Talking Information Center

c/o Donald E. Martin, Esq.

P.O. Box 8433

Falls Church, VA 22041

Re: NEW(FM), Marshfield, Massachusetts

Facility ID No. 122278

BNPED-20000118ABT

> MX Group No. 990512
>
> **Petition to Deny**

Dear Counsel:

We have before us a Petition to Deny ("Petition") filed on May 2, 2007,
by Talking Information Center ("TIC"). TIC is a party to MX Group
990512, a group of two mutually exclusive applicants competing for a
permit to build a new noncommercial educational ("NCE") FM station in
Marshfield, Massachusetts. TIC argues that the Commission should deny
the application of the University of Massachusetts ("UMass"), the
applicant group's tentative winner. For the reasons set forth below, we
deny TIC's Petition.

On March 27, 2007, the Commission released the *Omnibus Order,*[^1]
which applied the Commission's NCE comparative selection criteria[^2] to
seventy-six groups of mutually exclusive NCE FM applications and
tentatively selected one winner in each group. The Commission used a
point system selection process, with each applicant's maximum point
qualifications determined as of a "snap shot" date of June 4, 2001.[^3]
Absent the Commission's discovery of an error on the face of the
application, the Commission generally accepted each applicant's
self-certification that it qualified for the points claimed.[^4] Any
party that wished to dispute the points awarded could file a petition to
deny the application of the group's tentative selectee. [^5] The
Commission's *Omnibus Order* delegated authority to the Media Bureau
("Bureau") to consider such petitions, and to grant and dismiss
applications in accordance with the Commission's tentative
determinations in cases where no substantial and material question of
fact is raised through the petition to deny process.[^6]

In the present group, the Commission tentatively selected UMass's
application for grant because UMass received five points and TIC
received three points after the Commission excluded two points that the
Commission determined TIC had claimed in error.[^7] In its Petition, TIC
disputes the Commission's finding that the attributable interest of a
TIC board member in another radio station precludes an award of two
points for diversity of ownership to TIC. TIC also argues that UMass did
not submit sufficient documentation to support receipt of points for
local diversity of ownership. TIC would thus add two points to its own
tally and subtract two points from UMass's total. Based on these point
adjustments, it contends that the Commission should tentatively select
the TIC application for grant.

Each claim in TIC's Petition is based on the local diversity of
ownership criterion. An NCE FM station qualifies for two points under
this criterion if, from the snap shot date onward, no party to the
application had an attributable interest in any other radio broadcast
station license or permit with a principal community contour overlapping
that of the proposed station *and* the applicant's own governing
documents require that such diversity be maintained.[^8] Applicants
whose governing documents cannot be amended without legislative action,
such as some state universities, can use an alternative means to
demonstrate that they will maintain the characteristics on which
diversity points are awarded.[^9] For example, the Commission advised
the University of Kansas that it could claim local diversity of
ownership points without obtaining an otherwise needed legislative
amendment of its governing statute, by certifying that the university
would not apply for any facilities that would create a new contour
overlap, and describing procedures in place to effectively notify
appointing officials and governing board members, both current and
future, of their need to act consistently with the university's
diversity representations to the Commission.[^10]

In claiming points, UMass relied on this alternative approach. UMass
submitted a letter from its President stating that no member of its
governing board held an attributable interest in an overlapping radio
station as of the snap shot date; UMass was created and regulated by
statute; and UMass would fulfill its obligation to maintain diversity of
ownership by notifying its appointing authority and board members of the
need to act consistently with the diversity representations made to the
Commission.[^11] UMass further provided a policy statement dated June 4,
2001, adopted by its Board of Trustees. That statement, in relevant
part, directed UMass's President to notify all board members and the
authority that selects those members of the need to maintain diversity;
to ask all board members to notify the president of any changes in their
radio interests; and to screen all new appointments to the board and to
revise new member orientation materials to advise new members of these
requirements.[^12]

TIC contends that UMass did not lay the necessary foundation for using
the exception to the governing document requirement for maintaining
diversity. It argues that information provided by UMass fails: to
identify which of its governing documents, if any, could only be amended
by legislative action; to identify exactly who appoints its board; and
to demonstrate that the appointing authority has any obligation to honor
diversity commitments made to the Commission.[^13] UMass responds that
its initial documentation was sufficient under the established
Commission policy, but nevertheless supplies additional information.
Specifically, UMass submits a sworn statement from its General Counsel
further identifying its governing statute, the composition of UMass's
governing board, and the manner in which board members are
selected.[^14] The sworn statement provides case law and state
constitutional authority for UMass's statement that any amendment to the
selection process would require legislative enactment.[^15] Finally,
UMass states that additional safeguards exist to ensure the maintenance
of local diversity of ownership because all members of its Board of
Trustees are subject to laws and policies, such as the Massachusetts
Conflict of Interest Law, which would require disclosure of any
broadcast interests that might conflict with those of UMass.

We find that TIC's argument is without merit. UMass's initial
submissions were consistent with the documentation that the Commission
required of the University of Kansas under the alternative method for
maintaining diversity of ownership qualifications. Moreover, assuming
*arguendo* that TIC raised any doubts about the efficacy of UMass's
methods, UMass supplied sufficient additional information to rebut any
such concerns. There is no substantial and material question of fact for
the Bureau to refer to the Commission concerning the award of five
points to UMass.

TIC also claims that it would have received five points (potentially
resulting in a tie with UMass) had the Commission accepted TIC's own
diversity of ownership claim. TIC had disclosed that an officer and
director, Edward F. Perry, Jr., was also the sole principal of WATD-FM,
which is licensed to the same community as the proposed new
station.[^16] TIC stressed, however, that Perry would resign from TIC
upon grant of a construction permit for the proposed station,[^17] and
that Perry had advised TIC's Executive Director on May 31, 2001, that
TIC should consider the resignation effective immediately if the
Commission's policies so required.[^18] The Commission rejected TIC's
diversity of ownership claim in the *Omnibus Order* because it found
that TIC never accepted Perry's resignation, and that Perry's positions
at TIC and WATD-FM continued beyond the snap shot date.[^19]

TIC argues that an award of diversity points to TIC based on Perry's
contingent resignation would not conflict with the snap shot date policy
cited by the Commission in the *Omnibus Order.*[^20] TIC focuses on the
Commission's statement that "Applicants may not enhance their position
based on matters that require additional Commission or applicant
action." TIC argues that this limitation is inapplicable to its
application. TIC characterizes Perry's post-snap-shot-date resignation
as automatic, requiring no further action on the part of the Commission
or TIC. TIC compares Perry's contingent resignation to the contingent
divesture commitments that commercial applicants have used to address
multiple-ownership and cross-ownership issues, and argues that the
Commission should recognize that there are similar public interest
benefits to contingent divestitures in the NCE context.[^21]

Under the procedures adopted in the 2001 *NCE MO&O* and followed in the
*Omnibus Order*, the Commission does not award points for
post-snap-shot-date enhancements. Pending NCE applicants could claim
points acquired between their application filing dates and the snap shot
date, but not thereafter.[^22] The Commission gave examples to stress
that it would not credit enhancements initiated, but not completed,
prior to the snap shot date. For example, the Commission stated that an
applicant with pending applications in two NCE groups, could prevent one
application from counting against it for comparative purposes by
withdrawing that application unconditionally; a withdrawal request made
contingent on approval of a settlement agreement, however, would not
achieve the same result if the Commission did not approve the settlement
by the snap shot date.[^23] Similarly, the Commission found in the
*Omnibus Order* that Perry's contingent offer to resign from TIC would
not prevent Perry's broadcast interests from being attributed to TIC
where the contingent event -- grant of a permit to TIC -- had not
occurred by the snap shot date. TIC's claim that Perry's resignation
would take effect automatically without further action by TIC or the
Commission is immaterial because the resignation did not occur by June
4, 2001.[^24] Indeed, Perry continues even now to hold positions with
TIC and WATD-FM. Essentially, TIC contends that the Commission should
alter its policies by crediting NCE divesture promises that are made,
but not implemented, by the snap shot date. Such arguments are
appropriately raised in petitions for rulemaking, not petitions to deny.

TIC has failed to make any *prima facie* showing that might alter the
Commission's tentative outcome in Group 990512. TIC has also failed to
show that the grant of UMass's application would be contrary to the
public interest.

Accordingly, IT IS ORDERED, That the Petition to Deny filed on May 2,
2007, by the Talking Information Center IS DENIED.

IT IS FURTHER ORDERED, That the application of University of
Massachusetts (File No. BNPED-20000118ABT) IS GRANTED CONDITIONED UPON
its compliance with Section 73.7005 of the Commission's Rules, 47 C.F.R.
§ 73.7005, which sets forth a four-year holding period for applicants
that are awarded permits by use of a point system.

IT IS FURTHER ORDERED, That the mutually exclusive application of the
Talking Information Center (File No. BNPED-20000118ADQ) IS DISMISSED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: University of Massachusetts

[^1]: *See Comparative Consideration of 76 Groups of Mutually Exclusive
    Applications for Permits to Construct New or Modified Noncommercial
    Educational FM Stations,* Memorandum Opinion and Order, FCC 07-40
    (rel. Mar. 27, 2007) ("*Omnibus Order*").

[^2]: *See* 47 C.F.R. §§ 73.7000 -- 05.

[^3]: Any changes made after that snapshot date could potentially
    reduce, but could not increase, an applicant's points. *See Omnibus
    Order,* \_\_ FCC Rcd at \_\_\_ (¶ 3).

[^4]: *Id.* at ¶ 5.

[^5]: *See* 47 C.F.R. § 73.7004; *Omnibus Order* at ¶ 202.

[^6]: *See Omnibus Order* at ¶¶ 202-03; 47 C.F.R. §§ 0.61(h), 0.283.

[^7]: *See Omnibus Order* at ¶¶ 44-45.

[^8]: *See* 47 C.F.R. 73.7003(b)(2).

[^9]: *See Reexamination of Comparative Standards for Noncommercial
    Educational Applicants,* Memorandum Opinion and Order, 16 FCC Rcd
    5074, 5094-95 (2001) ("*NCE MO&O*").

[^10]: *Id.*

[^11]: *See* UMass Point Supplement, Exhibit E-2, p. 3.

[^12]: *Id.* at Exhibit E-2, p. 4.

[^13]: *See Petition* at 2-3.

[^14]: *See Letter from Lawrence T. Bench, Interim General Counsel,
    UMass* (May 31, 2007) (attached to *Opposition to Petition to
    Deny*).

[^15]: *Id.* (citing Mass. Const, Pt., c.1, § 1, art. 4; *Corning Glass
    Works v. Ann & Hope, Inc. of Danvers,* 363 Mass. 409, 421, 294
    N.E.2d 354 (1973)).

[^16]: *See Omnibus Order* at ¶ 45; TIC Point Supplement, Exhibit 2.

[^17]: *See* TIC Point Supplement, Exhibit 2.

[^18]: *Id.*

[^19]: *See Omnibus Order* at ¶ 45.

[^20]: *See Omnibus Order* at n.118 quoting *NCE MO&O,* 16 FCC Rcd at
    5109, n.24 ("Applicants may not enhance their position based on
    matters that require additional Commission or applicant action. For
    example, they must consider as pending any applications for which
    their requests for withdrawal are conditioned on our approval of a
    settlement agreement. Similarly, they must include as existing
    authorizations any station for which an assignment of license has
    not yet been consummated, even if an application to assign has been
    filed or approved.").

[^21]: *See Petition* at 5-6. For example, TIC contends that Perry's
    contingent resignation served the public interest by preventing the
    loss of a six-year synergistic relationship between TIC and WATD-FM
    from the snap shot date through present. *Id.*

[^22]: *See NCE MO&O,* 16 FCC Rcd at 5109.

[^23]: *Id.* at 5109, n.24.

[^24]: Additionally, TIC's argument that the Commission was only
    concerned with "matters that require additional Commission or
    applicant action" takes that language out of context to place
    inappropriate emphasis on the manner in which of a
    post-snap-shot-date divestiture occurs. Moreover, TIC would be
    incorrect to say that Perry's divestiture would be independent of
    any Commission or applicant action where that divestiture was
    contingent on the earlier of grant of a construction permit (a
    Commission action) or TIC's acceptance of the tendered resignation
    (an applicant action).