WSFI secures a key victory in North Chicago Suburbs

LegalWorks secures agency decision rejecting objections and granting Raleigh Waiver to expand Catholic Radio

By Michael Dorner

It was a long, bitterly waged contest on the part of its competitors to keep BVM Helping Hands from keeping the CP awarded to it by the FCC several years ago, but it is now ended, with the FCC reaffirming its decision to grant BVM Helping Hands a construction permit and granted a modification of that construction permit to reflect superior power and antenna height with a new transmitter location. At the same time, it dismissed the objections of its competitors in its MX group.

The FCC decision letter came on the feast of the Sacred Heart of Jesus. BVM's station will cover a highly populated area between Kenosha, Wisconsin, and Waukegan, Illinois, and its frequency is likely the last in the area on the NCE band.

Two competitors in the MX group, Chicago Public Media, whose flagship station is the heritage educational station WBEZ, and Faith Evangelical Lutheran Church, have waged a campaign against BVM Helping Hands since the CP tentatively selected BVM for a new Class B1 station in Antioch, Illinois, on September 2, 2010. The following January they filed opposition to the grant of the CP, and the FCC dismissed those objections in a letter that July.

Not to give up easily, WBEZ then filed for a review of the Letter Grant of September 2010, which still pends. WBEZ has been in an expansion mode for several years, and sought the same frequency to serve Kenosha, Wisconsin, near the Illinois state line.

Complicating the situation was the fact that in early summer 2012, BVM Helping Hands, which had been granted call sign WSFI, applied for a modification of its CP, which modification would provide additional service to over another 116,000 people without losing any population to be served as stated in its application. The modification if granted would cause some overlap with high school station WBSD Burlington, Wisconsin, but the gains would outweigh the approximately 3,000 people who would receive interference. In essence, BVM Helping Hands was asking for a Raleigh waiver.

Quickly WBEZ and Faith Evangelical Lutheran filed protests. WBEZ said that the wrong methodology had been used in calculating the interference to be given to second- or third-channel WBSD, and Faith Evangelical argued that BVM was financially unqualified to build the station as evidenced in its application. WBEZ joined in on this protest and argued that the tax forms filed by BVM demonstrated that it did not have the funds to build the station and was not qualified. WBEZ added that "that BVM's tax forms not only provide prima facie evidence of lack of financial qualifications, but also indicate unauthorized control by 'mysterious funders' that merits further inquiry by the Commission." Further, WBEZ argued that the sought Modification of CP (MP) if granted would provide BVM/WSFI with an unfair advantage in the ongoing dispute over its receiving the CP.

The FCC decision letter affirming the BVM/WSFI grant condensed the Catholic organization's responses to the stream of protests and petitions to deny: "BVM maintains that its initial waiver request was technically correct, although it provides a new interference analysis using a 100 dB? contour rather than a 105 dB? interference contour out of an 'abundance of caution.' BVM argues that modifications in this situation are permitted, provided that the applicant does not seek comparative credit for the changes proposed. BVM contends that it was, and remains, financially qualified to construct and operate Station WSFI(FM), and that any allegation to the contrary is unsupported and untimely. Lastly, BVM states that the Modification Application is not "contingent" on the outcome of CPM's application for review because?regardless of the disposition of the application for review?construction must be completed before the Construction Permit expires."

In response, WBEZ replied that BVM/WSFI also erred in not informing the FCC of the loss of its tower site stated in the application.

The FCC discounted the protests and petitions to deny of WBEZ Chicago Public Media and Faith Evangelical Lutheran Church. First, it said that the petitions had confused effectiveness with efficiency. "Objectors' argument that we cannot consider the Modification Application until action is taken on CPM's application for review?particularly FELC's assertion that BVM's Construction Permit 'does not exist at the present time'?confuses finality with effectiveness. A Bureau action, such as the grant of the Construction Permit, is effective upon release. The Commission may, at its discretion, stay the effectiveness of such action pending review, which it did not do in this case. Therefore, the Construction Permit is currently effective?although not final?until it expires. Because, as BVM points out, the 'clock is ticking' on the Construction Permit, we will not delay processing the Modification Application to await the outcome of CPR's pending application for review."

Next the FCC stated that the two opposition groups confused finality with contingency, and again found for BVM/WSFI: "Objectors similarly confuse finality and contingency. An application is contingent when it cannot be granted unless and until a second application, also pending before the Commission, is granted. Again, a Bureau action is effective, but not final, upon the date of release. Thus, even if we were to consider the CP Application a 'second application,' it is no longer 'pending' for contingency purposes: it has been granted and is now effective. Therefore, the Modification Application cannot be considered to be contingent on grant of the CP Application, notwithstanding CPR's pending application for review."

Turning to substantive issues in WBEZ/Chicago Public Media's and Faith Evangelical Lutheran Church's oppositional documents, the FCC looked at their protests against the grant of MP to BVM/WSFI to enhance their signal: "BVM requests a waiver to allow received overlap of its protected contour with the interfering contour of third-adjacent channel NCE Station WBSD(FM). In Raleigh, the Commission first noted that it would be inclined to grant waivers of received overlap from second- or third-adjacent channel stations in circumstances where the benefit of increased NCE service outweighs the potential for interference in small areas. Following this approach, we have consistently rejected waiver requests that would receive predicted overlap from co- or first-adjacent channel stations. We have also repeatedly rejected proposals that would cause, rather than receive, overlap. Granting waivers in these limited circumstances provides flexibility for NCE stations to modify their service areas while protecting existing service from interference. In this case, BVM meets these special criteria and has thus demonstrated that grant of the Modification Application would be in the public interest. Therefore, we grant BVM's waiver request to receive limited overlap from third-adjacent channel NCE Station WBSD(FM)."
The FCC then went on to agree with BVM/WSFI's opponents that the wrong methodology had been used in determining the interference ratio to be given to Burlington High School's WBSD. Nevertheless, using the proper methodology, the Commission found that the BVM/WSFI application was still grantable and did so.

The Commission made short work of the protests over BVM/WSFI's financial qualifications. "Contrary to FELC's assertions, the Modification Application does not contain?nor is required to contain?a certification regarding BVM's financial qualifications. Given that we do not require modification applicants to prove their financial qualifications, there is no need for further inquiry into this matter. Furthermore, we find CPM's argument regarding unauthorized control, which is based solely on inferences drawn from BVM's alleged lack of financial qualifications, to be purely speculative. Finally, to the extent that FELC objects to BVM's financial qualifications at the time of the 2007 CP Application, it is untimely. Therefore, we do not further consider Objectors' financial qualifications and related arguments here."

The FCC went on to dismiss Chicago Public Media/WBEZ's protest against the failure of BVM/WSFI to alert the FCC about the loss of the tower site stated in the application. The Commission's dismissal was blunt: "CPM's argument regarding BVM's alleged duty to report the loss of its original tower site relates solely to the 2007 CP Application, not the Modification Application. Therefore this objection, if it lies at all, lies against the CP Application. As such, it appears to be a belated, attempted third bite at the apple: CPM has already filed both a petition for reconsideration and application for review of the grant of the CP Application, and the statutory time limit for additional petitions for reconsideration has passed. Because CPM does not allege any reporting violation with respect to BVM's currently-proposed transmitter site in the Modification Application, we will not further consider CPM's Section 1.65 allegations in this context."

The final substantive issue comprised the charges that BVM/WSFI sought an unfair advantage in modification of its CP. Again, the FCC stated that the charges were unfounded. "As a tentative selectee, BVM has already completed the NCE comparative consideration process. The Commission's rules provide that amendments after the close of the pertinent filing window may potentially diminish, but cannot enhance, an NCE applicant's comparative position. BVM confirms that it does not seek or expect additional points for the changes proposed in the Modification Application. Since our rules clearly do not permit BVM to retroactively improve its competitive position through a modification at this stage, Objectors' concerns on this point are unfounded. Finally, BVM certifies, in the Modification Application, that the proposed modification satisfies our 'holding period' rule by not downgrading service to the area on which its comparative preference was based."
The FCC then dismissed the informal objects of Chicago Public Media/WBEZ and Faith Evangelical Lutheran Church, and granted the Modification of Permit to WSFI to specify 6100 watts ERP, antenna 115.3 meters, directional, transmitter site to be at the gravel pits south of Gander Mountain and a mile from the Wisconsin state line. The site is west of Antioch, Illinois.

BVM's Angelina Thompson was ecstatic. In an e-mail to friends and supporters, she exclaimed, "On June 7th 2013, the Feast of the Sacred Heart, our prayers were answered!
"Once again the FCC has found in favor of BVM Helping Hands/WSFI, over its legal challengers, WBEZ Alliance, who is National Public Radio's local affiliate, and Faith Evangelical Lutheran Church- and our upgraded modification to our Construction permit was granted!

"The victory is indeed great for us- not only was our position upheld ? but our listening area is now significantly enlarged, as the Raleigh Waiver was also granted to us.
"We THANK GOD for sending us such wonderful supporters, advisors and collaborators?including Stu Nolan, of Legal Works Apostolate, our FCC attorney, and Steve Gajdosik of the National Catholic Radio Association?both of whose technical expertise has made this victory possible.

"We are also so thankful to you! You are all a special gift to us by the Sacred Heart. We ask for your continued prayers and support as there is still much to be done! God bless you and keep you always."

This article first appeared in Catholic Radio Update #654 and is reprinted here with the permission of the author.

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