> **DA 08-2360** *In Reply Refer to:*

1800B3-SS

Released: October 28, 2008

Serendipity Educational Broadcasting, Inc.

c/o Mr. Harold S. Vogt

11563 Argonne Road

Festus, MO 63028-2951

In re: **Serendipity Educational Broadcasting, Inc.** **New NCE-FM
Station, Preston, MO** Facility ID No. 174230

File No. BNPED-20071016ADS

**Petition for Reconsideration**

Dear Mr. Vogt:

We have before us a Petition for Reconsideration ("Petition") filed May
8, 2008, by Serendipity Educational Broadcasting, Inc. ("SEB"),
applicant for a new noncommercial educational ("NCE") FM station at
Preston, Missouri (the "Application"). SEB seeks reconsideration of the
April 7, 2008, letter[^1] dismissing the Application as unacceptable for
filing.[^2] For the reasons set forth below, we deny the Petition.

**Background.** SEB filed the Application during the NCE filing window
of October 2007.[^3] A staff engineering review of the Application
revealed that the Application failed to comply with Section 73.525 of
the Commission's Rules (the "Rules")[^4] with respect to Channel 6
station KMOS-TV, Sedalia, Missouri. The Application requested a waiver
of Section 73.525 regarding protection of TV Channel 6 stations. On
February 18, 2008, SEB amended the Application to provide a consent
letter from KMOS-TV, licensed to the University of Central Missouri
("UCM"), dated January 31, 2008. The UCM letter stated that UCM agreed
to a contingent arrangement wherein SEB would not begin broadcasting
until after KMOS-TV transitions to digital ("DTV") broadcasting
(anticipated in February 2009). In the *Staff Decision,* the staff
concluded that neither Section 73.525 of the Rules, nor established
precedent provides a basis for the acceptance of such a contingent
arrangement as sufficient to satisfy TV Channel 6 protection
requirements. In addition, the staff concluded that a waiver of the
Commission's contingent application rule would be contrary to the public
interest. Accordingly, the staff dismissed the Application.

In its Petition, SEB states that it concurs with the staff's analysis.
Also, SEB notes that it has withdrawn its request for waiver of Section
73.525 as contained in the Application.[^5] It seeks reconsideration of
the staff action based on the following new information. SEB includes in
the Petition a supplemental showing requesting Commission approval under
Section 73.525 of the Rules.[^6] SEB states that it had e-mail and
telephone conversations with UCM and proposed the following: (1) to
perform the build-out as originally planned within a three-year period
as allowed, at SEB's option; (2) if the build-out is completed prior to
KMOS-TV's switch to digital, to coordinate testing with KMOS-TV to avoid
interfering with KMOS-TV operations; (3) to use only vertical
polarization of its antenna; (4) to provide filters to those
experiencing interference within the applicable interference contour;
(5) to operate only from midnight to 6:00 am to remain in compliance
with Section 73.561 of the Rules;[^7] and (6) to begin 24-hour
operations only after February 17, 2009, the deadline for DTV
conversion, or any new set cut-off date of the television analog
signal.[^8]

SEB indicates that it has obtained a letter from UCM consenting to this
plan,[^9] and that it will agree to UCM's request that SEB only operate
from 12:30 am to 5:30 am[^10] until KMOS-TV ceases analog
operation.[^11] Finally, SEB claims that the grant of the Application
would only require special temporary authority ("STA") if SEB could not
resolve interference to KMOS-TV analog operations.[^12] SEB requests
that the Commission find that the revised agreement constitutes a
written agreement between the NCE-FM applicant and each affected TV
Channel 6 broadcast station concurring with the proposed NCE-FM
facilities and therefore conclude that the provisions of Section 73.525
do not apply to the Application.,

**Discussion.** The Commission will consider a petition for
reconsideration only 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 petitioner\'s last opportunity to
present such matters.[^13] Petitions for reconsideration which rely on
facts not previously presented to the Commission may be granted if the
Commission determines that consideration of the facts relied on is
required in the public interest.[^14]

We find that SEB's proposal remains inconsistent with the plain language
of Section 73.525 of the Rules. The agreement includes numerous
qualifications and restrictions. For instance the revised agreement
allows SEB to operate daily only from 12:30 am until 5:30 am for "signal
testing."[^15] SEB's updated showing, therefore, does not change the
fact that UCM is only allowing SEB to proceed as long as SEB agrees "not
to begin broadcast operations until KMOS-TV stops broadcasting an analog
signal \[on February 17, 2009\]."[^16] It is clear that UCM is not
"concurring with the proposed NCE-FM facilities," as required by the
Rule, *until* the "date analog broadcasting will cease."[^17] Thus,
Section 73.525 applies in this context, and the Application does not
adequately protect KMOS-TV. Accordingly, SEB has not corrected the
defect for which the Application was initially dismissed.

**Conclusion/Action.** SEB has not shown a material error or omission in
the *Staff Decision*. Accordingly, IT IS ORDERED, that the Petition for
Reconsideration filed by Serendipity Educational Broadcasting, Inc., IS
DENIED.

> Sincerely,
>
> Peter H. Doyle
>
> Chief, Audio Division
>
> Media Bureau

[^1]: *Letter to Serendipity Educational Broadcasting, Inc*. (MB Apr. 7,
    2008) ("*Staff Decision*").

[^2]: *See Staff Decision* at 2.

[^3]: The filing window opened on Friday, October 12, 2007. *See Media
    Bureau Announces NCE FM New Station and*

    *Major Modification Application Filing Window for New and Certain
    Pending Proposals; Window to Open on*

    *October 12, 2007*, Public Notice, 22 FCC Rcd 2726 (MB 2007); *Media
    Bureau to Extend Window for NCE FM New*

    *Station and Major Change Applications; Window Will Close on October
    22, 2007*, Public Notice, 22 FCC Rcd 18680 (MB 2007).

[^4]: 47 C.F.R. § 73.525.

[^5]: Petition at 4.

[^6]: 47 C.F.R. § 73.525.

[^7]: 47 C.F.R. § 73.561.

[^8]: Petition at 3.

[^9]: *See* Petition at Attachment, *Letter to Mr. Harold S. Vogt from
    Donald W. Peterson, Director of Broadcasting Services, University of
    Central Missouri* (May 7, 2008) ("*UCM Letter*").

[^10]: In its supplemental showing, SEB had proposed to operate from
    midnight to 6:00 am.

[^11]: Petition at 3*.*

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

[^13]: *See* 47 C.F.R § 1.106(c) and (d). *See also 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) ("*WWIZ, Inc*.").

[^14]: *See* 47 C.F.R. § 1.106(c)(2). *See also Amendment of Section
    73.202(b), Table of Allotments, FM Broadcast Stations. (Scranton and
    Surfside Beach, South Carolina)*, Memorandum Opinion and Order, 4
    FCC Rcd 2366 (MB 1989).

[^15]: *See* n.9, *supra.*

[^16]: *See UCM Letter*.

[^17]: *See id.*