Dear Counsel:
We have before us two petitions for reconsideration filed by Summit American, Inc. (Summit) alleging harmful interference to KJUL(FM), Moapa Valley, Nevada (Complaining Station), 1 from FM Translator K284CW, Winchester, Nevada (K284CW or Translator). 2 The first is a “Petition for Expedited Reconsideration” (Summit License Petition), filed by Summit on June 3, 2019, seeking reconsideration of the Media Bureau’s (Bureau) grant of the Translator’s covering license (License). 3 The second is a “Petition for Expedited Reconsideration” (Summit 2019 Permit Petition), filed by Summit on June 13, 2019, seeking reconsideration of the Bureau’s grant of a construction permit (2019 Permit) for the Translator.
4 Also before us is a “Petition for Declaratory Ruling, or in the alternative, Petition for Reconsideration, and to Reinstate Construction Permit” filed by Silver State on April 15, 2020 (Silver State 2020 Permit Petition), 5 contesting the Bureau’s action rescinding a construction permit (2020 Permit) for the Translator and returning the 2020 Permit Application to pending status.
Discussion. Procedural Issues. Silver State 2020 Permit Petition. In the Silver State 2020 Permit Petition, Silver State requests that the Bureau either: (1) issue a declaratory ruling concerning the Bureau’s action rescinding Silver State’s 2020 Permit and returning the Permit Application to pending status; or (2) grant reconsideration of said Bureau action and reinstate the 2020 Permit. Section 1.2 of the Commission’s rules (Rules) provides that the Commission may “issue a declaratory ruling terminating a controversy or removing uncertainty.” Here, no controversy or uncertainty exits. Pursuant to section 1.113(a) of the Rules, the Bureau may, on its own motion, set aside any action taken by it within 30 days from the date of public notice. The Bureau announced grant of the 2020 Permit Application in a March 13, 2020, public notice and the Bureau rescinded said grant on March 17, 2020, four days later. Thus, the Bureau acted within 30 days from the date of public notice of its grant. We, therefore, decline to issue a declaratory ruling. In addition, section 1.106(a)(1) of the Rules prohibits petitions for reconsideration of interlocutory actions. An interlocutory action is an interim determination on a matter involving an application; it does not grant or deny the application. Here, the Bureau’s action rescinding the 2020 Permit and returning the Permit Application to pending status is an interlocutory action. Therefore, we dismiss the Silver State 2020 Permit Petition. Summit License Petition. The Commission will consider a petition for reconsideration only when the petitioner shows either a material error in the Commission’s original order or raises additional facts
not known or existing at the time of the petitioner’s last opportunity to present such matters. In addition, section 1.106(e)67 of the Rules stipulates that any petition based on a claim of electrical interference must be accompanied by an affidavit of a qualified engineer.
A petition for reconsideration may be filed by any party to the original proceeding or any party whose interests will be adversely affected by the action taken by the Commission. If the petitioner was not a party to the original proceeding, it must show good reason why it was not possible to participate in the earlier stages of the proceeding and state with particularity the manner in which its interests are adversely affected by the action taken.
Although the Commission has allowed petitions for reconsideration in situations where prompt grant effectively precluded participation during the initial consideration of an application, in each case the period between public notice of the application and grant was less than a week.
Here, the time period between the April 19, 2019, public notice of the License application’s acceptance for filing, and the April 29, 2019, grant of the License exceeds what the Commission has found to be insufficient in previous cases.We note that a number of Commission rules allow fewer than ten days to prepare and file a pleading. While we have accepted petitions for reconsideration from non-parties in certain situations where special equitable considerations were at issue, no such considerations exist here. The public notice announcing the License application as accepted for filing served as constructive notice to Summit. It appears that Summit made a deliberate choice to delay filing the Summit License Petition in order to gather listener complaints and prepare the petition. For these reasons, we conclude that Summit was not “effectively precluded” from filing a timely petition or objection. Because Summit had an adequate opportunity to participate earlier in the proceeding but failed to do so, the Summit License Petition is not acceptable under section 1.106(b) of the Rules. Therefore, we dismiss the Summit License Petition to the extent it seeks reconsideration of the grant of the License. Although we dismiss Summit’s request for reconsideration of the License grant, we find that it is appropriate to consider Summit’s interference claim because the Translator Interference Order explicitly preserved the right of a full service station to challenge a translator’s operation on the basis of interference at any time, if the complaining station otherwise meets the heightened requirements set out therein.
Accordingly, we consider Summit’s interference claim below. Interference Claim. Pursuant to section 74.1203(a) of the Rules, an FM translator station “will not be permitted to continue to operate if it causes any actual interference to . . . the direct reception by the public
of off-the-air signals of any authorized broadcast station.” The Commission has interpreted “direct reception by the public” to limit actionable complaints to those that are made by bona fide listeners. When the Commission concludes that a bona fide listener has made an actionable complaint of uncorrected interference from an FM translator, it will notify the translator station that “interference is being caused” and direct the station to discontinue operations. As discussed above, in the Remediation Required Letter, we found that Summit submitted a valid
and complete interference claim package. We, therefore, ordered Silver State to file either a plan to resolve the interference or information demonstrating that Summit has not submitted a valid and complete interference claim package. We have reviewed Silver State’s proposal to move the Translator to channel 276 at Las Vegas, proposed in the 2020 Permit Application, and find that the proposal does not resolve the interference to KJUL(FM). In the Translator Interference Order, the Commission declared that acceptable interference remediation plans include “relocating to an available same-band FM channel. Currently, Chinese Voice, who was previously licensed to operate on channel 276 at Las Vegas, has a pending application for review and motion to stay the Bureau’s finding that its license expired. Until the Commission acts on
these filings, channel 276 is not available to Silver State for its proposed relocation of the Translator. Because Silver State proposed to relocate the Translator to an unavailable channel, it failed to file an acceptable plan to remediate the interference to KJUL(FM) as required.
Therefore, we dismiss the 2020 Permit Application. Because Silver State has not provided any information demonstrating that Summit has not submitted a valid and complete interference claim package, we affirm the Remediation Required Letter’s finding in this regard, grant Summit’s interference claim against the Translator as licensed, and order the Translator to cease operations. In light of the Bureau’s earlier dismissal of the June 2019 License Application covering the 2019 Permit, and our decision herein to order the Translator to cease operations at the transmitter location proposed in the 2019 Permit, Summit has received the relief sought in the Summit 2019 Permit Petition. Therefore, we dismiss the Summit 2019 Permit Petition as moot.
Conclusion/Actions. For the reasons discussed above, IT IS ORDERED that the Petition for Reconsideration filed by Summit American, Inc., on June 13, 2019, IS DISMISSED. IT IS FURTHER ORDERED that Petition for Declaratory Ruling, or in the alternative, Petition for Reconsideration, and to Reinstate Construction Permit filed by Silver State Broadcasting, LLC, on April 15, 2020, IS DISMISSED. IT IS FURTHER ORDERED that the pending application for a minor modification of license (File No. 93597) filed by Silver State Broadcasting, LLC IS DISMISSED.
IT IS FURTHER ORDERED, that the Petition for Reconsideration filed by Summit American, Inc. on June 3, 2019, IS DISMISSED to the extent it seeks reconsideration of the grant of the license (File No. BLFT-20190415ABG) for Translator Station K284CW but the interference claim set forth in the petition, as supplemented by the “Supplement-Declaration of Scott Gentry, President of Summit American, Inc.,” filed on October 16, 2019, IS GRANTED.
IT IS FURTHER ORDERED that, pursuant to sections 74.1203 and 0.283 of the Rules, Silver State Broadcasting, LLC IS HEREBY ORDERED TO CEASE OPERATION OF TRANSLATOR STATION K284CW, Winchester, Nevada, IMMEDIATELY
We have before us two petitions for reconsideration filed by Summit American, Inc. (Summit) alleging harmful interference to KJUL(FM), Moapa Valley, Nevada (Complaining Station), 1 from FM Translator K284CW, Winchester, Nevada (K284CW or Translator). 2 The first is a “Petition for Expedited Reconsideration” (Summit License Petition), filed by Summit on June 3, 2019, seeking reconsideration of the Media Bureau’s (Bureau) grant of the Translator’s covering license (License). 3 The second is a “Petition for Expedited Reconsideration” (Summit 2019 Permit Petition), filed by Summit on June 13, 2019, seeking reconsideration of the Bureau’s grant of a construction permit (2019 Permit) for the Translator.
4 Also before us is a “Petition for Declaratory Ruling, or in the alternative, Petition for Reconsideration, and to Reinstate Construction Permit” filed by Silver State on April 15, 2020 (Silver State 2020 Permit Petition), 5 contesting the Bureau’s action rescinding a construction permit (2020 Permit) for the Translator and returning the 2020 Permit Application to pending status.
Discussion. Procedural Issues. Silver State 2020 Permit Petition. In the Silver State 2020 Permit Petition, Silver State requests that the Bureau either: (1) issue a declaratory ruling concerning the Bureau’s action rescinding Silver State’s 2020 Permit and returning the Permit Application to pending status; or (2) grant reconsideration of said Bureau action and reinstate the 2020 Permit. Section 1.2 of the Commission’s rules (Rules) provides that the Commission may “issue a declaratory ruling terminating a controversy or removing uncertainty.” Here, no controversy or uncertainty exits. Pursuant to section 1.113(a) of the Rules, the Bureau may, on its own motion, set aside any action taken by it within 30 days from the date of public notice. The Bureau announced grant of the 2020 Permit Application in a March 13, 2020, public notice and the Bureau rescinded said grant on March 17, 2020, four days later. Thus, the Bureau acted within 30 days from the date of public notice of its grant. We, therefore, decline to issue a declaratory ruling. In addition, section 1.106(a)(1) of the Rules prohibits petitions for reconsideration of interlocutory actions. An interlocutory action is an interim determination on a matter involving an application; it does not grant or deny the application. Here, the Bureau’s action rescinding the 2020 Permit and returning the Permit Application to pending status is an interlocutory action. Therefore, we dismiss the Silver State 2020 Permit Petition. Summit License Petition. The Commission will consider a petition for reconsideration only when the petitioner shows either a material error in the Commission’s original order or raises additional facts
not known or existing at the time of the petitioner’s last opportunity to present such matters. In addition, section 1.106(e)67 of the Rules stipulates that any petition based on a claim of electrical interference must be accompanied by an affidavit of a qualified engineer.
A petition for reconsideration may be filed by any party to the original proceeding or any party whose interests will be adversely affected by the action taken by the Commission. If the petitioner was not a party to the original proceeding, it must show good reason why it was not possible to participate in the earlier stages of the proceeding and state with particularity the manner in which its interests are adversely affected by the action taken.
Although the Commission has allowed petitions for reconsideration in situations where prompt grant effectively precluded participation during the initial consideration of an application, in each case the period between public notice of the application and grant was less than a week.
Here, the time period between the April 19, 2019, public notice of the License application’s acceptance for filing, and the April 29, 2019, grant of the License exceeds what the Commission has found to be insufficient in previous cases.We note that a number of Commission rules allow fewer than ten days to prepare and file a pleading. While we have accepted petitions for reconsideration from non-parties in certain situations where special equitable considerations were at issue, no such considerations exist here. The public notice announcing the License application as accepted for filing served as constructive notice to Summit. It appears that Summit made a deliberate choice to delay filing the Summit License Petition in order to gather listener complaints and prepare the petition. For these reasons, we conclude that Summit was not “effectively precluded” from filing a timely petition or objection. Because Summit had an adequate opportunity to participate earlier in the proceeding but failed to do so, the Summit License Petition is not acceptable under section 1.106(b) of the Rules. Therefore, we dismiss the Summit License Petition to the extent it seeks reconsideration of the grant of the License. Although we dismiss Summit’s request for reconsideration of the License grant, we find that it is appropriate to consider Summit’s interference claim because the Translator Interference Order explicitly preserved the right of a full service station to challenge a translator’s operation on the basis of interference at any time, if the complaining station otherwise meets the heightened requirements set out therein.
Accordingly, we consider Summit’s interference claim below. Interference Claim. Pursuant to section 74.1203(a) of the Rules, an FM translator station “will not be permitted to continue to operate if it causes any actual interference to . . . the direct reception by the public
of off-the-air signals of any authorized broadcast station.” The Commission has interpreted “direct reception by the public” to limit actionable complaints to those that are made by bona fide listeners. When the Commission concludes that a bona fide listener has made an actionable complaint of uncorrected interference from an FM translator, it will notify the translator station that “interference is being caused” and direct the station to discontinue operations. As discussed above, in the Remediation Required Letter, we found that Summit submitted a valid
and complete interference claim package. We, therefore, ordered Silver State to file either a plan to resolve the interference or information demonstrating that Summit has not submitted a valid and complete interference claim package. We have reviewed Silver State’s proposal to move the Translator to channel 276 at Las Vegas, proposed in the 2020 Permit Application, and find that the proposal does not resolve the interference to KJUL(FM). In the Translator Interference Order, the Commission declared that acceptable interference remediation plans include “relocating to an available same-band FM channel. Currently, Chinese Voice, who was previously licensed to operate on channel 276 at Las Vegas, has a pending application for review and motion to stay the Bureau’s finding that its license expired. Until the Commission acts on
these filings, channel 276 is not available to Silver State for its proposed relocation of the Translator. Because Silver State proposed to relocate the Translator to an unavailable channel, it failed to file an acceptable plan to remediate the interference to KJUL(FM) as required.
Therefore, we dismiss the 2020 Permit Application. Because Silver State has not provided any information demonstrating that Summit has not submitted a valid and complete interference claim package, we affirm the Remediation Required Letter’s finding in this regard, grant Summit’s interference claim against the Translator as licensed, and order the Translator to cease operations. In light of the Bureau’s earlier dismissal of the June 2019 License Application covering the 2019 Permit, and our decision herein to order the Translator to cease operations at the transmitter location proposed in the 2019 Permit, Summit has received the relief sought in the Summit 2019 Permit Petition. Therefore, we dismiss the Summit 2019 Permit Petition as moot.
Conclusion/Actions. For the reasons discussed above, IT IS ORDERED that the Petition for Reconsideration filed by Summit American, Inc., on June 13, 2019, IS DISMISSED. IT IS FURTHER ORDERED that Petition for Declaratory Ruling, or in the alternative, Petition for Reconsideration, and to Reinstate Construction Permit filed by Silver State Broadcasting, LLC, on April 15, 2020, IS DISMISSED. IT IS FURTHER ORDERED that the pending application for a minor modification of license (File No. 93597) filed by Silver State Broadcasting, LLC IS DISMISSED.
IT IS FURTHER ORDERED, that the Petition for Reconsideration filed by Summit American, Inc. on June 3, 2019, IS DISMISSED to the extent it seeks reconsideration of the grant of the license (File No. BLFT-20190415ABG) for Translator Station K284CW but the interference claim set forth in the petition, as supplemented by the “Supplement-Declaration of Scott Gentry, President of Summit American, Inc.,” filed on October 16, 2019, IS GRANTED.
IT IS FURTHER ORDERED that, pursuant to sections 74.1203 and 0.283 of the Rules, Silver State Broadcasting, LLC IS HEREBY ORDERED TO CEASE OPERATION OF TRANSLATOR STATION K284CW, Winchester, Nevada, IMMEDIATELY
