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                                                           Before the
               Federal Communications Commission
                     Washington, D.C. 20554
In the Matter of
CHANNEL 32 HISPANIC
BROADCASTERS, LTD.
Pueblo, Colorado
For a Construction Permit for a
New Television Station at
Pueblo, Colorado
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File No. BPCT-19960102KE
Facility Identification No. 87488
                             ORDER
   Adopted:  October 23, 2000           Released:  November 15, 2000
By the Commission:
     1.   The Commission had before it the above-referenced application for a construction permit
for a new NTSC station on channel 32 at Pueblo, Colorado, filed by Channel 32 Hispanic Broadcasters, Ltd.
(Channel 32).  The application appeared on public notice dated September 21, 1999, announcing the
acceptance for filing of Channel 32's application and advising that no competing applications could be
tendered.  Timely petitions were filed by The Pikes Peak Broadcasting Company (Pikes Peak), the licensee
of KRDO-TV, channel 13, Colorado Springs, Colorado; Entravision Holdings, LLC, licensee of low power
television station KGBH-LP, Pueblo; and Front Range Educational Media Corporation, licensee of KBDI-
TV, channel *12, Broomfield, Colorado and television translator station K32EO, Colorado Springs.  The
petitioners argue, inter alia, that the Commission erred in refusing to allow the filing of competing
applications.  In addition, Fox Television Stations, Inc. (Fox), licensee of KDVR-DT, Denver, Colorado,
filed an informal objection, alleging that Channel 32's proposed NTSC operation would result in an
impermissible level of interference within the KDVR-DT proposed maximized service area.  Channel 32
has opposed the pleadings, and the objectors have filed replies.
     2.   Background.  Channel 32 filed its application on January 2, 1996, and requested a waiver of the
Commission-imposed freeze on the filing of television applications and allotments in and around a number of
metropolitan areas.  In July 1996, in connection with the implementation of digital television, the Commission
proposed to delete all vacant NTSC allotments, announcing that:
          Consistent with our proposal to eliminate all existing vacant allotments, we will not accept
     additional applications for new NTSC stations that are filed after [September 20, 1996].  This
     will provide time for filing of any applications that are currently under preparation. . . . As we
     process the applications on file now and those that are filed before the end of this filing
     opportunity, we will continue our current policy of considering requests for waiver of our 1987
     freeze Order on a case-by-case basis.  When applications for new stations are accepted for
     filing, we will continue our process of issuing Public Notices that "cut-off" the opportunity for
     filing competing, mutually exclusive applications.  In connection with these cut-off notices, we
     will allow additional competing applications to be filed after the end of this filing opportunity.
Advanced Television Systems and Their Impact upon the Existing Television Broadcast Service (Sixth Further
Notice), 11 FCC Rcd 10968, 10992 (1996)(footnotes omitted).
     3.   On September 19, 1996, applications for new commercial television stations at Pueblo,
Colorado, Hammond, Louisiana, and Vineland, New Jersey were submitted to the Commission's lockbox at
Mellon Bank (Mellon) in Pittsburgh, Pennsylvania on behalf of Word of God Fellowship, Inc. (Word).  Word,
however, failed to submit the correct filing fee for each application, and by letter dated September 25, 1996, the
Chief, Billings and Collections Branch, notified Word that its "application package is being returned for . . .
underpayment due to fee increase as of 9/12/96."  Word did not retender the Pueblo application for filing with the
correct fee, or file a petition for reconsideration pursuant to Section 405 of the Communications Act.  Thus, at the
close of the announced deadline for the filing of applications for vacant NTSC allotments, Channel 32's
application was not subject to a competing application.
     4.   On August 5, 1997, President Clinton signed the Balanced Budget Act of 1997, Pub. L. No. 105-
33, 111 Stat. 251 (1997), which expanded the Commission's competitive bidding authority under Section 309(j)
of the Act to include mutually exclusive applications for certain types of broadcast stations.  Except for certain
pending applications, and for categories of broadcast service expressly exempted from the Commission's auction
authority, the Act required the Commission to use competitive bidding to resolve mutually exclusive applications
for construction permits for commercial broadcast stations.  Section 309(l), which governs the resolution of
pending mutually exclusive applications for new commercial radio and television stations filed before July 1,
1997, granted the Commission permissive authority to resolve these proceedings by competitive bidding and, as
discussed more fully below, required that the Commission "treat the persons filing such applications as the only
persons eligible to be qualified bidders for purposes of such proceedings."  47 U.S.C.  309(l)(2).  The Act also
directed the Commission to waive its policies and rules for the settlement of pending comparative proceedings for
a period of 180 days.  47 U.S.C.  309(l)(3).
     5.   On January 28, 1998, Word filed an application for review of the return of its application some
fifteen months earlier.  Channel 32 and Word then filed a Joint Request for Approval of Universal Settlement
Agreement on January 29, 1998, proposing to make Word a limited partner in Channel 32, and requesting the
grant of Channel 32's application.  By letter dated February 5, 1999, the Video Services Division denied approval
of the settlement agreement, reasoning that because Word's application had been returned in 1996, it had no
standing to participate in a settlement agreement.  The Division letter also stated that the "application filed by
Channel 32 will be placed on public notice for the filing of competing applications at the appropriate time."
Shortly thereafter, on March 15, 1999, the Division concluded that Word had failed to justify a waiver of Section
1.115 to permit the filing of its grossly untimely application for review, and dismissed Word's pleading.
     6.   Neither party challenged the Division's March 15th dismissal of Word's application for review.
Channel 32, however, filed a petition for reconsideration of the denial of the settlement agreement on March 5,
1999, requesting that the Commission either:  (1) reinstate Word's application and approve the settlement
agreement, or (2) interpret Section 309(l)(2) of the Act as precluding the acceptance of mutually exclusive
applications for the Pueblo station.  By letter dated September 8, 1999, the Division reconsidered its earlier denial
and approved the settlement, based upon the fact that at the time the settlement was filed with the Commission,
Word had a pleading pending before the Commission, which would be withdrawn as part of the settlement.  The
Division did not however, reinstate Word's application, instead stating that because the Commission's action of
September 25, 1996 returning Word's application was final, no further action was contemplated with respect to
that application.  By Public Notice released September 21, 1999, the Commission announced that the Channel 32
application was accepted for filing, and that "because the application . . . is the result of a settlement of
applications," no mutually-exclusive applications would be accepted.  As noted above, Pikes Peak, Front Range
and Entravision filed petitions to deny by October 31, 1999, primarily arguing that the Balanced Budget Act
requires the Commission to accept competing applications and to resolve these applications through competitive
bidding.
     7.   Procedural Issues.  Channel 32 argues that the petitions to deny must be dismissed because the
petitioners lack standing.  We disagree.  With regard to Channel 32's assertion that petitioners "cannot sustain
their burden of establishing the three elements of standing required by Article III of the United States Constitution
and applicable case law," a licensing proceeding before the Commission is not an Article III proceeding to which
either the "case or controversy" or prudential Article III standing requirements apply.  See Gardner v. FCC, 530
F.2d 1086, 1090 (D.C. Cir. 1976); California Association of the Physically Handicapped, Inc. v. FCC, 778 F.2d
823, 826, n.8 (D.C. Cir. 1985)("[t]he Commission may choose to allow persons without Article III 'standing' to
participate in FCC proceedings.")   Moreover, it is well-settled that the licensee of a competing station has party-
in-interest status, under 47 U.S.C.  309, to file a petition to deny.  See FCC v. Sanders Brothers, 309 U.S.
470(1940); Kin Shaw Wong, 11 FCC Rcd 11,928 (1996).  Here, Pikes Peak and Entravision would compete with
Channel 32 in the Colorado Springs-Pueblo market if the pending application is granted.  In addition, it appears
that Front Range's translator station on channel 32 in Colorado Springs would be displaced by a full service
television operation on channel 32 in Pueblo.  Accordingly, we conclude that the petitioners have standing.
     8.   Channel 32 also argues that the petitions to deny, which were filed by the deadline specified in
a public notice announcing the acceptance of Channel 32's application for filing, should be dismissed as untimely
requests for reconsideration of the Division's September 8, 1999 letter ruling approving the settlement agreement
between Channel 32 and Word.  The petitions, however, were timely filed in response to a public notice
announcing a deadline for the filing of petitions to deny, and as discussed more fully below, they primarily
challenge the Commission's decision, first stated in the public notice, that the filing of competing applications
would not be allowed.  Accordingly, we conclude that the petitions to deny are timely.
     9.   Finally, Channel 32 asserts that the petitioners have failed to comply with Section 309(d)(1) of
the Communications Act, which requires that petitions to deny "be supported by affidavit of a person or persons
with personal knowledge" of the allegations of fact.  47 U.S.C.  309(d)(1).  Section 309(d)(1) does not, however,
require that facts "of which official notice may be taken" be supported by affidavit.  Id.  Based upon our review
of the pleadings, it is clear that the facts alleged in the petitions regarding the processing of Channel 32's
application are independently supported by Commission records, and accordingly, no supporting affidavit is
required.
     10.  Informal Objection.  NTSC proposals may not cause interference to digital television (DTV).
In calculating interference, the Commission considers predicted interference from an NTSC station of less than
0.5% of a DTV service area to be non-cognizable.  See Public Notice, Additional Application Processing
Guidelines for Digital Television, Ref. No. 84889 (August 10, 1998)(Commission will round the determination
of interference to the nearest percent).
     11.  Fox, the permittee of KDVR-DT, channel 31, Denver, Colorado, asserts that Channel 32's
application must be denied, because it would cause interference to the reception of KDVR-DT's maximized
signal by nearly 14,000 people, or 0.64 percent of KDVR-DT's service population.  Channel 32 disputes Fox's
engineering analysis, and submits its own analysis which shows that Channel 32's proposed station would only
cause theoretical interference to 9,508 persons, or 0.43% of KDVR-DT's population.  The staff has conducted its
own engineering analysis of Channel 32's application, and concludes that it is predicted to cause interference to
less that 0.5% of the KDVR-DT maximized service area.  Accordingly, the informal objection will be denied.
     12.  Petitions to Deny.  As discussed above, Section 309(l)(2) of the Communications Act, which
became effective on August 5, 1997 as part of the Balanced Budget Act, states that:
     APPLICABLITY OF COMPETITIVE BIDDING TO PENDING COMPARATIVE LICENSING
     CASES.   With respect to competing applications for . . .  construction permits for commercial radio or
     television stations that were filed with the Commission before July 1, 1997, the Commission shall
            (1)     have the authority to conduct a competitive bidding proceeding . . . to assign such . . .
            permit;
            (2)     treat the parties filing such applications as the only persons eligible to be qualified bidders
            for purposes of such proceedings; and
            (3)     waive any provisions of its regulations necessary to permit such persons to enter an
            agreement to procure the removal of a conflict between their applications during the 180
            day period beginning on the date of enactment of the [Act].
In giving the Commission authority to use competitive bidding to award broadcast licenses, Congress also
expected that "where a single application for a radio or television broadcast license has been filed with the
Commission, but that no competing applications have been filed because the Commission has yet to open a filing
window," the Commission "will provide an opportunity for competing applications to be filed," regardless of
whether the application was filed before July 1, 1997.
     13.  Petitioners assert that Channel 32's application cannot be granted at this time, because the
Balanced Budget Act, as well as the Commission's pronouncements in the DTV proceeding regarding the
processing of freeze waiver applications, mandate that the Commission accept competing applications for the new
NTSC station at Pueblo.  According to petitioners, Channel 32's application is a "single application," which,
consistent with the legislative history of the Act, must be subject to competing applications and competitive
bidding.
     14.  In response, Channel 32 argues that Word's application was filed prior to July 1, 1997, and that
the Commission must treat those two applications "as the only persons eligible to be qualified bidders . . .."
Channel 32 also cites to discussion in the Commission's Competitive Bidding Order implementing provisions of
the Balanced Budget Act of 1997, in which the Commission considered whether Section 309(1)(2) applied to
mutually-exclusive freeze waiver applications submitted for filing before July 1, 1997, thus precluding the
acceptance of additional applications that would be eligible to compete in an auction.  In the Competitive Bidding
Order, the Commission concluded that for purposes of the Balanced Budget Act, freeze waiver applications
constitute "applications . . . filed with the Commission before July 1, 1997" within the meaning of Section 309(l),
and that accordingly, "to the extent that there are multiple pending applications with waiver requests for a single
television allotment, that, if granted, would result in mutually exclusive applications, the restrictions on bidder
eligibility set forth in Section 309(l)(2) would apply." Competitive Bidding Order, 13 FCC Rcd at 15945 (1998).
The Commission further explained that:
          No auction would be required . . . where multiple applications with waiver requests were filed
     but by the time they were processed only one application with a waiver request remained on file.
       In the event that we grant the remaining waiver request, we would simply grant the related pre-
     July 1, 1997 application without soliciting further applications.  We believe that this result is
     compelled by the express language of Section 309(l)(2).  By contrast, if only one application
     with a freeze waiver request was filed for a single allotment, such that there would be no
     mutually exclusive applications, Section 309(l)(2) would not apply because the threshold
     requirement for "competing applications . . . filed with the Commission before July 1, 1997" has
     not been satisfied.
Id. at 15946.  According to Channel 32, there is no question that Word's application was "filed," and the fact that
it was subsequently dismissed does not render Channel 32's application subject to pending applications under the
Commission's interpretation of Section 309(l)(2) of the Act.
     15.  We have carefully reviewed the statute and the parties' arguments, and conclude that the better
reading of the 1997 Balanced Budget Act requires the Commission to accept competing applications for the new
NTSC station at Pueblo, and to use competitive bidding to resolve the mutual exclusivity.  First, Channel 32's
freeze waiver application has never been cut-off for the filing of competing applications.  In the Competitive
Bidding Order, the Commission expressly rejected the argument that it had effectively opened a filing window
for competing applications when it afforded a 30 day period ending on September 20, 1996 for the filing of
applications for vacant NTSC allotments before it ceased accepting such applications.  Instead, the Commission
concluded that single freeze waiver applications, for which "no competing applications have been filed because
the Commission has yet to open a filing window," should be subject to competing applications and competitive
bidding, consistent with Congress' intent, and that accordingly:
     In the event we grant a freeze waiver request and accept a single television application for a NTSC
     allotment filed prior to July 1, 1997, we will, consistent with the statute and Conference Report, solicit
     additional applications, and, if mutually exclusive applications are filed, resolve these applications
     through competitive bidding.
Competitive Bidding Order, 13 FCC Rcd at 15946-47.
     16.  With respect to Channel 32's assertion that its application is protected from the filing of
mutually exclusive applications by Section 309(l)(2) of the Act, that provision applies only to "pending
comparative licensing cases" involving applications filed before July 1, 1997. On August 5, 1997, when the
Balanced Budget Act of 1997 was enacted, Channel 32's application was not subject to a pending, mutually-
exclusive application.  Because no multiple applications were pending, "the threshold requirement for 'competing
applications. . . filed before July 1, 1997' had not been satisfied," and Channel 32's application was not within the
class of applicants affected by Section 309(l)(2).  In this regard, we note that Word did not file its application for
review until January 28, 1998, long after the decision returning its application was final, and almost seven months
after the July 1, 1997 statutory cut-off.   Accordingly, the late filed application for review did not create any
mutual exclusivity as contemplated by the Balanced Budget Act.  At the time the Act was passed, the action on
Word's application was final and Channel 32 was no differently situated than any other single freeze waiver
applicant, with the expectation that if its freeze waiver was granted, the Commission "would continue [its]
process of issuing Public notices that 'cut-off' the opportunity for filing competing, mutually exclusive
applications."  Second Memorandum Opinion and Order, 14 FCC Rcd at 1366.
          17.  Even if one were to read Section 309(l)(2) to apply where a mutually exclusive
          application was no longer pending on July 1, 1997, we disagree with Channel 32 that Word's
          unsuccessful attempt to file an application for channel 32, Pueblo in September 1996, would
          have somehow conferred mutually-exclusive status on Channel 32 at the time of enactment of
          the Balanced Budget Act, and now makes Channel 32's application eligible for grant as the lone
          survivor of a pre-July 1, 1997 multiple application group. Channel 32's analysis turns on
          whether Word's application was "filed" by September 20, 1996.  Channel 32 is correct that if
          statutory language is clear, an agency has no discretion to change the meaning, but instead
          "must give effect to the unambiguously  expressed intent of Congress."  Chevron U.S.A., Inc. v.
          NRDC, 467 U.S. 837, 843 (1984).  Here, however, Congress did not define the term "filed," and
          there is nothing in the Balanced Budget Act or the legislative history to suggest that Congress
          intended to alter the Commission's procedural rules regarding the filing of applications.
     18.  Channel 32 argues that that because Word of God's application reached Mellon Bank prior
to the September 20, 1996 deadline for filing for new NTSC stations, the application must be deemed as
filed.  While it may be said in common parlance that Word "filed" an application with the Commission
when it successfully arranged to have the application delivered to Mellon, we believe that for an application
to achieve filed status   a status which confers certain administrative rights on the applicant   requires more
than the physical act of delivering a document to the Commission or its lockbox.  Based upon our review of
the Commission's rules of practice and procedure, we conclude for the following reasons that Word's application
was not filed in September 1996, as contemplated by the Commission in the Competitive Bidding Order.
     19.  Word's application was returned for an incorrect filing fee.  The Commission has stated that
applications submitted with insufficient remittance are not considered as "received by the Commission."  See
Notice of Proposed Rulemaking in Gen. Docket 86-285, 51 F.R. 25792, 39 (July 16, 1986); see also Report and
Order in Gen. Docket 86-285, 2 FCC Rcd 947, 956-97 (1987) ("payment of the correct fee continues to be a pre-
condition to Commission processing of an application or filing" and applicants who fail to do so "may be denied
an opportunity to compete for the right to provide a communications service.").  Moreover, Section  1.1116(a)
explicitly states that while "a defective fee may be corrected by resubmitting the application or other filing,
together with the correct fee . . . the date of resubmission with the correct fee will be considered the date of
filing."  See also Memorandum Opinion and Order, 6 FCC Rcd 5919, 5922-23 (1991)(Commission specifically
rejected allowing corrected fee advice forms and accompanying applications to be accepted nunc pro tunc.)
Accordingly, the Commission considers applications submitted with an incorrect fee as not having been "filed"
with the Commission.
     20.  We disagree that the Commission's decision in Hooten Broadcasting, Inc., 13 FCC Rcd 15023
(1998), supports Channel 32's argument that Word's application was filed in 1996.  In Hooten, the permittee of a
radio station submitted a modification application during the first half of its construction period, accompanied by
an insufficient application fee.  The Commission returned the application, and Hooten resubmitted the application
with the correct fee within a day.  The resubmission, however, was within the second half of Hooten's authorized
construction period, when the standard for requesting permission to modify an unbuilt facility became stricter.
See 47 C.F.R. 73.3535(b) (1998).  The Commission did not, however, as Channel 32 suggests, treat Hooten's
application as being "filed" during the first nine months.  Instead, the Commission treated the application as
"filed" during the second nine months, and waived the stricter requirements of Section 73.3535(b).
     21.  Finally, with respect to Channel 32's argument that "filed" "mean[s] nothing other than the
submission of a document to the Commission," and that "if Congress wanted to empower the Commission to
limit" the meaning of the term filed, "it could have easily added language to achieve that purpose [such as] . . .
"applications that were 'pending,'" Congress did in fact limit the exception set forth in Section 309(l)(2) to
"pending comparative licensing cases," in existence on enactment of the Balanced Budget Act.  Accordingly, we
believe that our application here of the Commission's long-standing interpretation of when an application
achieves "filed" status is consistent with the purpose of Section 309(l)(2), which was to insulate comparative
cases pending in July 1997 from the filing of additional competing applications.  Because we conclude that at
enactment of the Balanced Budget Act, Channel 32's application was not subject to competing applications, and
had not been cut-off, we are required to accept competing applications, and to resolve the applications using
competitive bidding.
     22.  Other Matters.  Front Range questions whether grant of Channel 32's application would serve
the public interest, convenience and necessity, alleging that Channel 32 intends to transfer its authorization to
Acme Communications, Inc., "an organization set up by the WB Network to acquire stations to become WB
affiliates."  Pursuant to the Commission's competitive bidding procedures, petitions to deny may only be filed
against the winning bidder.  In the event that Front Range files a competing application, and Channel 32 is the
winning bidder, Front Range will be permitted an opportunity to raise these arguments in a petition to deny.
     23.  In view of the foregoing, the informal objection filed by Fox Television Stations, Inc. IS
DENIED.  The petitions to deny filed by The Pikes Peak Broadcasting Company, Entravision Holdings, LLC,
and Front Range Educational Media Corporation ARE GRANTED to the extent indicated herein, and the
Commission will, at the appropriate time, issue a public notice announcing an opportunity for the filing of
applications for NTSC channel 32, Pueblo, Colorado.
                              FEDERAL COMMUNICATIONS COMMISSION
                              Magalie Roman Salas
                              Secretary