**DA 07-1928**

Released: April 27, 2007

In Reply Refer to: 1800B3-LAS

Mr. Brian Hamilton

Wisconsin Academy

N2355 Duborg Road

Columbus, WI 53925

In re: Wisconsin Academy

Columbus, Wisconsin

Facility ID No. 132511

File No. BNPL-20010122AND

**Application for New LPFM Station**

**Petition for Reconsideration**

Dear Mr. Hamilton:

We have before us a Petition for Reconsideration ("Petition") filed
October 8, 2003, by Wisconsin Academy. Wisconsin Academy seeks
reconsideration of the September 3, 2003, action of the Audio Division,
Media Bureau dismissing the above-captioned application of Wisconsin
Academy ("Application") for a new Low Power FM ("LPFM") station in
Columbus, Wisconsin, as unacceptable for filing.[^1] For the reasons set
forth below, we deny the Petition.

**[Background]{.underline}**. Wisconsin Academy participated in the
first round of the LPFM filing windows. Those filing windows permitted
only local applicants to apply for new LPFM stations and specifically
limited each non-governmental applicant to a single application
filing.[^2] As noted in the *LPFM Window Notice*, this filing limitation
was based on Section 73.855(b)(1) of the Commission's Rules (the
"Rules"), which prohibits any party except government, public safety and
transportation organizations from holding an attributable interest in
more than one LPFM station.[^3] The *LPFM Window Notice* further stated
that a second application filed by an applicant in the window would be
treated as a conflicting application subject to dismissal under Section
73.3518 of the Rules.[^4]

To demonstrate its compliance with this particular restriction, Section
II Item 5(a) of FCC Form 318, the LPFM Application form, requires each
applicant to certify that, "no party to this application has an
attributable interest in any other low power FM broadcast station."
Wisconsin Academy responded "No" to Item 5(a) and submitted an exhibit.
In its exhibit, Wisconsin Academy acknowledged that three of the seven
listed directors, Wendell Springer, Meredith Burrington, and Merlyn
Bass, "each has an interest in other applications for LPFM stations."
Wisconsin Academy further stated that, should any of the other LPFM
applications be granted, the affected director "will recuse himself from
participating in activities related to the governance and operation of
this applicant's LPFM station."

Staff analysis confirmed that three of the parties to the Application
were also parties to multiple applications filed during the LPFM filing
window. Because three of the Wisconsin Academy directors were listed as
parties on more than one LPFM application, the *Letter* *Decision*
determined that, at the time of filing, the Application was not
acceptable.[^5] The *Letter Decision* found the recusal language did not
cure the "one application" filing limitation and dismissed the
Application in accordance with the procedures stated in the *LPFM Window
Notice*.

**[Discussion]{.underline}**. The Commission will consider a petition
for reconsideration when the petitioner shows either a material error in
the Commission's original order, or raises additional facts, not known
or existing at the time of the petitioner's last opportunity to present
such matters.[^6] In its Petition, Wisconsin Academy claims that the
*Letter Decision* was in error because it ignored a relevant exception
to the attribution rules that had been adopted in the *LPFM Report and
Order.*[^7]

We disagree. Wisconsin Academy relies on an exemption that applies in
two very limited factual contexts, neither of which is applicable here.
Regarding the first context, the *LPFM Report and Order* states that the
exception will apply where "certain officers and directors *of the
parent of an LPFM* *applicant or licensee* . . . hold otherwise
attributable interests *in a broadcast licensee or other media entity*
*subject to our ownership rules* without making the LPFM applicant
ineligible."[^8] A party's otherwise attributable interests in an
existing media entity will be exempted provided two conditions are met:
(1) the duties and responsibilities of the officer or director are
wholly unrelated to the LPFM station, and (2) the officer or director
recuses himself or herself from consideration of any matters affecting
the LPFM station. Second, the Commission extended the exemption in the
LPFM context "to officers and directors *of the LPFM applicant or
licensee itself*, *if that entity is a multifaceted organization*, such
as a university," and the two conditions are met: (1) the duties and
responsibilities of the officer and director are wholly unrelated to the
LPFM station, and (2) the officer and director recuses himself or
herself from consideration of any matters affecting the LPFM
station.[^9] Here again, provided the two conditions are met, a party's
otherwise attributable interests in an existing media entity will not be
attributed to the LPFM applicant.

The Wisconsin Academy situation is factually distinguishable from that
contemplated by the discussion in the *LPFM Report and Order.* The
exception was patterned after a commercial attribution rule
exception,[^10] and was aimed at exempting certain existing attributable
media interests held by certain officers and directors that would
otherwise violate the cross- and multiple-ownership bans, so to "avoid
making ineligible entities that will serve the purposes of this service
well."[^11] Wisconsin Academy's attempt to use this attribution
exemption for conflicting application filing purposes is misplaced.
Wisconsin Academy further ignores the Commission's explicit monition
that "these exceptions are narrow in scope."[^12]

Section 73.3518 of the Rules is designed to prevent the filing of
multiple applications, "not all of which can be granted."[^13] Here,
Wisconsin Academy submitted conflicting LPFM applications. For example,
an application for a new LPFM station in Rice Lake, Wisconsin, filed on
January 18, 2001, by Meadow Creek Christian Radio Corporation, also
listed Wisconsin Academy director Wendell Springer as a party.[^14]
Thus, when Wisconsin Academy filed its Application on January 22, 2001,
the staff properly concluded that the application could not be accepted
because Mr. Springer was listed as a party to both applications, in
violation of Section 73.855(b)(1) of the Rules.[^15] The Application
violated the LPFM filing requirements as articulated in the *LPFM Window
Notice* and was appropriately dismissed. Because Wisconsin Academy has
failed to show material error in the dismissal of its LPFM Application,
its Petition will be denied.[^16]

**[Conclusion/Actions]{.underline}**. For the above stated reasons, the
Petition for Reconsideration filed by Wisconsin Academy is DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Donald Martin, Esq., Counsel for Wisconsin Academy

[^1]: *Letter to Donald E. Martin, Esq*., Ref. No. 1800B3-AED (MB Sept.
    3, 2003) ("*Letter Decision*").

[^2]: *Low Power FM Filing Window*, Public Notice, 15 FCC Rcd 24817 (MMB
    2000) ("*LPFM Window Notice*").

[^3]: 47 C.F.R. § 73.855(b)(1) (For a period of two years from the date
    that the LPFM stations are first made available for application, a
    party may hold an attributable interest in no more than one LPFM
    station).

[^4]: 47 C.F.R. § 73.3518. *See also* 47 C.F.R. § 73.801 (making Section
    73.3518 applicable to LPFM stations).

[^5]: *Letter Decision* at 1.

[^6]: 47 C.F.R. § 1.106. *See* *also* *WWIZ, Inc*., Memorandum Opinion
    and Order, 37 FCC 685, 686 (1964), *aff'd sub nom*. *Lorain Journal
    Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert. denied*, 387 U.S.
    967 (1966).

[^7]: *Creation of Low Power Radio Service*, Report and Order, 15 FCC
    Rcd 2205, 2224-25 (2000) ("*LPFM Report and Order*").

[^8]: *Id.* at 2224-25 (emphasis added).

[^9]: *Id*. (emphasis added).

[^10]: *Id. See* 47 C.F.R. § 73.3555 Note 2(h).

[^11]: *LPFM Report and Order,* 15 FCC Rcd at 2225. By way of example,
    the *LPFM Report and Order* states that, if a director of a "full
    power broadcaster were to act as an officer of the LPFM \[station\],
    the director would be attributed with both stations and would
    violate the \[cross-ownership\] ban." *Id*. at 2224.

[^12]: *Id*. at 2225.

[^13]: *Open Media Corporation*, 8 FCC Rcd 4070, 4073 (1993) (citing
    *Valley Broadcasting Co*. 58 RR 2d 945, 948 (1985). Section 73.3518
    of the Rules forbids the simultaneous prosecution of two
    applications both of which cannot be granted because they are
    inconsistent on their face or in the context of other rules.

[^14]: File No. BNPL-20010118AAJ. The Rice Lake, Wisconsin LPFM
    construction permit application was granted on December 10, 2001,
    and the license application (File No. BLL-20030609AAV) was granted
    on June 30, 2003.

[^15]: Additionally, an LPFM application for Milton, Wisconsin, filed by
    Woodland Educational Radio on January 22, 2001, also listed
    Wisconsin Academy director Meredith Burrington as a party (File No.
    BNP-20010122ADM). An LPFM application for Neenah, Wisconsin, filed
    by Fox Valley Adventist Broadcasting, Inc. on January 22, 2001, also
    listed Wisconsin Academy director Merlyn Bass as a party (File No.
    BNPL-20010122AAAG).

[^16]: *See* *Infinity Broadcasting Operations, Inc*., Memorandum
    Opinion and Order, 19 FCC Rcd 4216 (2004).