**DA 07-1933**

*In Reply Refer to:*

1800B3-JP

Released: April 27, 2007

Mr. Carlos Ramos

Azalea Garden Church of God

1541 Centerville Turnpike

Virginia Beach, VA 23464

In re: Azalea Garden Church of God

(New) LPFM, North Virginia Beach, VA

Facility ID: 125887

File No. BNPL-20000828ABE

**Application for LPFM New Station**

**Construction Permit**

Dear Mr. Ramos:

We have before us the captioned application of Azalea Garden Church of
God ("Azalea Garden") for a construction permit for a new low power FM
("LPFM") station in North Virginia Beach, Virginia. For the reasons set
forth below, we dismiss Azalea Garden's application.

**[Background.]{.underline}** Azalea Garden initially applied for a
construction permit for a new LPFM station in Hollywood, Virginia, on
August 28, 2000. On November 1, 2002, it filed an amendment proposing to
construct the LPFM station in North Virginia Beach, Virginia, instead of
Hollywood (the "2002 Amendment"). Although the 2002 Amendment proposed a
move of the transmitter site more than two kilometers from the
originally specified site, it was filed during a major change window for
LPFM stations that allowed the filing of such amendments.[^1] On October
19, 2004, R. Stuart Snyder ("Snyder") filed an Informal Objection
("Objection") to the application. Subsequently, the staff dismissed the
application because Azalea Garden had failed to submit documents with
the application that established that it was incorporated at the time of
filing.[^2] Azalea Garden filed a timely Petition for Reconsideration on
November 24, 2004. The staff reinstated the application on April 12,
2006, but further action on the application was withheld to allow Azalea
Garden to fully respond to Snyder's Objection.[^3]

On June 22, 2006, Azalea Garden filed a second amendment to the
application (the "2006 Amendment") and an Opposition to the Objection.
The 2006 Amendment proposed a transmitter site move of approximately two
kilometers from the site proposed in the 2002 Amendment and disclosed
changes in the composition of Azalea Garden's governing board. Azalea
Garden concedes that the application, as amended, specifies a
transmitter site that is approximately twelve miles from Azalea Garden's
headquarters and that less than 75 percent of Azalea Garden's board
members reside within ten miles of this proposed site.

**[Discussion]{.underline}***. Local Applicant Requirement.* Section
73.853(b) of the Commission's Rules (the "Rules")[^4] states that only
local applicants will be permitted to apply for an LPFM station during
the first two years after the service is made available. An applicant is
considered local if (1) the applicant is physically headquartered within
ten miles of the proposed transmitting site; or (2) 75 percent of its
board members reside within ten miles of the proposed transmitting site.
Because Azalea Garden submitted its original application within the
first two years of the LPFM service, it must qualify as a local
applicant by meeting one of the above requirements.

As Azalea Garden acknowledges, it does not satisfy either of these local
applicant criteria.[^5] Azalea Garden contends that a rule waiver is
warranted because: (1) when Azalea Garden originally submitted its
application it was in compliance with the requirement; and (2) for
"reasons beyond its control" it was required to select a new site that
did not fall within the ten-mile limitation.[^6] Additionally, Azalea
Garden submits that the ten-mile limitation expired on its own terms
after two years and is no longer applicable to Azalea Garden's
application.

Section 73.853(b) of the Rules states that applicants applying within
the first two years of the LPFM service must be local applicants. The
Commission chose the ten-mile limitation to facilitate a licensee's
"local familiarity" because the LPFM service was adopted as a truly
community-based broadcast service.[^7] The Commission has not indicated
that it would deviate from or be willing to waive the ten-mile
limitation simply because an application is still pending after two
years. Azalea Garden submitted its original application within the first
two years of the LPFM service and it remains subject to the local
applicant limitation. Because Azalea Garden admits it cannot meet either
requirement of Section 73.853(b), its application will be dismissed.
Because we dismiss Azalea Garden's application for the above stated
reasons, we will dismiss as moot Snyder's Objection.

**[Conclusion/Actions]{.underline}**. Accordingly, IT IS ORDERED, that
the application of Azalea Garden Church of God for a new low power FM
station in North Virginia Beach, Virginia (File No. BNPL-20000828ABE) is
DISMISSED and the Informal Objection of R. Stuart Snyder is DISMISSED AS
MOOT.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: David O'Connor, Esquire, Counsel for Azalea Garden Church of God

Mr. R. Stuart Snyder

[^1]: *See* "*Media Bureau to Open Low Power FM Major Amendment Window
    from October 28, through November 1, 2002, for Certain Pending New
    Station Applications*," Public Notice, DA 02-2178 (Sep. 9, 2002)
    ("*Amendment Public Notice*").

[^2]: *Letter to R. Stuart Snyder and Alicia Perales Espino*, Reference
    1800B3-SS (MB Nov. 2, 2004).

[^3]: *Letter to Aubrey Maye*, Reference 1800B3-JP (MB Apr. 12, 2006).
    Snyder's Objection urged that the Azalea Garden application should
    be denied because (1) Azalea Garden's proposed transmitter site was
    located more than ten miles away from its headquarters and was
    located in a body of water; (2) less than 75 percent of Azalea
    Garden's board members reside within ten miles of the transmitter
    site; and (3) there were numerous discrepancies in the contact
    information provided for Azalea Garden's board members.

[^4]: 47 C.F.R. § 73.853(b).

[^5]: *See* Opposition to Informal Objection at 3.

[^6]: While Azalea Garden submits that its site change was rendered
    necessary by a congressional mandate prohibiting LPFM stations on
    third-adjacent channels to full power broadcasters, it does not
    explain why it was unable to find a new site that remained compliant
    with the local applicant rule. *See* *Amendment Public Notice*.

[^7]: *See Creation of a Low Power Radio Service,* Report & Order, 15
    FCC Rcd 2205, 2219 (2000).