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 Federal  Communications  Commission  DA  04-  957 
 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 
 HEARING  DESIGNATION  ORDER 
 Adopted:  April  5,  2004  Released:  April  9,  2004 
 By  the  Chief,  Audio  Division,  Media  Bureau: 
 1.  The  Commission,  by  the  Chief,  Audio  Division,  acting  pursuant  to  delegated  authority,  has  before  it:  (1)  the  application  of  Piscataway  Board  of  Education  (  Piscataway  Board)  for  renewal  of 
 license  for  noncommercial  educational  (  NCE)  FM  station  WVPH(  FM)  on  Channel  212  in  Piscataway,  New  Jersey;  and  (2)  the  mutually  exclusive  application  of  Kings  Temple  Ministries,  Inc.  (  Kings 
 Temple)  for  authority  to  construct  a  new  NCE  FM  station  on  Channel  212  in  Plainfield,  New  Jersey,  on  a  time  sharing  basis  with  WVPH(  FM).  Piscataway  Board  and  Kings  Temple  would  not  serve  substantial 
 areas  in  common. 
 2.  The  Telecommunications  Act  of  1996  (  Act)  generally  eliminated  comparative  renewal  proceedings  by  prohibiting  the  Commission  from  considering  whether  the  public  interest  would  be  served 
 by  granting  a  license  to  someone  other  than  the  renewal  applicant.  1  The  Act  did  not,  however,  eliminate  the  Commissions  longstanding  policy  to  consider  time  sharing  proposals  to  accommodate  competing 
 demand  for  limited  NCE  FM  spectrum.  2  NCE  new  station  applicants  can  propose  to  share  time  in 


 1  47  U.  S.  C.    309(  k).  See  Implementation  of  Sections  204(  A)  and  204(  C)  of  the  Telecommunications  Act  of  1996 
 (Broadcast  License  Renewal  Procedures),  11  FCC  Rcd  6363  (1996). 
 2  See  Nassau  Community  College,  12  FCC  Rcd  12234,  12234-  5  (1997).  See  also  Comparative  Standards  for 
 Noncommercial  Educational  Applicants,  Memorandum  Opinion  and  Order,  16  FCC  Rcd  5074  (2001)  (affirming  use  of  time  sharing  as  tie  breaker  of  last  resort  in  selecting  among  competing  applicants  for  new  NCE  stations) 


 (  NCE  MO&  O). 
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 Federal  Communications  Commission  DA  04-  957 
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 response  to  renewal  applications  from  NCE  licensees,  like  Piscataway  Board,  that  do  not  operate  at  least  12  hours  per  day  each  day  of  the  year.  3  In  such  circumstances,  our  rules  require  the  current  licensee  to 
 share  use  of  the  frequency  upon  grant  of  an  appropriate  application  proposing  such  share  time  arrangement.  4  The  rules  further  require  the  licensee  and  the  competing  applicant(  s)  to  endeavor  to  reach 
 an  agreement  on  a  definite  schedule  of  times  to  be  used  by  each.  5  If,  however,  they  are  unable  to  reach  such  an  agreement,  and  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 
 3.  Here,  the  applicants  indicate  that  they  have  attempted  but  failed  to  negotiate  a  time  sharing  agreement.  We  have  examined  the  applications  and  find  no  qualifications  issues  regarding  either  party. 
 We  further  find  that  conditional  grant  of  both  Piscataway  Boards  renewal  application  and  Kings  Temples  application  for  a  new  NCE  FM  station,  which  includes  a  proposal  to  share  time  with  Piscataway 
 Board,  will  serve  the  public  interest,  convenience,  and  necessity.  Pursuant  to  Section  73.561(  b)(  2)  of  the  Commissions  rules,  7  we  are  designating  this  matter  for  an  expedited  hearing  limited  solely  to  the  issue  of 
 sharing  time.  It  should  be  noted  that  this  action  is  not  intended  to  preclude  the  applicants,  either  before  the  commencement  of  the  hearing  or  at  any  time  during  the  course  of  the  hearing,  from  negotiating  a  time 
 sharing  agreement. 
 4.  Accordingly,  IT  IS  ORDERED,  that  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  GRANTED,  subject  to  the  conditions  that  (1)  either  (a)  the  parties  negotiate  and  jointly  file  with  the  Commission  a  time  sharing  agreement,  or  (b)  the  hearing  ordered  in  Paragraph  6, 
 below,  is  concluded,  and  a  copy  of  the  resulting  written  time  sharing  arrangement  is  provided  to  the  Chief  of  the  Commissions  Audio  Division;  and  (2)  the  authorizations  of  Piscataway  Board  of  Education  and 
 Kings  Temple  Ministries,  Inc.  are  modified  in  accordance  with  the  terms  and  conditions  of  either  the  negotiated  time  sharing  agreement  or  the  time  sharing  arrangement  imposed  as  a  result  of  the  hearing,  as 
 applicable. 
 5.  IT  IS  FURTHER  ORDERED,  that  such  time  sharing  agreement  or  arrangement,  as  applicable,  SHALL  BECOME  EFFECTIVE  as  of  the  date  on  which  Kings  Temple  Ministries,  Inc.  files 
 an  application  for  a  license  to  cover  its  construction  permit  and  begins  program  tests,  and  SHALL  BECOME  PART  OF  THE  TERMS  OF  EACH  STATIONS  LICENSE  by  attachment  thereto. 


 6.  IT  IS  FURTHER  ORDERED,  that  pursuant  to  47  C.  F.  R.  Section  73.561(  b)(  2),  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 


 3  47  C.  F.  R.    73.561(  b). 
 4  Id. 
 5  Id.    73.561(  b)(  1). 
 6  Id.    73.561(  b)(  2). 
 7  Id. 
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 Federal  Communications  Commission  DA  04-  957 
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 Jersey,  File  No.  BPED-  19980805MB,  on  a  time  sharing  basis  with  WVPH(  FM),  ARE  DESIGNATED  FOR  EXPEDITED  HEARING  IN  A  CONSOLIDATED  PROCEEDING,  at  a  time  and  place  to  be 
 specified  in  a  subsequent  Order,  upon  the  following  issue: 
 To  establish  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. 


 7.  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. 


 8.  IT  IS  FURTHER  ORDERED,  that  a  copy  of  each  document  filed  in  this  proceeding  subsequent  to  the  date  of  adoption  of  this  Order  SHALL  BE  SERVED  on  the  counsel  of  record  appearing 
 on  behalf  of  the  Chief,  Enforcement  Bureau.  Parties  may  inquire  as  to  the  identity  of  such  counsel  by  calling  the  Investigations  and  Hearings  Division  of  the  Enforcement  Bureau  at  (202)  418-  1420.  Such 
 service  copy  SHALL  BE  ADDRESSED  to  the  named  counsel  of  record,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications  Commission,  445  12th  Street,  S.  W.,  Room  3- 
 B443,  Washington,  D.  C.  20554. 
 9.  IT  IS  FURTHER  ORDERED,  that  to  avail  themselves  of  the  opportunity  to  be  heard,  Piscataway  Board  of  Education  and  Kings  Temple  Ministries,  Inc.,  pursuant  to  47  C.  F.  R.  Section 
 1.221(  c),  in  person  or  by  their  respective  attorneys,  within  twenty  (20)  days  of  the  mailing  of  this  Order,  SHALL  FILE  in  triplicate  A  WRITTEN  APPEARANCE  stating  an  intention  to  appear  on  the  date  fixed 
 for  the  hearing  and  present  evidence  on  the  issues  specified  in  this  Order. 
 10.  IT  IS  FURTHER  ORDERED,  that  the  applicants  herein,  pursuant  to  47  U.  S.  C.  Section  311(  a)(  2)  and  47  C.  F.  R.  Section  73.3594,  SHALL  GIVE  NOTICE  of  the  hearing  within  the  time  and  in 
 the  manner  prescribed  in  47  C.  F.  R.  Section  73.3594,  and  SHALL  ADVISE  the  Commission  of  the  publication  of  such  notice  as  required  by  47  C.  F.  R.  Section  73.3594(  g). 
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 11.  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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