DA 05-2026

***In Reply Refer to:***

1800B3-Wagner

Harry C. Martin, Esq.

Fletcher Heald & Hildreth, P.L.C.

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

> In re: Applications for New LPFM Stations
>
> (See Appendix for file and facility information)

Dear Mr. Martin:

The staff has before it (1) the "Joint Petition for Reconsideration and
Request for Reinstatement *Nunc Pro Tunc*" ("Joint Petition") filed on
April 20, 2004, by Calvary Chapel Windward ("Windward"), Calvary Chapel
Lake City ("Lake City"), Calvary Chapel of Grants Pass ("Grants Pass"),
Calvary Chapel Ruidoso ("Ruidoso"), Calvary Chapel of Helena ("Helena"),
Calvary Chapel of Kingman ("Kingman"), Calvary Chapel of Vineland, Inc.
("Vineland"), Calvary Chapel of Bremerton ("Bremerton"), Calvary Chapel
of Scottsbluff ("Scottsbluff"), Calvary Chapel of Russell ("Russell"),
Calvary Chapel of Knoxville ("Knoxville"), Calvary Chapel of Southern
Ocean County ("Southern"), Calvary Chapel of Bowling Green ("Green") and
Calvary Chapel of Republic ("Republic"), (collectively, "Petitioners").
The Joint Petition is directed to the respective March 16, 2004, and
March 19, 2004, actions of the Media Bureau ("Bureau") dismissing the
captioned applications for new low power FM ("LPFM") broadcast stations
as inadvertently accepted for filing.[^1] Also before the Commission are
the Oppositions to the Joint Petition filed on April 29, 2004, by the
National Lawyers Guild Center on Democratic Communications ("Lawyers
Guild") and on May 5, 2004, by Hayden Christian Broadcasting Corporation
("Hayden"). The Hayden Opposition is directed specifically to the Lake
City application. For the reasons set forth below we (1) grant the Joint
Petition and reinstate the applications *nunc pro tunc,* and (2) grant
the Grants Pass, Helena, Knoxville, Bowling Green, and Republic
applications.

**Background**

The Petitioners participated in the first round of the LPFM filing
windows. The first LPFM filing windows permitted only local applicants
to apply for new LPFM stations and limited each non-governmental
applicant to a single application filing.[^2] Item 4 requires an
applicant to certify that it **either** (1) is an educational
institution or organization that is physically headquartered within 16.1
kilometers (10 miles) of the proposed transmitter site; (2) is an
educational institution or organization with seventy-five percent (75%)
of its board members residing within 16.1 kilometers from the
transmitter site; or (3) proposes a public safety radio service and has
jurisdiction within the service area of the proposed LPFM station. Item
5(a) requires an applicant to certify that "No party to this application
has an attributable interest in any non-LPFM station, including any full
power AM or FM station, FM translator station, full or low power
television station, or any other media subject to the Commission's
ownership restrictions." There are exceptions to this ownership
restriction for "local chapters" of a national or other large
organization set forth in the attribution provisions of Section 73.858
of the Commission's rules.[^3] The Instructions for FCC Form 318
summarize these exceptions as follows:

> Under this provision a local chapter of a national organization will
> not have the attributable media interests of the national organization
> attributed to it, provided that the local chapter: (1) is incorporated
> in its local area separately from the national organization with which
> it is affiliated; **and** (2) has a distinct local presence and
> mission. To satisfy the second element of this standard, an applicant
> must demonstrate that it has significant membership within its local
> area and that it has a local purpose that can be distinguished from
> the purpose of the national organization with which it is
> affiliated.[^4]
>
> Each of the Calvary Chapel-named applicants submitted information to
> establish that it qualified for the "local chapter" exemption,
> certifying its local presence and submitting an exhibit to demonstrate
> a distinct local purpose. In dismissing the applications, the staff
> stated that it is undisputed that each applicant is separately
> incorporated and that it has a headquarters within the proposed
> broadcast community. However, the staff found that the submitted
> statements of educational purpose failed to distinguish the applicant
> from the other Calvary Chapel applicants which filed identical
> applications for LPFM stations, or from national Calvary Chapel radio
> companies such as CSN International and Calvary Chapel of Twin Falls
> that own numerous full-service and FM translator radio stations
> throughout the country.[^5] Nothing in the educational purpose of the
> applications referenced the respective communities of license in any
> way or demonstrated "a local purpose that can be distinguished from
> the purpose of the national organization with which it is affiliated."
> Without this evidence, the staff could not find that the purported
> "local chapter" had a distinct local presence and mission.
> Accordingly, the staff determined, pursuant to Section 73.853(b) and
> 73.858 of the Commission's rules, that the applications were patently
> defective and the applications were dismissed as inadvertently
> accepted for filing. The informal objections that were filed against
> these applications were dismissed as moot.[^6] On April 20, 2004, the
> applicants filed their Joint Petition.
>
> **Discussion**
>
> *Joint Petition*. In support of their Joint Petition, Petitioners
> submit a "Joint Declaration" and state that they are not local
> chapters of a national organization and that the staff's "assumption"
> of affiliation is incorrect. Rather, Petitioners declare that they do
> not have any legal or financial relationship with each other or with
> CSN, Calvary Chapel of Twin Falls or any other Calvary Chapel church
> or organization. They attribute the similarity of the content of their
> educational purposes to the preparation of their applications by the
> same communications lawyer or engineer recommended by other churches
> in their movement.[^7] Nevertheless, Petitioners state that if
> considered affiliates they qualify for the attribution exemption under
> section 73.858(b) because each was separately incorporated and has a
> distinct local presence and mission. In this regard, the Joint
> Petition includes amendments to each proposal in which each applicant
> supplements its statement of educational purpose in an attempt to
> demonstrate that each has a distinct local presence and mission in
> their respective proposed communities of license.[^8]
>
> *Lawyers Guild Opposition*. In its Opposition to the Joint Petition,
> Lawyers Guild states Petitioners are local chapters of a national
> organization because of the "cookie cutter" exhibits that are
> identical to other Calvary Chapel LPFM applications, and that,
> referencing Calvary Chapel's website, states Petitioners' joint
> declaration "cannot rebut substantial independent evidence"
> identifying Petitioners as affiliated with the national Calvary Chapel
> organization. As such, Lawyers Guild asserts Petitioners must show
> that they have a local purpose that can be distinguished from the
> national Calvary Chapel organization. Lawyers Guild maintains that the
> Commission should not accept the proffered amendments because they
> improve the comparative positions of the Petitioners in violation of
> section 73.871(b). Alternatively, Lawyers Guild contends that if the
> Commission accepts the amendments, Petitioners do not qualify for the
> attribution exemption under Section 73.858(b), because the amendments
> fail to establish their distinctly local presence and mission because
> "they fail to address any specific locally originated programming
> intended to be broadcast."

Each of the Petitioners formally and voluntarily identifies itself with
the Calvary Chapel organization, has submitted a substantially identical
application, uses the communications counsel and consulting engineers,
and has cooperated in the joint prosecution of this reconsideration
petition. While these facts are highly probative on the issue of whether
each applicant should be treated as a "local chapter" of Calvary Chapel,
we need not resolve that matter here. We agree with Petitioners that
even if they are considered local chapters of a "national" Calvary
Chapel organization, they qualify for the attribution exemption of
Section 73.858(b) in that the amendments demonstrate that each applicant
has a distinct local presence and mission in their respective proposed
communities. A review of the amendments shows that each applicant
provides its respective community with a variety of programs and
activities in the areas of religious education, fellowship, youth
programs and strengthening family and social values. Each applicant, by
its amendment, evidences a clear undertaking of the implementation of
its educational program mission within its particular community. Thus,
we find that each of the Petitioners has demonstrated a "distinct local
presence and mission" within their respective communities and is
therefore eligible to become an LPFM station licensee.[^9]

*Hayden Opposition*. In its Opposition, which is directed only to the
dismissed Lake City application,[^10] Hayden challenges Lake City's
provision of an amended statement of its educational purpose. Hayden
states that (1) the Lake City amendment should be rejected as untimely
filed pursuant to Section 73.871 of the Commission's Rules, and (2)
Petitioners' reliance on *James River Broadcasting Corporation v.
FCC*[^11] for the proposition that an amendment to cure a fatal
application defect can be filed at any time, is not applicable.

The Commission's rules permit the filing of minor amendments regarding
an LPFM applicant's "legal information" after the close of the filing
window.[^12] Moreover, with regard to mutually exclusive LPFM
applicants, such as Lake City, the Commission explicitly provided for
the filing of curative amendments at an even later stage of this
application proceeding.

A tentative selectee whose application is found unacceptable for fling
will be given a single opportunity to submit a curative amendment,
provided that the amendment is minor and the amended application has the
same number of points as originally claimed, or more than the points
claimed by the next highest applicant. Tentative selectees whose
applications remain unacceptable for filing after this opportunity will
be removed from their mutually exclusive groups and will not be provided
with an additional opportunity to amend.[^13]

Thus, Lake City (as well as any other mutually exclusive applicant
dismissed for similar reasons) may seek to amend its educational purpose
statement and seek reconsideration *nunc pro tunc*. We thus reject
Hayden's argument that the Lake City amendment is untimely under 73.871.
Moreover, contrary to Lawyers Guild's assertion, the amendments are
permissible because they relate to the Petitioners' eligibility to
become Commission licensees.[^14] Section 73.871(b) is limited to
amendments which improve an applicant's comparative position.
Accordingly, the Joint Petition will be granted and the applications
will be reinstated *nunc pro tunc*.[^15]

**Conclusion/Actions**

We have examined the captioned applications and find that each of the
following applications complies with all pertinent statutory and
regulatory requirements: Calvary Chapel of Grants Pass
(BNPL-20010611ACG, Facility ID No. 133956); Calvary Chapel of Helena
(BNPL-20010612AEE, Facility ID No. 134394); Calvary Chapel of Knoxville
(BNPL-20010615AQX, Facility ID No. 135475); Calvary Chapel of Bowling
Green (BNPL-20010614ABN, Facility ID No. 134776); and Calvary Chapel of
Republic (BNPL-20010122AAI, Facility ID No. 132128). We also find that,
their immediate grant will further the public interest, convenience, and
necessity. Accordingly, these applications hereby ARE REINSTATED, the
September 27, 2001 Informal Objections by the National Lawyers Guild ARE
DENIED, and the applications ARE GRANTED. The authorizations will follow
under separate cover.

Additionally, the following applications hereby ARE REINSTATED:[^16]
Calvary Chapel Windward (BNPL-20010122AAC, Facility ID No. 132098);
Calvary Chapel Ruidoso (BNPL-20010612ADE, Facility ID No. 134318);
Calvary Chapel of Kingman (BNPL-20010614ABH, Facility ID No. 134768);
Calvary Chapel of Vineland (BNPL-20010614ABR, Facility ID No. 35781);
Calvary Chapel of Bremerton, (BNPL-20010614ADW, Facility ID No.
134864);Calvary Chapel of Scottsbluff (BNPL-20010615AJC; Facility ID No.
135313); Calvary Chapel of Russell, (BNPL-20010615AOQ, Facility ID No.
135435); Calvary Chapel of Southern Ocean County (BNPL-20010613AFK,
Facility ID No. 134675); and Calvary Chapel Lake City (BNPL-20010122AGW,
Facility ID No. 132369).

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: National Lawyers Guild Center on Democratic Communications

Hayden Christian Broadcasting Corporation

Donald E. Martin, Esq.

> **APPENDIX**

[File No.]{.underline} [Facility ID No.]{.underline}
[City/State]{.underline} [Applicant]{.underline}

BNPL-20010122AAC 132098 Kailua, HI Calvary Chapel Windward

> 25 Kaneohe Drive
>
> Suite 202
>
> Kailua, HI 96734

BNPL-20010611ACG 133956 Grants Pass, OR Calvary Chapel of Grants Pass

> 235 7^th^ Street
>
> Grants Pass, OR 97526

BNPL-20010612ADE 134318 Ruidoso, NM Calvary Chapel Ruidoso

> 433 Sudderth
>
> Ruidoso, NM 88345

BNPL-20010612AEE 134394 Helena, MT Calvary Chapel of Helena

> 75 Dunbar Ave.
>
> Helena, MT 59602

BNPL-20010614ABH 134768 Kingman, AZ Calvary Chapel of Kingman

> P.O. Box 843
>
> Kingman, AZ 86401

BNPL-20010614ABR 134781 Vineland, NJ Calvary Chapel of Vineland, Inc.

> 930 N. Main Road
>
> Vineland, NJ 08360

BNPL-20010614ADW 134864 Bremerton, WA Calvary Chapel of Bremerton

> 270 4^th^ Street
>
> Bremerton, WA 98337

BNPL-20010615AJC 135313 Scottsbluff, NE Calvary Chapel of Scottsbluff

> 2419 Avenue I
>
> Scottsbluff, NE 69361

BNPL-20010615AOQ 135435 Warren, PA Calvary Chapel of Russell

> P.O. Box 579, Rt. 62
>
> Russell, PA 16345

BNPL-20010615AQX 135475 Knoxville, TN Calvary Chapel of Knoxville

> 2864 Alcoa Highway
>
> Knoxville, TN 37920

BNPL-20010613AFK 134675 West Creek, NJ Calvary Chapel of Southern Ocean
City

610 Route 10

West Creek, NJ 08092

BNPL-20010614ABN 134776 Bowling Green, KY Calvary Chapel of Bowling
Green

P.O. Box 51702

Bowling Green, KY 42102

BNPL-20010122AAI 132128 Republic, MO Calvary Chapel of Republic

P.O. Box 212

Republic, MO 65738

BNPL-20010122AGW 132369 Coeur D'Alene, ID Calvary Chapel Lake City

> 180 W. Clayton Street
>
> Coeur D'Alene, ID 83815

[^1]: *Letter to Listed Applicants*, Reference 1800B3-GDG/SW (MB Mar.
    16, 2004) (dismissing the Lake City, Windward, Grants Pass, Ruidoso,
    Helena, Kingman, Vineland, Bremerton, Scottsbluff, Russell, and
    Knoxville applications); *Letter to Listed Applicants*, Reference
    1800B3-GDG/SW (MB Mar. 19, 2004) (dismissing the Southern, Green,
    and Republic applications).

[^2]: *See* 47 C.F.R. § 73.853(b). *See also* FCC Form 318, Section II,
    Items 4 and 5, and Instructions for FCC Form 318 at 6.

[^3]: 47 C.F.R. § 73.858, "Attribution of LPFM Station Interests."

[^4]: ^?^ Instructions for FCC Form 318, pp. 5-6.

[^5]: ^?^ *See, e.g.,*
    [http://www.csnradio.com](http://www.csnradio.com/).

[^6]: Informal objections against several of these applications filed by
    Lawyers Guild alleged that they did not demonstrate a "distinct
    local presence and mission," and therefore, they do not fall under
    the exceptions to the ownership restrictions pursuant to Section
    73.858 of the Commission's rules. These objections were dismissed as
    moot in the letters dismissing the applications.

[^7]: In their joint declaration, Joint Petitioners declare that: each
    is an autonomous, "independent locally-governed church"; each paid
    its own legal bills and prosecuted its application "free from the
    influence or control" from any outside group; each petitioner is
    separately incorporated and is governed by its own board and has its
    own officers and pastor; each owns its own property or leases it
    property in its own name; each is financed entirely by contributions
    from its local members and receives no money from any national
    church organization; the Calvary Chapel movement does not have a
    parent church or any organizational structure whatsoever; the
    movement is a "fellowship of local, independent churches which share
    the same basic theology"; and petitioners have no agreements or
    understandings of any type with CSN, Calvary Chapel of Twin Falls or
    any other Calvary Chapel church regarding programming to be
    broadcast. (Joint Petition, Attachments A and B)

[^8]: Joint Petition Attachment C, containing exhibits: Lake City
    (Exhibit A), Grants Pass (Exhibit B), Helena (Exhibit C), Vineland
    (Exhibit D), Bremerton (Exhibit E), Knoxville (Exhibit F), Russell
    (Exhibit G), Kingman (Exhibit H), Scottsbluff (Exhibit I), Republic
    (Exhibit J), Green (Exhibit K), Southern (Exhibit L), Ruidoso
    (Exhibit M) and Windward (Exhibit N).

[^9]: As stated above, it is undisputed that each Petitioner was
    separately incorporated within its respective community.

[^10]: The Lake City application, if reinstated, would be mutually
    exclusive with Hayden's application for a new LPFM station at
    Hayden, Idaho, File No. BNPL-20010119ADW.

[^11]: 399 F.2d 581(D.C. Cir. 1968)

[^12]: *See* 47 C.F.R. § 73.871(c)(4).

[^13]: *Creation of a Low Power Radio Service, Report and Order,* 15 FCC
    Rcd 2205, 2257 n. 209 (2000).

[^14]: ^?^ *See* comparative selection criteria at Section 73.872,
    "Selection Procedure for Mutually Exclusive LPFM Applications.

[^15]: The reinstatement of the subject applications also resurrects the
    Lawyers Guild Informal Objections filed against those applications.
    Because the Informal Objections raised the same issue Lawyers Guild
    raised in opposition to the Joint Petition, they require no further
    discussion and will be denied in connection with the disposition of
    the applications.

[^16]: These applications could not be granted at this time because they
    were mutually exclusive and/or have not yet been accepted for
    filing. The mutually exclusive applications will be evaluated under
    the comparative procedures set forth in Section 73.872 of the
    Commission's rules, 47 C.F.R. § 73.872. *See also Report and Order,*
    15 FCC Rcd 2205 (2000)*; Low Power Radio Service, Memorandum Opinion
    & Order on Reconsideration,* 15 FCC Rcd 19208 (2000); and *Creation
    of Low Power Radio Service, Second Report & Order*, 16 FCC Rcd 8026
    (2001).