Cherokee Nation topples Monastery in FM CP case


At one point in time there were 17 applicants for an NCE FM CP allocated to Oklahoma. It was awarded to Foundation for the Annunciation Monastery of Clear Creek, but protested by other applicants Cherokee Nation and John Brown University. As the dispute made its way through the FCC, it was the Monastery’s French connection that eventually did it in.

CN worked two regulatory tracks in attempting to prove that it was the more worthy awardee of the CP. The first went straight for the fact that caused the Monastery to win in the first place – the fact that it was predicted to serve more people. CN said different measurement techniques were used, but the Monastery was able to show that they would still prevail on this count even if they used the same measure they used for their own proposed station to measure the population served by the CN proposal.

CN’s second argument was the fact that the Monastery’s listed board of directors had too many foreigners on it. There were six names listed, and two of them were French nationals. CN said it amending the proposal would be a major change and not allowed under the rules.

Monastery said that although it was true that two of six directors were not US citizens, placing them 13% over the allowable 20%, the fact was that only one of the directors, American and Prior of the Monastery Rev. Philip Anderson, had authority to make decisions regarding the station, and that none of the others could overrule him.

The FCC called this a “novel interpretation” of de facto control, saying it usually was use to challenge a possible premature transfer of control, rather than a defense against a licensee’s own board of directors. “In other words, a doctrine that is typically used as a sword to pierce the veil of nominal control is in this case being used as a shield against an allegation that Foundation has violated the Commission’s Rules and/or the Act.”

The FCC ruled in favor of CN on this count, and awarded the CP to their proposal.

The John Brown objection to the Monastery station was that it would interfere with their formerly analog Channel 6 television station. Since the Monastery station is no longer being built, JBU’s petition does not need to be dealt with.

The FCC looked at the remaining applications in the group which included this trio and found that CN’s station provided the service to the most people, and on that grounding awarded CN the station.