**DA 07-1198**

In Reply Refer to:

1800B3-RDH

Released: March 12, 2007

Dennis P. Corbett, Esquire

Katrina C. Gleber, Esquire

Leventhal Senter & Lerman PLLC

2000 K Street, NW

Suite 600

Washington, DC 20006

In re: WKDB(FM), Laurel, DE

Facility ID No. 16661

Application File No.

BPH-20010208AAT

**Petition for Reconsideration**

Dear Counsel:

This letter concerns the Petition for Reconsideration filed by Great
Scott Broadcasting ("Great Scott") on September 30, 2004 (the
"Petition") of the dismissal by the Media Bureau (the "Bureau") of its
captioned application for a minor modification of its facilities for
Station WKDB(FM), Laurel, Delaware (the "Application"). For the reasons
set forth below, we dismiss Great Scott's Petition.

**Background.** On February 8, 2001, Great Scott filed the Application,
seeking to relocate the WKDB(FM)[^1] transmitter and increase its
antenna height. The proposed modification required clearance by the
Federal Aviation Administration ("FAA").[^2] Commencing on October 22,
2001, the Bureau staff repeatedly contacted Great Scott, its consulting
engineer, and its counsel, to attempt to obtain documentation of the FAA
clearance that would enable completion of the processing of the
Application.[^3] Ultimately, having received no responsive submission,
the Bureau staff requested an update on Great Scott's efforts to obtain
FAA clearance for the tower by letter dated July 17, 2003.[^4] Great
Scott responded on July 29, 2003, advising that the FAA study remained
pending and that it should be completed in the near term.[^5] When,
nearly ten months later, the Commission had received no further
communications updating the status of the FAA's review, on April 13,
2004, the Bureau dismissed the Application for Great Scott's failure to
prosecute under Section 73.3568(a)(1) of the Commission's Rules.[^6] On
May 17, 2004, Great Scott filed a Petition for Reconsideration of the
dismissal of its Application. That Petition was denied by the Bureau in
a decision dated August 26, 2004.[^7] On September 30, 2004, Great Scott
filed the subject Petition, seeking reconsideration of the Bureau's
denial of the earlier Petition for Reconsideration.

In its Petition, Great Scott argues that a factual change since its
previous reconsideration request -- the grant of a subsequently filed
conflicting application for minor change of the facilities of WOSC(FM),
Bethany Beach, Delaware, filed by Capstar TX Limited Partnership
("Capstar") -- has violated Great Scott's right to seek reconsideration
of the dismissal of its Application. Great Scott claims that the Bureau
"improperly plucked Capstar's conflicting minor modification
application...from the queue and granted it"[^8] extinguishing Great
Scott's asserted right to seek reconsideration of the April 13, 2004,
decision dismissing its Application. This, it claims, violated Great
Scott's right to seek reconsideration under Section 405 of the
Communications Act of 1934, as amended (the "Act"),[^9] and the
application processing provisions of Section 73.3573(f)(i) of the
Commission's Rules.[^10] It contends that the grant of the Capstar
application renders impossible a fair and impartial consideration of
Great Scott's reconsideration Petition. It claims that it was the "lead
applicant" with a right to pursue its Application to a "final
determination" before the Capstar application could even be considered.
Additionally, it contends that the Commission has recently acknowledged
that an applicant's failure to provide required items within an
application is not fatal to that application.[^11] This precedent, it
asserts, required the Bureau to request further information from Great
Scott before dismissing its Application. The Petition claims that Great
Scott's technical consultant had been in contact with the Commission and
the FAA concerning the matter and, thus, it had diligently prosecuted
its Application. Finally, Great Scott contends that, contrary to the
ruling on its first reconsideration petition, its Application did
identify an existing tower at the proposed location. It contends that
this negated any need for FAA approval, as it could side-mount an
antenna on that pre-existing and operational tower.[^12]

**Discussion.** As an initial matter, "\[r\]econsideration will not be
granted to debate matters upon which the Commission has already
deliberated and spoken."[^13] Moreover, "\[a\] petition for
reconsideration of an order which has previously been denied on
reconsideration may be dismissed by the staff as repetitious."[^14]
Accordingly, it would be appropriate for us to dismiss the instant
Petition as repetitious.[^15] Nevertheless, we will address the merits.

It is clear from the Commission's Rules that actions taken under
delegated authority are effective on release of the decision and that
the filing of a petition for reconsideration does not automatically stay
the decision of which reconsideration is being sought.[^16] Capstar's
application was not "plucked out of the queue and given precedence" over
a longer-pending Great Scott Application. Instead, at the time action
was taken on the Capstar application, Great Scott's Application was no
longer in that queue, having been dismissed more than two months
earlier.[^17] Great Scott's submission of the Petition, however,
prevented the dismissal of its Application from becoming a final action,
and it is clear -- whether or not the WOSC(FM) grant contained an
express condition to this effect -- that any construction by Capstar
pursuant to the WOSC(FM) construction permit prior to the finality of
the Application's dismissal is at Capstar's sole risk.[^18] Accordingly,
contrary to Great Scott's assertion,[^19] our grant of the Capstar
application did not make it impossible for the Commission to grant the
relief requested by Great Scott in its first Petition for
Reconsideration.

In this regard, notwithstanding Great Scott's argument, the grant of the
Capstar application does not impede its right to seek reconsideration
pursuant to Section 405 of the Act.[^20] It is well established that an
applicant, such as Capstar in the instant case, that proceeds in
reliance on a Commission action prior to final administrative or
judicial review of the agency's decision exercises its own independent
business judgment and proceeds at its own risk with the full
understanding that it may ultimately be required to undo the act.[^21]
Such action by the applicant in no way prejudices the Commission's
ability to take any remedial action it may consider necessary at a
future date nor prejudices the rights of petitioners or other objecting
parties to seek administrative review or judicial appeal of the
Commission's action.[^22] Any action an applicant, in this case Capstar,
takes before a Commission order is final for all purposes, including
reconsideration and judicial review, is taken at the risk that it will
have to be undone.[^23] Accordingly, Great Scott's ability to seek
review and, if successful, to have its application reinstated, was not
prejudiced by the grant of the Capstar application.

Great Scott argues that *Mester's TV* establishes that an applicant's
failure to provide required items within an application does not require
dismissal of that application.[^24] We disagree. In *Mester's TV*,
Multipoint Distribution Service applications were reinstated,
notwithstanding the applicant's failure to have provided site leases
with its applications. The Commission's reasoning for the reinstatement,
however, does not apply to the instant case. In *Mester's TV*, the
Commission had previously articulated a policy that documentary evidence
of site availability, including site leases, were not required to be
provided when the application was filed but, rather, had to be produced
before the application was granted. Accordingly, the Commission
concluded that the application dismissals, because the applicant had not
provided site leases with its applications, were unwarranted. In the
instant case, Great Scott's Application was dismissed because Great
Scott had failed to produce an FAA "no hazard" determination over the
more than three years that its Application was pending, despite repeated
staff appeals to it and its technical and legal representatives to do so
and, more particularly, over the nearly ten-month period following the
Bureau staff's written request. As a consequence of this failure, the
Bureau determined that Great Scott had failed to prosecute the
application, pursuant to Section 73.3568(a)(1) of the Commission's
Rules,[^25] and dismissed it. We find no error in this action on the
facts presented here.

Finally, we reject Great Scott's proffered "amendment" to its
application. As discussed above, its application was dismissed because
of its failure to provide information repeatedly requested by the staff.
A stay was neither sought nor granted and the staff previously
determined that there was no error in dismissing the application when it
denied Great Scott's first Petition for Reconsideration. Accordingly,
Great Scott cannot, at this late date, proffer the requested information
and claim that it is entitled to the reinstatement *nunc pro tunc* of
its application.[^26]

**Conclusion/Actions.** Accordingly, IT IS ORDERED, that Great Scott
Broadcasting's Petition for Reconsideration filed on September 30, 2004,
IS DISMISSED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: At the time of filing, the station's call sign was WQJH(FM). The
    call sign was changed to WKDB(FM) on September 24, 2003.

[^2]: On May 15, 2001, the FAA had issued a letter stating that the
    proposed structure was presumed to be a hazard to air navigation.

[^3]: The staff contacted Great Scott's consulting engineer on October
    22, 2001. It then contacted its counsel on October 8, 2002, and
    spoke with its engineer again on March 13, 2004, who advised that
    the staff would be regularly apprised of Great Scott's progress with
    the FAA.

[^4]: Letter from Dale E. Bickel, Senior Electronic Engineer, Audio
    Division to Ross G. Greenberg, Esquire, dated July 17, 2003.

[^5]: Letter from Christopher J. Sova, Esquire to Marlene H. Dortch,
    Secretary, Federal Communications Commission, dated July 29, 2003.

[^6]: 47 C.F.R. § 73.3568(a)(1). *See* Letter to Christopher J. Sova,
    Esquire, from Dale E. Bickel, Senior Electronics Engineer, Audio
    Division, Media Bureau, dated April 13, 2004.

[^7]: *See* Letter to Dennis P. Corbett, Esquire and Christopher J.
    Sova, Esquire from Dale E. Bickel, Senior Electronics Engineer,
    Audio Division, Media Bureau, dated August 26, 2004. Public notice
    of the denial of reconsideration was given on August 31, 2004;
    *Broadcast Applications*, Public Notice, Report No. 25810 (Aug. 31,
    2004).

[^8]: Petition at 4.

[^9]: 47 U.S.C. § 405.

[^10]: 47 C.F.R. § 73.3573(f)(i). Great Scott claims that the Bureau
    violated this rule by failing to reach a "final determination" with
    respect to the Great Scott Application before it turned to consider
    the Capstar application. Under that rule, Great Scott argues, "the
    right of an applicant \[for minor modifications for non-reserved
    channel FM broadcast stations\] ripens only upon a *final*
    determination that the lead applicant is unacceptable." Petition at
    8, *citing* 47 C.F.R. § 73.3573(f)(1).

[^11]: In this regard, Great Scott cites *Mester's TV,* Memorandum
    Opinion and Order, 18 FCC Rcd 13453 (2003), *recon. denied*, 19 FCC
    Rcd 18507 (2004) ("*Mester's TV*").

[^12]: Great Scott attaches to its Petition an amendment to its
    Application proposing this arrangement.

[^13]: ^?^ *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*
    *William L. Carroll,* Memorandum Opinion and Order, 8 FCC Rcd 6279
    (1993).

[^14]: *See Application of A.G.P., Inc.,* Memorandum Opinion and Order,
    11 FCC Rcd 4628, 4629 (1996); *see also Iola Broadcasting Co.,*
    Memorandum Opinion and Order, 2 FCC 2d 439 (1966) *citing Brainerd
    Broadcasting Co.,* Memorandum Opinion and Order, 25 RR 297 (1963)
    (repeated petitions for reconsideration not permitted).

[^15]: *See Application of A.G.P., Inc.,* 11 FCC Rcd at 4629.

[^16]: *See* 47 C.F.R. §1.102(b)(1) and (2). The designated authority
    *may,* in its discretion, stay the effect of its action pending the
    disposition of the petition for reconsideration. It is not required
    to do so and, in the instant case, such a stay was neither requested
    by Great Scott nor granted by the Bureau on its own motion.

[^17]: Although the Petition does not so specify, we assume that Great
    Scott is referring to Capstar's minor change application for
    WOSC(FM), Bethany Beach, Delaware (File No. BPH-20010306ABC), which
    was granted on June 23, 2004.

[^18]: *See, e.g.,* *Las Americas Communications, Inc.,* Memorandum
    Opinion and Order, 6 FCC Rcd 1507, 1510 (1991) (an applicant opting
    to construct before the grant of its application becomes final does
    so at its own risk). *See also* *Improvement Leasing Co*.,
    Memorandum Opinion and Order, 73 FCC 2d 676, 684 (1979), *aff\'d sub
    nom. Washington Association for Television and Children v. FCC*, 665
    F.2d 1264 (D.C.Cir.1981) (parties who consummate a sale transaction
    before its approval becomes final assume the risk that the sale may
    later be set aside by the Commission or the courts).

[^19]: Petition at 6.

[^20]: 47 U.S.C. § 405.

[^21]: *Improvement Leasing Co.*, 73 FCC 2d at 684.

[^22]: *Id.*

[^23]: *Id.* at note 16.

[^24]: *See* note 9 *supra.*

[^25]: 47 C.F.R. § 73.3568(a)(1).

[^26]: Great Scott's claim that its original Application identified
    another tower at the proposed location is irrelevant. In its
    Application, it proposed a tower location and height that required
    FAA approval. After study, the FAA issued a "Presumed Hazard"
    declaration with regard to that site. Great Scott did not amend its
    Application or propose a different location or lower antenna height.
    Instead, on June 25, 2001, it requested further study. It notified
    Bureau staff of this decision and represented that it was working to
    resolve the matter expeditiously. When, three years later, the
    matter had still not been resolved, its Application was
    appropriately dismissed. Whether Great Scott identified another
    licensee's tower in its Application had no relevance to any of these
    events and it has none now, nor does its grossly untimely attempt to
    change its proposal to now side-mount its antenna.