**July 11, 2007**

**DA 07-3109**

In Reply Refer to:

1800B3-KV

Released: July 11, 2007

White Pine Television District #1

c/o R.E. Swain, Chairman

P.O. Box 151704

Ely, NV 89315

Ruby Radio Corporation

c/o David Tillotson, Esquire

4606 Charleston Terrace, N.W.

Washington, DC 20007

In re: K237AJ, McGill, NV

Facility ID No. 72242

File No. BRFT-20050516ACR

**Application for Renewal of License**

Gentlemen:

We have before us the above-captioned application (the \"Application\")
of White Pine Television District #1 ("White Pine") for renewal of FM
Translator Station license for K237AJ for McGill, Nevada (the
"Station"). We also have before us a Petition to Deny (the "Petition")
the Application, filed on September 1, 2005, by Ruby Radio Corporation
("Ruby").[^1] For the reasons stated below, we deny the Petition and
grant the Application.

**Discussion.** A petition to deny must, pursuant to Section 309(e) of
the Communications Act of 1934, as amended (the "Act"), provide properly
supported allegations of fact that, if true, would establish a
substantial and material question of fact that grant of the application
would be *prima facie* inconsistent with Section 309(k) of the Act,[^2]
which governs our evaluation of an application for license renewal.
Specifically, Section 309(k)(1) provides that we are to grant the
renewal application if, upon consideration of the application and
pleadings, we find that: (1) the station has served the public interest,
convenience, and necessity; (2) there have been no serious violations of
the Act or the Commission's Rules (the "Rules"); and (3) there have been
no other violations which, taken together, constitute a pattern of
abuse.[^3] If, however, the licensee fails to meet that standard, the
Commission may deny the application -- after notice and opportunity for
a hearing under Section 309(e) of the Act -- or grant the application
"on terms and conditions that are appropriate, including a renewal for a
term less than the maximum otherwise permitted."[^4]

*Procedural Issue*. Pursuant to Section 1.45[^5] of the Commission's
rules, White Pine's response to the September 1, 2005, Petition was due
within 10 days, but it was not filed until October 19, 2005,
approximately six weeks later. White Pine blames its untimely filing on
Ruby's failure to serve it "in a direct manner."[^6] Both parties
acknowledge that White Pine's designated Contact Representative, Joseph
R. Christensen ("Christensen"), was in fact served. However, White Pine
contends that this service was insufficient because Christensen was
merely "a local contractor . . . . not a Board member . . . \[and he did
not\] represent the Board in any manner other than his contracted
services."[^7] We disagree. As noted above, Christensen was, and
remains, listed in the Commission's database as White Pine's authorized
representative, hence, White Pine was properly served.[^8] Accordingly,
we find that White Pine's Opposition was untimely filed without good
cause. Moreover, as discussed below, even if we did accept the tardy
Opposition, its consideration would not change or add to our decision
regarding the merits of the Petition. Therefore, we will not accept the
late-filed Opposition.

*Substantive Issue.* In the Petition, Ruby, a competitor-licensee of
Stations KCLS(FM)[^9] and KELY(AM),[^10] Ely, Nevada,[^11] alleges that
White Pine's operation of the Station is in direct violation of a Nevada
state statute barring the rebroadcast of FM radio signals in certain
circumstances. In particular, Ruby cites, Section 318.1187 of the Nevada
Revised Statutes,[^12] as prohibiting an entity created "wholly or in
part for acquiring facilities for FM radio" from "rebroadcast \[of\] an
FM signal in a community served by a commercial radio station licensed
by the Federal Communications Commission."[^13] Ruby contends that its
stations, KCLS(FM) and KELY(AM) serve McGill, Nevada.[^14] Therefore,
Ruby argues, "White Pine clearly does not have the legal power under
Nevada law to own and operate \[the Station\] . . . \[and thus\] White
Pine is not legally qualified . . . \[and\] White Pine's renewal
application must be denied."

Generally, the Commission does not adjudicate compliance with state law,
but rather defers to courts of appropriate jurisdiction on such
matters.[^15] For example, the Commission will not ordinarily deny an
application for a commercial broadcast facility based on a applicant's,
licensee\'s, or permittee\'s non-compliance with state corporate law
"where no challenge has been made in the State courts and the
determination is one that is more appropriately a matter of State
resolution."[^16] Here, we note, Ruby has failed to present any evidence
that White Pine has been found in violation of the referenced state
statute by a Nevada state court. Nor has our own independent research
revealed that any Nevada licensee has been challenged under this state
statute. We believe the interpretation of the referenced Nevada state
statute is most appropriately addressed by a court of competent
jurisdiction. Thus, we conclude that further Commission consideration of
this issue is unwarranted.

**Conclusions/Actions.** Accordingly, IT IS ORDERED, that the Petition
to Deny filed by Ruby Radio Corporation, IS DENIED.

IT IS FURTHER ORDERED that the Opposition to the Petition to Deny filed
by White Pine Television District \# 1 IS DISMISSED.

IT IS FURTHER ORDERED pursuant to Section 309(k) of the Communications
Act of 1934, as amended, that the Application (File No.
BRFT-20050516ACR) of White Pine Television District #1 for renewal of
license for FM Translator Station K237AJ, McGill, Nevada IS GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Joseph R. Christensen

[^1]: On October 19, 2005, White Pine untimely filed an opposition,
    dated October 11, 2005 ("Opposition"); Ruby replied to the
    Opposition on October 24, 2005 ("Reply). In addition, on October 25,
    2005, White Pine submitted a supplement to its Opposition
    ("Supplement") challenging Ruby's service of the Petition to which
    Ruby responded on November 9, 2005.

[^2]: *See, e.g., WWOR-TV, Inc.,* Memorandum Opinion and Order, 6 FCC
    Rcd 193, 197 note 10 (1990), *aff'd sub nom. Garden State
    Broadcasting L.P. v. FCC*, 996 F.2d 386 (D.C. Cir. 1993), *rehearing
    denied* (Sep. 10, 1993); *Area Christian Television, Inc.,*
    Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal
    objection must contain adequate and specific factual allegations
    sufficient to warrant the relief requested).

[^3]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read as
    described by Section 204(a) of the Telecommunications Act of 1996,
    Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation of
    Sections204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^4]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^5]: 47 C.F.R. § 1.45.

[^6]: Supplement at 1.

[^7]: *Id*.

[^8]: *See* 47 C.F.R. § 1.47(d).

[^9]: Facility ID No. 55461.

[^10]: Facility ID No. 55462.

[^11]: According to Ruby, Stations KCLS(FM) and KELY(AM) provide "city
    grade coverage to the community of McGill, Nevada, and compete with
    Station K237AJ for audience in that community." Petition at 1.

[^12]: N.R.S. § 318.1187.

[^13]: N.R.S. § 318.1187 (2)(b).

[^14]: Petition at 2.

[^15]: *See Abundant Life, Inc.,* Memorandum Opinion and Order, 16 FCC
    Rcd 4972, 4974 (2001) citing *North American Broadcasting, Inc.*,
    Memorandum Opinion and Order, 15 FCC 2d 979, 983 (Rev. Bd 1969).

[^16]: *North American Broadcasting, Inc.*, 15 FCC 2d at 983. *See also
    Fatima Response, Inc.*, Memorandum Opinion and Order, 14 FCC Rcd
    18543, 18546 (1999) (holding denial not warranted when an
    application of a self-described *de facto* California corporation
    when its status was not challenged in state court.).