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 Federal  Communications  Commission  DA  05-  2000 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  re  Applications  of 
 PISCATAWAY  BOARD  OF  EDUCATION 
 For  Renewal  of  License  For  Noncommercial  Educational 
 Station  WVPH(  FM),  Piscataway,  New  Jersey 
 and 
 KINGS  TEMPLE  MINISTRIES,  INC. 
 For  a  Construction  Permit  For  a  New  Noncommercial  Educational 
 FM  Station,  Plainfield,  New  Jersey 


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 MB  Docket  No.  04-  144 
 Facility  ID  No.  52686  File  No.  BRED-  19980427WA 


 Facility  ID  No.  91347  File  No.  BPED-  19980805MB 
 ORDER 
 Adopted:  July  13,  2005  Released:  July  13,  2005 
 By  the  Chief,  Audio  Division,  Media  Bureau: 
 1.  The  Commission,  by  the  Chief,  Audio  Division,  acting  pursuant  to  delegated  authority,  has  before  it  the  Petition  for  Reconsideration  filed  May  6,  2004,  by  Piscataway  Board  of  Education  (  PBE) 
 regarding  the  Hearing  Designation  Order  released  April  9,  2004  (the  HDO).  1  For  the  reasons  set  forth  below,  we  dismiss  the  Petition  under  Section  1.106(  a)(  1)  of  our  rules.  2  However,  as  also  explained 
 below,  on  our  own  motion  we  modify  the  HDO  to  vacate  our  conditional  grants  of  the  above-  captioned  applications,  return  both  applications  to  pending  status,  expand  the  issue  designated  for  hearing,  and  order 
 certain  action  by  the  presiding  Administrative  Law  Judge.  3 


 1  Piscataway  Board  of  Education,  19  FCC  Rcd  6291  (MB  2004).  The  presiding  Administrative  Law  Judge 
 issued  an  Order  on  his  own  motion,  staying  the  hearing  pending  action  on  PBEs  Petition.  Order,  MB  Docket  No.  04-  144  (FCC  04M-  18)  (rel.  May  13,  2004).  On  May  19,  2004,  Kings  Temple  Ministries,  Inc.  (  KTM)  filed  an 


 Opposition  to  Petition  for  Reconsideration  (  Opposition).  KTM  indicated  in  its  Opposition  that  it  has  changed  its  name  to  Kings  Temple  Ministries  World  Outreach  Church,  Inc.  For  clarity,  we  continue  to  use  the  name 
 Kings  Temple  Ministries,  Inc.  herein.  PBE  filed  a  Reply  to  Opposition  to  Petition  for  Reconsideration  on  May  24,  2004. 


 2  47  C.  F.  R.    1.106(  a)(  1). 
 3  See,  e.  g.,  Richard  Bott  II,  8  FCC  Rcd  7303  (1993)  (dismissing  petition  for  reconsideration  and  modifying  initial 
 designation  order).  See  also  infra  note  11. 
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 BACKGROUND 
 2.  PBE  timely  filed  the  above-  captioned  renewal  of  license  application  for  noncommercial  educational  (  NCE)  FM  station  WVPH(  FM)  on  Channel  212  in  Piscataway,  New  Jersey.  KTM  timely 
 filed  the  above-  captioned  application  for  authority  to  construct  a  new  NCE  FM  station  on  Channel  212  in  Plainfield,  New  Jersey,  on  a  time  sharing  basis  with  WVPH(  FM).  KTM  stated  that  PBE  had  not  operated 
 WPVH(  FM)  at  least  12  hours  per  day  each  day  of  the  year  during  the  renewal  period,  and  thus  asserted  that  it  should  be  permitted  to  share  time  with  PBE  pursuant  to  Section  73.561(  b)  of  our  rules.  4  PBE  failed 
 to  contest  KTMs  proposal  until  after  the  HDO  was  released,  and  neither  PBE  nor  KTM  submitted  any  other  information  to  the  Commission  while  their  respective  applications  remained  pending. 


 3.  In  the  HDO,  the  staff  construed  Section  73.561(  b)  to  require,  under  the  circumstances  presented  in  this  case,  that  the  current  licensee  share  use  of  the  frequency  upon  grant  of  an  appropriate 
 application  proposing  [a]  share  time  arrangement.  5  Noting  that  the  parties  had  attempted  without  success  to  reach  an  agreement  on  a  schedule  of  times  to  be  used  by  each,  the  staff  further  concluded  that,  if  no 
 qualifications  issues  arise  regarding  the  renewal  or  new  station  applicant(  s),  the  rules  require  the  Commission  to  set  the  matter  for  expedited  hearing  on  the  issue  of  sharing  time.  6  The  staff  examined  the 
 applications  and  found  no  qualifications  issues  regarding  either  party.  Further,  the  staff  found  that  conditional  grant  of  both  Piscataway  Boards  renewal  application  and  Kings  Temples  application  for  a 
 new  NCE  FM  station  .  .  .  will  serve  the  public  interest,  convenience,  and  necessity.  7  Pursuant  to  Section  73.561(  b)(  2)  as  construed  by  the  staff,  the  matter  was  designated  for  an  expedited  hearing  limited  solely 
 to  the  issue  of  sharing  time.  8 
 4.  In  its  Petition,  PBE  asserts  that  KTMs  competing  application  must  be  dismissed  under  Section  73.3573  of  our  rules  9  because  KTMs  ownership  allegedly  changed  significantly  during  the 
 pendency  of  that  application.  Moreover,  PBE  argues  that  insofar  as  KTM  failed  to  notify  the  Commission  of  such  ownership  changes,  KTM  violated  Section  1.65  of  the  rules.  10  In  addition, 
 notwithstanding  the  fact  that  WVPH(  FM)  s  license  term  under  review  ended  on  June  1,  1998,  PBE  proffers  that  the  station  has  operated  on  a  full-  time  schedule  since  May  1999  and  that  its  license  should 
 therefore  be  renewed  without  the  imposition  of  an  involuntary  time  sharing  arrangement.  Citing  Commission  decisions,  11  PBE  also  argues  that  Section  73.561(  b)  does  not  require  PBE  to  share  time  with 


 4  See  47  C.  F.  R.    73.561(  b). 
 5  HDO,  19  FCC  Rcd  at  6292  (citing  47  C.  F.  R.    73.561(  b)). 
 6  Id.  (citing  47  C.  F.  R.    73.561(  b)(  1)  and  (2)). 
 7  Id.  (citing  47  C.  F.  R.    73.561(  b)(  2)). 
 8  Id. 
 9  47  C.  F.  R.    73.3573. 
 10  47  C.  F.  R.    1.65. 
 11  PBE  cites  to  Seattle  Public  Schools,  60  R.  R.  2d  1073  (1986)  (  SPS  II)  (modifying  on  reconsideration  issues 
 specified  in  the  initial  hearing  designation  order),  and  Seattle  Public  Schools,  4  FCC  Rcd  625  (Rev.  Bd.  1989)  (continued.) 
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 KTM  under  any  circumstances.  Rather,  PBE  asserts,  the  rule  requires  that  the  Commission  designate  for  hearing  the  issue  of  whether  a  time  sharing  arrangement  would  best  serve  the  public  interest.  Finally, 
 PBE  contends  that  because  the  staff  failed  to  send  an  inquiry  letter  prior  to  issuing  the  HDO,  PBE  was  deprived  of  due  process. 


 DISCUSSION 
 5.  Under  Section  1.106(  a)(  1),  the  Commission  will  entertain  a  petition  for  reconsideration  of  a  hearing  designation  order  only  as  to  an  adverse  ruling  with  respect  to  petitioners  participation  in  the 
 proceeding.  12  PBE,  of  course,  has  not  been  excluded  from  participation  in  the  proceeding  here.  Its  Petition  does  not  even  address  the  procedural  restrictions  of  Section  1.106(  a)(  1)  or  attempt  to  justify 
 interlocutory  review,  nor  do  we  find  any  reason  to  depart  from  the  rule  in  this  case.  The  Petition  is  therefore  dismissed  as  unauthorized. 


 6.  We  do,  however,  take  this  opportunity  to  consider  on  our  own  motion  whether  we  should  modify  the  issue  designated  for  hearing  in  light  of  the  Commissions  Seattle  Public  Schools  (  SPS) 
 decisions.  13  The  Commission  had  before  it  the  school  systems  renewal  application  and  a  competing  application  of  Jack  Straw  Memorial  Foundation  (  Straw).  The  facts  presented  there  differed  somewhat 
 from  those  in  this  case.  For  example,  the  school  system  had  operated  the  station  full  time  during  a  significant  portion  of  the  renewal  period  and  had  reduced  operations  for  only  seven  months.  Nonetheless, 
 we  conclude  that  our  actions  in  the  HDO  for  the  instant  proceeding  are  inconsistent  with  the  Commissions  pronouncements  in  the  SPS  decisions  regarding  Section  73.561(  b). 


 7.  In  the  SPS  initial  designation  order,  the  Commission  stated  that  Section  73.561(  b)  does  not  mandate  time  sharing  where  the  parties  have  been  unable  to  agree  on  operating  hours.  14  The 
 Commission  construed  the  rule  to  mean  that  the  school  system  was  not  exempt  from  the  possibility  of  forced  time  sharing  under  Section  73.561(  b)  and  designated  the  applications  for  hearing  on  the  time 
 sharing  issue.  15  On  reconsideration,  Straw  maintained  that  Section  73.561(  b)  is  a  per  se  rule  requiring  an  inefficient  station  to  share  time  if  an  appropriate  application  is  filed,  and  that  the  share  time  issue 
 should  have  been  limited  to  determining  the  amount  of  time  to  be  allocated  to  each  party  under  a  time  sharing  arrangement.  16  The  Commission  rejected  that  argument.  17  When  it  subsequently  adopted  (with 
 certain  modifications)  the  ALJs  Initial  Decision,  affirming  grant  of  the  school  systems  renewal  application  without  imposition  of  a  time  sharing  arrangement,  the  Commission  described  Straws  rehash 


 (Continued  from  previous  page)  (affirming  the  ALJs  ultimate  grant  of  the  School  Systems  renewal  application)  (  SPS  Final  Decision).  See 
 Petition  at  10-  12. 
 12  47  C.  F.  R.    1.106(  a)(  1).  See,  e.  g.,  Trinity  Broadcasting  of  Florida,  Inc.,  9  FCC  Rcd  2567  (1994). 


 13  Cf.  Pillar  of  Fire,  2  FCC  Rcd  519  (1987)  (denying  Application  for  Review  but  finding  applicant  raised 
 important  matter  warranting  further  discussion  and  clarification). 
 14  Seattle  Public  Schools,  103  F.  C.  C.  2d  862,  865  (1986). 


 15  Id.  (emphasis  added). 
 16  SPS  II,  60  R.  R.  2d  at  1074. 
 17  Id.  at  1075-  76. 
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 of  its  prior  assertion  that  Section  73.561(  b)  is  mandatory  rather  than  permissive  as  a  contention  flatly  rejected  by  the  Commission  .  .  .  .  18 
 8.  In  light  of  the  Commissions  construction  of  Section  73.561(  b),  we  now  conclude  that  the  HDO  should  include  the  issue  of  whether  granting  PBEs  and  KTMs  applications  would  serve  the  public 
 interest,  convenience,  and  necessity.  Accordingly,  we  vacate  the  grants  of  both  applications  and  return  them  to  pending  status.  We  also  expand  the  issue  previously  specified,  as  set  forth  below. 


 CONCLUSION 
 9.  IT  IS  ORDERED,  That  pursuant  to  47  C.  F.  R.  Section  1.106(  a)(  1),  the  Petition  for  Reconsideration  filed  by  Piscataway  Board  of  Education  on  May  6,  2004,  IS  DISMISSED. 


 10.  IT  IS  FURTHER  ORDERED,  That  the  conditional  grant  of  Piscataway  Board  of  Educations  application  for  renewal  of  license  of  WVPH(  FM),  Piscataway,  New  Jersey,  File  No.  BRED-19980427WA, 
 and  the  conditional  grant  of  the  mutually  exclusive  application  of  Kings  Temple  Ministries,  Inc.  for  authority  to  construct  a  new  NCE  FM  station  on  Channel  212  in  Plainfield,  New 
 Jersey,  File  No.  BPED-  19980805MB,  on  a  time  sharing  basis  with  WVPH(  FM),  as  ordered  in  Paragraph  4  of  the  Hearing  Designation  Order,  ARE  VACATED,  and  the  applications  are  RETURNED  TO 
 PENDING  STATUS. 
 11.  IT  IS  FURTHER  ORDERED,  That  Paragraph  6  of  the  Hearing  Designation  Order  IS  MODIFIED  to  read  as  follows: 


 6.  IT  IS  FURTHER  ORDERED,  That  pursuant  to  47  U.  S.  C.  Section  309(  e),  the  application  of  Piscataway  Board  of  Education  for  renewal  of  license  of  WVPH(  FM),  Piscataway, 
 New  Jersey,  File  No.  BRED-  19980427WA,  and  the  mutually  exclusive  application  of  Kings  Temple  Ministries,  Inc.  for  authority  to  construct  a  new  NCE  FM  station  on  Channel  212  in 
 Plainfield,  New  Jersey,  File  No.  BPED-  19980805MB,  on  a  time  sharing  basis  with  WVPH(  FM),  ARE  DESIGNATED  FOR  HEARING  IN  A  CONSOLIDATED  PROCEEDING,  at  a  time  and 
 place  to  be  specified  in  a  subsequent  Order,  upon  the  following  issue: 
 To  determine  whether  a  time  sharing  arrangement  between  Piscataway  Board  of  Education  and  Kings  Temple  Ministries,  Inc.  would  result  in  more  effective  use  of  the 
 specified  channel  than  would  operation  restricted  to  Piscataway  Board  of  Education  and  thus  better  serve  the  public  interest,  and,  if  so,  the  terms  and  conditions  of  a  time  sharing 
 arrangement,  including  the  hours  of  the  day  throughout  the  year  during  which  each  licensee  is  to  operate,  and  to  set  forth  such  terms  and  conditions  in  a  written  document. 
 Such  arrangement  shall  not  include  simultaneous  operation  of  the  stations.  19 


 18  SPS  Final  Decision,  4  FCC  Rcd  at  645. 
 19  As  indicated  in  the  HDO,  our  action  in  specifying  the  time  sharing  issue  is  not  intended  to  preclude  the  parties, 
 either  before  commencement  of  the  hearing  or  during  the  hearing,  from  negotiating  a  settlement  on  their  own. 
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 12.  IT  IS  FURTHER  ORDERED,  That  in  the  event  the  applicants  are  otherwise  qualified,  the  presiding  Administrative  Law  Judge  shall  take  the  following  action: 
 a.  If  it  is  determined,  pursuant  to  the  issue  specified  above,  that  a  time  sharing  arrangement  between  Piscataway  Board  of  Education  and  Kings  Temple  Ministries,  Inc. 
 would  result  in  more  effective  use  of  the  specified  channel  than  would  operation  restricted  to  Piscataway  Board  of  Education,  grant  the  applications  of  both  Piscataway 
 Board  of  Education  and  Kings  Temple  Ministries,  Inc.  to  the  extent  consistent  with  the  terms  and  conditions  of  the  arrangement  determined  pursuant  to  that  issue;  or 


 b.  If  it  is  determined  pursuant  to  the  issue  specified  above  that  operation  restricted  to  Piscataway  Board  of  Education  would  result  in  more  effective  use  of  the  specified 
 channel  than  would  a  time  sharing  arrangement  between  Piscataway  Board  of  Education  and  Kings  Temple  Ministries,  Inc.,  grant  the  application  of  Piscataway  Board  of 
 Education  and  deny  the  application  of  Kings  Temple  Ministries,  Inc. 
 13.  IT  IS  FURTHER  ORDERED,  That  pursuant  to  47  C.  F.  R.  Section  1.221(  b),  the  Commissions  Consumer  and  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL 
 SEND  copies  of  this  Order,  by  certified  mail,  return  receipt  requested,  to  the  parties  through  counsel,  as  listed  below: 


 Cary  S.  Tepper,  Esquire  Booth,  Freret,  Imlay  &  Tepper,  PC 
 7900  Wisconsin  Avenue,  Suite  304  Bethesda,  MD  20814-  3628 
 Counsel  for  Piscataway  Board  of  Education 
 John  M.  Pelkey,  Esquire  Garvey  Schubert  Barer 
 Flour  Mill  Building,  Fifth  Floor  1000  Potomac  Street,  N.  W. 
 Washington,  D.  C.  20007-  3501  Counsel  for  Kings  Temple  Ministries,  Inc. 


 14.  IT  IS  FURTHER  ORDERED,  That  the  Secretary  of  the  Commission,  pursuant  to  47  C.  F.  R.  Section  1.221(  b),  SHALL  HAVE  this  Order  or  a  summary  thereof  PUBLISHED  in  the  Federal  Register. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Peter  H.  Doyle  Chief,  Audio  Division 
 Media  Bureau 
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