.-

.•

•

BEFORE THE
FEDERAL COMMUNICATIONS COMMiSSION
WASHINGTON, D.C. 20554
Accepted

/ Filed

JUL —22019

inre
Edgewater Broadcasting. Inc.
Licensee of FM Translator
W256CL
Park Forest, IL

Federal Communications
Commission
Office of the Seoetary

)

File No. BPFT-20171229A8E

)
)

To: Chief. Media Bureau
MOTh)N FOR STAY

Sound all-lope Radio NfP (“SOH”), licensee of low power FM radio station WQEG-LP,
Chicago, illinois, by its attorneys, submits this Motion for Stay of the Bureau’s June 5. 201%
letter decision (“Letter Decision”) denying SOil’s Informal Oblection and granting the
modification application of Edgewater Btadcasting. Inc. (“E3l’). seeking to relocate the
transmitter site ol FM translator station W256CL, Park Forest, Illinois (‘Station”).
Simultaneously with the filing of this Motion for Stay, SOH is submitting the attached
Petition for Reconsideration of the Letter Decision (‘Petition”). SOH hereby incorporates the
Petition into this Motion for Stay.
In Rates Jar interstate Inmate calling Services, 31 FCC Red. 10936 (WB 2016), 1 the
Commission set out the four parts of the test to obtain a stay: (1) Has the petitioner shown that it
is likely to prevail on the merits? 2) Has the petitioner shown that without such relief, it will be
irreparably injured? (3) Would the issuance of a stay substantially harm other parties interested

The Comrmssion foflovs the test set forth m Wath Metro Area 7 aim!
Iow.s, JIlL, 559 F 2d 841 (D C Cu 197T

ComrnM ion

v Hohduv

in the proceedings? (4) Where lies the public interest?2 Applying the Commission’s test to this
case demonstrates clearly that the Bureau should grant the requested stay and order EBI to cease
any efforts to construct at its ModIfication Application site until the Bureau has ruled on SOil’s
Petition.
L

Likelihood to prevail

OH

the merits

In the attached Petition, SOl I shows that:
1. The Bureau correctly concluded that 1BI engaged in aseries of translator hops that
demonstrate a straight-line march from rural Illinois to downtown Chicago, which is
evidence of an abuse of process.
2, The Bureau correctly concluded that there was no clearly legitimate reason for any of the
translator hops other than to mardi Into downtown Chiuigo, which is eidene of an
abuse of process,
3. $OH has demonstrated that the Bureau ftd]ed to give proper weight to the purpose of
Section 74.1233(a), which is to prevent licensees from moving rural translators into more
populous urban areas.
4. SOH has demonstrated that the Bureau failed to explain how its decision to allow
licensees to move rural translators into urban areas siowly, but not quickly, is in the
public interest and does not subvert the purpose of Section 74.1233(a).
5. SOH has demonstrated that the Bureau’s decision permits EBI to complete a major
modification of its facilities in violation of Section 74.1 233(a, which requires
publication pursuant to Section 73 3580 and in violatton ol Section 71 1 233(d)(2)W,
which permits the filing oI major modification apphcation’ only in Commission
established filing windows.
6. SOl-1 has demonstrated that the Section 73,3580 notIce requirement established by
Section 74.1233(a) is the method established by the Commission to protect the Ashbackcr
rights of other potential applicants, and the Bureau’s determination that operation at the
Third Application site for three months satisfies the Ashbac’ker doctrine violates Section
74.1233(a).
For the above reasons, SOil is vety likely to prevail on the merits of its Petition.

231

FCC Red 10936, par. 9.

IL

Irreparable injury to Party Requesting the Stay
In its Informal Objection, SOH stated that it is interested in applying to modIfy its

facilities in a manner that is precluded by the grant of the EBI Application.3 Each day that FBI is
allowed to prevent 80K from tiling to modify its facilities is a day that SOT-i is required to
operate with less than optimal facilitIes. The operation with tess than optimal Facilities limits the
ability of 80K to serve the Chinese community of Chicago. Thus, SOH will attract a smaller
audience and fewer donors than it would of if it were allowed to modify its facilities. This is
irreparable harm to 80K for which there is no remedy available other than the request stay.

111.

Harm to Other Parties

The only party affected by this stay request is FBI. EBI is currently operating at its Third
Application site, and grant of the stay will not impact FBI’s ability to operate at that site. As
demonstrated above, the Bureau’s decision to permit FBI to begin operation at its Modification
Application site is likely to be reversed on reconsideration. Therefore, FBI is not entitled to
operate from its Modification Application site. As FBI should not he allowed to operate from

the Modification Application site, FBI will suffer no harm from grant of the stay.

W

Where lies the Public interest
80K has demonstrated that in Section 74.1233(a) the Commission determined that the

publIc interest is served by preventing licensees from abandoning rural communities by moving

translators from rural communities to populous urban areas. 80K demonstrated that Section
74.1233(a) established a policy that major modification applications for translators must be
publicly announced pursuant to Section 73.3580 and can only be filed in established filing
windows pursuant to Section 74.1 233(d)(2)(i). 5011 demonstrated that the Bureaus decision

SOFT Informal, Objection, filed January’ 19, 2018. at 3-4.

3

violates the requirements of Section 74I233(a) and violates the Ashbacker doctrine. 501-1
demonstrated that the Bureau has failed to demonstrate how its decision would serve the public
interest. $01-I has demonstrated that the public interest is served by reversal of the Bureau
decision.
V.

Conclusion

SOH has demonstrated that applying the Commission’s test for a stay to this case shows
clearly that the Bureau shouki grant the requested stay and order EBI to cease any efforts to
construct at its Modification Appliccalon site until the Bureau has ruled on SOH’s Petition.
Respectfully submitted,
SOUND OF NOPE RADIO NFP
By its Attorneys,

Wins1di
/AtJBIN. WINSTON, DIERCKS. HARRIS
& COOKE LLP
1250 Connecticut Avenue. N.W.
Suite 700
Washington, DC 20036
(202) 861-0870
inston(xwdhccom

July 1.2019

4

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

litre

)

Edgewater Broadcasting, Inc.
Licensee of FM Translator
W256CL
Park Forest, IL

)

)
)

File No. BPfT-20171229A8E

)

To Chief, Media Bureau

PETITION FOR RECONSIDERATION

SOUND OF ElOPE RADIO, NFP
By its attorneys,
James L. Winston
RUBIN, WINS FON DILRCKS, fl\RRlS
& COOKE, LLP
1250 Connecticut Avenue. N.W,
Suite 700
Washington, DC 20036

July 1,2019

TABLE OF CONTENTS
EXECUTIVE SUMMARY

iii

I. INTRODUCTION

1

IL BACKGROUND

2

III. THE LETTER DECISiON FAILS TO GIVE PROPER WEIGHT TO THE EVIDENCE
AND THE LAW

3

A. Temporary Construction

6

3 Duration. of Operation

7

C. Alternative Purposes

8

D. Pattern of Translator Relocations

9

IV. THE BUREAU’S FAILURE TO FIND AN ABUSE OF PROCESS IS CONTRARY TO
Ti-IE EVIDENCE AND THE LAW

ii

V. THE LETTER DECISION VIOLATES THE ADMINISTRATIVE PROCEDURE ACT...12
VI. ASHBA.CKER CONSIDERATIONS

13

VII. CONCLUSION

14

U

EXECUTiVE SUMMARY

Sound of Hope Radio NFP f”SOH”), licensee OC lOW poWer FM radio station WQEG-LP,
Chicago, illinois, by its attorneys, submits this Petition for Reconsideration of the Bureau’s June
5, 2018 letter decision (“Letter Decision”) denying SOHs Informal Objection and granting the
modification application of Edgewater Broadcasting, Inc. t”EBI”), seeking to relocate the
transmitter site of FM translator station W256CL, Park Forest, IllInois (“Station”).
The Bureau has concluded that EBI engaged in a series of translator site hops that

demonstrate a straight-line march from rural illinois to downtown Chicago, which the Bureau
concludes is evidence of an abuse of process. The Bureau has concluded that there was no
clearly legitimate reason for any of the translator hops other than to march into downtotvn

Chicago, which the Bureau concludes is evidence of an abuse of process. Amazingly however,
the Bureau places form over substance by ruling that the period of time that these hops took.
February 9. 2015 to December 29, 2017, and the limited operations that the Station undertook at

two of these sites, somehow excuses their clear abuse of process. The Bureau’s decision
subverts, undermines and violates SectIon 74.1233(a) and gives EBI and other licensees a
blueprint for circumventing that rule in the future.

Similarly, the Bureau’s analysis ofthe Ashbtwker doctrine fails to recognize that Section
74.1233(a) sets forth the Commission’s determination of how the Ashhacker rights of other
potential applicants are to be protected from a major modification. Section. 74.1233(a) requires
that an applicant for a rnaor modifIcation must comply with the public notice requirements of
Section 713580 and the filing window requirement of Section 74. 1233(d)feXi), The Bureau
cannot allow EBI and future applicants to circumvent the major change public notice

Iii

requirement and filing window requirement by a stealth process of using a series of minor
change hops, Section 74.1233(a) and Ashbucker require that the major change publIc notice
requirements of Section 783 3580 and the filing window requirement of Section 74. 1233(d)(2)(i)
he followed.
The Bureau began its analysis by defining an abuse of process. In very key ways it
determined that EBI has committed an abuse of process. The Bureau’s decision improperly
excuses an abuse of process. The Bureau has failed to expiain how the public interest is served
by excusing an abuse of process and undermining the purpose of Section 74.1233(a). The
Bureau has failed to provide reasons and a basis for its decision, as required by Section 557 of
the Administrative Procedure Act, 5 U.S.C.

§ 557. and the decision is therefore arbiirary.

capricious and an abuse of discretion and is therefore subject tojudicia] reversal pursuant to
Section 706 of the Administrative Procedure Act 5 U.S.C.

§ 706. The Letter Decision should be

reconsidered and reversed, The EBI Modification Application should be dismissed or denied.

iv

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

Inre
F.clgewater Broadcasting, Inc.
Licensee of FM Translator
W256CL
Park Forest, IL

)
)
)
)
)
)

File No. BPFT-201 71229A3E

To; Chief. Media Bureau
PETITION FOR RECONSIDERATION

Sound of Hope Radio NFP (“St)H”), licensee of low power FM radio station WQEG-L?,
Chicago, illinois, by its attorneys, submits this Petition ftr Reconsideration of the Bureau’s Juiie
5, 201$ letter decision C’Letter Decision”) denying 8011’s Informal Objectio& and granting the
modification application of Edgewater llroadcasting, Inc. (“Ff31”), seeking to relocate the
transmitter site of FM translator station W256CL Park Forest, Illinois (“Station”),
I.

INTRODUCTION
As 8011 shall demonstrate below, the. Letter Decision can best be described as a

“Blueprint for how to evade the letter and spirit of Section 741233(a) of the Commission’s
Rules. 47 C?R

§ 74.1233(a).”

The Letter Decision discusses the relevant evidence and case law

but fails to place proper weight on the purpose of Section 74.1233(a). The Letter Decision
concludes that FBI’s conduct provides clear evidence of an abuse of process in two fundamental
ways. But It fails to hold FBI accountable for that abuse of process. in particular, the Letter
Decision fails to address the fundamental question: how is the public interest served by allowing

Sound of Hope Informal Obiection filed January 19 2018

EBI to use a series of fiur transmitter site hops to move a translator 40 miles from Beecher,
Illinois fpopulatien 4,359)2 to the center of Chicago (population 2,705.994)? By failing to place
proper weight on the purpose of Section 74.1233(a), the Letter Decision fails to recognize that
FBI has engaged in an abuse of the Commission’s processes that must not be condoned.
Moreover, the Bureau decision violates the requirements in Section 74.1233(a), which requires
public notice pursuant to Section 73.3580 of major modification applications and Section
74.1233td)(2(i), which limits the filing of major modification applications to Commission
designated tiling windows. failure to comply with these notice requirements deprived other
potential applicants of the Ashbucker rights those rules established. This leaves the Letter
Decision in violation of the Administrative Procedure Act. for this reason, the Letter Decision
should be reconsidered and reversed, and the Modification Application should he dismissed or
denied.
IL

BACKGROUND
In its Informal Objection, SOH provided Exhibit A, prepared by the engineering firm of

Smith and Fisher. Exhibit A shows the six applications that Edgewater flied to bring its
translator to the heart of Chicago. ExhIbit A shows the moves have been a virtual straight line
toward the heart of Chicago. Exhibit A also shows that four of the six construction permits did
not place a 60 UBu contour over the entirety of the Park forest, Illinois, the community of

.Beecher, Illinois population data, 4,460, U.S. Census Bureau, retrieved June 26, 2019. The EBI
translator is licensed to Park forest, but the Bureau noted that the original transmission site as
near Beecher. Letter Decision at 1. The significance of the move to Chicago is just as
significant if the population of Park Forest, 21,429, is compared with the population of Chicago.

license. This is ftwther evidence that the moves have not been made to improve service to its

community of license. Also attached is Exhibit B, a print out of the Commission’s CDBS
system, which shows Chat this pattern of successive rnçdification applications filed by EB1
moving closer to the center of Chicago, has taken place over a very short period of time, further
evidence that these modificatIons have been part of a concerted series of”hops” Such a series
of ‘heps” in such a short period of time cannot reasonably be considered necessary

—

a fact the

Bureau concedes,
ill.

THE LETTER DECISION FAILS TO GIVE PROPER WEIGHT TO THE
EVIDENCE AN!) THE LAW

In the Letter Decision, the Bureau examined the evidence and law, but failed to give
proper weight to either. The Bureau began by noting that the first construction permit
application filed by EBI to move toward chicago was filed on February 9. 201 5 The Bureau

then proceeds to describe the three construction pennit applications that were flied, granted and
licensed between February 9, 2015 and September 11, 201 7 The Bureau notes that the
Modification Application at issue in this proceeding was filed December 29, 2017, just three
months6 after the third construction permit was granted.
After describing this string of hops. the Bureau began its analysis of the applicable law,
The Bureau stated:

Abuse ofprocess anaiycis. In Mattoon and Broadcast Thwers. we articulated the
(‘huago, Illinois population data, 2,70S,994, U S Census 3urau, rctrievcd June 26, 2019
“Letter Decision at 1.
5Idati-2.
The Lettet Decision incorrectly describes this as four months later,
3

policy that a licensee who effectuates a major change in antenna 1ocation by
means of a succession of serial mInor changes may be abusing the Commission’s
processes. Abuse of process’ has been defined as the use of a Commission
process, procedure or rule to achieve a result which that process, procedure or rule
was not designed or intended to achieve or, alternatively. use of such process,
procedure, or nile in a manner which subverts the underlying intended purpose of
that process, procedure, or rule,’ An abuse of process ordinarily involves an intent
to gain some benefit by manipulating the Commission’s procedures. (footnotes
omitted)7
The Bureau then presents what it explains to be an important point to be considered in its
decision:
Because the Commission has considered allegedly abusive serial translator
modifications in both the waiver and enforcement contexts, it is important to note
that these two types of proceedings are governed by different standards and
procedures. In an enforcement proceeding, as here, the Commission determines
whether the conduct at issue violates a Commission rule or policy, and, if so, what
sanctions or other actions would he appropriate. In a waiver proceedIng—
although the Commission must carefully consider all waiver requests—the
requesting party is by no means entitled to a waiver grant and faces a high hurdle
even at the starting gate.’ The burden is on the waiver requestor to show that (1)
special circumstances warrant a deviation from the general rule, and (2) such
deviation better serves the public interest.
The Bureau then states:
Therefore, the same set ot circumstances (or public interest considerations) that
might lead the Commission to deny a waiver request may not equally warrant an
enforcement action, ThIs distinction is crucial, because while the decisions cited
by Sound of Hope are waiver cases, including Mattocrn It%elf in this case
Edgewater is not requesting a waiver. Rather, Sound of lope urges us to take
enforcement action based on abuse of process, as dIscussed above. (footnotes
omitted’9
‘

Letter Decision at 3-4, citing John F Garzigtia, Letter Decision. 26 FCC Red 12685. 12687
(MB 201 1) (“Mattoon”), and 3,vadeast Towers, Inc., Order, 26 FCC Red 7681, 7684, paras. 3-5
(MB 201 1) (“Broadcast Towers”).
Letter Decision at 4.
L)

4

in that statement, the Bureau explains that the standard for imposing an enforcement action is

higher than the standard for denying a waiver, The Bureau then discusses the two previous cases
where it reviewed serial translator moves as an enforcement matter, discussing first Broadcast
Towers:
In its only previous enforcement action based on serial modifications, Broadcast
Towers, the Bureau entered into a consent decree resolving various violations
including the ‘abuse of Commission processes committed by BTI as it migrated
the Translators north to Miami.’ After reiterating this policy in Mattoon (in the
context of a waiver request), the Bureau has considered only one other nonwaiver serial modification case°
The Bureau then discussed Branehport:
In Branehport, the I3ureau determined that it would not pursue an enforcement
action where the serial modifications at issue ultimately returned the station’s
antenna to its approximate starting location, explaining that in such circumstances
enfbrcement was not necessary (1) to protect the Ashbacker rights of potential
applicants to comparative consideration for the ‘same’ license (i.e. that are
mutu4lly exclusive with the final destination of the ‘hopping’ station), and (2) to
prevent, in the publIc interest, FM translator stations from abusing Commission
processes in order to abandon[] their prescnt service areas m lavor of more
populous locations. Based on the reasoning of Maitoon and Branchpor% we first
analyze the potential abuse of process issue and then consider the %shbacker
implications of the Edgewater serial modifications. footnotes omitted)1’
Thus, the Bureau emphasized that its review ‘as “to prevent, in the public interest, FM translator
stations from abusing ornmission processes in order to abandon their prese;lt service areas in
favor of more populous locations.” The Bureau then proceeded to analyze the EBI series of hops
based upon four criteria:

lola.

)

I.
2.
3.
4.

Temporary construction
Duration of operation
Afternative purposes
Pattern of translator relocations

Unfortunately, the Bureau’s analysis of the four criteria was flawed.
A. Temporary Construction

With respect to temporary construction, the Bureau concluded that there was no abuse of
process, because FBi operated at the First and Third Application Sites for over a year. The
Bureau somehow concludes that operating a translator at a site for slightly over a year negates
the conclusion that the construction was temporary. This conclusion fails to acknowledge that
broadcasters ordinarily construct. facilities for much longer periods. Indeed, the common practice
in the Industry is to lease tower facilities under long-term leases for five, ten or more years)2
Hoppitig from one site to another in a year indicates that EBI entered into no long- term kases at

any of the sites it used. Thus5 each and eve;y site that EBI used was a temporary site.
indeed, the hopping from one she to another suggests that FBI may have entered into no
leases at some of these sites and instead was only a month-to-month tenant. Therefore, at a

minimum, the Bureau should have investigated the nature of EBFs relationships with the site

Letter Deetsion at 4 citing 6w]’ S $mithwtck, Esq, I etter Dccision, 28 FCC Red 15494,
15497-98 tM3 2013) t ‘Brcmchpoit’)
12
An industry iector leader details its business model as “Typical contract terms include an
initial term of 5 to 10 years wIth multiple 5-year renewal periods. See Introduction to the Tower
Indumy & American Tower, I h. Business Model, Long Ferm Customers’ Leases5 at 8
Available online at file: http://phx.corporate
ir,netiExternal.File?item=UGfyZW5OSUQ9MTEwMD12fliNoaWxkSUQ9LTf8VH lwZTOz&t=
I

6

owners at each of the sites. The Bureau should have directed FBI to submit copies of all leases
and other agreements that it signed at each of the sites. It is most likely that such an
investigation would demonstrate that FBI arranged for each site to be a temporary site.
SimIlarly, the fact that hill did not use telescoping antennas transported by vehicle to
public roadside sites powered by portable generators is not evidence that these were not
temporary facilities. The difference between the facilities used by FBI and the applicant in
Broadcast Towers is only a matter of cost. With the prize oljective being a translator in

downtown Chicago, the purchase of durable facilities and construction on third-party sites was a
small investment in obtaining the desired objective. The facility investment could he moved to
each successive site without purchasing new equipment. The additional cost of moving these
facilities in comparison to the cost of portable facilities should have little weight in considering
whether an abuse of process has been perpetrated.
B. Duration of Operation

The Bureau said the following about the duration of operation:
I lere, as noted above, I dgewater operated thL stauon at the First Application Site for
more than a year Although it opcrated the Station at the Second Application site for
only one month, which is a red flag that the Second Application site could represent
simply a wa station, hdgewatei then broadcast from the thud Application site for
more than a year, from August 2017 to the present. The prolonged periods of service
at the First and Third Application sites indicate that these facilities were not
temporarily constructed and that Edgewater in fact served the public from each
location. Therefore, although it partially cuts both ways, this factor overall does not
support an enforcement action based on abuse of process.3
The t3ureaus balancing of the periods of operation is clearly misguided. As SO.H has

7

demonstrated above, operation ibr a year should not be regarded as long-term operation. O.n the
other hand, operation at the Second Application site for only one month must he given great
weight. The Second Application site was clearly only a waystation on the path to downtown
Chicago. Tn addition, the only reason BBI has operated at its Third Application site for more

than a year is because oC SOH’s Petition to Deny. ELM filed its ModifIcation Application after
operating at Its Third Application site for only three months. EBI should be given no credit for
operating at its Third Application site for over a year. This series of hops is an abuse of the
Commission’s processes.

C. Alternative Purposes
The 3ureaus treatment of this criteria is the most perplexing part of the Letter Decision. The
Bureau stated:
Alternative purposes. As mentioned above, our policy against serial modifications
is based on potential abuse of the Commission’s licensing procedures, i.e.,
intentional efforts to evade rule restrictions. An application that is filed for a
demonstrably legitimate purpose—e.g., that is the result of unexpected tower
damage, or to resolve interference issues that are outside the translator licensees
control—does not raise abuse.. ol process concerns In this case, however, there :.s
no evidence that &lgewaterflkd any Application due to interference or any
oilier clearly legitimate reason, so this fac,tor docs not remove any of the
Apphettons from further scrutm regarding potential abuse of process (emphasis
added) W
This is the most correct and most damnIng conclusion in the Letter Decision. “[T]here is no
evidence that Edgewater filed any Application due to interference or any other clearly legitimate
reason.” Case closed! The purpose of Section 74.1233(a) is to prevent precisely the conduct

Letter Decision at 6.

8

engaged in here. As the Bureau explained:
Some translator licensees have attempted to accomplish what would otherwise be
dismissed as an imprmissib1e major change under Seuion 74 1233(a) by filing
serial minor modification applications to hop’ to new locations that are
sometimes over 100 miles away. We believe the filing of serial modification
apphcations represents an abuse of process We recently entLred into a consent
decree with a party that acknowledged this practice was an abuse of process and
agreed to forfeit several authorizations,’ $
The Bureau then discussed the purpose of SectIon 74.1233(a):
The purpose of the overlap requirement is [tjo prevent FM translator stations
from abandoning their present service areas.” The evident purpose of the serial
applications is to achieve the prohibited result. No rule specifically prohibits such
a practice, but the Commission can take appropriate enforcement action, including
denial of applications that are mtended to evade the requirement or subvert its
purpose pursuant to Scton 308(a) of the Communications Act of 1934. as
amended, on the ground that grant would not serve the public interest.16
..

The Bureau concludes that EBI had no clearly legitimate reason to file any of the
Applications. In other words, the onlypurpose for filing any of the Applications was to make a
steady march into downtown Chicago. Ilow the Bureau could reach this overwhelming
conclusion and reach its contrary final decision is unfathomable. The Bureau’s finding of no
alternative purpose should be the lynchpin of its determInation that this entire procession of site
hops was an abuse of process.
D. Pattern of Translator Relocations
The Bureau adds to the perplexing nature of its ultimate conclusion with its analysis of
the pattern of translator relocations. The Bureau begins:

‘

Letter Decision at 6.
Letter Decision at 2.

9

Pattern of translator relocations, The purpose of the overlap requirement of’
the major change rule is “[tjo prevent. FM translator stations from
abandoning their present service areas.” The Commission has tong been
concerned that its statutory goal of distrIbuting radio service fairly and
equitably may be undermined by the financial incentive ft)r broadcasters to
move their slafions from rural areas into heavily populated urban areas. In
Branchport, we concluded that. serial moditications do not implicate abuse
ofprocess concerns if they ultimately return the relevant station’s facilities
to their original location.’7
.

.

The Bureau then points out the important parallel between the instant case and the Broadcast
Towers case:

In contrast, in Broadcast Trnvers, we found that abuse of process existed
where the licensee migrated its translators straight north from the Florida
Keys area into Miami. Such straight-line “marches’ are clearly indicative of
an intention to cireunwent the major change rule by moving the station to a
distant location that would otherwise be considered a major change. This is
particularly the case in the presence of a clear incentIve for avoiding the
major change rule—such as increasing signal coverage in a densely
populated area. In this case, the Station modjflcations moved tite station
directlyfront the rurat outskirts of Chicago into the center of the
fpresurnabli9 more Itterative urban area. Therefore, thisfactor weighs in
favor ofafinding of abuse ofproce,cs. (emphasis added) (footnotes
omitted)’8
Once again, the Bureau reaches what should be a decisionafly controlling conclusion of abuse of
process. The Bureau correctly concludes that EDT’s straight-line march from the rural outskirts
of Chicago into the center of the (presumably) more lucrative urban area
findirg an abuse of process.”

‘61d
‘71d. at6.
IX
Letter Decision at 6-7.

10

weighs in favor of

IV.

TUE BUREAU’S FMLtIRE TO FIND AN ABUSE OF PROCESS 15 CONTRARY
TO THE EVIDENCE AND THE LAW

The Bureau’s conclusions with respect to: (1) the lack of a legitimate alternative purpose
for any ofthe site moves and (2) the

clear

pattern of moving into downtown Chicago.

demonstrate that the ultimate conclusion should have beei that EBI has engaged in an abuse of
process. Amazingly however, the Bureau concluded as follows:
Based on the above, although we agree that the pattern of translator
relocations in this case raises concerns regarding potential abuse of process, we
conclude that the record evidence taken as a whole does not support a findIng that
Edgewater deliherateJy and abusively attempted to evade the major change rule.
Critical to this conclusIon are the facts that (1) none of the Station facilities were
temporarily constructed, and (2) Edgewater operated the $tation for more than a year
at two of the relevant interim locations. We are not persuaded that such gradual
changcs are tht functional equi’.alent of a smgk. major change and theretore
evidence of an attempt to evade the major change rule. Taking the totality of the
circumstances into account, we conclude that the serial modifications at issue here to
do not warrant an enforcement action based on abusc of process However, ‘. will
continue to monitor the actions of Edgewater and other licensees to ensure that they
are not abusing our application processes to relocate iheilities in a manner that is not
permitted and inconsistent with the minor modification rules)9
This conclusion is inconsistent with the evidence before the Bureau and the law. The
Bureau’s decision provides a blueprint for evading the major change rule. The Bureau has
concluded that EBI’s conduct shows no purpose other than to evade the mjor change rule
Thus. the Bureau’s decision guides E31 and thture translator licensees that, if you are willing to
spend three years and a little money, you too can evade the major change rule and bring a rural
translator into the third largest city in the U.S. The Bureau’s decision mistakenly suggests that
the only purpose of Section 74.1233(a) is to keep licensees from abandoning rural communities
Letter Decision at 7.

I;

in one step. This is incorrect. The purpose of Section 74.1233(a) is to keep licensees from
abandoning rural communities period. The Letter Decision completely undermines the purpose
of Section 74.1233(a).
V.

THE LETTER DECiSION VIOLATES THE ADMINISTRATIVE PROCEDURE
ACT
The Letter Decision completely undermines Section. 74.1233(a) without providing any

public interest justification for doing so. The Letter Decision provides no explanation for why
alloving ‘icensees to evade the major change rule is in the public interest. The Bureau has
concluded that Section 74.1233(a) prevents licensees from abandoning rural communities
quickly, but it does not prevent them from abandoning them slowly. However, the Bureau has
not explained what public interest benefit is derived from allowing ]icensees to abandon their
rural communities slowly. The public interest established by Section 74.1233(a) is that translator
licensees should continue to serve their licensed communities. The Letter Decision eviscerates
that rule.
Section 557 of the Administrative Procedure Act (APA”) 5 U.S.C.

§ 557 requires that

the decisions of an administrative agency must contain the reasons and basis for its findings on
the evidence and the law. Where the agency decision fails to provide an adequate explanation of
the reasons and basis for its conclusions, the decision is rendered arbitrary, capricious and an
abuse of discretion and will be reversed by a reviewing court, pursuant to Section 7t)6 ofthe

12

APA 5 U.S.C.

§ 706.20

The Letter Decision fails to meet the requirements of the APA and is

subject to reversal by a reviewing court.

VI.

ASHBACKER CONSIDERATIONS
The Letter Decision concludes with an analysis of whether EBI’s serial modifications

raise Ashhacker-related procedural concerns. On this issue the Bureau concludes:
We conclude that grant of the Modification Application is consistent with the
Ashbacker doctrine. Absent a waiver request, Edgewater is subject to the same
procedural iti1e as any other potentially competing appl;ant including the
overlap requirement of Section 73.1233(a), and is therefore ‘competing on an
equal basis’ as required by AshbatAei I his situation is distmguishahie from the
Matroon waiver situation, in which a proposed long-distance, one-step move
could take even a vigilant competitor by surprise It is likewise distinguishable
from the Broadcast Towers situation, in which a rapid series of modifications
could have effectively precluded potential competitors from filing mutually
exclusive applications.21
The Bureau then states:
Because Edgewater operated the Station at the Third Application site for four
months22 beibre tiling the Modification Application, other potentially competing
applicants had ample notice that a modification application affecting nearby areas
might be filed and sufficient time to tile mutually exclusive modification
applications if &srred for these reisons, we conclude that grant ol the
Modification Application does not unfairly pieclude potentially competing
applications in violation of the Ashbaeker doctrine.23
The Bureau’s Ashbacker analysis rests on the assumption that EBI’s operation from the
Third Application site tbr three months provided adequate notice to other potential applicants.

20

See. Prometheus Radio Project i FCC, $24 f.3d 33, 40. 57-60 (3d Cir. 2016): Beaumont
Branch ofthe NAAC’P v. FCC, 854 F.2d 501, 507, 510 (D.C. Cir. 198$): WcttionalBlackMedia
c’oatition v. FCC 775 F.2d 342, 355-358 (D.C. Cir. 1985).
2.1
Letter Decision at 7.
22
As noted above, the Station was operated at the Third Application site for only three months,
not four months, before the Modification Application was filed.

13

The Bureau has failed to apply the applicable law in reaching this conclusion. EBI has
completed a major change of its service area without complying with the public notice
requirements of Section 73.3580, as required by Section 74.1233(a). and without filing in a
Commission designated filing window, as required by Section; 74.1 233(d)(2)(i), ft is the public
notice requirement of Section 73.3580 and the filing wndøw requirement of Section
74.1 233(d)(2)(i) that provide protection of the Ashbacker rights of other potential applicants.
Potential competitors are not placed on adequate notice by the mere filing of a minor change
application. The Bureau’s determination that operating for three months at a minor change site is
sufficient for other potential applicants to he put on notice violates Section 74.1233(a) and the

Ashhaeker doctrine. The Axhhacker doctrine requires adequate notice to other po[entiaI
applicants. The Commission determined in Section 74.1233(a) that adequate notice for a major
change application requires compliance with the public notice requirement of Section 73.3580
and the filing wIndow requirement of Section 74.1233(d)(2)(i), The Bureau’s determination that
it is permissible to complete a major change without providing the public notice required by
Section 73.3580 and applying in. a filing window pursuant to Section 74.1 233(d)(2)(i) violates
Section 74.l233(a) the CommIssion’s rules and fails to meet the requirements of the Axhbacker
doctrine. This also violates the requirements of the APA.
VII.

CONCLUSION

The Bureau has concluded that EBI engaged in a series of translator site hops that
demonstrate a straight-line march from rural Illinois to downtown Chicago, which the Bureau
Letter DecisIon at 7-8.
14

concludes is evidence of an abuse of process. The Bureau has concluded that there was no
clearly legitimate reason for any of the translator hops other than to march Into downtown

Chicago, which the Bureau concludes is evidence of an abuse of process. Amazingly however,
the. Bureau places tbm over substance by ruling that the period of time that these hops took.
February 9. 2015 to December 29. 20l7 and the limited operations that the StatIon undertook at
two of these sites, somehow excuses their clear abuse of process. The Bureau’s decision
undermines and violates Section 741233(a) and gives EBI and other licensees a blueprint for
circurnventiiw that rule in the future.
Similarly, the Bureau’s analysis of the Ashhacker doctrine fails to recognize that Section
74.1233(a) sets Forth the Commission’s determination of how the Asithacker ights of other

potential applicants are. to he protected from a major modification. Section 74.1233(a) requires
that an applicant for a major modification must comply with the public notice requirements of
Section 713580 and the filing window requirement of Section 74.1 233(d)(2)(i). The Bureau
cannot allow EBI and future applicants to circumvent the mjor change public notice
requirement and the filing window requirement by a stealth process of using a series of minor
change hops. Sectirni 741233(a) and Ashbacker require that the major change public notice
requirements of Section 713580 and the filing window requirement of Section 74.1233(d)(2)Ø)
be followed. The decision therefore violates the Administrative Procedure Act and is sujecl to
reversal upon appetlate review.
The Bureau began its analysis by defining an abuse of process. In very key ways it
determined that EBI has committed an abuse of process. The Bureau’s decision improperly

16

excuses an abuse of process. The Bureau has failed to explain how the public interest is served
by excusing an abuse of process and undermining the purpose of Section 74.1233(a). The Letter
Decision should be reconsidered and reversed. The ElM Modification Application should be
dismissed or denied.
Respectfully submitted.
SOUND Of HOPE 1AD1O N?P
By its Attorneys.

es L.
UBIN. WINSTON. DIERCKS, HARRIS
& COOKE. LLP
1250 Connecticut Avenue, NW,
Suite 700
Washington, DC 20036
(202) 861-0870
jwinston(rwdhc.com

July L2019

16

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111

CERTIFICATE OF SERVICE

I, Sheree Kellogg, do hereby certify that I sent via first class U.S. mail, this 2nd
day of July, 2019 copies of the foregoing PETITION FOR RECONSIDERATION to the
following:
Aaron P. Shainis
Shainis & Peltzman. Chartered
1850 M Street, NW
Suite 240
Washington, DC 20036
(aaron@s_plaw.com)
Albert Shuldiner, Esq.*
Chief, Audio Division, Media Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
(albert.shuldiner@fcc.gov)
Michael Wagner, Esq.*
Federal Communications Commission
445 l2l Street, SW
Washington, DC 20554
(michael.wagner(fcc.gov)
James Bradshaw*
Federal Communications Commission
445 l2 Street, SW
Washington, DC 20554
(james.bradshaw(fcc.gov)
Robert Gates*
Federal Communications Commission
445 12(h Street, SW
Washington, DC 20554
(robert. gates@fcc.gov)
* sent

via email only

Sheree Kellogg

,1

CERTIFICATE OF SERVICE

I, Sheree Kellogg, do hereby certify that I sent via first class U.S. mail, this 2nd
day of July, 2019 copies of the foregoing MOTION FOR STAY to the following:
Aaron P. Shainis
Shainis & Peltzman, Chartered
1850 M Street, NW
Suite 240
Washington, DC 20036
(aaron@s plaw.com)
Albert Shuldiner, Esq.*
Chief, Audio Division, Media Bureau
Federal Communications Commission
12l Street, SW
Washington, DC 20554
(albert.shuldiner(fcc.gov)
Michael Wagner, Esq.*
Federal Communications Commission
44 12 Street, SW
Washington, DC 20554
(michae1.wagner(fcc.gov)
James Bradshaw*
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
(iames.bradshawfcc.gov)
Robert Gates*
Federal Communications Commission
44 12th Street, SW
Washington, DC 20554
(robert.gates@fcc.gov)
* sent

via email only

,Sheree Kellogg

f