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 Federal  Communications  Commission  FCC  01-  43 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Colorado  Christian  University 
 Application  for  a  New,  Noncommercial 
 Educational  FM  Station 
 Channel  214C2,  Sterling,  CO 


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 File  No.  BPED-  971222MB 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  February  8,  2001  Released:  February  15,  2001 
 By  the  Commission: 
 1.  The  Commission  has  before  it  an  Application  for  Review  filed  by  Colorado  Christian 
 University  (  CCU)  on  April  24,  2000,  pursuant  to  47  C.  F.  R.    1.115  of  the  Commissions  rules.  CCU 
 seeks  Commission  review  of  the  March  24,  2000  decision  of  the  Chief  of  the  Audio  Services  Division, 
 Mass  Media  Bureau,  which  denied  CCUs  August  10,  1998  Petition  for  Reconsideration  and  Other  Relief.  1 
 CCU  requests  that  the  Commission  rescind  an  A  cut-  off  list  on  which  the  above-  captioned  application 
 appeared  and  place  the  application  on  a  B  cut-  off  list.  For  the  reasons  set  forth  below,  the  Application 
 for  Review  is  denied. 


 2.  Background.  On  December  22,  1997,  CCU  filed  an  application  for  a  new  noncommercial 
 educational  (  NCE)  station  to  operate  on  channel  214C2  at  Sterling,  Colorado  (FCC  File  No.  BPED-971222MB). 
 At  the  time  it  was  filed,  CCUs  application  was  mutually  exclusive  with  the  prior-  filed  but 
 not  cut-  off  application  of  Educational  Communications  of  Colorado  Springs,  Inc.  (  ECCS")  for  a  new 
 noncommercial  educational  station  to  operate  on  channel  212A  at  Brush,  Colorado  (FCC  File  No.  BPED-971017MB).  2 
 However,  on  January  15,  1998,  prior  to  the  release  of  an  A  cut-  off  list,  ECCS  amended  its 
 application  to  designate  channel  208,  instead  of  212,  thus  eliminating  the  conflict  between  CCUs  and 
 ECCS  applications.  In  a  letter  to  ECCS  dated  March  9,  1998,  the  Audio  Services  Division  staff,  inter 
 alia:  (1)  accepted  the  amended  application;  (2)  assigned  it  a  new  file  number  because  the  amendment 


 1  See  March  24,  2000  Letter  from  Linda  Blair,  Chief,  Audio  Services  Division,  to  Peter  Gutmann,  Esq.,  Counsel 
 for  CCU  (  ASD  March  2000  Letter). 
 2  Under  the  former  cut-  off  procedure  for  new  and  major  change  noncommercial  educational  (  NCE)  station 


 applications,  the  staff  would  place  the  first-  filed  lead  application  on  an  A  cut-  off  list  which  would  establish  a 
 deadline  for  mutually  exclusive  purposes.  After  the  deadline,  the  staff  would  issue  a  B  cut-  off  notice  of  all 
 timely-  filed  mutually  exclusive  proposals,  including  those  filed  prior  to  the  issuance  of  the  A  cut-  off  list.  The 
 release  of  the  B  cut-  off  notice  would  start  the  30-  day  period  for  the  filing  of  petitions  to  deny.  The 
 Commissions  A/  B  cut-  off  list  procedure  has  been  replaced  with  a  filing  window  system,  similar  to  that  used  for 
 full  power  commercial  FM  stations.  See  Reexamination  of  the  Comparative  Standards  for  Noncommercial 
 Educational  Applicants,  15  FCC  Rcd.  7386,  7421  (2000),  recon.  pending. 
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 Federal  Communications  Commission  FCC  01-  43 
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 reflected  a  major  change  to  the  original  application;  and  (3)  indicated  that  the  amended  application  would 
 be  placed  on  an  upcoming  A  cut-  off  public  notice.  3  On  March  19,  1998,  the  amended  ECCS  application, 
 bearing  the  new  file  number,  appeared  on  an  A  cut-  off  list,  Report  No.  A-  326,  which  established  an 
 April  20,  1998  deadline  for  the  filing  of  competing  applications  (the  First  A  Notice).  4  However,  the  First 
 A  Notice  improperly  failed  to  reflect  the  amended  channel  208,  and  instead  identified  channel  212.  No 
 competing  applications  were  timely  filed  in  response  to  that  notice.  Due  to  the  error  on  the  First  A  Notice, 
 the  staff  listed  the  amended  ECCS  application  with  the  correct  file  number  and  channel  on  a  subsequent 
 July  13,  1998  A  cut-  off  list  (the  Second  A  Notice).  This  notice  also  listed  the  CCU  application.  On 
 August  10,  1998,  CCU  filed  a  Petition  for  Reconsideration  and  Other  Relief  of  the  Second  A  Notice, 
 arguing  that  placement  of  its  application  on  an  A  cut-  off  list  was  inappropriate,  insofar  as  it  was 
 mutually  exclusive  with  the  unamended  application  of  ECCS,  which  CCU  maintains  had  already  proceeded 
 through  an  A  cut-  off.  5  On  reconsideration,  the  staff  rejected  CCUs  contention  that  the  First  A  Notice 
 established  cut-  off  rights  for  its  application  and  therefore  that  the  staff  had  erred  in  placing  the  CCU 
 application  on  an  A  cut-  off  list. 


 3.  In  its  Application  for  Review,  CCU  asks  us  to  determine  whether  the  Commission  should 
 give  effect  to  the  erroneous  First  A  Notice,  which  was  neither  modified  nor  withdrawn,  and  upon  which 
 CCU  claims  it  relied.  CCU  states  it  is  not  aware  of  precedent  for  the  staffs  action.  It  claims  that  since  it 
 relied  on  the  First  A  Notice  and  since  other  interested  parties  were,  or  should  have  been,  aware  of  the 
 notice,  the  First  A  Notice  cannot  be  ignored.  CCU  argues  that  the  staffs  action  defeats  the  purpose  of  a 
 public  notice    to  advise  potentially  interested  parties  of  their  rights.  CCU  argues  that  because  it  acted  in 
 accordance  with  the  First  A  Notice,  it  acquired  the  right  to  receive  its  construction  permit  without  delay, 
 cost  and  uncertainty  of  having  to  litigate  against  future  applicants  who  did  not  respond  to  the  original  cut-off 
 notice.  CCU  notes  that  the  Court  of  Appeals  has  accepted  the  Commissions  stringent  enforcement  of 
 the  cut-  off  rules,  provided  that  explicit  notice  has  been  afforded.  Application  for  Review  at  3-  4  citing 
 Florida  Institute  of  Technology  v.  FCC,  952  F.  2d  549,  550  (D.  C.  Cir.  1992).  CCU  states  that  unlike  the 
 cut-  off  notice  invalidated  by  the  Court  of  Appeals  in  Way  of  Life  Television  Network,  Inc.  v.  FCC,  593 
 F.  2d  1356  (D.  C.  Cir.  1979),  this  is  a  case  where  because  all  potentially  interested  parties  were  advised  by 
 the  first  cut-  off  list  (A-  326)  of  the  need  to  file  timely  competing  applications,  the  Commission  should  give 
 legal  effect  to  the  First  A  Notice.  Application  for  Review  at  4.  CCU  requests  that  the  Commission  (1) 
 reverse  the  staffs  action  by  placing  its  application  on  a  B  cut-  off  notice  and  (2)  dismiss  the  Competing 
 Applications  as  untimely  filed  with  respect  to  the  First  A  Notice. 


 4.  Discussion.  The  staff  action  was  proper.  The  primary  purposes  of  the  former  NCE  cut-  off 
 3  See  March  9,  1998  Letter  from  Daniel  J.  Fontaine,  Supervisory  Engineer,  Audio  Services  Division,  to  Mr.  Lee 
 J.  Pelzman,  Esq.,  Counsel  for  ECCS  (  1998  Staff  Letter). 
 4  CCUs  application  was  not  listed  on  Report  No.  A-  326. 


 5  See  Petition  for  Reconsideration  and  Other  Relief  at  5  (  Petition  for  Reconsideration).  Subsequent  to  the  filing 
 of  the  Petition  for  Reconsideration,  two  competing  applications  were  filed  prior  to  the  last  day  for  filing 
 competing  proposals  under  the  Second  A  Notice  (the  Competing  Applications).  The  Competing  Applications 
 each  seek  authorization  for  a  new  noncommercial  educational  station  to  operate  on  channel  214  at  Sterling, 
 Colorado.  See  Broadcasting  for  the  Challenged,  Inc.  (File  No.  BPED-  19980814MI)  and  Educational 
 Communications  of  Colorado  Springs,  Inc.  (File  No.  BPED-  19980813MF).  Because  the  Competing  Applications 
 were  filed  after  the  Petition  for  Reconsideration,  CCU  did  not  request  any  action  with  respect  to  the  Competing 
 Applications  in  its  Petition  for  Reconsideration.  However,  in  the  Application  for  Review,  CCU  amends  its 
 request  for  relief  to  also  request  dismissal  of  the  Competing  Applications. 
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 Federal  Communications  Commission  FCC  01-  43 
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 procedures  were  to  attract  all  mutually  exclusive  applications  in  an  efficient  way  and  to  identify  the 
 universe  of  potential  competitors.  The  Commission  has  insisted  on  strictly  enforcing  cut-  off  rules  to 
 promote  the  even-  handed  treatment  of  all  applicants.  See  RKO  General  Inc.  (WNAC-  TV),  89  FCC  2d  297, 
 321  n.  96  (1982),  affd  summarily  sub  nom.  Atlantic  Television  Corp.  v.  FCC,  No.  82-  1263  (D.  C.  Cir. 
 Oct.  21,  1982).  The  Court  has  upheld  this  approach  provided  the  Commission  has  given  explicit  notice  of 
 all  application  requirements.  Salzer  v.  FCC,  778  F.  2d  869,  875  (D.  C.  Cir.  1985).  As  a  result,  the 
 Commission  will  not  give  effect  to  substantively  or  procedurally  deficient  cut-  off  notices.  See  Sacramento 
 Community  Radio,  Inc.,  8  FCC  Rcd  4067,  4068-  69  (1993)  (inadvertent  listing  of  already  cut-  off 
 application  on  A  list  did  not  create  new  opportunity  for  filing  competing  applications);  Florida  Institute 
 of  Technology  v.  FCC,  952  F.  2d  549,  553  (D.  C.  Cir.  1992)  (mistaken  issuance  of  second  A  cut-  off  list 
 by  Commission  did  not  establish  new  deadline  for  competing  applications);  Salzer  v.  FCC,  778  F.  2d  869, 
 875  (D.  C.  Cir.  1985)  (overturning  Commission  dismissal  of  application  as  untimely  where  cut-  off 
 provision  was  ambiguous). 


 5.  Analytically,  explicit  notice  of  an  A  list  application  under  the  former  A/  B  cut-  off 
 procedures  required,  at  a  minimum,  a  description  of  the  lead  application  sufficient  to  permit  potential 
 competitors  to  determine  its  preclusionary  impact,  a  deadline  for  filing  conflicting  proposals,  and  the 
 publication  of  the  A  cut-  off  notice  in  accordance  with  the  Commissions  rules.  In  this  case,  the  listing  of 
 the  file  number  of  the  amended  application  and  the  channel  number  of  the  originally-  filed  application 
 clearly  defeated  the  Commissions  attempt  to  give  explicit  notice  of  the  ECCS  application  to  potential 
 competitors.  Therefore,  the  First  A  Notice  was  without  legal  effect  and  the  staff  properly  issued  the 
 remedial  Second  A  Notice  listing  both  the  proper  file  and  channel  numbers  of  the  amended  ECCS 
 application.  CCUs  assertion  that  the  First  A  Notice  advised  interested  parties  of  the  deadline  for 
 competing  applications  baldly  ignores  the  First  A  Notices  failure  to  successfully  identify  any  particular 
 lead  application,  a  failure  which  undermined  the  ability  of  any  such  party  to  determine  whether  its 
 technical  proposal  would  be  a  competing  application.  CCUs  silence  as  to  which  ECCS  application  was, 
 in  fact,  listed  on  the  First  A  Notice  merely  highlights  the  fundamentally  ambiguous  notice  description. 


 6.  CCU  claims  that  well-  settled  precedent  invalidating  defective  cut-  off  notices  is  not 
 controlling  because  those  cases  stand  only  for  the  proposition  that  an  erroneous  second  notice  does  not 
 create  additional  rights  for  parties  that  rely  on  it.  CCU  argues  that  a  different  result  is  warranted  where  a 
 party  relies  on  a  first  notice.  In  the  latter  situation,  CCU  contends  that  there  is  no  basis  for  abrogating 
 the  rights  CCU  gained  on  account  [of  the  First  A  Notice]  merely  because  that  list  had  been  inaccurate. 
 Application  for  Review  at  3.  We  reject  these  contentions  for  several  reasons.  First,  the  application  of  our 
 cut-  off  rules  does  not  in  any  respect  turn  on  applicant  reliance.  To  the  contrary,  cut-  off  rights  are 
 determined  solely  on  the  basis  of  objective  technical  criteria  and  filing  deadlines.  Secondly  and  contrary  to 
 CCUs  view,  the  Court  has  drawn  no  distinction  between  erroneous  first  and  second  notices.  For 
 example,  in  Way  of  Life  Television  Network,  Inc.,  593  F.  2d  1356  (D.  C.  Cir.  1979)  it  struck  down  a  cut-  off 
 notice  that  established  the  deadline  for  filing  competing  broadcast  station  proposals  because  the 
 Commission  had  neglected  to  publish  the  cut-  off  notice  as  required  by  its  rules  at  the  time.  The  Courts 
 decision,  as  is  the  case  here,  deprived  timely-  filed  applicants  of  the  putative  cut-  off  rights  established  by  the 
 flawed  initial  cut-  off  notice. 


 7.  CCU  assumes  without  argument  that  should  we  conclude  that  the  First  A  Notice  was 
 properly  issued,  it  would  have  established  the  deadline  for  the  filing  of  applications  in  conflict  with  the 
 CCU  proposal.  This  assumption  is  necessarily  founded  on  a  strained  and  selective  parsing  of  the  First  A 
 Notice.  An  application  received  cut-  off  protection  under  our  former  processing  rules  only  if  it  was  in 
 conflict,  directly  or  indirectly,  with  the  lead  application  as  of  the  A  filing  deadline.  See  Kittyhawk 
 Broadcasting  Corp.,  7  FCC  2d  153  (1967),  recon.  denied,  10  FCC  2d  160  (1967),  appeal  dismissed  sub 
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 Federal  Communications  Commission  FCC  01-  43 
 4 
 nom.  Cook,  Inc.  v.  United  States,  394  F.  2d  84  (7  th  Cir.  1968).  No  other  mutually  exclusive  applications  to 
 either  ECCS  application  were  filed  by  the  First  A  Notice  deadline.  Thus,  the  CCU  application  would  be 
 entitled  to  cut-  off  protection  only  if  CCU  can  establish  that  the  First  A  Notice  gave  explicit  notice  of  the 
 originally  filed  ECCS  application.  We  find  that  potential  competitors  could  not  have  unambiguously 
 concluded  that  the  file  number  in  the  First  A  Notice  was  incorrect  and  that  the  Commission  intended  to 
 establish  cut-  off  rights  for  an  application  no  longer  before  it  at  the  time  the  First  A  Notice  was  released. 


 8.  Accordingly,  for  the  reasons  set  forth  herein,  IT  IS  ORDERED,  that  the  Application  for 
 Review  filed  by  Colorado  Christian  College  IS  DENIED.  47  C.  F.  R.    1.115.  IT  IS  FURTHER 
 ORDERED  that  the  request  of  Colorado  Christian  College  to  dismiss  the  competing  applications  of 
 Broadcasting  for  the  Challenged,  Inc.  (File  No.  BPED-  19980814MI)  and  Educational  Communications  of 
 Colorado  Springs,  Inc.  (File  No.  BPED-  19980813MF)  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Magalie  Roman  Salas 
 Secretary 
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