*Pages 1--4 from  Microsoft Word - 51056.doc*
 DA  05-  2292 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 NORTHEAST  COMMUNICATIONS  )  File  No.  BNPFT-  20030829AUC  CORPORATION  ) 
 )  Application  for  a  Construction  Permit  ) 
 For  a  New  FM  Translator  Station  at  )  Manchester,  New  Hampshire  ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  17,  2005  Released:  August  18,  2005 


 By  the  Deputy  Associate  General  Counsel,  Administrative  Law  Division: 


 1.  This  order  denies  a  Complaint  and  Request  for  Sanctions,  filed  June  17,  2005,  by  Saga  Communications  of  New  England  LLC  (Saga),  1  which  alleges  that  Northeast 
 Communications  Corporation  (Northeast)  violated  the  Commissions  ex  parte  rules.  2  Saga  alleges  that  Northeast  solicited  an  improper  ex  parte  presentation  by  a  United  States 
 Senator  regarding  this  restricted  proceeding. 
 Background 
 2.  On  March  8,  2005,  the  Commissions  Media  Bureau  granted  Sagas  application  for  a  construction  permit  for  a  new  FM  translator  station  at  Manchester,  New 
 Hampshire  to  operate  on  the  same  frequency  as  Northeasts  FM  station  WFTN(  FM),  Franklin,  New  Hampshire.  3  On  April  6,  2005,  Northeast,  which  had  earlier  petitioned  to 
 deny  Sagas  application,  filed  a  petition  for  reconsideration  of  the  grant  and  a  motion  for  stay. 


 1  Northeast  filed  an  opposition  on  June  28,  2005,  which  argues  that  because  Northeast  specifically  advised 
 the  Senator  to  serve  Saga,  it  did  not  violate  the  ex  parte  rules.  Saga  filed  a  reply  to  opposition  on  July  8,  2005,  which  distinguished  a  case  cited  by  Northeast  and  argued  that  Northeast  misread  another  case. 
 2  47  C.  F.  R.    1.1200-  16. 
 3  See  Public  Notice,  Report  No.  45939  (Mar.  11,  2005)  at  20. 
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 3.  On  April  6,  2005,  the  same  day  that  Northeast  filed  its  petition  for  reconsideration,  Northeasts  president,  Jeff  Fisher,  wrote  to  New  Hampshire  Senator  Judd 
 Gregg  objecting  to  the  grant  to  Saga  and  stating:  We  would  appreciate  your  looking  into  this  matter  and  requesting  the  FCC  to  expeditiously  act  on  our  motion  to  stay  and  appeal 
 [i.  e.,  petition  for  reconsideration].  4  The  letter  also  states: 
 Since  this  is  a  contested  matter,  any  contact  you  have  with  the  FCC  must  also  be  provided  to  Saga  Communications  of  New  England,  LLC.  Their 
 address  is:  73  Kercheval  Avenue,  Gross  Pointe  Farms,  Michigan  48236.  5 
 4.  On  April  22,  2005,  Senator  Gregg  forwarded  Fishers  correspondence  to  the  Commission  and  indicated  that:  I  would  appreciate  your  review  of  Mr.  Fishers  letter 
 and  any  information  you  might  provide  regarding  the  status  of  this  issue  which  I  may  share  with  my  constituent.  6  The  Senators  letter  gave  no  indication  that  it  was  served  on 
 Saga,  as  required  by  47  C.  F.  R.    1.1208,  which  prohibits  ex  parte  presentations  in  restricted  proceedings  such  as  application  proceedings. 


 5.  Saga  contends  that  Northeast  violated  the  ex  parte  rules  by  unfairly  attempting  to  use  political  pressure  to  persuade  the  Commission  to  take  action  against  Sagas 
 application.  Saga  notes  that  in  past  cases  the  Commission  has  found  violations  of  the  ex  parte  rules  where  a  party  has  solicited  an  ex  parte  presentation  by  a  member  of  Congress, 
 and,  where  such  violations  were  intentional,  has  imposed  sanctions.  Saga  asks  the  Commission  to  dismiss  Northeasts  petition  for  reconsideration  and  to  assess  a  forfeiture 
 against  Northeast.  7 
 Discussion 
 6.  Northeast  did  not  violate  the  rule  against  soliciting  an  improper  ex  parte  presentation.  The  Commissions  ex  parte  rules  provide:  No  person  shall  solicit  or 
 encourage  others  to  make  any  improper  presentation  under  the  provisions  of  this  section.  47  C.  F.  R.    1.1210.  The  Senators  letter,  which  Northeast  solicited,  constituted  a 
 prohibited  ex  parte  presentation  in  a  restricted  proceeding  under  47  C.  F.  R.    1.1208  because  it  was  not  served  on  Saga.  8  However,  Fishers  April  6,  2005  letter  to  the  Senator 
 demonstrates  that,  although  Fisher  did  not  explicitly  cite  the  ex  parte  rules,  he  did  not  intend  for  the  Senator  to  make  an  improper  ex  parte  presentation.  The  letter  informs  the 
 Senator  that  any  contact  you  have  with  the  FCC  must  also  be  provided  to  Saga.  Northeast,  unlike  the  parties  in  the  cases  cited  by  Saga  9  ,  requested  that  the  Senator  serve 


 4  Letter  from  Jeff  Fisher  to  The  Honorable  Judd  Gregg  (Apr.  6,  2005)  at  1. 
 5  Id.  at  2. 
 6  Letter  from  Judd  Gregg,  U.  S.  Senator  to  Ms.  Diane  Atkinson,  Federal  Communications  Commission 


 (Apr.  22,  2005).  7  Complaint  and  Request  for  Sanctions  at  2-  4. 
 8  See  Letter  from  Joel  Kaufman,  Deputy  Associate  General  Counsel  to  the  Honorable  Judd  Gregg  (finding 
 Senators  letter  to  be  in  violation  of  the  ex  parte  rules).  9  Elkhart  Telephone  Co.,  11  FCC  Rcd  1165  (1995)  (sanctioning  party  for  providing  Senator  with  unsigned 


 draft  letter  to  FCC  Chairman  that  addressed  the  merits);  Michael  L.  Glaser,  Esq.,  4  FCC  Rcd  4557  (Man. 
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 the  other  party.  It  did  not  solicit  an  unlawful  ex  parte  contact  in  violation  of  section  1.1210  even  though  an  improper  congressional  ex  parte  occurred.  10 
 7.  Nor  was  Northeasts  failure  to  specifically  cite  the  ex  parte  rules  in  its  letter  to  the  Senator  a  violation  given  that  it  requested  that  he  serve  Saga.  The  Commission  has 
 stated: 
 [I]  t  would  .  .  .  be  preferable  for  parties  communicating  with  their  representatives  about  pending  restricted  proceedings  to  specifically  inform 
 them  of  the  restricted  ex  parte  status  of  the  proceeding  and  the  prohibition  on  ex  parte  presentations,  thereby  avoiding  even  inadvertently  instigating 
 an  inappropriate  solicitation.  We  strongly  advise  that  in  the  future,  parties  follow  this  practice.  11 


 This  is  effectively  what  Northeast  did  when  it  asked  the  Senator  to  provide  Saga  with  a  copy  of  his  communications  with  the  FCC. 
 8.  Moreover,  contrary  to  Sagas  suggestion  in  its  reply  to  opposition,  permissible  requests  for  congressional  assistance  are  not  limited  to  status  inquiries.  Saga  draws  too 
 much  from  the  statement  in  Elkhart  that  Elkhart  is  not  prohibited  from  soliciting  assistance  from  members  of  Congress  with  respect  to  the  status  of  a  particular 
 proceeding.  12  The  whole  sentence  reads:  While  Elkhart  is  not  prohibited  from  soliciting  assistance  from  members  of  Congress  with  respect  to  the  status  of  a  particular 
 proceeding  before  the  Commission,  particularly  where  administrative  delay  is  concerned,  or  from  seeking  substantive  intervention  from  members  of  Congress  in  accordance  with 
 the  ex  parte  rules,  it  may  not  ask  members  of  Congress  to  make  an  ex  parte  presentation  to  the  Commission  that  Elkhart  itself  is  prohibited  from  making.  [Emphasis  added.]  13 
 Saga  wholly  ignores  the  clause  that  recognizes  that  a  party  may  ask  members  of  Congress  to  intervene  substantively  in  accordance  with  the  ex  parte  rules. 


 9.  Finally,  we  reject  Sagas  argument  that:  Although  Northeast  included  a  note  to  the  Senator  pointing  out  that  this  is  a  contested  matter,    it  was  Northeasts 
 responsibility  to  comply  with  the  ex  parte  rules;  not  the  Senators.  14  Because  Northeast  requested  the  Senator  to  serve  Saga,  it  did  not  violate  section  1.1210,  and  because 
 Northeast  did  not  itself  make  a  presentation  to  the  Commission,  it  did  not  violate  section 


 Dir.  1989)  (No  forfeiture  imposed  for  soliciting  Senator  to  intervene  in  restricted  proceeding  where  party  may  not  have  understood  proceeding  was  restricted). 
 10  See  Mobile  Communications  Holding,  Inc.,  14  FCC  Rcd  18515,  18522-  23    25  (1999)  (  .  .  .  MCHI  did 
 not  intend  that  the  presentations  be  made  on  an  ex  parte  basis,  and,  thus  did  not  solicit  an  improper  ex  parte  presentation  in  circumstances  where  it  served  three  of  four  presentations  and  apparently  intended  to 


 serve  the  fourth).  Portland  Cellular  Partnership,  11  FCC  Rcd  19997,  20011    37  (1996),  affd  sub  nom.  Saco  River  Cellular,  Inc.  v.  FCC,  133  F.  3d  25  (D.  C.  Cir.  1998),  cert.  denied,  525  U.  S.  813  (1998)  (letter 
 asking  for  meeting  with  Senator  regarding  FCC  decision  did  not  solicit  Senators  referral  of  letter  to  FCC).  11  Id.  at  20011    38. 
 12  Reply  to  Opposition  at  4. 
 13  Elkhart  Telephone  Co.,  supra  note  9  at  1166    8. 
 14  Complaint  and  Request  for  Sanctions  at  3. 
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 1.1208.  15  In  the  absence  of  any  violation  of  the  ex  parte  rules  by  Northeast  there  is  no  basis  to  impose  a  sanction  against  it. 
 10.  ACCORDINGLY,  IT  IS  ORDERED,  Pursuant  to  the  authority  delegated  under  47  C.  F.  R.    0.251(  g),  that  the  Complaint  and  Request  for  Sanctions,  filed  June  17, 
 2005,  by  Saga  Communications  of  New  England,  LLC,  IS  DENIED. 


 Joel  Kaufman  Deputy  Associate  General  Counsel 
 Administrative  Law  Division 


 15  See  Portland  Cellular  Partnership,  supra  note  10  at  20011    36  (1996)  (Party  was  not  required,  after  the 
 fact,  to  serve  senators  ex  parte  presentation  that  party  did  not  solicit). 
4