**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

SAGA COMMUNICATIONS OF NEW )

ENGLAND, LLC )

)

)

Application for a Construction Permit ) File No. BNPFT-20030829AUC

for a New FM Translator Station at )

Manchester, New Hampshire )

)

Application for Minor Modification of a ) File No. BMPFT-20050527AQV

Construction Permit for W231BR, )

Manchester, New Hampshire )

)

Application for License to Cover ) File No. BLFT-20050923ADD

Construction Permit for W231BR, )

Manchester, New Hampshire )

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 16, 2006** **Released: March 17, 2006**

By the Associate General Counsel, Administrative Law Division:

1\. This order denies a Complaint and Request for Sanctions (the
"Complaint"), filed July 1, 2005, by Northeast Communications
Corporation (Northeast),[^1] which alleges that Saga Communications of
New England LLC (Saga), violated the Commission's ex parte rules.[^2]
Northeast alleges that Saga failed to serve an application on Northeast.

**I. BACKGROUND**

2\. On April 28, 2004, Saga filed an application for a construction
permit for a new FM translator station (W231BR, Channel 231) at
Manchester, New Hampshire to operate on the same frequency as
Northeast's FM station WFTN(FM), Franklin, New Hampshire.[^3] On May 18,
2004, Northeast petitioned to deny Saga's application, alleging that the
new facility would cause excessive interference to Northeast's station.
On March 8, 2005, the Commission's Media Bureau granted Saga the
construction permit,[^4] and, on April 6, 2005, Northeast filed a
Petition for Reconsideration.[^5] On May 27, 2005, Saga filed an
application to modify W231BR, which was granted on June 1, 2005.[^6]

3\. In its complaint, Northeast contends that Saga failed to serve a
copy of the modification application on Northeast. According to
Northeast, service was required because the not yet final original
application proceeding is classified as "restricted" under the ex parte
rules[^7] and Northeast is a party to the proceeding by virtue of having
filed a petition to deny. Northeast states that the application directly
impacts the outcome of the original construction permit proceeding
because it modifies the parameters of the technical operation of the
proposed translator.[^8] Northeast further alleges that the modification
application was granted in "record time" and contends, "\[u\]pon
information and belief," that the Commission's staff was lobbied by Saga
to act on the application.[^9] As sanction for these alleged violations
of the Commission's ex parte rules Northeast asks the Commission to
disqualify Saga and dismiss its applications and to issue a notice of
apparent liability for forfeiture against Saga.[^10] Northeast asserts
that Saga's violation is especially egregious since Saga previously
accused Northeast of a ex parte violation and was therefore well aware
of the ex parte rules.[^11]

4\. Saga responds that Northeast's complaint is without basis.[^12] Saga
maintains that the ex parte rules do not require it to serve
applications on Northeast because 47 C.F.R. § 1.1204(a)(1) exempts from
the restrictions of the ex parte rules the filing of "required forms."
Saga asserts that an application for modification is a "required
form."[^13] In addition, Saga observes that Northeast provides no
specific basis for alleging that Saga lobbied the Commission.[^14] Saga
thus urges that Northeast's complaint should be stricken as false and a
sham and that Northeast should be sanctioned for filing it.[^15]

5\. Northeast replies that the modification application should not be
deemed a "required form" for purposes of 47 C.F.R. § 1.1204(a)(1) since
Saga was not required to modify the technical parameters of its
proposal.[^16] Northeast asserts that an ex parte violation occurred
because Saga admits that the application was intended to have impact on
the reconsideration of its original application proceeding.[^17]
Northeast further asserts that Saga does not deny that lobbying of
Commission staff occurred.[^18]

**II. DISCUSSION**

6\. We find that Saga did not violate the ex parte rules by failing to
serve its modification application on Northeast. Commission precedent
supports Saga's interpretation of section 1.1204(a)(1) of the rules,
which exempts from ex parte requirements those presentations that
involve the filing of "required forms."

7\. [Association for Community Education, Inc]{.underline}., 19 FCC Rcd
12682, 12685 ¶¶ 7-8 (2004), involved a situation similar to the facts of
the present case. There, the Association for Community Education, Inc.
(ACE) filed an application for an FM translator station in 1996 and
filed modification applications in 1998 and 1999. In its application for
review of the grant of the 1999 modification application, Santa Monica
Community College District (SMCCD), which was also opposing the 1996
application, complained that ACE violated the ex parte rules by not
serving its 1998 and 1999 modification applications on SMCCD. The
Commission declined to treat the applications as a single restricted
proceeding and ruled that ACE was not required to serve the 1998 and
1999 modification applications on SMCCD. The Commission held that SMCCD
did not become a party to the 1999 modification application until it
filed an informal objection to that application. The Commission cited
section 1.1204(a)(1) of its rules, which classifies as exempt a
presentation if it ". . . involves the filing of required forms." The
Commission explained: "Requests for technical modification of FM
translator authorizations, and the amendment filed by \[ACE\] converting
the 1998 Modification Application to a minor change, must be filed on
FCC Form 349." The Commission thus treated these filings as "required
forms." Consistent with [Association for Community Education,
Inc.]{.underline}, we find that Saga did not violate the ex parte rules
in not serving Northeast with its modification application and that
sanctions against Saga are accordingly not appropriate. Additionally, we
have no basis to find that Saga improperly lobbied the Commission.
Northeast provides no specific evidence that this occurred, and we have
discovered none.

8\. We also deny Saga's request for sanctions against Northeast for
allegedly filing a sham complaint. The arguments presented by Northeast
were not frivolous given that the Commission only recently interpreted
the ex parte rules to exempt service in situations like this.[^19]

9\. ACCORDINGLY, IT IS ORDERED, that the Complaint and Request for
Sanctions, filed July 1, 2005, by Northeast Communications Corp. IS
DENIED, and the Request for Sanction, filed July 20, 2005, by Saga
Communications of New England, LLC IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Joel Kaufman

Associate General Counsel

Administrative Law Division

Office of General Counsel

[^1]: Saga filed an opposition ("Opposition") on July 20, 2005 and
    Northeast filed a reply on July 29, 2005 ("Reply"). Good cause
    having been shown, we grant Saga's unopposed Motion for Extension of
    Time, filed July 11, 2005, for an extension of time in which to file
    its opposition.

[^2]: 47 C.F.R. §§ 1.1200-16.

[^3]: [See]{.underline} File No. BNPFT-20030829AUC (application accepted
    for filing April 28, 2004).

[^4]: [See]{.underline} [Public Notice]{.underline}, Report No. 45939
    (Mar. 11, 2005) at 20.

[^5]: [See]{.underline} File No. BNPFT-20030829AUC.

[^6]: [See]{.underline} [Public Notice]{.underline}, Report No. 45999
    (Jun. 6, 2005) at 29.

[^7]: [See]{.underline} 47 C.F.R. § 1.1208.

[^8]: Complaint at 3.

[^9]: Complaint at 2.

[^10]: Complaint at 4.

[^11]: Complaint at 3. Saga's complaint was denied by DA 05-2292 (Aug.
    18, 2005).

[^12]: Opposition at 1.

[^13]: Opposition at 2.

[^14]: Opposition at 3.

[^15]: [Id]{.underline}.

[^16]: Reply at 2.

[^17]: [Id]{.underline}.

[^18]: [Id]{.underline}.

[^19]: [See]{.underline} [Association for Community Education,
    Inc]{.underline}., [supra]{.underline}.