Petition to deny upheld as FCC reels a CP back in


Lee Seraphim (LS) and Mana’o Radio (MOR) were mutually exclusive competitors for an NCE FM CP, with LS aiming for Lahaina HI and MOR for Wailuku HI. Seraphim prevailed in the comparative hearing process, and Mana’o timely filed its petition to deny, which brought up three separate points. The FCC agreed with point #1 and therefore had no reason to go any further. It also accepted Mana’o’s station application for filing.

According to the FCC, “MOR asserts that LS lacked reasonable or any assurance of access to the proposed tower site listed in the LS Application. MOR also asserts that LS did not submit an acceptable programming proposal and was not entitled to points for local ownership regarding the alternative selection procedure. MOR therefore argues that LS must be ‘disqualified’ as a tentative selectee.”

LS contended it did have a reasonable site assurance and qualified on the other points as well, but the proceeding never got beyond the point of assessing the antenna site portion.

MOR was able to demonstrate that the owner of the proposed tower site had barely been contacted, and beyond that, was booked solid and did not have space to accommodate another antenna tenant. At best, it had tentative openings at one point, but current clients had already indicated they were planning to expand and would likely be claiming them. The tower operator explained to LS in an email, “Basically what I am telling you is that I cannot guarantee space for your proposed project at any given time.  It is only a possibility at this time.”

The FCC says it grants a certain amount of latitude to applicants on matters of antenna siting, but that “…there must be, at a minimum, a ‘meeting of the minds resulting in some firm understanding as to the site’s availability.’” It added, “As stated earlier, a mere possibility that the site will be available is not sufficient. The ‘reasonable assurance’ standard is a liberal one, but LS has failed to meet it.”

The FCC had no reason to consider the other MOR points, and, finding the MOR application to be in order, moved in ahead through the pipeline, opening up a 30-day window for others to petition against the proposal.