**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. BPED-971222MB       |
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| **Colorado Christian             | ) |                              |
| University**                     | * |                              |
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| Application for a New,           |   |                              |
| Noncommercial                    | * |                              |
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| Educational FM Station           | ) |                              |
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| Channel 214C2, Sterling, CO      | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 8, 2001 Released: February 15, 2001**

By the Commission:

1\. The Commission has before it an Application for Review filed by
Colorado Christian University ("CCU") on April 24, 2000, pursuant to 47
C.F.R. § 1.115 of the Commission's rules. CCU seeks Commission review of
the March 24, 2000 decision of the Chief of the Audio Services Division,
Mass Media Bureau, which denied CCU's August 10, 1998 Petition for
Reconsideration and Other Relief.[^1] CCU requests that the Commission
rescind an "A" cut-off list on which the above-captioned application
appeared and place the application on a "B" cut-off list. For the
reasons set forth below, the Application for Review is denied.

2\. **Background**. On December 22, 1997, CCU filed an application for a
new noncommercial educational ("NCE") station to operate on channel
214C2 at Sterling, Colorado (FCC File No. BPED-971222MB). At the time it
was filed, CCU's application was mutually exclusive with the prior-filed
but not cut-off application of Educational Communications of Colorado
Springs, Inc. ("ECCS\") for a new noncommercial educational station to
operate on channel 212A at Brush, Colorado (FCC File No.
BPED-971017MB).[^2] However, on January 15, 1998, prior to the release
of an "A" cut-off list, ECCS amended its application to designate
channel 208, instead of 212, thus eliminating the conflict between CCU's
and ECCS' applications. In a letter to ECCS dated March 9, 1998, the
Audio Services Division staff, *inter alia*: (1) accepted the amended
application; (2) assigned it a new file number because the amendment
reflected a major change to the original application; and (3) indicated
that the amended application would be placed on an upcoming "A" cut-off
public notice.[^3] On March 19, 1998, the amended ECCS application,
bearing the new file number, appeared on an "A" cut-off list, Report No.
A-326, which established an April 20, 1998 deadline for the filing of
competing applications (the "*First A Notice*").[^4] However, the *First
A Notice* improperly failed to reflect the amended channel 208, and
instead identified channel 212. No competing applications were timely
filed in response to that notice. Due to the error on the *First A
Notice*, the staff listed the amended ECCS application with the correct
file number and channel on a subsequent July 13, 1998 "A" cut-off list
(the "*Second A Notice*"). This notice also listed the CCU application.
On August 10, 1998, CCU filed a Petition for Reconsideration and Other
Relief of the *Second A Notice*, arguing that placement of its
application on an "A" cut-off list was inappropriate, insofar as it was
mutually exclusive with the unamended application of ECCS, which CCU
maintains had already proceeded through an "A" cut-off.[^5] On
reconsideration, the staff rejected CCU's contention that the *First A
Notice* established cut-off rights for its application and therefore
that the staff had erred in placing the CCU application on an "A"
cut-off list.

3\. In its Application for Review, CCU asks us to determine whether the
Commission should give effect to the erroneous *First A Notice*, which
was neither modified nor withdrawn, and upon which CCU claims it
"relied." CCU states it is not aware of precedent for the staff's
action. It claims that since it relied on the *First A Notice* and since
other interested parties were, or should have been, aware of the notice,
the *First A Notice* cannot be ignored. CCU argues that the staff's
action defeats the purpose of a public notice -- to advise potentially
interested parties of their rights. CCU argues that because it acted in
accordance with the *First A Notice*, it acquired the right to receive
its construction permit without delay, cost and uncertainty of having to
litigate against future applicants who did not respond to the original
cut-off notice. CCU notes that the Court of Appeals has accepted the
Commission's stringent enforcement of the cut-off rules, provided that
explicit notice has been afforded. *Application for Review* at 3-4
citing *Florida Institute of Technology v.* FCC, 952 F. 2d 549, 550
(D.C. Cir. 1992). CCU states that unlike the cut-off notice invalidated
by the Court of Appeals in *Way of Life Television Network, Inc. v.
FCC*, 593 F.2d 1356 (D.C. Cir. 1979), this is a case where "because all
potentially interested parties were advised by the first cut-off list
(A-326) of the need to file timely competing applications," the
Commission should give legal effect to the *First A Notice.*
*Application for Review* at 4. CCU requests that the Commission (1)
reverse the staff's action by placing its application on a "B" cut-off
notice and (2) dismiss the Competing Applications as untimely filed with
respect to the *First A Notice*.

4\. **Discussion.** The staff action was proper. The primary purposes of
the former NCE cut-off procedures were to attract all mutually exclusive
applications in an efficient way and to identify the universe of
potential competitors. The Commission has insisted on strictly enforcing
cut-off rules to promote the even-handed treatment of all applicants.
*See RKO General Inc. (WNAC-TV)*, 89 FCC 2d 297, 321 n. 96 (1982),
*aff'd summarily sub nom. Atlantic Television Corp. v. FCC*, No. 82-1263
(D.C. Cir. Oct. 21, 1982). The Court has upheld this approach provided
the Commission has given "explicit notice of all application
requirements." S*alzer v. FCC*, 778 F.2d 869, 875 (D.C. Cir. 1985). As a
result, the Commission will not give effect to substantively or
procedurally deficient cut-off notices. *See Sacramento Community Radio,
Inc.*, 8 FCC Rcd 4067, 4068-69 (1993) (inadvertent listing of already
cut-off application on "A" list did not create new opportunity for
filing competing applications); *Florida Institute of Technology v.
FCC*, 952 F.2d 549, 553 (D.C. Cir. 1992) (mistaken issuance of second
"A" cut-off list by Commission did not establish new deadline for
competing applications); S*alzer v. FCC*, 778 F.2d 869, 875 (D.C. Cir.
1985) (overturning Commission dismissal of application as untimely where
cut-off provision was ambiguous).

5\. Analytically, "explicit notice" of an "A" list application under the
former A/B cut-off procedures required, at a minimum, a description of
the "lead" application sufficient to permit potential competitors to
determine its preclusionary impact, a deadline for filing conflicting
proposals, and the publication of the "A" cut-off notice in accordance
with the Commission's rules. In this case, the listing of the file
number of the *amended* application and the channel number of the
*originally-filed* application clearly defeated the Commission's attempt
to give "explicit notice" of the ECCS application to potential
competitors. Therefore, the *First A Notice* was without legal effect
and the staff properly issued the remedial *Second A Notice* listing
both the proper file and channel numbers of the amended ECCS
application. CCU's assertion that the *First A Notice* "advised"
interested parties of the deadline for competing applications baldly
ignores the *First A Notice's* failure to successfully identify any
particular "lead" application, a failure which undermined the ability of
any such party to determine whether its technical proposal would be a
"competing application." CCU's silence as to which ECCS application was,
in fact, listed on the *First A Notice* merely highlights the
fundamentally ambiguous notice description.

6\. CCU claims that well-settled precedent invalidating defective
cut-off notices is not controlling because those cases stand only for
the proposition that an erroneous *second* notice does not create
additional rights for parties that rely on it. CCU argues that a
different result is warranted where a party "relies" on a *first*
notice. In the latter situation, CCU contends that "there is no basis
for abrogating the rights CCU gained on account \[of the *First A
Notice*\] merely because that list had been inaccurate." *Application
for Review* at 3. We reject these contentions for several reasons.
First, the application of our cut-off rules does not in any respect turn
on applicant "reliance." To the contrary, cut-off rights are determined
solely on the basis of objective technical criteria and filing
deadlines. Secondly and contrary to CCU's view, the Court has drawn no
distinction between erroneous "first" and "second" notices. For example,
in *Way of Life Television Network, Inc.*, 593 F.2d 1356 (D.C. Cir.
1979) it struck down a cut-off notice that established the deadline for
filing competing broadcast station proposals because the Commission had
neglected to publish the cut-off notice as required by its rules at the
time. The Court's decision, as is the case here, deprived timely-filed
applicants of the putative cut-off rights established by the flawed
initial cut-off notice.

7\. CCU assumes without argument that should we conclude that the *First
A Notice* was properly issued, it would have established the deadline
for the filing of applications in conflict with the CCU proposal. This
assumption is necessarily founded on a strained and selective parsing of
the *First A Notice.* An application received cut-off protection under
our former processing rules only if it was in conflict, directly or
indirectly, with the lead application as of the "A" filing deadline.
*See Kittyhawk Broadcasting Corp.*, 7 FCC 2d 153 (1967), *recon.
denied*, 10 FCC 2d 160 (1967), *appeal dismissed sub nom. Cook, Inc. v.
United States*, 394 F.2d 84 (7^th^ Cir. 1968). No other mutually
exclusive applications to either ECCS application were filed by the
*First A Notice* deadline. Thus, the CCU application would be entitled
to cut-off protection only if CCU can establish that the *First A
Notice* gave "explicit notice" of the originally filed ECCS application.
We find that potential competitors could not have unambiguously
concluded that the file number in the *First A Notice* was incorrect and
that the Commission intended to establish cut-off rights for an
application no longer before it at the time the *First A Notice* was
released.

8\. Accordingly, for the reasons set forth herein, IT IS ORDERED, that
the Application for Review filed by Colorado Christian College IS
DENIED. 47 C.F.R. § 1.115. IT IS FURTHER ORDERED that the request of
Colorado Christian College to dismiss the competing applications of
Broadcasting for the Challenged, Inc. (File No. BPED-19980814MI) and
Educational Communications of Colorado Springs, Inc. (File No.
BPED-19980813MF) IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: *See March 24, 2000 Letter from Linda Blair, Chief, Audio Services
    Division, to Peter Gutmann, Esq., Counsel for CCU* ("*ASD March 2000
    Letter*").

[^2]: Under the former cut-off procedure for new and major change
    noncommercial educational ("NCE") station applications, the staff
    would place the first-filed "lead" application on an "A" cut-off
    list which would establish a deadline for mutually exclusive
    purposes. After the deadline, the staff would issue a "B" cut-off
    notice of all timely-filed mutually exclusive proposals, including
    those filed prior to the issuance of the "A" cut-off list. The
    release of the "B" cut-off notice would start the 30-day period for
    the filing of petitions to deny. The Commission's A/B cut-off list
    procedure has been replaced with a filing window system, similar to
    that used for full power commercial FM stations. *See Reexamination
    of the Comparative Standards for Noncommercial Educational
    Applicants*, 15 FCC Rcd. 7386, 7421 (2000), *recon. pending*.

[^3]: *See March 9, 1998 Letter from Daniel J. Fontaine, Supervisory
    Engineer, Audio Services Division, to Mr. Lee J. Pelzman, Esq.,
    Counsel for ECCS ("1998 Staff Letter")*.

[^4]: CCU's application was not listed on Report No. A-326.

[^5]: See Petition for Reconsideration and Other Relief at 5 ("Petition
    for Reconsideration"). Subsequent to the filing of the Petition for
    Reconsideration, two competing applications were filed prior to the
    last day for filing competing proposals under the *Second A Notice*
    (the "Competing Applications"). The Competing Applications each seek
    authorization for a new noncommercial educational station to operate
    on channel 214 at Sterling, Colorado. *See* Broadcasting for the
    Challenged, Inc. (File No. BPED-19980814MI) and Educational
    Communications of Colorado Springs, Inc. (File No. BPED-19980813MF).
    Because the Competing Applications were filed after the Petition for
    Reconsideration, CCU did not request any action with respect to the
    Competing Applications in its Petition for Reconsideration. However,
    in the Application for Review, CCU amends its request for relief to
    also request dismissal of the Competing Applications.