> **DA 08-2099**
>
> Released: September 15, 2008

In Reply Refer to:

1800B3-KD

Robert J. Buenzle, Esq.

1171- Plaza America Dr.

Suite 2000

Reston, VA 20190

Antoinette Cook Bush, Esq.

Jared S. Sher, Esq.

Skadden, Arps, Slate, Meagher & Flom LLP

1440 New York Ave., N.W.

Washington, D.C. 20005

**Re: BMP Austin License Company, L.P.**

**KXBT(FM), Dripping Springs, TX**

**Facility ID No. 40762**

Application for Minor Change

File No. BPH-20070119AER

**Petition for Reconsideration of Grant of**

**Minor Change Application**

Dear Counsel:

We have before us a Motion for Petition for Reconsideration ("Petition")
filed June 20, 2007, by Cameron Broadcasting Company ("Cameron").
Cameron seeks reconsideration of the May 21, 2007, decision of the Audio
Division ("Staff Decision")[^1] granting an application ("Application")
filed by BMP Austin License Company, L.P. ("BMP") for a minor change of
Station KXBT(FM), Dripping Springs, Texas ("Station") to move to a new
community, and dismissing Cameron's Informal Objection to the
Application ("Objection"). [^2] For the reasons discussed below, we deny
the Petition.

**Background.** On January 19, 2007, BMP filed the Application, seeking
to relocate the Station from Dripping Springs, Texas, to Bee Cave,
Texas. At that time, the Station provided Dripping Spring's sole
operational local broadcast service, and Educational Media Foundation
held a construction permit for Station KLLR(FM), Dripping Springs,
Texas.[^3] BMP contended in its Application that its proposal would not
implicate the Commission's policy disfavoring elimination of a
community's sole local broadcast service, as set forth in *Pacific
Broadcasting*,[^4] since KLLR(FM) was near completion and was about to
go on the air.[^5] However, it included in its Application a waiver
request to the extent that its proposal ran contrary to any Commission
rules or policies. On February 28, 2007, KLLR filed a license to cover
application and began operating pursuant to program test authority.[^6]

On March 1, 2007, Cameron filed a minor change application to change the
community of license for KMIL(FM) (formerly KNVR(FM)) from Cameron,
Texas, to Thrall, Texas, claiming that it was mutually exclusive with
the Application.[^7] On March 13, 2007, Cameron filed an informal
objection to the Application, asserting that BMP's reliance on the KLLR
construction permit constituted an illegal "backfill" proposal that ran
contrary to the Commission's holding in *Pacific Broadcasting*. The
Media Bureau ("Bureau") dismissed the Informal Objection on May 21,
2007, concluding that KLLR's commencement of service in Dripping Springs
rendered Cameron's argument moot, and granted the Application. Cameron's
Petition followed.

In its Petition, Cameron reasserts that the Application's reliance upon
KLLR's issued construction permit to ensure continued service in
Dripping Springs allegedly constituted an unacceptable "backfill"
proposal.[^8] It argues that *Pacific Broadcasting* requires the
Commission to "reject\[ \] such a proposal as completely unacceptable .
. . without exception"[^9] and that the Application was patently
deficient and should have been dismissed. Cameron further claims that
BMP engaged in "gamesmanship" by filing an allegedly defective
application that effectively blocked consideration of any
subsequently-filed applications under the Commission's
"first-come/first-served" approach to requests to change the community
of license of an existing FM radio station.[^10]

In its Opposition, BMP argues that Cameron "seriously mischaracterizes"
the Commission's decisions in *Pacific* *Broadcasting* and that nothing
in those cases "specifically and categorically rejected" a backfill
proposal that relied on a granted construction permit.[^11] Pointing to
the fact that the *Pacific II* reconsideration decision specifically
contemplates waiver requests, it further argues the Application was
appropriately accepted for filing even if the backfill proposal was
unacceptable because it did in fact contain such a request.[^12]
Finally, it asserts that, by the time the Bureau granted the
Application, BMP no longer needed the waiver -- if it ever did --
because KLLR was operating in Dripping Springs.

**Discussion.** We agree with Cameron that BMP's reliance on the KLLR
construction permit constituted an unacceptable backfill proposal.[^13]
*Pacific Broadcasting* makes clear that "\[a\] rule making petitioner
seeking a change in community of license may do so only if there is
another operating station licensed to the community being vacated, or if
the proposed backfill involves *a currently licensed and operating
station* that can be reallotted to the community being vacated..."[^14]
However, while the Commission has deemed certain defects fatal to the
consideration of an application, BMP's inclusion of the backfill
proposal did not render the Application fatally defective.[^15]
Defective applications can be accepted for filing if accompanied by an
appropriate waiver request, such as the one BMP included in its
Application.[^16] Indeed, as BMP correctly notes, *Pacific Broadcasting*
specifically contemplates the filing of such waiver requests.[^17]
Moreover, as the Staff Decision properly concluded, any Application
defects were cured, prior to the staff's processing the Application,
when KLLR commenced service in Dripping Springs because BMP's community
of license modification would no longer result in the loss of that
community's sole local service.[^18]

We also disagree with Cameron's claim that BMP was engaging in
"gamesmanship." Cameron contends that BMP filed its Application "knowing
that it was ungrantable and contrary to FCC rules" thereby blocking
consideration of any subsequent mutually exclusive applications.[^19]
Cameron claims that this tactic effectively "\[bought BMP\] some time
and gave them the artificial and undeserved window of several weeks in
which to work on bringing its application into compliance . . ."[^20]
While an applicant may not file a grossly defective and incomplete
application as a "mere placeholder,"[^21] there is nothing in

the record that suggests that BMP filed its Application in bad
faith.[^22] An inquiry into whether a party intends to obstruct the
grant of another application focuses on the intent of the party at the
time that its application was filed.[^23] Here, Cameron has failed to
present any evidence suggesting that the Application was filed for the
purpose of blocking competing applications. Indeed, there is no
indication that BMP filed the Application for any purpose other than a
genuine attempt to change its community of license. The fact that its
Application included a waiver request in no way impugns that motive; as
noted above, waiver requests are anticipated in this context, and BMP's
waiver request here simply reflects its desire for a successful
application. Moreover, there is no evidence demonstrating that BMP was
being disingenuous when it stated that KLLR would be operating within
the timeframe indicated in its waiver request. This is especially so in
light of the fact that, consistent with BMP's representations in the
Application, KLRR(FM) was constructed in February of 2007 and is now
licensed and operating.[^24] Accordingly, we will not consider this
issue further.

**Conclusion.** For the foregoing reasons, the Motion for Petition for
Reconsideration filed by Cameron Broadcasting Company on June 20, 2007,
IS DENIED.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

[^1]: *Letter to BMP Austin License Company, L.P. from Rodolfo Bonacci,
    Assistant Chief, Audio Division*, Ref. No. 1800B3 (MB May 21, 2007).

[^2]: Also before us is BMP's Opposition to Petition for Reconsideration
    ("Opposition"), to which Cameron filed a reply ("Reply") on July 17,
    2007.

[^3]: *See* File No. BPED-19980908MC. The construction permit was
    granted on August 9, 2004.

[^4]: *See Pacific Broadcasting of Missouri*, LLC, Memorandum Opinion
    and Order, 18 FCC Rcd 2291 (2003) ("*Pacific I*"), *recon. denied*,
    Memorandum Opinion and Order, 19 FCC Rcd 10950 (2004) ("*Pacific
    II*") (collectively, *Pacific I* and *Pacific II* are referred to
    herein as "*Pacific Broadcasting*"). In *Pacific Broadcasting*, the
    Commission directed the Bureau to cease the practice of allowing the
    "backfill" of new allotments to prevent the removal of a community's
    sole local transmission service, holding that a vacant allotment is
    not an adequate substitute for the removal of a community's only
    operating radio station. A "backfill" proposal is one made to
    replace an allotment that is being modified or relocated in
    connection with the change of community of license of an authorized
    station. *See, e.g., Cheboygan, et al., Michigan*, Request for
    Supplemental Information, 17 FCC Rcd 20491 (MB 2002).

[^5]: In its Application, BMP indicated that the construction of KLLR
    would be completed by February 15, 2007. *See* Application, Ex. 32
    at 2. It also included an affidavit from an officer of Educational
    Media Foundation attesting to this fact. *See id*. at Attachment 1,
    Declaration of Joseph C. Miller.

[^6]: *See* File No. BLED-20070228ABJ. On March 30, 2007, the Commission
    granted the application.

[^7]: File No. BPH-20070301ABS. The application was dismissed on May 21,
    2007.

[^8]: Petition at 5.

[^9]: *Id*.

[^10]: *See Revision of Procedures Governing Amendments to FM Table of
    Allotments and Changes of Community of License in Radio Broadcast
    Services*, Report and Order, 21 FCC Rcd 14212 (2006).

[^11]: Opposition at 5.

[^12]: Cameron also questions the sufficiency of BMP's waiver request.
    However, because we do not reach the merits of the waiver request,
    we will not consider this issue further.

[^13]: *See Sells, Willcox, and Davis-Monthan Air Force Base, Arizona*,
    Memorandum Opinion and Order, 23 FCC Rcd 1242 (MB 2008) (finding
    that unbuilt construction permits were not adequate replacements for
    the loss of service that would have resulted from the community of
    license change, noting that such an approach was similar to the
    backfill proposals considered and rejected by *Pacific*
    *Broadcasting*).

[^14]: *Pacific I*, 18 FCC Rcd at 2296.

[^15]: *See generally* *Maritime Communications*, Third Memorandum
    Opinion and Order, 18 FCC Rcd 24391, 24398 (2003) (stating that the
    Commission's practice with respect to all services is to
    automatically dismiss applications that fail to comply with
    signature, filing fee and timeliness requirements); *62
    Broadcasting, Inc.*, Memorandum Opinion and Order, 4 FCC Rcd 1768
    (1989) (applicant which knew it did not have reasonable assurance of
    the transmitter site at the time it filed its application could not
    cure fatal defect by amending to specify a new site); *Blue Lake
    Academy, Inc.*, Letter, 20 FCC Rcd 12066, 12068-69 (MB 2005)
    (holding that failure to properly incorporate prior to filing a
    noncommercial broadcast application is a defect that cannot be
    cured).

[^16]: *See* 47 C.F.R. 73.3566(a) ("Applications which are determined to
    be patently not in accordance with the FCC rules, regulations, or
    other requirements, unless accompanied by an appropriate request for
    waiver, will be considered defective and will not be accepted for
    filing or if inadvertently accepted for filing will be dismissed.").

[^17]: *Pacific II*, 19 FCC Rcd at 10958 (holding that any party may
    "file a request for waiver of the revised backfill policy...").

[^18]: *See Jerrold Miller, Esq.,* Letter, 23 FCC Rcd 9362, 9364 (MB
    2008) (reinstating application that was previously dismissed for
    failure to provide daytime protection to co-channel station
    WOLB(AM), holding that WOLB's subsequent relocation of its
    facilities cured the application defect).

[^19]: *See* Petition at 6.

[^20]: *See id*. at 8.

[^21]: *Aerco Broadcasting Corp*., Memorandum Opinion and Order, 18 FCC
    Rcd 24417, 24420 (2003).

[^22]: *Community Service Broadcasting, Inc*., Memorandum Opinion and
    Order, 7 FCC Rcd 5652, 5653 (1992) (holding that the Commission will
    not infer improper purpose in filing an application without a
    specific showing of improper motivation). *See also* *Montrose and
    Scranton, Pennsylvania*, Memorandum Opinion and Order, 4 FCC Rcd
    7799, 7800 (MB 1989) (noting that the Bureau would consider an
    adequate showing that an application had been filed purely for
    "tactical" purposes as evidence of bad faith).

[^23]: *Community Service Broadcasting, Inc*., 7 FCC Rcd at 5653.

[^24]: *See* note 5, *supra*.