**DA 07-1938**

*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: Carmel/Clay School Corporation
>
> Station WHJE(FM), Carmel, Indiana

Facility ID No. 9004

File No. BRED-20040322ADP

Hoosier Public Radio Corporation

File No. BNPED-20040805ABK

> **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 WHJE Renewal
and License Grant -- Motion to Correct Errors/Petition for Hearing" (the
"Petition") filed April 4, 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 WHJE(FM), Carmel, Indiana, licensed to
Carmel/Clay School Corporation ("Carmel/Clay"), 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 Carmel/Clay. For the reasons
set forth below, we deny the Petition.

**Background.** A license renewal application for the Station was filed
by Carmel/Clay on March 22, 2004. On August 16, 2004, Hoosier filed a
"Petition to Deny -- Time Share Application[^3] -- Waiver Request."[^4]
In the *Staff Decision*, the staff granted the Application, dismissed
Hoosier's Share-Time Application, and denied Hoosier's Petition to Deny
and other filings.[^5] The Petition itself is a compendium of claims,
both new and previously made.

**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."[^6]
Petitioner has neither demonstrated material error or omission nor
presented such new matters to the staff. Accordingly, we will deny
Hoosier's Petition.

As an initial matter, the Petition violates a number of our rules
concerning pleading specifications.[^7] With regard to the issues raised
by Hoosier in the Petition that were previously addressed in the *Staff
Decision,* we note that "\[r\]econsideration will not be granted to
debate matters upon which the Commission has already deliberated and
spoken."[^8] The *Staff Decision* fully and accurately addressed
Hoosier's Time-Share Application and clearly stated the basis for its
dismissal, Hoosier's failure to comply with Section 73.561(b) of the
Commission's Rules (the "Rules").[^9] The *Staff Decision* clearly
stated:

> The Commission will not entertain proposals that do not conform to
> these requirements. (Footnote omitted.) Hoosier's does not. Despite
> \[Hoosier's\] statements to the contrary, (footnote omitted) we find
> that the record clearly establishes that WHJE 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.[^10]

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.[^11]

Hoosier raises several new issues not previously presented to the
Commission. It asserts that Indiana State law requires that the
president or secretary of Carmel/Clay's governing body sign the
Application, that Carmel/Clay and Commission staff have engaged in *ex
parte* contacts, and that Carmel/Clay's counsel has coerced Commission
staff into granting WHJE(FM)'s renewal application.

With regard to Hoosier's allegation concerning the signing of the
Application, Hoosier now presents a letter dated March 9, 2005, (*i.e.,*
seven days after the Commission's decision and two days after Public
Notice of that decision was made), from Charles Johnson, III, CPA, State
Examiner for the State of Indiana, regarding the execution of contracts
pertaining to school corporations. First, this provision of Indiana law
appears to have no applicability to Commission license renewal
applications, which are not contracts. Second, the Commission has
generally declined to consider issues of a licensee's compliance with
the requirements of state corporate law where, as here, no challenge has
been made before a state court.[^12] Third, Hoosier has not demonstrated
why this information could not have been provided earlier.[^13] Fourth,
Section 73.3513 of the Rules[^14] governs the signing of broadcast
applications. Carmel/Clay has complied with these requirements.
Accordingly, we reject this claim. Additionally, Hoosier presents no
specific information concerning the *ex parte* and coercion allegations.
It fails to provide us with such information as the dates of the alleged
contacts, the parties, or the substance of the contacts. We find that
further consideration of these speculative and unspecific allegations is
unwarranted.

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

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: John Wells King, Esq.

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

[^2]: File No. BNPED-20040805ABK (the "Time-Share Application").

[^3]: Hoosier filed the Time-Share Application on August 5, 2004,
    pursuant to Section 73.561(b) of the Commission's Rules (the
    "Rules"). The Time-Share Application proposed the involuntary
    time-share operation of Station WJHE(FM).

[^4]: Hoosier subsequently filed a number of other requests, motions and
    petitions against 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.

[^5]: Public Notice of the *Staff Decision* was released on March 7,
    2005 Public Notice, *Broadcast Actions*, Report No. 45935 (March 7,
    2005).

[^6]: *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).

[^7]: Among the procedural rules with which the Hoosier Petition fails
    to comply are 47 C.F.R. § 1.49(a) (specifying pleading format
    requirements) and 47 C.F.R. § 1.49(c) (requiring succinct summaries
    of pleadings that exceed ten pages).

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

[^9]: 47 C.F.R. § 73.561(b).

[^10]: *Staff Decision* at 2.

[^11]: 47 C.F.R. § 1.106(b) and (c).

[^12]: *See Fatima Response, Inc.,* Memorandum Opinion and Order, 14 FCC
    Rcd 18543, 18544 (1999).

[^13]: *See* 47 C.F.R. § 1.106(b) and (c).

[^14]: 47 C.F.R. § 73.3513.