**DA 07-1267**

In Reply Refer to:

1800B3-LAS

Released: March 13, 2007

James T. Flanders, President

Calvary Emerald Coast, Inc.

151-A Eglin Parkway NE []{.mark}

Ft. Walton Beach, FL 32548

> In Re: Calvary Emerald Coast, Inc.
>
> Destin, Florida
>
> Facility ID No. 134683
>
> File No. BNPL-20010614AJN
>
> **Application for New LPFM Station**
>
> **Petition for Reconsideration**

Dear Mr. Flanders:

This letter refers to the captioned application (the "Application") of
Calvary Emerald Coast, Inc. ("CEC") for a new Low Power FM ("LPFM")
station in Destin, Florida. National Lawyers Guild Center on Democratic
Communications, Microradio Implementation Project, and Prometheus Radio
Project (collectively, "Lawyers Guild") filed an Informal Objection
("Objection") to CEC's Application on September 27, 2001.[^1] By letter
dated February 19, 2004, the Bureau dismissed CEC's Application as
inadvertently accepted for filing, and dismissed the Objection as
moot.[^2] On March 22, 2004, CEC filed a Petition for Reconsideration
and Request for Reinstatement *Nunc Pro Tunc* ("CEC Petition").[^3] For
the reasons set forth below, we grant reconsideration, reinstate and
grant the CEC Application, and reinstate and deny the Objection.

[]{.mark}

**Background*.*** CEC and other LPFM applicants located around the
country, bearing the name "Calvary" or "Calvary Chapel," participated in
the first round of the LPFM filing windows. The first LPFM filing
windows permitted only local applicants to apply for new LPFM
stations.[^4] To demonstrate that an applicant is local, Section II Item
4 of FCC Form 318, the LPFM Application form, requires that an applicant
certify that it either (1) is an educational institution or organization
that is physically headquartered within 16.1 kilometers (10 miles) of
the proposed transmitter site; (2) is an educational institution or
organization with seventy-five percent (75%) of its board members
residing within 16.1 kilometers from the transmitter site; or (3)
proposes a public safety radio service and has jurisdiction within the
service area of the proposed LPFM station. In addition, Section
73.860(a) of the Commission's Rules (the "Rules") prohibits a party from
holding an LPFM authorization if it has an attributable interest in a
non-LPFM broadcast station.[^5] To demonstrate its compliance with this
restriction, Section II Item 5(b) requires the applicant to certify, "No
party to this application has an attributable interest in any non-LPFM
broadcast station, including any full power AM or FM station, FM
translator station, full or low power television station, or any other
media subject to the Commission's ownership restrictions."

There are exceptions, set forth in the attribution provisions of Section
73.858 of the Rules, to this ownership limitation for a "local chapter"
of a national or other large organization.[^6] The Instructions for FCC
Form 318 explain these exceptions as follows:

> Under this provision a local chapter of a national organization will
> not have the attributable media interests of the national organization
> attributed to it, provided that the local chapter: (1) is incorporated
> in its local area separately from the national organization with which
> it is affiliated; and (2) has a distinct local presence and mission.
> To satisfy the second element of this standard, an applicant must
> demonstrate that it has significant membership within its local area
> and that it has a local purpose that can be distinguished from the
> purpose of the national organization with which it is affiliated.[^7]
>
> Each of the Calvary-named applicants, including CEC, submitted
> information to establish that it qualified under the "local chapter"
> exemption, certifying its local presence and submitting an exhibit
> claiming a distinct local purpose. In dismissing the Application, the
> staff stated that it is undisputed that CEC was separately
> incorporated and that it has a headquarters within 16.1 km of the
> proposed transmitter site. However, the staff found that the submitted
> statement of educational purpose failed to distinguish CEC from the
> other Calvary applicants which had filed very similar applications for
> LPFM stations, or from national Calvary Chapel radio companies such as
> CSN International and Calvary Chapel of Twin Falls that own numerous
> full-service and FM translator radio stations throughout the
> country.[^8] The staff noted that nothing in the statement referenced
> Destin, Florida, the proposed community of license, or demonstrated "a
> local purpose that can be distinguished from the purpose of the
> national organization with which \[CEC\] is affiliated." Without this
> showing, the staff concluded that it could not find that the purported
> "local chapter" had a distinct local presence and mission. Because of
> Calvary Chapel's other non-LPFM broadcast authorizations,[^9] the
> staff determined, pursuant to Sections 73.853 and 73.858 of the
> Rules,[^10] that the Application was patently defective and dismissed
> it as inadvertently accepted for filing. The staff also dismissed the
> Objection as moot. On March 22, 2004, CEC filed its Petition.

[]{.mark}

**Discussion*. *** *CEC Petition.* In its Petition, CEC argues that the
Letter Decision incorrectly assumes that CEC is affiliated with other
Calvary Chapel churches or the national Calvary Chapel organization. CEC
claims that it is completely autonomous, and is neither a local chapter
of, nor has any legal relationship with CSN International, Calvary
Chapel of Twin Falls, or any other Calvary Chapel Church or
organization.[^11] While we find that CEC qualifies as a locally-based
entity[^12] and therefore meets the local licensing requirements of
Section 73.853 of the Rules, our dismissal of the Application was based
on the cross-ownership restrictions, which prohibit LPFM licensees from
holding attributable interests in other non-LPFM broadcast
stations.[^13] Specifically, our dismissal derived from the assumption
that CEC was an affiliate of the national Calvary Chapel radio company,
which owns numerous full-service and FM translator radio stations
throughout the country. The CEC Petition represents that this is not the
case. Therefore, CEC contends, the other media interests of the national
Calvary Chapel organization should not be attributed to it.

In the alternative, CEC contends that, even if it is considered a local
chapter of a national organization, it qualifies for the attribution
exemption under Section 73.858(b) of the Rules because it is separately
incorporated and has a distinct local presence and mission in its
proposed community of license. In support of this position, CEC provides
an Amended Statement of Educational Purpose ("Amended Statement") that
details its distinct local presence and mission in Destin, Florida, and
outlines the educational purpose of its proposed LPFM station
there.[^14] We agree. According to the Amended Statement, CEC has been
an active part of the local community of Destin, Florida since it was
chartered under the laws of the State of Florida on November 14, 1997,
and will continue to invest in the community both by means of education,
as well as practical outreach.[^15] By way of example, CEC indicates
that it provides Destin with a variety of programs and activities,
including support of homeless shelters and programs for the needy, a
community safety program, career, college and youth counseling, local
community cleanup events, as well as support groups for the spouses of
deployed servicemen. In addition, as stated above, it is undisputed that
CEC is separately incorporated within Destin and maintains its
headquarters within the proposed broadcast community. Thus, with the
submission of the Amended Statement, we find that CEC has successfully
established a distinct local presence and mission within Destin and,
therefore, is eligible to hold an LPFM station license. For this reason,
we grant the CEC Petition and reinstate the Application.

In its Opposition, Lawyers Guild first claims that CEC's amendment is
inappropriate under Section 73.871(b) of the Rules.[^16] CEC's amendment
is considered to be a minor filing under Section 73.871(c)(4) of the
Rules.[^17] Non-technical minor amendments are not restricted in scope
other than for two exceptions, neither of which applies here.[^18]
Moreover, the proffered amendment addresses CEC's basic qualifications
to hold a LPFM authorization and does not improve its comparative
position vis-à-vis any other LPFM applicants. Therefore, Section 73.871
of the Rules does not bar its acceptance and the filing of the Amended
Statement is permissible under the Rules.

Lawyers Guild further argues that "CEC's 'cookie cutter' exhibit is
identical to dozens of other Calvary LPFM applications, evidence that
CEC is a chapter of the national Calvary Chapel organization."[^19]
Lawyers Guild also states that the statement fails to identify any local
programming designed to meet any "distinct local purpose," suggesting
that CEC "never intended to serve specific issues addressing the
surrounding community of Destin."[^20] We find that CEC's Amended
Statement demonstrates that it will serve the community of Destin, and
there is no rule requiring LPFM licensees to provide programming
responsive to community issues or to maintain a list of issues addressed
or specific programs aired.[^21] Moreover, we agree with CEC that, even
if it is considered a local chapter of a national Calvary Chapel
organization, it qualifies for the attribution exemption of Section
73.858(b). By its amendment, CEC evidences a clear implementation of its
educational program mission within its particular community. Thus, we
find that CEC has demonstrated a distinct local presence and mission
within Destin and is therefore eligible to become an LPFM station
licensee.

Lawyers Guild also argues that the Commission should not grant CEC's
Application because doing so would not be in keeping with what it refers
to as the Commission's goal of creating LPFM "specifically to remedy the
increasing consolidation of ownership in the radio industry."[^22] The
Commission has indeed recognized that one of the most important purposes
of establishing the LPFM service is to provide small, community-based
organizations an opportunity to communicate over the airwaves and expand
diversity of ownership.[^23] Granting CEC's Application is consistent
with that purpose.

*Lawyers Guild Objection.* Reinstatement of CEC's Application requires
us to consider the Lawyers Guild's Objection, which we reinstate for
this purpose.[^24] The Objection, however, argues that CEC does not
qualify for the ownership exception as a local chapter of Calvary
Chapel. For the reasons stated above, we believe that it does, and that
CEC has demonstrated its qualifications to be the licensee of its
proposed LPFM station. Accordingly, we will deny the Objection.[^25]
Further, we have examined the Application and find that it complies with
all pertinent statutory and regulatory requirements, and that the public
interest, convenience, and necessity would be furthered by its grant.

[]{.mark}

**Conclusion/Actions*.*** Accordingly, Calvary Emerald Coast, Inc.'s
Petition for Reconsideration and Request for Reinstatement *Nunc Pro
Tunc* IS GRANTED, and its application for a new LPFM station in Destin,
Florida (File No. BNPL-20010614AJN) IS REINSTATED. IT IS FURTHER
ORDERED, that the Informal Objection of the Lawyers Guild IS REINSTATED
and IS DENIED. IT IS FURTHER ORDERED, that the Motion to Dismiss filed
by Calvary Emerald Coast, Inc. IS DENIED. IT IS FURTHER ORDERED, that
the application of Calvary Emerald Coast, Inc. (File No.
BNPL-20010614AJN) for a construction permit for a new LPFM station in
Destin, Florida, IS GRANTED.

> Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Howard M. Weiss, Esq.

National Lawyers Guild Center on Democratic Communications

[^1]: On October 30, 2001, CEC filed a Motion to Dismiss the Objection.
    On November 6, 2001, the Lawyers Guild filed an Opposition to the
    CEC Motion to Dismiss. On November 15, 2001, CEC filed a Reply to
    the Opposition.

[^2]: *Letter to Alan Korn, Esq.*, Ref 1800B3-SS (MB Feb. 19, 2004)
    ("Letter Decision").

[^3]: On March 29, 2004, Lawyers Guild filed an Opposition to the CEC
    Petition ("Opposition") and on April 5, 2004, CEC filed a Reply.

[^4]: *See* 47 C.F.R. § 73.853(b). *See also* FCC Form 318, Section II,
    Items 4 and 5, and Instructions for FCC Form 318 at 6.

[^5]: 47 C.F.R. § 73.860(a).

[^6]: 47 C.F.R. § 73.858, "Attribution of LPFM Station Interests."

[^7]: ^?^ Instructions for FCC Form 318, pp. 5-6.

[^8]: ^?^ *See, e.g.,* http://www.csnradio.com.

[^9]: For example, Calvary Chapel of Twin Falls operates FM translator
    Station K202DS in Port Angeles, Washington, and CSN International is
    the licensee of full-service Station KBLD(FM), Kennewick,
    Washington.

[^10]: 47 C.F.R. §§ 73.853 and 73.858.

[^11]: CEC Petition at 2-3. In support of this assertion, the CEC
    Petition includes a Declaration of Pastor James T. Flanders,
    President of CEC. The Declaration states that CEC is an independent
    church, with "no oversight whatsoever from any national
    organization," and that no "outside organization has any say in the
    selection of \[CEC's\] directors, officers, or pastor." CEC
    Petition, Exhibit 1.

[^12]: *See* CEC Application, Section II, Item 4(a). In its Informal
    Objection, Lawyers Guild does not dispute CEC's certification to
    this item.

[^13]: *See, e.g*., 47 C.F.R. § 73.860.

[^14]: Filed March 22, 2004; CEC Petition, Exhibit 2. In its Amended
    Statement, CEC states that it "attempts to educate people about the
    source of contemporary social problems ... by presenting teachings
    and discussions dealing with these specific problems."

[^15]: Amended Statement at 1.

[^16]: 47 C.F.R. § 73.871(b) (Amendments that improve the comparative
    position of new and major change applications will not be accepted
    after close of the filing window).

[^17]: 47 C.F.R. § 73.871(c)(4) ("For the purposes of this section,
    minor amendments are limited to ... other changes in general and/or
    legal information.").

[^18]: *See In the Matter of Creation of a Low Power Radio Service,*
    Second Report and Order, 16 FCC Rcd 8026, 8028‑29 (2001) (applicants
    prohibited from filing amendments that would improve their
    comparative position; ownership amendments are limited to changes
    where the original parties retain more than a 50 percent ownership
    interest in the applications as originally filed).

[^19]: Opposition at 1.

[^20]: *Id*. at 3.

[^21]: *See In the Matter of Creation of Low Power Radio Service,*
    Report and Order, 15 FCC Rcd 2205, 2270 (2000) ("*LPFM* *Report and
    Order*").

[^22]: Opposition at 3.

[^23]: *LPFM Report and Order*, 15 FCC Rcd at 2257*.* The goal in
    creating the LPFM service was to create a class of radio stations
    designed to serve very localized communities or underrepresented
    groups within communities, and specifically included community-based
    schools, churches, and civic organizations.

[^24]: In its Objection, the Lawyers Guild argues that CEC "fails to
    satisfactorily establish that it has a distinct local mission that
    can be distinguished from the purpose of the national Calvary
    Chapel." Objection at 3. To support this allegation, the Lawyers
    Guild references portions of CEC's Statement of Educational Purpose,
    which it claims is "nearly word-for-word identical to the generic
    form Exhibits submitted" by various other Calvary Chapel applicants.
    *Id.* at 4. Therefore, the Lawyers Guild argues, CEC should not be
    granted a license for a new LPFM station because, unless CEC
    establishes its distinct local purpose, "it must be considered an
    affiliate of the National Calvary Chapel under the Commission's
    attribution rules." *Id.* at 5*.* If considered an affiliate, the
    Lawyers Guild argues, CEC would hold attributable interests in
    numerous LPFM, full service, and translator stations, and the grant
    of an LPFM license would violate Sections 73.855 and 73.860(a) of
    the Rules. *Id.* at 5-6.

[^25]: In its Motion to Dismiss, CEC argues that the Objection should
    not have been submitted until CEC had been named a tentative
    selectee. In opposition, the Lawyers Guild argues that the cited
    language speaks only to when particular filings will be considered,
    not when they may be submitted to the Commission. On this procedural
    point, the Lawyers Guild is correct. An informal objection may be
    filed at any time before action on a license application. *See* 47
    C.F.R. § 73.3587. We therefore deny CEC's Motion to Dismiss.