Dianne Johnston, Communications Director

Montmorenci United Methodist Church

P.O. Box 610

Candler, NC 28715-0610

Rick Anderson, President

Mount Pisgah Adventist Educational Media

75 Academy Drive

Candler, NC 28715

> In Re: Montmorenci United Methodist Church

Candler, North Carolina

> Facility ID No. 133487
>
> File No. BNPL-20010614ACY
>
> Mount Pisgah Adventist Educational Media
>
> Candler, North Carolina
>
> Facility ID No. 135779
>
> File No. BNPL-20010615BDV
>
> **Applications for New LPFM Stations**
>
> **Petition for Reconsideration**

Dear Ms. Johnston and Mr. Anderson:

This letter refers to the above-noted applications of Montmorenci United
Methodist Church

("MUMC") and Mount Pisgah Adventist Educational Media ("Mount Pisgah")
for a new Low Power FM ("LPFM") station in Candler, North Carolina. By
letter dated April 19, 2005,[^1] the Audio Division, Media Bureau
granted MUMC's application and dismissed Mount Pisgah's application
("Letter Decision"). On May 23, 2005, Mount Pisgah filed a Petition for
Reconsideration ("Petition").[^2] For the reasons set forth below, we
deny the Petition.

**Background.** MUMC and Mount Pisgah filed mutually exclusive
applications for a construction permit to build a new LPFM station in
Candler, North Carolina.

*MUMC Application Issues*. On April 12, 2004, Mount Pisgah filed a
Petition to Deny the MUMC application, first alleging that MUMC is not
an incorporated, not-for-profit local entity as required by Section
73.853(a)(1) of the Commission's Rules (the "Rules").[^3] Mount Pisgah
further alleged that, through its relationship to the broader United
Methodist Church, MUMC has prohibited attributable interests in at least
one LPFM station, as well as in other full-service broadcast stations.
The Letter Decision initially found that MUMC had demonstrated that it
was a *bona fide* unincorporated association recognized by North
Carolina law and engaged in activities in the Candler community at the
time that it filed its original application.[^4] In rejecting Mount
Pisgah's claim to the contrary, the Letter Decision stated that
"\[T\]here is no requirement in the Commission's LPFM rules requiring
applicants for LPFM facilities to be incorporated . . . ."[^5]

Concerning Mount Pisgah's prohibited attributable interests claim
against MUMC, the Letter Decision next found that "MUMC has demonstrated
that it has a local purpose that can be distinguished from the purpose
of the national organization with which it is affiliated."[^6]
Additionally, the Letter Decision stated that the "program" statement
submitted with MUMC' application[^7] "also serves to distinguish MUMC
from other individual UMC applicants, and individual UMC licensees that
operate various broadcast stations throughout the country."[^8]
Accordingly, the Letter Decision found that MUMC held no attributable
media interests and therefore complied with the LPFM cross and
multiple-ownership restrictions. The Letter Decision concluded that
Mount Pisgah had raised no substantial and material question of fact
calling for further inquiry regarding MUMC's application.[^9]

*Mount Pisgah Application Issues.* On May 7, 2004, WTL Communications,
Inc. filed an Informal Objection to the Mt. Pisgah application,
alleging, *inter alia*, that Mount Pisgah failed to demonstrate that it
was a non-profit legal entity, as it failed to provide its articles of
incorporation or indicate the status of its incorporation on the
application filing date. The Letter Decision agreed and found that Mount
Pisgah was not incorporated on June 15, 2001, when it filed the
captioned application, claiming to be a non-profit corporation organized
under the laws of North Carolina.[^10] Thus, the staff found that Mount
Pisgah had incorrectly claimed corporate status at the time of filing.
Moreover, unlike MUMC, Mount Pisgah had not provided "any other official
documentation showing the applicant's existence as a legal entity at the
time the application was filed."[^11] Accordingly, the Letter Decision
dismissed Mount Pisgah's application as inadvertently accepted for
filing.

**Discussion.** 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.[^12] The Petition repeats arguments previously made, but
has failed to show a material error or omission in the grant of MUMC's
application.

*MUMC Application.* On reconsideration, Mount Pisgah again contends that
MUMC's application should not be granted because MUMC holds attributable
interests in other broadcast stations.[^13] Specifically, Mount Pisgah
reargues that MUMC is not sufficiently autonomous from the national
United Methodist Church to escape the attribution of ownership interests
in broadcast stations held by other entities within the denomination.
Mount Pisgah acknowledges that under the Rules a "local chapter of a
national or other large organization shall not have the attributable
interests of the national organization attributed to it provided that
the local chapter is separately incorporated and has a distinct local
presence and mission."[^14] It contends, however, that MUMC cannot avail
itself of this exemption because MUMC is not incorporated.

We disagree. As stated in the Letter Decision, there is no requirement
in the Commission's LPFM Rules that applicants be incorporated. Eligible
applicants must be non-profit educational organizations,[^15] but may
include NCE institutions, non-stock corporations, associations, state
and local governments, or other entities recognized under state law. It
therefore follows that a local entity applying for an LPFM license that
is affiliated with an unincorporated national organization[^16] need not
be incorporated to qualify for the exception. The rule is designed to
limit the attribution of the parent's media interests in situations in
which the applicant has both a distinct legal status and a local
presence and mission. In this regard, MUMC has met its burden. As stated
in the Letter Decision, "\[A\]lthough MUMC is not incorporated, it has
clearly demonstrated that it is lawful, locally organized, and
independent of the national UMC."[^17]

Mount Pisgah argues in the alternative that if the exemption is not
limited to incorporated applicants, attribution is required because MUMC
is not truly independent of the national organization."[^18] We find
Mount Pisgah's argument unpersuasive. In its Opposition, MUMC attests
that it has shown independence from the United Methodist Church during
its "close to 150-year ministry to congregants in Candler, N.C."[^19]
Moreover, we agree with the Letter Decision's finding that "\[T\]he
information contained in the program statement,[^20] coupled with the
fact that MUMC has been physically headquartered in the city of Candler,
North Carolina, since its establishment in 1857 persuades us that MUMC
can be considered to have a local purpose distinguishable from any
'national' UMC entity."[^21] On reconsideration, Mount Pisgah argues for
the first time that *The Book of Discipline of the United Methodist
Church*, "the book of law of the United Methodist Church,"[^22] supports
its contention that MUMC lacks independence from the United Methodist
Church. We will not consider this untimely raised issue because Mount
Pisgah has failed to demonstrate that it could not have raised this
argument at an earlier stage of this proceeding or that consideration of
this flyspecking argument is required in the public interest.[^23]

*Mount Pisgah Application.* Concerning the dismissal of its application,
Mount Pisgah argues that the staff action is unsustainable because Mount
Pisgah completed its incorporation process less than three weeks after
application filing, on July 3, 2001.[^24] Mount Pisgah further argues
that, should the Commission "fail to recognize Mount Pisgah's corporate
status . . . Mount Pisgah is entitled to recognition as an eligible
unincorporated association for the period of time between its FCC filing
date and the date on which the corporation came into existence."[^25] We
disagree. As an initial matter, Mount Pisgah was unincorporated when it
filed its application on June 15, 2001. It is simply not the case, as
Mount Pisgah erroneously claimed in its initial application filing, that
it was at the time of application filing a "non-stock, not-for-profit
corporation organized under the laws of the State of North Carolina in
2001."[^26]

Moreover, we note that Mount Pisgah fails to provide any documentation
in support of its new alternative theory that it was an eligible
unincorporated association at the time that it filed the application.
This theory is based solely on Mount Pisgah's claim that by "associating
together for the purpose of obtaining and operating new a LPFM station
(sic), the principals of Mount Pisgah performed enough conduct to
indicate a unity of purpose that would qualify it to be a cognizable
legal entity under North Carolina law."[^27] In support of this theory
Mount Pisgah states that North Carolina law recognizes and permits
unincorporated associations, and submits portions of three state
statutes. The first cited statute states that unincorporated
associations "may hereafter sue or be sued under the name by which they
are commonly known or called, or under which they are doing business, to
the same extent as any other legal entity established by law. . .
."[^28] The second state statute is cited to demonstrate that
unincorporated entities can be non-profit in nature,[^29] and the third
statute is cited to show that such entities are authorized to hold real
estate in their own names.[^30] Notwithstanding the state recognition of
unincorporated associations, Mount Pisgah posits that there is "no
statutory guidance for the requisites to become a recognizable
unincorporated association."[^31] However, Mount Pisgah contends, a
decision from the North Carolina Court of Appeals indicates that the
requirements are minimal.

The only case cited as support by Mount Pisgah involves a dispute
between two factions of the Cherokee Home Demonstration Club
("Club").[^32] Club members had erected a clubhouse on property owned by
the club. The decision states that the clubhouse was used for
approximately fifteen years for Club activities and fellowship dinners.
Two factions of the Club had a falling out and litigation ensued. The
decision notes that the Club had no rules, regulations, bylaws, or
membership cards of its own. Instead, the decision states, the Club
followed the guidelines of the North Carolina Extension Homemakers
Association, Inc., a state organization administered through the offices
of North Carolina County Agents. Mount Pisgah's only argument that this
case supports Mount Pisgah's existence as an unincorporated association
is that the Club did not have its own bylaws. We find the case to be
inapposite, and that citation to a Club which engaged in activities for
fifteen years does not support Mount Pisgah's assertion of being an
unincorporated entity at the time of filing its application, merely
because the Club did not have its own bylaws.

Mount Pisgah's argument that unincorporated, non-profit organizations
are recognized under North Carolina law does not demonstrate that Mount
Pisgah's modest pre-filing activity qualified it to be such an
organization at the time of the filing of its application. Furthermore,
Mount Pisgah has offered no evidence to indicate that it was considered
by itself or others to be an unicorporated association at the time of
its filing. In sum, Mount Pisgah has not provided a sufficient legal
basis to demonstrate that it qualifies under North Carolina law as a
recognizable unincorporated association. Accordingly, we must reject
Mount Pisgah's conclusory assertion that it is eligible to hold an LPFM
authorization as an unincorporated association. The Petition neither
establishes material error nor raises additional facts after its last
opportunity to present such matters, and will therefore be denied.[^33]

**Conclusion/Actions.** Accordingly, IT IS ORDERED, that Mount Pisgah
Adventist Educational Media's May 23, 2005, Petition for Reconsideration
IS DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Donald E. Martin, Esq.

Henry A. Solomon, Esq.

[^1]: *Letter to Donald E. Martin, Esq. Henry A. Solomon, Esq., and
    Vernon G. Snyder*, Ref. 1800B3-SS (MB Apr. 19, 2005).

[^2]: MUMC filed an Opposition on June 7, 2005, and Mount Pisgah filed a
    Reply on June 17, 2005.

[^3]: 47 C.F.R. § 73.853(a)(1).

[^4]: Letter Decision at 3.

[^5]: *Id.*

[^6]: *Id.* at 4, citing Instructions for FCC Form 318, pp. 5-6.

[^7]: MUMC Application, Exhibit 2,

[^8]: Letter Decision at 4-5.

[^9]: *Id.* at 4.

[^10]: *Id.* at 6. Review of the North Carolina Secretary of State
    database of corporations revealed that Mount Pisgah was not
    incorporated until July 3, 2001.

[^11]: *Id.*

[^12]: 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).

[^13]: *See* 47 C.F.R. §§ 73.855, 73.860.

[^14]: 47 C.F.R. § 73.858(b).

[^15]: 47 C.F.R. § 73.853(a)(1).

[^16]: A staff call to the information service number provided at the
    United Methodist Church website confirms that the United Methodist
    Church is not incorporated. *See*
    [http://www.umc.org](http://www.umc.org/) (accessed Apr. 26, 2007).

[^17]: Letter Decision at 4.

[^18]: Petition at 4.

[^19]: Opposition at 2.

[^20]: *See* notes 7 and 8 *supra* and accompanying text.

[^21]: Letter Decision at 5.

[^22]: Petition at 4.

[^23]: *See* 47 C.F.R. § 1.106(c); *see also Southeast Arkansas Radio,
    Inc.*, Memorandum Opinion and Order, 61 FCC 2d 72 (1976)
    (reconsideration denied where evidence could have been discovered
    with due diligence).

[^24]: Petition at 6.

[^25]: *Id.* at 10.

[^26]: Mount Pisgah Application, Exhibit response to Section II,
    Question 2(a).

[^27]: Petition at 10.

[^28]: *North Carolina General Statutes,* § 1-69.1.

[^29]: *Id.*, § 55-1-40(9)a.3.

[^30]: *Id.*, § 39-24.

[^31]: Petition at 10.

[^32]: *Cherokee Home Demonstration Club v. Oxendine*, 100 N.C. App.
    622, 397 S.E.2d 643 (1990).

[^33]: *See* *National Association of Broadcasters*, Memorandum Opinion
    and Order, 18 FCC Rcd 24414, 24415 (2003).