**DA 07-1940**

*In Reply Refer to:*

1800B3-RDH

Released: April 30, 2007

Mr. Martin L. Hensley

Hoosier Public Radio Corporation

15 Wood Street

Greenfield, Indiana 46140

> In re: Metropolitan School District of Wayne Township
>
> Station WBDG(FM), Indianapolis, Indiana

Facility ID No. 41317

File No. BRED-20040324ABY

Hoosier Public Radio Corporation

File No. BNPED-20040823AAC

> **Petition for Reconsideration**

Dear Mr. Hensley:

We have before us the "Petition for Reconsideration and Reinstatement
Nunc Pro Tunc/Petition for Reconsideration Nunc Pro Tunc WBDG Renewal
and License Grant -- Motion to Correct Errors/Petition for Hearing" (the
"Petition") filed March 29, 2005, by Hoosier Public Radio Corporation
("Hoosier"). The Petition asks us to reconsider our March 2, 2005, staff
decision[^1] granting the license renewal application (the
"Application") of Station WBDG(FM), Indianapolis, Indiana, licensed to
Metropolitan School District of Wayne Township ("Metropolitan") and
dismissing the application filed by Hoosier seeking time-share operation
of the Station..[^2] Also before us is an "Opposition to Petition for
Reconsideration" ("Opposition") filed by Metropolitan.[^3] For the
reasons set forth below, we deny the Petition.

**Background.** Metropolitan filed the Application on March 24, 2004. On
September 1, 2004, Hoosier filed a "Request for Construction
Permit/License for Hoosier Public Radio;[^4] Request to Terminate
License/Authorization for Wayne Township; Motion to Correct Errors Re:
Defective Filings by Wayne Township (Renewal and Amendment)" ("Request")
concerning WBDG(FM)'s license and then-pending Application.[^5] In the
*Staff Decision*, the staff granted the Application, dismissed Hoosier's
Time-Share Application, denied Hoosier's Request, and dismissed
Hoosier's other filings.[^6]

The Petition itself is a compendium of claims, both new and previously
made. Hoosier reiterates numerous claims, that it previously made in its
September 24, 2004, pleading that were considered and rejected in the
*Staff Decision*, including its contentions that: the Station's renewal
application was not signed in compliance with an Indiana state law
concerning the signing of contracts and the Commission's rule concerning
the signing of applications;[^7] the Application was unsigned when first
submitted; the Commission's CDBS system did not allow Hoosier to file
its Time-Share Application, WBDG(FM) does not operate "staffed 24 hours
per day;" WBDG(FM) has a single part-time employee who is employed
full-time as a teacher; Metropolitan has engaged in violations of the
"RICO" (Racketeer Influenced and Corrupt Organizations) and Sherman
Anti-Trust Acts; and, Metropolitan has violated the public inspection
file rule.[^8] New allegations raised by Hoosier include that:
Metropolitan's attorney coerced Commission employees into granting the
WBDG(FM) license renewal application, Metropolitan is not, as it has
certified, a non-profit corporation; Metropolitan has engaged in
unauthorized transfers of control of the station; and Commission
personnel are acting in collusion with Metropolitan and its counsel.

**Discussion.** Under Section 1.106 of the Rules, as interpreted by
established case law, "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."[^9]
Petitioner has failed to demonstrate that reconsideration is warranted
in this case. Accordingly, we will deny Hoosier's Petition.

Section 1.106 of the Rules provides that a petition for reconsideration
which relies on facts not previously presented to the Commission or
designated authority can only be granted where: 1) the petition relies
on facts relating to events that have occurred or circumstances which
have changed since the last opportunity to present such matters; 2) the
petitioner could not, through the exercise of ordinary diligence, have
learned of the facts prior to its last opportunity to present the facts;
or 3) where the Commission or designated authority determines that
consideration of the facts relied on is required in the public
interest.[^10] With regard to newly raised matters, Hoosier has not
demonstrated either that the alleged circumstances have changed or
occurred since its last opportunity to present them to the Commission or
that it could not have learned of these asserted facts prior to its last
opportunity to present them to Commission staff. Hoosier also fails to
provide any factual support for these conclusory allegations. Finally,
we do not believe our consideration of these allegations is required by
the public interest, particularly given their lack of specificity and
dearth of factual support. Accordingly, we will deny the Petition as to
these allegations.

With regard to the issues previously raised by Hoosier in the Petition,
we note that "\[r\]econsideration will not be granted to debate matters
upon which the Commission has already deliberated and spoken."[^11] The
*Staff Decision* fully and accurately addressed Hoosier's Time-Share
Application and stated the basis for its dismissal. Hoosier has failed
to demonstrate staff error in this action. Hoosier's application was
patently defective. It was late filed and it failed to comply with
Section 73.561(b) of the Commission's Rules (the "Rules")[^12] which
governs the circumstances under which a person or entity may seek an
involuntary time-share arrangement. The *Staff Decision* stated:

> The Commission will not entertain proposals that do not conform to
> these requirements. (Footnote omitted.) Hoosier's does not. We find
> that the record clearly establishes that WBDG operates 24 hours per
> day and is, therefore, not subject to non-consensual proposals for
> time sharing. (Footnote omitted.) Thus, Hoosier's application is
> subject to dismissal.[^13]

Similarly, the *Staff Decision* fully addressed Hoosier's other claims
that it reiterates in its Petition. With regard to these contentions,
Hoosier has failed to demonstrate any material error or omission in the
*Staff Decision* and simply reasserts its earlier allegations.

**Conclusion/Actions.** For the reasons set forth above, Hoosier Public
Radio Corporation's

"Petition for Reconsideration and Reinstatement Nunc Pro Tunc/Petition
for Reconsideration Nunc Pro

Tunc WBDG Renewal and License Grant -- Motion to Correct Errors/Petition
for Hearing" IS DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Kathryn R. Schmeltzer, Esq.

Jarrett Taubman, Esq.

[^1]: Letter from Peter H. Doyle, Chief, Audio Division, Media Bureau to
    Kathryn R. Schmeltzer, Esq. and Martin L. Hensley, Reference
    1800B3-CLR (Media Bureau, March 2, 2005)("*Staff Decision"*).

[^2]: File No. BNPED-20040823AAC (the "Time-Share Application").

[^3]: Metropolitan also incorporates by reference its October 12, 2004,
    pleading "WBDG(FM)'s Omnibus Response to Hoosier's Pleadings and
    Request for Administrative Sanctions."

[^4]: Hoosier filed the Time-Share Application on August 23, 2004. The
    Time-Share Application, seeking involuntary time-share operation of
    Station WBDG(FM), was filed pursuant to Section 73.561(b) of the
    Commission's Rules (the "Rules), (47 C.F.R. § 73.561(b)).

[^5]: Hoosier subsequently filed a number of other requests, motions and
    petitions concerning the Application and other unrelated license
    renewal applications. *See* "Motion To Join the Parties, Request For
    Review and Declaratory Ruling -- RICO Act and Sherman Antitrust Act
    -- Market Allocation, Request for Review and Declaratory Ruling --
    Ex Parte Applicant Communications, Motion To Compel -- Request For
    Discovery, Petition To Deny -- Request for Moratorium," filed
    September 20, 2004.

[^6]: Public Notice of the *Staff Decision* was released on March 7,
    2005 Public Notice, *Broadcast Actions*, Report No. 45935 (March 7,
    2005).

[^7]: 47 C.F.R. § 73.3513.

[^8]: 47 C.F.R. § 73.3527.

[^9]: *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* 383 U.S. 967 (1966)("*WWIZ,
    Inc.*"); *see also National Association of Broadcasters,* Memorandum
    Opinion and Order, 18 FCC Rcd 24414, 24415 (2003). *See also* 47
    C.F.R. § 1.106(c).

[^10]: 47 C.F.R. § 1.106(b) and (c).

[^11]: ^?^ *WWIZ, Inc.*, 37 FCC at 686; *See also* *William L. Carroll,*
    Memorandum Opinion and Order, 8 FCC Rcd 6279 (1993).

[^12]: 47 C.F.R. § 73.561(b).

[^13]: *Staff Decision* at 2-3.