**DA 08-1416**

*In Reply Refer To:*

1800B3-RDH/PHD

Released: June 13, 2008

Jerrold Miller, Esq.

Miller and Neely PC

6900 Wisconsin Avenue

Suite 704

Bethesda, Maryland 20815

Mark Lipp, Esq.

Wiley Rein LLP

1776 K Street, N.W.

Washington, D.C. 20006

In Re: WIOO(AM), Carlisle, PA

Facility ID Number: 72985

File No.: BP-20040809AAO

**Petition for Reconsideration**

Dear Counsel:

On June 4, 2008, the staff released a letter decision regarding the
captioned Petition for Reconsideration filed by WIOO Radio, Inc., (the
"Licensee").[^1] At the time of this action, the staff was unaware that
Radio One Licenses, LLC ("Radio One") had filed on May 29, 2008, a
Supplement to Opposition to Petition for Reconsideration (the
"Supplement"). Accordingly, pursuant to Section 1.113(a) of the
Commission's Rules (the "Rules"),[^2] the Chief, Audio Division, Media
Bureau, on his own motion, SETS ASIDE the *Reconsideration Decision* to
permit consideration of the Supplement.

We have before us an April 20, 2007, Petition for Reconsideration
("Petition") filed by Licensee, seeking reconsideration of the staff's
March 19, 2007, action dismissing the referenced application (the
"Application") for the modification of facilities for station WIOO(AM),
Carlisle, Pennsylvania (the "Station"). Also before the staff are an
Opposition to Petition for Reconsideration ("Opposition") filed May 2,
2007, by Radio One, a Reply to Opposition to Petition for
Reconsideration ("Reply") filed on May 14, 2007, by Licensee, and the
Radio One Supplement.

**Background.** On August 9, 2004, Licensee filed the Application
seeking to change the Station's frequency and operating power. On March
19, 2007, the Application was returned[^3] because it failed to provide
daytime protection to co-channel stations WCST(AM), Berkeley Springs,
West Virginia, and WOLB(AM), Baltimore, Maryland, in violation of
Section 73.37 of the Commission's Rules (the "Rules").[^4]

In its Petition, Licensee asserts that Radio One has abandoned
WOLB(AM)'s then-licensed site and sold it to a developer who has
constructed various buildings on it. Licensee also notes that Radio One
had recently filed an application for license to cover its WOLB(AM)
construction permit[^5] to operate from a new site and, in fact, had
commenced operations from that site. Licensee contends that its proposal
now meets all Commission protection requirements with respect to
WOLB(AM)'s new site and, therefore, the Commission should reconsider its
prior action. Additionally, Licensee submits WCST(AM) signal strength
measurements. It contends that these measurements establish that
Licensee's proposal fully meets the Commission's Rules with respect to
WCST(AM) and that no waiver with respect to that station is necessary.

In its Opposition, Radio One argues that the Petition should be
dismissed because it relies on facts not previously presented that do
not involve circumstances that have changed since Licensee's last
opportunity to present such matters. Nor, it continues, does it rely on
facts that were unknown earlier in the proceeding and could not
reasonably have been learned by Licensee through the exercise of
ordinary diligence.[^6] Finally, it argues that consideration of the
facts relied on is not required by the public interest. Accordingly,
Radio One asserts that the Petition contravenes Section 1.106 of the
Rules[^7] and should be dismissed.

Moreover, Radio One contends that the Petition merely reargues issues
already decided and that WIOO(AM) must continue to protect the
then-licensed WOLB(AM) facilities regardless of the existence of a
construction permit to operate different facilities until a license to
cover has been granted. This, it continues, was already decided in this
proceeding with respect to WCST(AM) and there should be no different
result with respect to WOLB(AM). It concludes that the Licensee has
failed to demonstrate good cause for a waiver of the Commission's
interference protection rules. In the Supplement, Radio One contends
that Commission should uphold the dismissal of the Application
notwithstanding the grant of the WOLB(AM) License Application. Radio One
contends that it would be improper for the Commission to reinstate and
grant an application that had been dismissed as defective three years
previously. It contends that "\[i\]f the Commission were to reinstate
the WIOO(AM) Application due to the grant of a new license application
for WOLB(AM), it would be setting a dangerous precedent that would
essentially permit a queue behind license applications once a new
construction permit is granted."[^8] Permitting Licensee to keep the
Application "alive" by the filing of a petition for reconsideration,
argues Radio One, would encourage a party filing a defective application
to file a petition for reconsideration in the hope that circumstances
would change while the reconsideration petition remains pending.[^9]

**Discussion.** Pursuant to 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."[^10]
Consideration of new facts not previously presented, however, is also
appropriate when such consideration is required in the public
interest.[^11] Given the following, we believe that consideration of the
Licensee's Petition on its merits is required in the public interest.

Radio One is correct that Commission case law requires applications to
continue to protect the formerly licensed facilities of a station until
the grant of the covering license application for the modified
facility.[^12] In the instant case, however, we take note, *sua sponte*,
of the fact that the Media Bureau granted the WOLB(AM) License
Application on May 14, 2008.[^13] Accordingly, the Rules no longer
protect the formerly licensed WOLB(AM) facility and Radio One's
objection to the Petition on this basis is now moot. An engineering
review of the Application, as amended, reveals that the proposed
station's daytime operation would fully protect Stations WOLB(AM), as
now licensed, and WCST(AM), and satisfies all other Commission's Rules.
The staff may reinstate applications *nunc pro tunc* where the original
application was dismissed and where a minor curative amendment is filed
within 30 days of the date of the dismissal.[^14] The Petition was
timely filed. Accordingly, reinstatement is warranted.

*The Radio One Supplement.* Radio One's Supplement is an unauthorized
pleading[^15] and is subject to dismissal without consideration.[^16]
However, in the interest of developing a full record in this proceeding,
we will consider it here. The potential for manipulation of our
licensing processes is always a serious concern. As Radio One notes, the
staff has the ability to deter the filing of premature and speculative
applications by issuing summary dismissals of those applications and
summary denials of petitions for reconsideration of such dismissals. If
the staff notes an increase in impermissible contingent filings,[^17] it
is prepared to take these and other measures to discourage these
filings.

However, this case involves a properly filed petition for
reconsideration which unquestionably satisfies the pleading requirements
of Section 1.106(d) of the Rules. As noted above, the Commission has
established a processing policy which specifically permits the
reinstatement *nunc pro tunc* of a dismissed application found initially
to be unacceptable for filing where the petition for reconsideration is,
as here, accompanied by a minor curative amendment.[^18] Radio One fails
to cite any Commission precedent that would support a departure from
this processing rule or show that this processing policy was erroneously
applied in this case.

The decision to reinstate and grant the Application should not be
construed as a departure from our policy of permitting contingent
filings only in certain narrowly defined circumstances described in
Section 73.3517 of the Rules. In this regard, the initial dismissal of
the Application was proper. While we recognize that our current
processing rules leave open the potential for abuse,[^19] we find that
it would be inherently unfair and unlawful to adopt a new policy
designed to prevent future potential abuses here. To the extent that
Radio One believes that a different processing rule would better serve
the public interest, it should file a petition for rulemaking.[^20]

For these reasons, we find unpersuasive the arguments set forth in the
Supplement. We conclude that the staff properly accepted Licensee's May
23, 2008, amendment and properly considered changed circumstances in
acting on the Petition.[^21]

**Conclusions/Actions.** Accordingly, pursuant to Section 1.113(a) of
the Commission's Rules, IT IS ORDERED that the June 4, 2008,
*Reconsideration Decision* in this proceeding, DA 08-1313, IS HEREBY SET
ASIDE. IT IS FURTHER ORDERED, that the Petition for Reconsideration
filed by WIOO Radio, Inc., IS GRANTED. IT IS FURTHER ORDERED, that the
WIOO Radio, Inc., modification application, File No. BP-20040809AAO, IS
REINSTATED *nunc pro tunc* and IS HEREBY GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: WIOO Radio, Inc.

[^1]: *See Letter to WIOO Radio, Inc., from Peter H. Doyle, Chief, Audio
    Division, Media Bureau*, DA 08-1313, (rel. June 4, 2008) (the
    "*Reconsideration Decision*").

[^2]: 47 C.F.R. § 1.113(a).

[^3]: *See Letter to Jerrold Miller, Esq. and Richard J. Bodorff, Esq.,*
    Ref. No. 1800B3 (Asst. Chief, Audio Division, March 19, 2007)
    ("*Dismissal Letter*").

[^4]: 47 C.F.R. § 73.37. The dismissed application had requested a
    waiver of this rule with respect to WCST(AM) but not with regard to
    WOLB(AM). WCST(AM) did not oppose the waiver request.

[^5]: File No. BL-20070220ADT (the "WOLB(AM) License Application").

[^6]: Indeed, Radio One asserts that the signal measurements of WCST(AM)
    relied on by Licensee in its Petition were taken prior to the
    Commission's previous decision in this matter. Opposition at 3-4.

[^7]: 47 C.F.R. § 1.106.

[^8]: Supplement at 3.

[^9]: *Id.* at 4.

[^10]: *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).

[^11]: 47 C.F.R. § 1.106(c)(2).

[^12]: Radio One cites *Application of the State of Oregon*, Memorandum
    Opinion and Order, 15 FCC Rcd 15456,15457 (2000)(quoting *Southern
    Oregon University*, FCC 99-315 (rel. Oct. 28, 1999)) and
    *Applications for Station WKVE*, Memorandum Opinion and Order and
    Notice of Apparent Liability, 18 FCC Rcd 23411, 23423 (2003).

[^13]: *See* *Broadcast Actions,* Public Notice, Report No. 46739 (May
    19, 2008).

[^14]: *See Commission States Future Policy on Incomplete and Patently
    Defective AM and FM Construction Permit Applications*, Public
    Notice, FCC 84-366 (rel. Aug. 2, 1984)(the "*Processing Policy
    Public Notice*").

[^15]: *See* 47 C.F.R. § 1.45.

[^16]: *See Letter to John Garziglia et al.,* 20 FCC Rcd 12105, 12107
    (MB 2005).

[^17]: *See* 47 C.F.R. § 73.3517. The Application is contingent upon
    grant to the WOLB(AM) License Application.

[^18]: *See Processing Policy Public Notice*, *infra* at n.14.

[^19]: It appears that Radio One has engaged in precisely the
    gamesmanship it complains of by requesting that the Commission defer
    the processing of the WOLB License Application until action is taken
    on a pending Radio One construction permit application to further
    modify WOLB. In so doing, Radio One sought to establish protection
    for three different facilities -- one more than contemplated by the
    Rules - to the detriment of the Licensee. *See* WOLB License
    Application, transmittal letter at 1.

[^20]: *See Paralyzed Veterans of America v. D.C. Arena, L.P.*, 117 F.3d
    579, 586 (D.C. Cir. 1997); *Syncor Int'l Corp. v. Shalala*, 127 F.3d
    90, 94 (D.C. Cir. 1997) (new interpretation of an agency rule in
    conflict with prior definitive interpretation requires notice and
    comment).

[^21]: *See Sells, Willcox, and Davis-Monthan AFB, Arizona*, Memorandum
    Opinion and Order, 23 FCC Rcd 1242, 1245 (2008); *see also Greenup,
    Kentucky, and Athens, Ohio*, Memorandum Opinion and Order, 6 FCC Rcd
    1493, 1494 (1991).