**DA 08-2309**

*In Reply Refer to:*

1800B3-SS

Released: October 17, 2008

Calvary Chapel of Brandon, Inc.

1331 Kings Way Road

Brandon, FL 33510

Iglesia Cristiana La Nueva Jerusalem, Inc.

2103 Lumsden Road

Valrico, FL 33594

Projet La Metropole/The Metropole Project

P.O. Box 76832

Tampa, FL 33675

In re: WQRD-LP, Gibsonton, FL

Calvary Chapel of Brandon, Inc.

Facility ID No. 134707

File No. BNPL-20010613AGK

WVVD-LP, East Tampa, FL

Iglesia Cristiana La Nueva Jerusalem, Inc.

Facility ID No. 135008

> File No. BNPL-20010615AAV

Petition for Reconsideration

Dear Petitioner/Permittees:

We have before us: (1) Projet La Metropole/The Metropole Project's
("Metropole") June 27, 2005, petition for reconsideration ("Petition")
of the Commission's grant of the captioned applications seeking
construction permits in the Low Power FM ("LPFM") Broadcast Service in
the Tampa, Florida, area;[^1] and (2) Calvary Chapel of Brandon, Inc.'s
("CCB") and Iglesia Cristiana La Nueva Jerusalem, Inc.'s ("Iglesia")
July 11, 2005, joint opposition to the Petition. For the reasons set
forth herein, we deny the Metropole Petition.

*Background*. The captioned, mutually exclusive applications of CCB,
Iglesia, as well as Metropole, and Florida Force, Inc.[^2] sought LPFM
construction permits in the Tampa area. In accordance with our
procedures,[^3] the Commission published notice of the applications'
tentative selectee status.[^4] Metropole was a tentative selectee along
with CCB and Iglesia in this LPFM mutually exclusive application group
until CCB and Iglesia submitted a voluntary time-share agreement
aggregating their points.[^5] Thus, CCB and Iglesia became the
prevailing tentative selectees. By *Memorandum Opinion & Order*, the
Commission granted the CCB and Iglesia applications on May 27, 2005.[^6]

*Discussion.* Under Section 1.106 of the Commission's Rules (the
"Rules"),[^7] the Commission will consider a petition for
reconsideration when a 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.[^8] Section 1.106(b)(1) of the Rules specifically provides
that an entity that is not a party to a proceeding may nevertheless file
a petition for reconsideration of a Commission action if it states with
particularity the manner in which its interests are adversely affected
by the action taken and shows good reason why it was not possible to
participate earlier in the proceeding. Metropole contends in its
Petition that it is raising "new facts" and that Section 1.106(c)(2) of
the Rules[^9] requires consideration of these facts to be in the public
interest. Metropole argues that the grants of CCB's and Iglesia's
applications should be rescinded and that their applications be
dismissed because neither permittee is physically headquartered or has a
campus within 10 miles of the proposed site for the transmitting antenna
nor are 75 per cent of the permittees' board members residing within 10
miles of the proposed site for the transmitting antenna, pursuant to
Section 73.853(b)(1)(2) of the Rules.[^10] Metropole also alleges that
the permittees were aware of this when they filed their applications,
thus raising misrepresentation issues.[^11]

In joint opposition, CCB and Iglesia state that Metropole's Petition
should be dismissed because (1) the petition is procedurally defective
as it has failed to demonstrate why Metropole could not have brought its
allegations to the attention of the Commission prior to the grant of the
applications; (2) the petition presents no new information to contradict
the findings in the May 27, 2005, Commission decision; and (3) the
information that petitioner does present is incorrect.[^12]

Metropole maintains that it did not participate earlier in the
proceeding because certain new facts only recently came to its
attention.[^13] In opposition, both CCB and Iglesia argue that Metropole
failed to demonstrate \"good reason\" for not participating earlier.
They also note that Metropole had constructive notice of the addresses
of the permittees' headquarters and of each of the board members since
2001, as neither application had been amended since the original filing.
CCB and Iglesia add that \"\[c\]ertainly after \[Metropole\] became
aware of its mutual exclusivity with other applicants, it could have
taken steps to consider the basic qualifications of the other applicants
in its pool, and filed a petition to deny within the 30-day period
provided . . . or an informal objection anytime before the applications
were granted in May 2005."[^14]

If a petition relies on new facts, Section 1.106(c) of the Rules
requires the petitioner either to show how the facts changed since the
last opportunity to present the matters or to demonstrate that the facts
could not have been ascertained, through the exercise of ordinary
diligence, prior to that time. CCB and Iglesia maintain \-- and we agree
\-- that Metropole has failed to meet either of these requirements.
Although Metropole argues that CCB's and Iglesia's applications should
not have been granted, it does not allege any facts which it could not
have ascertained prior to the grant, nor has it demonstrated changed
circumstances. Moreover, it raises no public interest reasons which
would warrant reversal of our previous actions. The D.C. Circuit Court
of Appeals has observed that an appellant cannot \"sit back and hope
that a decision will be in its favor and then, when it isn\'t, to parry
with an offer of more evidence. No judging process in any branch of
government could operate efficiently or accurately if such procedure
were allowed.\"[^15]

Moreover, even if we disregard the Petition's fatal procedural
deficiency, we agree with CCB and Iglesia that the Petition fails
because Metropole has used incorrect measuring instruments to support
its arguments. Pursuant to Section 73.853(b) of the Rules, only local
applicants were permitted to submit applications in the first LPFM
filing windows.[^16] These provisions are manifested by Section II,
Items 4 and 5 of FCC Form 318. For example, Item 4 requires an applicant
to certify that it either (1) is an educational institution or
organization that is physically headquartered within 16.1 kilometers (10
miles) of the proposed transmitter site; (2) is an educational
institution or organization, 75 percent of whose board members reside
within 16.1 kilometers from the transmitter site; or (3) proposes a
public safety radio service and has jurisdiction within the service area
of the proposed LPFM station. Furthermore, the *Report & Order* states
that the Commission instituted this rule because it found that "the
disadvantages of imposing a requirement that applicants be
community-based are outweighed by the benefits to be gained by
maximizing the likelihood that LPFM stations are operated by entities
grounded in the communities they serve."[^17]

In support of its allegation, Metropole submits the affidavit of
Metropole principal Bernard Bros. His statement, made under penalty of
perjury, asserts that he "used MapQuest to determine the distances
between each director's residence and the proposed transmitter for each
applicant."[^18] CCB and Iglesia note, however, that MapQuest provides
driving distances but not line-of-sight distances as the Rules
require.[^19] CCB and Iglesia state that they properly converted each
board member's address to coordinates, and then the distance between the
transmitter site and particular coordinates were measured in accordance
with Section 73.208(c) of the Rules,[^20] with algorithms found on the
Commission's website.[^21] Whereas Metropole's measurement study finds
all of the applicants' board members living beyond the 10-mile
requirement, CCB's and Iglesia's study finds all but one board member's
residence within the 10-mile range.

Section 73.853(b) and the *Report & Order* are silent as to how the
10-mile distance requirement is to be calculated. However, we find that
application of the methodology specified in Section 73.208 of the Rules
to calculate distance is appropriate, and we will not revisit the grants
based on distances obtained from MapQuest. We find, therefore, that the
measurement tests conducted by both CCB and Iglesia were done properly.
Accordingly, we will deny Metropole\'s Petition.

*Conclusion*/*Actions*. For the reasons discussed above, Metropole's
Petition for Reconsideration IS DENIED and the grants to Calvary Chapel
of Brandon, Inc. (File No. BNPL-20010613AGK) and Iglesia Cristiana La
Nueva Jerusalem, Inc. (File No. BNPL-20010615AAV) for construction
permits in the LPFM Broadcast Service in the Tampa, Florida, area, ARE
UPHELD.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Lee G. Petro, Esq.

Michael Couzens, Esq.

[^1]: These applications were granted by the Commission on May 27, 2005.

[^2]: File Nos. BNPL-20010615ASL and BNPL-20010615AKC, respectively.

[^3]: *See Creation of a Low Power Radio Service,* Report & Order, 15
    FCC Rcd 2205 (2000) ("*Report & Order*"); *Creation of a Low Power
    Radio Service,* Memorandum Opinion & Order on Reconsideration, 15
    FCC Rcd 19208 (2000); and *Creation of Low Power Radio Service,*
    Second Report & Order, 16 FCC Rcd 8026 (2001).

[^4]: *See* Public Notice, Closed Groups of Pending Low Power FM
    Mutually Exclusive Applications Accepted for Filing, DA 04-679,
    (rel. Mar. 12, 2004).

[^5]: *See* 47 C.F.R. § 73.872, which provides in pertinent part that:

    > \(a\) Following the close of each window for new LPFM stations . .
    > . the Commission will issue a public notice identifying all groups
    > of mutually exclusive applications. Such applications will be
    > awarded points to determine the tentative selectee. . . . \[T\]he
    > tentative selectee will be the applicant within each group with
    > the highest point total under the procedure set forth in this
    > section. . . .
    >
    > \(b\) Each mutually exclusive application will be awarded one
    > point for each of the following criteria, based on application
    > certification that the qualifying conditions are met:
    >
    > \(1\) *Established community presence*. An applicant must, for a
    > period of at least two years prior to application, have been
    > physically headquartered, have had a campus, or have had
    > seventy-five percent of its board members residing within 10 miles
    > of the coordinates of the proposed transmitting antenna. . . .
    >
    > \(2\) *Proposed operating hours*. The applicant must pledge to
    > operate at least 12 hours per day.
    >
    > \(3\) *Local program origination*. The applicant must pledge to
    > originate locally at least eight hours of programming per day. For
    > purposes of this criterion, local origination is the production of
    > programming, by the licensee, within ten miles of the coordinates
    > of the proposed transmitting antenna.

[^6]: *See In Re Applications of: Calvary Chapel of Brandon, Inc.,
    Iglesia Cristiana La Nueva Jerusalem, Inc., Projet La Metropole/The
    Metropole Project, and Florida Force, Inc.,* Memorandum Opinion &
    Order*,* 20 FCC Rcd 10208 (2005).

[^7]: 47 C.F.R. § 1.106.

[^8]: 47 C.F.R § 1.106, and *WWIZ, Inc*., Memorandum Opinion and Order,
    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).

[^9]: 47 C.F.R. § 1.106(c)(2).

[^10]: *See* Petition at 2; *see also* 47 C.F.R. § 73.853(b)(1)(2).

[^11]: *Id*. at 3.

[^12]: *See* Joint Opposition at 2.

[^13]: *See* Petition at 1.

[^14]: *See* Joint Opposition at 3.

[^15]: *See Colorado Radio Corporation v. F.C.C*., 118 F.2d 24, 26 (D.C.
    Cir. 1941).

[^16]: *See* 47 C.F.R. §§ 73.853(b), 73.858.

[^17]: *See Report & Order* at 2219.

[^18]: *See* Petition at Affidavit.

[^19]: *See* Joint Opposition at Exhibit A, p.5.

[^20]: 47 C.F.R. § 73.208(c).

[^21]: *See* Joint Opposition at 5; *see also
    http://www.fcc.gov/mb/audio/bickel/distance.html* (visited Aug. 16,
    2006).