DA 05- 2023

*In Reply Refer*:

1800B3-Wagner

Lee W. Shubert, Esq.

Katten Muchin Zavis Rosenman

East Lobby, Suite 700

1025 Thomas Jefferson Street, N.W.

Washington, DC 20007-2501

David J. Kaufman, Esq.

Brown, Nietert & Kaufman

Suite 450

1301 Connecticut Avenue, N.W.

Washington, DC 20036

In re: WCVO(FM), Gahanna, Ohio

Christian Voice of Central Ohio, Inc.

Facility ID No. 11138

File No. BPH-20050121AJY

Gentlemen:

This letter concerns the captioned application of Christian Voice of
Central Ohio, Inc. ("Voice") for minor modification of the facilities of
station WCVO(FM), Gahanna, Ohio. Duke Realty Corporation ("Duke") filed
an Informal Objection to the application on April 13, 2005.[^1] For the
reasons set forth below, the Informal Objection is denied and the
construction permit application is granted.

*Discussion*. [Procedural issue]{.underline}. Duke sought three
extensions of time to file its reply. Duke requested additional time to
investigate and resolve a perceived conflict of interest involving the
environmental consulting firm of Evans, Mechwart, Hambleton & Tilton,
Inc. ("EMHT"). Duke states that it originally retained EMHT to provide
consulting services in connection with its Informal Objection,[^2] yet
subsequently (and without Duke's knowledge) supplied supporting
materials leading to Voice's receipt of a favorable ruling from Ohio
Historic Preservation Office ("OHPO"). Duke indicates that it needed
additional time to evaluate whether it could rely on EMHT to assist it
with the reply pleading; Duke sought additional time "until the air is
suitably cleared and the conflicts regarding EMHT's representation of
both Duke and Voice are reasonably resolved" to file a reply.[^3]

There is no formal petition to deny cycle for informal objections.[^4]
Accordingly, despite the fact that Duke has failed to demonstrate good
cause for needing six weeks to file its reply, we will consider this
pleading as part of our consideration of the Voice application.

[Substantive Issues]{.underline}. In its Informal Objection, Duke argues
that the proposed WCVO(FM) antenna site location was "proximate to
historic properties" and could not be processed further in the absence
of an Environmental Assessment ("EA") pursuant to Section 1.1307 of the
Commission's rules.[^5] Duke also argues that Voice had an obligation
under Section 1.65 of the Commission's rules[^6] to submit an EA within
30 days of the Commission's release of a *Report and Order* implementing
the *Nationwide Programmatic Agreement Regarding the Section 106
National Historic Preservation Act Review Process* ("NPA").[^7] Duke
states that this alleged violation of Section 1.65 is itself the basis
for forfeiture or denial of the application.[^8] In its Opposition,
Voice states that, until it received Duke's informal objection, it was
not aware of the Commission's action. Upon receiving the Objection,
however, Voice retained an environmental consulting firm, made the
appropriate filing under the NPA with the OHPO, and received a
determination that the proposal would have no impact on any historic
property.[^9]

Section VII.B.1. of the NPA reads as follows:

> If the \[state/tribal historic preservation officer\] concurs in
> writing with the Applicant's determination of no Historic Properties
> affected, it is deemed that no Historic Properties exist within the
> \[Area of Potential Effect\] or the Undertaking will have no effect on
> Historic Properties located within the APE. The Section 106 process is
> then complete, and the Applicant may proceed with the project, unless
> further processing for reasons other than Section 106 is required.

Thus, if the state historic preservation office issues a "no effect"
determination, an applicant need not file an EA unless other factors
listed in Section 1.1307 warrant the preparation and submission of an
EA. In this case, the OHPO issued a "no effect" determination on May 11,
2005, and Duke has advanced no other basis for requiring Voice to submit
an EA for the WCVO(FM) proposal here.[^10] Accordingly, Voice had no
obligation to submit an EA. Additionally, because we find that Voice had
no obligation to submit an EA, we reject Duke's contention that Voice
violated Section 1.65 of the Commission's rules by failing to submit
one.[^11]

Accordingly, the April 13, 2005 Informal Objection of Duke Realty
Corporation IS DENIED, and the application (File No. BPH-20050121AJY) of
Christian Voice of Central Ohio, Inc. for modification of facilities for
station WCVO(FM) IS GRANTED. The applicant is cautioned that in the
future it must complete its review of the effects of any proposed
construction on historic properties (pursuant to Section 106 of the
National Historic Preservation Act)[^12] prior to making an affirmative
environmental certification in Section III-B, Item 17 of FCC Form 301.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Christian Voice of Central Ohio, Inc.

[^1]: Voice filed an Opposition to the Informal Objection on May 10,
    2005, a Motion for Extension of Time to file additional materials on
    May 18, 2005, and a Supplement to the Opposition on May 19, 2005.
    Additionally, Duke filed a Motion for Extension of time to Reply on
    May 18, 2005, a Second Motion for Extension of Time on May 31, 2005,
    and a Third Motion for Extension of time on June 10, 2005. Voice
    opposed the Second Motion on June 1, and it opposed the Third Motion
    on June 16, 2005. Duke replied to Voice's Opposition to the Second
    Motion on June 8, 2005, and it ultimately filed its "Reply to
    Opposition to Objection to Construction Permit" on June 22, 2005.

[^2]: Although we do not question this statement, we observe that there
    is no evidence of EMHT's involvement anywhere in Duke's Informal
    Objection.

[^3]: Duke Motion for Extension of Time (May 18, 2005), at 2.

[^4]: 47 C.F.R. § 1.45, which governs filing periods for pleadings,
    covers formal Petitions to Deny and not Informal Objections. *See,
    e.g., Tabback Broadcasting Company*, 15 FCC Rcd 11899 (2000) ("the
    limitations on the number and timing of pleadings filed in response
    to petitions to deny are inapplicable to informal objections").

[^5]: 47 C.F.R. § 1.1307.

[^6]: 47 C.F.R. § 1.65(a), which states that each applicant is
    responsible for the continuing accuracy and completeness of its
    proposal and states that when information in the application is no
    longer "substantially accurate and complete in all respects," or if
    there are other material changes of "decisional significance," that
    fact must be must be reported to the Commission within 30 days.

[^7]: 20 FCC Rcd 1073 (2004), 70 Fed. Reg. 555 (Jan. 4, 2005). The NPA
    became effective on March 7, 2005. Duke indicates that, in order to
    comply with its Section 1.65 obligation, Voice needed to submit an
    EA by April 6, 2005, and it did not do so.

[^8]: In support of this allegation, Duke cites *SBC Communications,
    Inc.*, 16 FCC Rcd 19091 (2001); *A.A. Radio Partnership*, 10 FCC Rcd
    8774 (1995); and *Lorain Community Broadcasting Co.,* 18 F.C.C.2d
    686 (1969).

[^9]: *See Letter to Farris Wilhite from Nathan J. Young, Project
    Reviews Manager, Resource Protection and Review, Ohio Historic
    Preservation Office* (May 11, 2005), which was submitted with
    Voice's May 19, 2005 Supplement to Opposition and was filed as an
    amendment to the subject application also on May 19, 2005.

[^10]: In its Reply, Duke attempts to challenge the sufficiency and
    consistency of Voice's submission to OHPO. We defer to OHPO and its
    "no effect" determination with regard to these matters.

[^11]: To the extent that Duke implies in its June 22, 2005 Reply that
    Voice has somehow failed to fulfill its obligations with respect to
    Indian tribes under Section IV of the NPA, we reject that
    implication. Voice demonstrates that it has attempted to identify
    and contact interested tribal authorities using the Commission's
    Tower Construction Notification System, *see* Voice's FCC Form 620,
    included with it Opposition, and the OHPO "strongly encourage\[d\]"
    Voice to continue those efforts. There is no evidence in the record
    here either that Voice has failed to meet the requirements of the
    NPA regarding Indian tribes or that any tribe has expressed concern
    over the proposed WCVO(FM) tower.

[^12]: 16 U.S.C. § 470f.