**DA 08-673**

*In Reply Refer to:*

1800B3-SS

Released: March 25, 2008

The Last Bastion Station Trust, LLC, as Trustee

c/o Media Venture Partners, LLC

244 Jackson St., 4th Floor

San Francisco, CA 94111

Georgia Eagle Broadcasting, Inc.

6316 Peake Road

Macon, GA 31210

In re: The Last Bastion Station Trust, LLC,

as Trustee

WMGL(FM), Ravenel, South Carolina

Facility ID: 61592

File No. BPH-20070413AFJ

**Application for Minor Change to a Licensed Facility**

**Petition for Reconsideration**

Dear Applicants:

We have before us: (1) a Petition for Reconsideration ("Petition") filed
by Georgia Eagle Broadcasting, Inc. ("Georgia Eagle") on August 10,
2007, asking for reconsideration of the grant of the referenced
application of The Last Bastion Trust, LLC, as Trustee ("LBT"), for
minor modification of the facilities of Station WMGL(FM), Ravenel, South
Carolina (the "WMGL Application"); (2) LBT's August 23, 2007, Opposition
to Petition for Reconsideration ("Opposition"); and (3) Georgia Eagle's
September 6, 2007, Reply to the Opposition ("Reply"). For the reasons
discussed below, we dismiss the Petition.

**Background**. On January 19, 2007, Citadel Broadcasting Company
("Citadel"), licensee of WNKT(FM), St. George, South Carolina, filed an
application (the "WNKT Application")[^1] to change the community of
license of WNKT(FM) from St. George to Eastover, South Carolina. On
April 13, 2007, Citadel, then the licensee of WMGL(FM),[^2] filed the
WMGL Application and, on the same day, amended the WNKT Application to
make the two applications contingent with one another.[^3] The WMGL
Application was accepted for filing on April 18, 2007.[^4] No objections
were filed against either the WMGL or WNKT Applications, and both were
granted by the staff on July 5, 2007.[^5] On that same date, Georgia
Eagle filed a modification application to change the community of
license of its station WMCD(FM) from Claxton, Georgia to Sullivan's
Island, South Carolina.[^6] That application remains pending. Georgia
Eagle filed its Petition on August 10, 2007.

**Discussion**. Section 1.106(b)(1) of 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.[^7] 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.

Georgia Eagle did not object to the WMGL Application prior to its grant.
It also provides no reasonable explanation for why it was unable to
participate in this proceeding prior to grant of the WMGL Application.
Georgia Eagle attempts to excuse its actions by arguing that it could
not have participated earlier in the proceeding and challenged the WMGL
Application prior to its grant because it claims that it was necessary
to first attain "party-in-interest" status. Georgia Eagle argues that if
it filed an "informal objection," it could not have attained "status as
a true 'interested person' or 'party in interest' \[which\] is necessary
in order for a petitioner to preserve certain legal rights."[^8] The
record therefore indicates that Georgia Eagle was fully aware of the
filing of the WMGL Application, but made the deliberate decision not to
participate earlier in the proceeding.

We find Georgia Eagle's arguments unsupportable and erroneous as a
matter of law. Georgia Eagle is correct that neither the Communications
Act of 1934, as amended (the "Act") nor the Rules provide for the filing
of petitions to deny against minor modification applications such as the
WMGL Application.[^9] Georgia Eagle argues that it had to wait until
July 5, 2007, the date that the WMGL Application was granted and the
date that Georgia Eagle filed its change in community of license
modification application to become a true "party in interest." However,
the Commission has held that where there is no statutory opportunity to
file a formal petition to deny, the filing of an informal objection will
preserve the objector's reconsideration rights.[^10] In addition, the
filing of an informal objection may be made by one who is not a "party
in interest."[^11] Georgia Eagle's position is therefore incorrect as a
matter of law and does not provide "good reason" for its failure to
participate prior to grant of the WMGL Application.

The Commission has afforded reconsideration to petitioners where the
grant of an application occurred shortly after the application was
filed.[^12] In these instances, the Commission found that an expeditious
grant of the applications had not allowed sufficient time for potential
objections to be filed; thus, 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 two weeks. In cases, such as the instant case,
where the grant of an application occurred more than 30 days after 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.[^13] Georgia Eagle cites *Rainbow*[^14] as an
instance where the Commission granted reconsideration where no objection
had been filed. We note, however, that this was a situation, as
described above, where grant of the application occurred shortly after
the application was filed.[^15] Accordingly, *Rainbow* is inapposite
here. We find that Georgia Eagle had ample opportunity to object to the
WMGL Application prior to the staff action. As a result, Georgia Eagle
does not have standing to file a petition for reconsideration in this
proceeding. For these reasons, the Petition will be dismissed.

Moreover, even if we were to consider the merits of Georgia Eagle's
Petition, we would deny it. Section 73.3517(e) of the Rules states in
pertinent part:

> The Commission will accept up to four contingently related
> applications filed by FM licensees and/or permittees for minor
> modification of facilities. Two applications are related if the grant
> of one is necessary to permit the grant of the second application.
> Each application must state that it is filed as part of a related
> group of applications to make changes in facilities, must
> cross-reference each of the related applications, and must include a
> copy of the agreement to undertake the coordinated facility
> modifications. All applications must be filed on the same date.[^16]

Georgia Eagle contends that because the WMGL Application was not filed
"on the same day" as the WNKT Application, pursuant to Section
73.3517(e) of the Rules, the WMGL Application should not have been
accepted for filing, nor should it have been granted.[^17]

Although both applications were not "filed" the same day, the WNKT
Application was amended on April 13, 2007, the same date that the WMGL
Application was filed and made contingent with the WNKT Application.
Both applications describe the contingent nature of each filing and
cross-reference each other.[^18] The Bureau staff has followed a policy
in such situations of allowing contingent minor modification
applications and amendments (to an earlier-filed application) that are
filed the same day to be considered as if both *applications* were filed
on the same day as stated in Section 73.3517(e) of the Rules.[^19] This
policy of allowing amendments to earlier-filed applications saves both
the Commission and applicants time and resources by eliminating the
extra step of having an applicant dismiss its earlier-filed application
and re-file a new application with the contingent application. The
Commission, of course, has the authority to waive *sua sponte* any
provision of the Rules for good cause.[^20] In this case, waiver of the
"same day filing" requirement facilitated the efficient and expeditious
processing of two applications in a manner which did not prejudice the
filing rights of any other potential applicant. We affirm the
application of that policy based on the particular circumstances of this
application proceeding.[^21]

**Conclusion/Actions**. For the reasons set forth above, IT IS ORDERED,
that Georgia Eagle's Petition for Reconsideration is DISMISSED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Dan J. Alpert, Esq.

Andrew Kersting, Esq.

Citadel Broadcasting Company

[^1]: File No. BPH-20070119AEM.

[^2]: *See* File No. BALH-20060228ALE (consummated on June 12, 2007).

[^3]: *See* 47 C.F.R. § 73.3517(e). The applications specifically
    referenced this contingency. *See* WMGL Application, Exhibit 5 at 1
    and Exhibit 26 at 1; WNKT Application, as amended, Exhibit 1 and
    Exhibit 26 at 1.

[^4]: Public Notice of the grants was released on July 11, 2007. *See
    Broadcast Applications,* Public Notice, Report No. 26467 (rel. April
    18, 2007).

[^5]: *See Broadcast Actions,* Public Notice, Report No. 46525 (rel.
    July 11, 2007).

[^6]: *See* File No. BPH-20070705AAA.

[^7]: 47 C.F.R. § 1.106(b)(1).

[^8]: *See* Reply at 3, citing *Dick Broadcasting Company,* Memorandum
    Opinion and Order, 8 FCC Rcd 3897 (1993).

[^9]: [47 U.S.C. §
    309(d)(1)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS309&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    (excluding certain types of applications from [Section
    309(b)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS309&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    provisions regarding petitions to deny); *see also Manahawkin
    Communications Corporation,* Memorandum Opinion and Order, 17 FCC
    Rcd 342, 345 (2001) and [*Idaho Broadcasting Consortium*, Memorandum
    Opinion and Order, 11 FCC Rcd 5264, n.1
    (1996)](http://web2.westlaw.com/find/default.wl?rs=WLW8.02&serialnum=1996296048&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^10]: *See, e.g., Cloud Nine Broadcasting, Inc.,* Letter, 10 FCC Rcd
    11555, 11556 (MMB 1992), citing, *inter alia,* *Rainbow Broadcasting
    Co.,* Memorandum Opinion and Order, 9 FCC Rcd 2839, 2844, n.24
    (1994) ("*Rainbow*").

[^11]: *See, e.g., Great Northern Radio, LLC and Entercom Springfield
    License, LLC,* Letter, 22 FCC Rcd 16,644, 16,645 (MB 2007) (informal
    objection may be filed by any person, any time before Commission
    action on any application for an instrument of authorization).

[^12]: *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).

[^13]: *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).

[^14]: *See Rainbow,* 9 FCC Rcd at 2844, n.24 (1994).

[^15]: *See id.* at 2844 (petition permitted in light of 11-day period
    between filing and grant of extension application).

[^16]: 47 C.F.R. § 73.3517(e).

[^17]: Petition at 3-4.

[^18]: We note that a coordination agreement was not required to be
    included in either application because at the time the WMGL
    Application was filed and the WNKT Application was amended (April
    13, 2007), Citadel was the licensee of both stations.

[^19]: For example, on May 21, 2007, the staff granted an amendment to
    the KLQQ(FM), Clearmont, Wyoming, application for minor change of a
    facility (File No. BPH-20070231AFT) to make the application
    contingent with the application of KGCL(FM), Ten Sleep, Wyoming, for
    a minor modification to a construction permit (File No.
    BMPH-20070306AAX), which was also granted.

[^20]: *See* 47 C.F.R. § 1.3.

[^21]: *See Radio 2000, Inc.,* Memorandum Opinion and Order, 11 FCC Rcd
    15453, 15456 (1996) (Commission affirms practice of accepting
    untimely amendments to minor change applications, renumbering the
    application as of the date of the amendment, and billing the
    applicant the appropriate filing fee where that process served the
    public interest by providing "speedier initiation of improved
    broadcast service to the public" while not favoring any group or
    prejudicing the rights of any party).