File Supplement to Petition for
Reconsideration and Request to Rescind Grant of FM Translator Permit
filed by Amaturo Group of L.A., Ltd. IS DENIED.

IT IS FURTHER ORDERED, that the April 6, 2005, Petition for
Reconsideration and Request to Rescind Grant of FM Translator Permit
filed by Amaturo Group of L.A., Ltd. IS HEREBY DISMISSED IN PART AND
DENIED IN ALL OTHER RESPECTS, as discussed above.

Sincerely,

Peter H. Doyle, Chief Audio Division

Media Bureau

cc: Educational Media Foundation

Veronica D. McLaughlin Tippett

Amaturo Group of L.A., Ltd.

[^1]: EMF filed an Opposition to the Petition for Reconsideration on May
    4, 2005 (the "Opposition"), to which Amaturo filed a Reply on May
    13, 2005 (the "Reply"). Additionally, on August 26, 2005, Amaturo
    filed a "Motion for Leave to File Supplement to Petition for
    Reconsideration and Request to Rescind Grant of FM Translator
    Permit" and the subject Supplement, noting that, subsequent to the
    filing of the Petition, EMF filed an application (File No.
    BMPFT-20050718ABY) to modify the Fontana permit, specifying a new
    transmitter site. This pleading is not authorized under the
    Commission's Rules, *see* 47 C.F.R. § 1.45, and EMF's modification
    application was dismissed on July 22, 2005. Accordingly Amaturo's
    Motion will be denied.

[^2]: *Letter to Educational Media Foundation*, Reference 1800B3 (MB
    Mar. 7, 2005).

[^3]: Additionally, on July 18, 2005, as observed at note 1, *supra*,
    EMF filed a minor modification application for Station K244DK,
    specifying a new transmitter site. The staff dismissed that
    application on July 22, 2005, due to impermissible overlap with
    co-channel Station KELT(FM), Riverside, California. *Letter to David
    Oxenford, Esq.* Reference 1800B3 (MB Jul. 22, 2005). The staff
    subsequently denied reconsideration of that action on April 28,
    2006. *Letter to Educational Media Foundation*, Reference 1800B3
    (Apr. 28, 2006).

[^4]: *See* 47 C.F.R. § 1.106(c); *WWIZ, Inc.*, Memorandum Opinion and
    Order, 37 FCC 685, 686 (1964), *aff'd sub nom., Lorain Journal Co.
    v. FCC,* 351 F.2d 824 (D.C. Cir. 1965), *cert. denied,* 387 U.S. 967
    (1966). *See also National Association of Broadcasters,* Memorandum
    Opinion and Order, 18 FCC Rcd 24414, 24415 (2003).

[^5]: *See, e.g.,* *Amendment of Parts 73 and 74 of the Commission's
    Rules to Permit Certain Minor Changes in Broadcast Facilities
    Without a Construction Permit*, Report and Order, 12 FCC Rcd 12371,
    12402 ¶ 69 (1997) (supplemental contour-prediction methods, such as
    Longley-Rice, "have not been accepted, nor will be accepted, for the
    purpose of determining interference or prohibited overlap between FM
    broadcast stations").

[^6]: An FM translator station creating actual radio signal interference
    to any authorized broadcast station is obligated to eliminate the
    interference, regardless of the location where the impaired signal
    reception occurs.

[^7]: Again relying on its Longley-Rice study, Amaturo contends that the
    staff should not allow KILT(FM)'s coverage to be "usurped" by the
    EMF's Fontana translator, because the Application essentially
    proposes a "fill-in" translator facility for primary Station
    KLRD(FM), Yucaipa, California, in an area already adequately served
    by KLRD(FM)'s protected service contour. Petition for
    Reconsideration at 8. Because we reject Amaturo's use of
    supplemental engineering showings in this context, and because EMF
    is obligated to remedy any actual interference to KLIT(FM), this
    argument requires no further discussion.

[^8]: Petition for Reconsideration at 6. Amaturo cites Paragraph L in
    the Instructions to FCC Form 349, "Application for Authority to
    Construct or Make changes in a FM Translator, or FM Booster
    Station," which contains the following admonition:

    > . . . All applicants for broadcast facilities must have a
    > reasonable assurance that the site specified will be available
    > when at the time they file FCC Form 349. *See William F. and Anne
    > K. Wallace,* 49 F.C.C.2d 1424, 1427 (Rev. Bd. 1989); *Genesis
    > Communications, Inc.*, 3 FCC Rcd 3595 (1988); *National Innovative
    > Programming Network*, 2 FCC Rcd 5641 (1987).

[^9]: EMF cites 47 C.F.R. § 1.106(c), which provides that a petition for
    reconsideration relying on facts not previously presented to the
    Commission may be granted only if there are new facts or changed
    circumstances previously unknown to the petitioner or where
    consideration is required in the public interest. Opposition at 3.

[^10]: ^?^ Opposition, Exhibit B, *Letter from Peter A. Starke to Mr.
    Jeff Wall* (May 3, 2005) (the "ATC Letter"). The ATC letter is not
    dated contemporaneously with the August 2003 filing of the
    Application.

[^11]: The four occasions are (1) when EMF filed its short-form
    application, (2) when it filed its Application, (3) when it amended
    the Application, and (4) when it responded to Amaturo's Petition.
    Reply at 4.

[^12]: *Id.* at 5.

[^13]: The ATC Letter does not mention Amaturo by name.

[^14]: ^?^ Reply at 5 and Exhibit A.

[^15]: 47 C.F.R. §§ 1.106(b)(1), (c).

[^16]: *See, e.g., Winstar Broadcasting Corp.*, Memorandum Opinion and
    Order, 20 FCC Rcd 2043 (2005); *Maine School Administrative District
    No. 49, Fairfield, Maine*, Order, 17 FCC Rcd 3550 (2002) (petitioner
    for reconsideration did not demonstrate new facts, changed
    circumstances, or unknown facts in compliance with 47 C.F.R.
    §§1.106(b)(1) and (c), and it failed to demonstrate that
    consideration of the material was required in the public interest).

[^17]: Reply at 6, note 10.

[^18]: Amaturo even admits that "ample time" passed between the filing
    of the application and the Bureau's acceptance of the application
    for the Bureau to study the application for technical flaws. Reply
    at 2-3.

[^19]: *Liberty Productions, A Limited Partnership*, Memorandum Opinion
    and Order, 16 FCC Rcd 12061, 12084-85 (2001) (subsequent history
    omitted). *See also National Innovative Programming Network, Inc. of
    the East Coast,* Memorandum Opinion and Order, 2 FCC Rcd 5641, 5642
    (1987) (the proper initial inquiry is whether, based on the
    information available to it, was it reasonable for the applicant to
    conclude that the site would be available) and *Rem Malloy
    Broadcasting*, Memorandum Opinion and Order, 6 FCC Rcd 5843, 5846
    (Rev. Bd. 1991), citing *South Florida Broadcasting Co.*, Memorandum
    Opinion and Order, 99 FCC 2d 840, 845 note 12 (Rev. Bd. 1984).

[^20]: *National Innovative Programming Network, supra,* 2 FCC Rcd at
    5642 (citations omitted).

[^21]: We need not reach the issue of whether the ATC Letter constitutes
    hearsay. The Commission's general practice is to consider relevant
    and material hearsay, provided that the weight to be accorded
    hearsay depends on its reasonableness and credibility, *e.g.*,
    whether the declarant is a disinterested witness. *See, e.g.,
    Johnson v. United States,* 628 F.2d 187, 190-91 (D.C. Cir. 1980). We
    have no reason to disregard or discount the ATC Letter in the
    circumstances presented here. We also need not resolve Amaturo's
    contention that it owns the right to the 70-foot level on the ATC
    tower such that ATC could not grant permission to EMF to use that
    location. Whether or not Amaturo retained an easement right to the
    70-foot level on the tower sold to ATC in 1998 is a matter purely
    sounding in contract. The Commission is not the proper forum for the
    resolution of private contractual matters. *See, e.g., John F.
    Runner, Receiver*, Memorandum Opinion and Order, 36 RR 2d 773, 776
    (1976); *Transcontinent Television Corp.*, Memorandum Opinion and
    Order, 21 RR 2d 945 (1961). The question for us here is whether ATC
    provided reasonable assurance to EMF. The documentation before us,
    including ATC's unequivocal letter, demonstrates that it did so.