**DA 08-1837**

In Reply Refer to:

1800B3-SS

Released: August 1, 2008

Denny Hazen, President

Denny and Marge Hazen Ministries, Inc.

P.O. Box 7317

Canton, OH 44705

Cary S. Tepper, Esq.

Booth, Freret, Imlay & Tepper, PC

7900 Wisconsin Ave., N.W., Suite 304

Washington, DC 20814

> In Re: Denny and Marge Hazen
>
> Ministries, Inc.
>
> Carrollton, Ohio
>
> Facility ID No. 175256
>
> File No. BNPED-20071019AAM
>
> **Application for Construction Permit**
>
> **Petition to Deny**

Dear Mr. Hazen and Counsel:

This letter refers to the captioned application (the "Application") of
Denny and Marge Hazen Ministries, Inc. ("Hazen") for a construction
permit for a new noncommercial educational ("NCE") station operating on
Channel 215 (90.9 MHz) at Carrollton, Ohio. On January 14, 2008, Mount
Union College ("MUC"), licensee of WRMU-FM, Alliance, Ohio, filed a
Petition to Deny ("Petition") Hazen's Application.[^1] For the reasons
set forth below, we deny the Petition and grant the Application.

[]{.mark}

**Background*.*** On October 19, 2007, Hazen filed the Application
during the Commission window for NCE FM frequencies.[^2] On November 8,
2007, the staff dismissed Hazen's Application as inadvertently accepted
for filing for violating Section 73.509 of the Commission's Rules (the
"Rules") with respect to co-channel Class A licensee WCWS-FM, Wooster,
Ohio.[^3] On December 10, 2007, Hazen filed an engineering amendment and
a Petition for Reconsideration of its dismissed Application. The staff
granted reconsideration and reinstated the Application, as amended, on
December 11, 2007.[^4] MUC opposes grant of the Application, arguing
that Hazen has failed to describe its educational objective and how it
will further that objective, pursuant to Section 73.503 of the
Rules.[^5] To support this assertion, MUC alleges that Hazen has not
provided any sample program descriptions or any sample educational
guidance.[^6] In addition, MUC argues that Hazen does not "presently
have the proper authority under Ohio law to operate a radio broadcast
station."[^7] Specifically, MUC contends that in Hazen's Articles of
Incorporation, Hazen states that it was formed to "preach and teach" and
makes no mention of operating a radio broadcast station.[^8]

**Discussion*. ***Under Section 309(d)(1) of the Communications Act of
1934, as amended (the "Act"),[^9] any party in interest may file a
petition to deny an application. In order to assess the merits of a
petition to deny, a two-step analysis is required. First, the petition
must make specific allegations of fact sufficient to demonstrate that
the petitioner is a party in interest and that a grant of the
application would be *prima facie* inconsistent with the public
interest, convenience, and necessity.[^10] This threshold determination
is made by evaluating the petition and the supporting affidavits. If the
petition meets this threshold requirement, the Commission must then
examine all of the material before it to determine whether there is a
substantial and material question of fact calling for further inquiry
and requiring resolution in a hearing.[^11] If no such question is
raised, the Commission will deny the petition and grant the application
if it otherwise serves the public interest, convenience, and necessity.

*Procedural Issue: Standing.* Hazen argues in its Opposition that MUC is
not a "party in interest" and should not to be accorded standing in this
proceeding. Specifically, Hazen contends that as licensee of a station
"in the region," MUC fails to demonstrate how Hazen's proposed ownership
of an NCE station in Carrollton, Ohio, is in any way relevant to the
operation of MUC's station in Alliance, Ohio. Hazen adds that it
attached an Engineering Exhibit to the Application demonstrating that
there would be no overlap of the stations' protected service
contours.[^12]

Under Section 309(d) of the Act, a party has standing to file a petition
to deny if grant of an application would result in, or be reasonably
likely to result in, some injury of a direct, tangible or substantial
nature.[^13] The Commission also accords party-in-interest status to a
petitioner who demonstrates that he/she listens to or views the station
regularly and that such listening or viewing is not the result of
transient contacts with the station.[^14] MUC does not provide in any of
its pleadings either an affidavit or declaration raising a specific
injury that would be caused to it by grant of the Application or
attempting to establish listener/residence status as a basis for
standing.[^15] Therefore, we find that MUC lacks standing to file a
petition to deny the Application. Nevertheless, we will consider MUC\'s
Petition as an informal objection ("Objection") under Section 73.3587 of
the Rules.[^16]

> *Substantive Issues:* In applying Section 73.503 of the Rules, the
> Commission has required that NCE applicants be: (a) a government or
> public educational agency, board or institution; (b) a private,
> nonprofit educational organization; or (c) a nonprofit entity with a
> demonstrated educational purpose.[^17] We require that an applicant
> described in (a) or (b) above have an educational program and
> demonstrate how its programming will be used for the advancement of
> that program. An applicant applying as (c) above must specifically
> show: (i) that it is, in fact, a nonprofit educational organization,
> (ii) that it has an educational objective, and (iii) how its
> programming will further that objective.[^18] The requirement that NCE
> licensees provide programming that advances an educational objective
> may be satisfied by a variety of programs, including, but not limited
> to, "instructional programs, programming selected by students, bible
> study, cultural programming, in-depth news coverage, and children\'s
> programs such as Sesame Street that entertain as they teach."[^19] We
> have also stated that "in order to qualify as an educational station,
> it is not necessary that the proposed programming be exclusively
> educational."[^20]
>
> Regarding MUC's claim that Hazen purports to "teach and preach"
> without further guidance, the Commission has made it clear that an
> applicant organization such as a church or ministry may operate on
> channels reserved for NCE stations.[^21] Although in *Way of the
> Cross*, the Commission rejected an application of a religiously
> oriented entity seeking a license to operate on a reserved NCE
> television channel because it had failed to make the showing required
> of NCE applicants for full-service noncommercial television
> authorizations,[^22] it stated that "noncommercial, educational
> organizations, even though religiously oriented, can qualify upon an
> appropriate showing for licenses on reserved channels."[^23] Moreover,
> the Commission specifically held that "\[the Bureau\'s conclusion
> that\] \[o\]ver the years, the Commission has articulated the
> principle that organizations which are primarily religious in nature,
> even though they have some educational aspects, will not be allowed to
> operate on channels reserved for educational use . . . was clearly in
> error."[^24]
>
> We have examined the Application exhibit, as amended on January 28,
> 2008, in which Hazen describes how its proposed station will be used
> to advance educational purposes.[^25] We find that Hazen has
> demonstrated that it is a nonprofit educational organization, with
> distinct educational objectives, and that it will use its station's
> programming to further those objectives. Accordingly, on this issue,
> we find that Hazen is eligible under Section 73.503 of the Rules to
> hold an NCE authorization.
>
> Next, MUC argues that Hazen "does not presently have the proper
> authority under Ohio law to operate a radio broadcast station."[^26]
> MUC states that under Ohio law, an entity's Articles of Incorporation
> must state the purpose or purposes for which the corporation is
> formed.[^27] Specifically, MUC contends that Hazen's Articles of
> Incorporation make "no mention of operating a broadcast station
> business or handling the modest variety of business matters associated
> with building and operating a broadcast station, such as site
> acquisition and leasing, and hiring employees."[^28]
>
> Regarding MUC's claim of Hazen's purported violation of the Ohio
> Revised Code, 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.[^29] Accordingly, we find that further consideration of this
> allegation is unwarranted.[^30]
>
> **Conclusion/Actions.** Based on the record before us, we conclude
> that Hazen is qualified to hold an NCE FM authorization. The terms of
> the grant will be made part of the authorization issued to this
> applicant. We conclude that grant of the Application would serve the
> public interest, convenience and necessity.

Accordingly, IT IS ORDERED that the Petition to Deny filed by Mount
Union College against the application of Denny and Marge Hazen
Ministries, Inc., treated as an informal objection, IS DENIED.

IT IS FURTHER ORDERED, that the application of Denny and Marge Hazen
Ministries, Inc. (File No. BNPED-20071019AAM) IS GRANTED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Mount Union College

[^1]: On January 28, 2008, Hazen filed an Opposition to Petition to Deny
    ("Opposition").

[^2]: 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).

[^3]: *See Letter to Denny and Marge Hazen Ministries, Inc.,* Ref.
    1800B3, (rel. Nov. 8, 2007).

[^4]: *See Broadcast Actions,* Public Notice, Report No. 26633 (rel.
    Dec. 14, 2007).

[^5]: 47 C.F.R. § 73.503.

[^6]: Petition at 2.

[^7]: *See id.*

[^8]: *Id.*

[^9]: 47 U.S.C. § 309(d)(1).

[^10]: *See id.*; *Astroline Communications Co. v. FCC**,*** 857 F.2d
    1556, 1561 (D.C. Cir. 1988).

[^11]: 47 U.S.C. § 309(d)(2).

[^12]: *See* Application at Exhibit 10, page 9.

[^13]: *See, e.g., Telesis Corp.*, Memorandum Opinion and Order, [68
    FCC2d 696
    (1978)](http://web2.westlaw.com/find/default.wl?rs=WLW8.05&serialnum=1978027529&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=0001017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^14]: *See Tabback Broadcasting Company*, Memorandum Opinion and Order,
    15 FCC Rcd 11899, 11900 n.3 (2000); *Chet-5 Broadcasting, L.P.*,
    Memorandum Opinion and Order, 14 FCC Rcd 13041 (1999).

[^15]: The Commission has accorded standing to "competitors" under
    *Sanders Brothers Radio Station,* 309 U.S. 470 (1940) in the NCE
    context when: (1) the applicant's proposed coverage area directly
    overlaps that of the petitioner; and (2) the
    listener-supported-program format proposed by the applicant is
    similar to that aired by the petitioner. *See Family Stations,
    Inc.,* Hearing Designation Order, MM Docket No. 86-354, 1986 WL
    291041 ¶6 (MMB rel. Sep. 24, 1986). Neither factor is present here.

[^16]: 47 C.F.R. § 73.3587.

[^17]: 47 U.S.C. § 73.503(a). The same eligibility requirements were in
    effect on the effective date of [Section
    397(6)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.04&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS397&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    of the Act. *See also* Appendix A to *Eligibility for Noncommercial
    Educational FM and TV Broadcast Station Licenses*, Notice of
    Inquiry, FCC 77-382, 43 Fed. Reg. 30842 30844 (1978) (processing
    guidelines for institutional and organizational applicants for
    noncommercial educational licenses).

[^18]: *See, e.g., Music Ministries, Inc.,* Hearing Designation Order,
    [9 FCC Rcd 3628 (MMB
    1994)](http://web2.westlaw.com/find/default.wl?rs=WLW8.04&serialnum=1994264672&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^19]: *In the Matter of Reexamination of the Comparative Standards for
    Noncommercial Educational Applicants,* Further Notice of Proposed
    Rulemaking, [13 FCC Rcd 21167, 21169
    (1998)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.04&referencepositiontype=S&serialnum=1998272683&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=21169&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^20]: *Lower Cape Communications, Inc.*, Memorandum Opinion and Order,
    FCC 80-453, 47 RR 2d 1577, 1579 (1980). *See also Florence Bridges,*
    Memorandum Opinion and Order, FCC 78-719, 44 RR 2d 667, 668 (1978).

[^21]: ^?^ [*Way of the Cross of Utah, Inc.,* Memorandum Opinion and
    Order, 101 FCC 2d 1368
    (1985)](http://web2.westlaw.com/find/default.wl?rs=WLW8.04&serialnum=1985033483&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=0001017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    ("*Way of the Cross*").

[^22]: Specifically, the Commission rejected the application, concluding
    that the applicant\'s board of directors was not sufficiently
    representative of the community of license and that the applicant
    had failed to provide a program schedule to allow the Commission to
    determine that the station would be used to serve the educational
    needs of the community as required by the Rules. [*Way of the
    Cross*, 101 FCC 2d at
    1374-1377](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.04&referencepositiontype=S&serialnum=1985033483&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1374&db=0001017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^23]: [*Id*. at
    1374.](http://web2.westlaw.com/find/default.wl?rs=WLW8.04&serialnum=1985033483&sv=Split&fn=_top&findtype=Y&tc=-1&tf=-1&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)

[^24]: [*Id*. at 1374, n.
    8.](http://web2.westlaw.com/find/default.wl?rs=WLW8.04&serialnum=1985033483&sv=Split&fn=_top&findtype=Y&tc=-1&tf=-1&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)

[^25]: Hazen attaches to its Opposition a copy of an amendment to its
    original Articles of Incorporation filed with the Ohio Secretary of
    State\'s office. The amendment indicates that Hazen is constituted
    "for the purpose of promoting education, religion, morality, and the
    fine arts; of furnishing instruction and training in languages,
    literature, mathematics, philosophy, science, religion, art,
    physical culture, agriculture, and mechanical arts to students . . .
    ." Opposition, Exhibit 1. Additionally, amended Exhibit 2 of the
    Application indicates that Hazen's proposed NCE station plans:

    > \(1\) To provide educational and religious instruction, including
    > analysis of the Old and New
    >
    > Testament;
    >
    > \(2\) To train and ordain others to engage in this purpose; and
    >
    > \(3\) To provide facilities and resources for this purpose.
    >
    > . . . \[i\]n addition to the specific examples articulated above,
    > Hazen Ministries will ascertain and develop additional educational
    > programming for the residents of Carrollton, Ohio . . . . Hazen
    > Ministries will also allow other local organizations and members
    > of the community to create programming that is responsive to the
    > needs of the community.

    Application at amended Exhibit 2, Attachment 2.

[^26]: Objection at 3.

[^27]: *See* Ohio Revised Code, Section 1702.04(3).

[^28]: Objection at 3.

[^29]: *See Fatima Response, Inc.,* Memorandum Opinion and Order, 14 FCC
    Rcd 18543, 18544 (1999).

[^30]: ^?^ *See, e.g., Martin Hensley,* Letter, 22 FCC Rcd 8368, 8370
    (2007).