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In re Applications of:

}

}
}
}
}
Application for a New NCE FM
}
Station at Anniston, Alabama
}
}
BOARD OF TRUSTEES OF
}
JACKSONVILLE STATE UNIVERSITY }
}
Application for a New NCE FM
}
Station at Anniston, Alabama
}
ANNISTON SEVENTH-DAY
ADVENTIST CHURCH

NCE Reserved Allotment Group #1
To:
Attn:

TW!lCpjr

File No.:
Facility Id.:

BNPED-20100226ABT
184996

File No.:
Facility Id.:

BNPED-20100226AFB
184885

}

Office of the Secretary
The Commission
REPLY TO OPPOSITION TO APPLICATION FOR REVIEW
The Board of Trustees of Jacksonville State University ("JSU"), by and through its

attorneys, hereby replies to the Opposition to Application for Review submitted by the Anniston
Seventh-Day Adventist Church (ASDA") with regard to the Media Bureau's letter decision
denying reconsideration of its decision to reinstate and grant the above-referenced application of
ASDA for a new noncommercial educational ('NCE") station at Anniston, Alabama, and to
dismiss the JSU application, NCE Reserved Allolineni Group 1, New A/CE-FM, Annislon,

Alabama, DA 13-1104, released May 15, 2013 (the 1?econsideration Decision"). With respect
thereto, the following is submitted:
In its Application for Review, JSU demonstrated that the Commission had provided
adequate notice that failure to meet the basic qualifications requirement of the third channel

(00545236-1

reservation standard would result in dismissal of a non-compliant application and analogized the
situation to one in which the Commission would not hesitate to dismiss an applicant for an NCE
facility that described itself as a for-profit entity. JSU further noted that JEM Broadcasting Co.,
Inc. v FCC, 22 F.3d 320, 75 R.R.2d 273 (D.C. Cir. 1994), a case cited by the Media Bureau as a
basis for reinstating the ASDA application, does not stand for the proposition that a particular
form of notice is required to inform basically ineligible applicants that their application may be
subject to dismissal.
In its Opposition, ASDA argues that JSU's reading of JEM Broadcasting Co. is incorrect.
Its own description of the case, however, states only that the Court had found that the
Commission's "hard look" policy had given adequate notice that applications failing to include
one of the specified items would be subject to dismissal. The fact that the Court found that one
form of notice was adequate, however, in no way means that all others are inadequate.
Regarding the third channel reservation standard, the Commission has issued clear rules that
specify that meeting this standard is the sine qua non for reserving a channel in the otherwise
non-reserved band. In addition, in adopting these rules, the Commission carried over the third
channel reservation standard to the application stage as an eligibility requirement. Id. at 6705.
This requirement not only is laid out in the Commission's rules but also was expressly restated in
the Public Notice announcing the filing window in which ASDA submitted its application. 47
C.F.R. Section 73.202(a)(1); Media Bureau Announces Filing Window jbr Vacant FM
Allotments Reserved for Noncommercial Educational Use, Public Notice, 24 FCC Red 12621.
Finally, that Public Notice stated that "[tlhe Commission staff will return applications and
amendments not submitted in accordance with the procedures described in this Public Notice."
Media Bureau Announces Filing Window/br Vacant FIviAllotments Reserved for

{00545236-1)

Noncommercial Educational Use, Public Notice, 24 FCC Rcd at 12623. The requirement to
meet the third channel reservation standard is one of the procedures set forth in the Public
Notice; therefore, there was, in fact, explicit notice to applicants that failure to meet it would
result in return of their applications.
ADSA also argues that a comparison between failure to meet the third channel
reservation standard and a failure to be qualified as a non-profit organization is inapposite, as the
difference between for-profit and non-profit entities goes to the core of an applicant's purpose.
In point of fact, however, the two are entirely analogous. Unless a channel allotment meets the
third channel reservation standard, it is not eligible for reservation, and its basic purpose remains
as a commercial allotment. Thus, the satisfaction or failure to satisfy the third channel
reservation standard marks a dividing line between allotments that may be reserved and
allotments which may not be reserved, just as for-profit or non-profit status determines eligibility
or ineligibility to apply for a reserved channel. Likewise applicants which apply for a channel
which has been reserved within the non-reserved band must possess the basic requirements
which make it possible for the channel reservation to continue if its application were granted;
without continuing those qualifications, it is no longer possible for the channel to be reserved,
aiid, as a practical matter, a non-profit applicant is no longer eligible.' Thus, meeting the third
channel reservation standard is a necessary qualification just as non-profit status is.
In its Application for Review, JSU also noted that the reinstatement of the ASDA
application was an action by the Media Bureau which attempted improperly to overturn a
decision by the full Commission to dismiss applicants which failed to meet the third channel

'While it is theoretically possible for a non-profit entity to apply for a non-reserved channel, if it
does so, and a for-profit applicant also applies, the non-profit entity will be dismissed. Reexamination of the Comparative Standards for iVoncommercial Educational Applicants, 18 FCC
Red 6691, 6699-6700 (2003).

(005452364

4

reservation standard, ASDA has tried to create a significant difference between one of the three
applicants so dismissed by noting that the applicant had admitted its failure and thus not been
chosen as a tentative selectee. The true significance of the applicant's admission of its failure to
been the third channel reservation standard, however, is only that it was impossible for the
qualifying defect to be overlooked. Nothing changes the fact that each and every time that the
Commission was aware of the existence of this defect, the applicant was dismissed. Such
dismissals contrast with the Commission's treatment of other defects, such as the failure to
submit required documentation to support claims of localism or diversity, where the Commission
simply refuses to award the claimed comparative points. See, e.g., Comparative Consideration
qf'37 Groups of Mutually Exclusive Applications/br Permits to Construct New and Modified
Noncommercial Educational Stations File in the February 2010 and October 2007 Filing
Windows, 26 FCC Red. 7008, 7027 (2011). Thus, it is clear that the Commission views a failure
to satisfy the third channel reservation standard as a basic, disqualifying defect warranting
dismissal. The ASDA application likewise should have been dismissed, as its application also
was patently defective at the time of the closing of the filing window. The fact that it had not
explicitly acknowledged the defect is irrelevant to whether or not it existed but only made it
easier for the defect to elude detection.
Moreover, like the Big Pine Key applicant, ASDA apparently intended to proceed with
its unqualified application. When JSU initially petitioned to deny the ASDA application, ASDA
did not amend its application or otherwise claim compliance, but rather argued that it should not
be required to come into compliance with the third channel reservation standard, as, in ASDA's
opinion, the 10 percent benchmark embodied in that standard was bad policy and absurd. See
ASDA "Opposition to Petition to Deny," filed June 30, 2011, at 4. It was only after its

(00545236-1

application was dismissed that ASDA moved away from its arrogant position, decided that the
Commission's Rules actually mean what they say, and attempted to amend its application.
At that point, ASDA was no longer a tentative selected, but a dismissed applicant, and
another tentative selectee had been chosen. Thus, as previously explained, Section 73.3 533(b)(2)
of the Commission's Rules was inapplicable. The fact that the Commission has not always been
as precise in its use of language as it might have been does not change the fact that the terms
"dismiss" and "return" are terms of art.
Finally, while ASDA has claimed that its error was inadvertent, there is no way to know
whether its claim is true, particularly in light of ASDA's initial refusal to modify its proposal to
come into compliance with the Commission's requirements. In any event, the Commission
cannot ignore the incentives that it creates with the precedent it sets in adjudicatory decisions.
To let the current decision stand cannot but encourage gamesmanship and abuse,
WHEREFORE, the premises considered, JSU respectfully requests that the ASDA
application be dismissed, and that the JSU application be reinstated and granted.
Respectfully submitted,

BOARD OF TRUSTEES OF
JACKSONVILLE STATE UNIVERSITY
Fletcher, Heald & Hildreth, P.L.C.
Street
1300N.
Eleventh Floor
Arlington, VA 22209
(703) 812-0400

By:
Anne Goodwin Crump

July 18, 2013

(OOS4526-1

Certificate of Service

I, Deborah N. Lunt, hereby certify that on this 18th day of July, 2013, I caused a copy of
the foregoing Reply to Opposition to Application for Review to be served via U.S. mail,
postage prepaid, upon the following:
Donald E. Martin, P.C.
P.O. Box 8433
Falls Church, VA 22041
Counselfor A nniston Seventh-Day Adventist Church

{00545966-1