FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012 Page: 5,711
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Background. ASDA, JSU and six other parties filed mutually exclusive applications for a new
NCE FM facility on Channel 261C3 at Anniston, Alabama, during the February 2010 NCE filing window.2
The Commission subsequently designated these applications as NCE Reserved Allotment Group No. 1. In
the Comparative Consideration Order, the Commission concluded that each applicant would provide a first
or second NCE service to at least ten percent of the population and to at least 2,000 people within their
proposed service areas. 4 Therefore, all applicants proceeded to an NCE point hearing. ASDA had the
highest point total of all the applicants with five points, while JSU was credited with three points.5
Accordingly, the ASDA Application was tentatively accepted for filing, which triggered a 30-day period for
parties to file petitions to deny against the tentative selectee.'
In its Petition, JSU argues that the ASDA Application does not meet the reservation standard and
therefore should be dismissed.
Discussion. Section 309(d)(1) of the Act7 provides that any party in interest may file a petition to
deny an application. In order to assess the merits of a petition to deny, a two-step analysis is required."
First, the petition must make specific allegations of fact sufficient to demonstrate that the petitioner is a
party in interest and that a grant of the application would be prima facie inconsistent with the public
interest, convenience, and necessity.' This threshold determination is made by evaluating the petition and
the supporting affidavits. If the petition meets this threshold requirement, the Commission must then
examine all of the material before it to determine whether there is a substantial and material question of
fact calling for further inquiry and requiring resolution in a hearing.'0 If no such question is raised, the
Commission will deny the petition and grant the application if it concludes that such grant otherwise
serves the public interest, convenience, and necessity.
The Commission will reserve a non-reserved FM band allotment if the petitioner demonstrates (1)
that no reserved channel could be used without causing prohibited interference to TV channel 6 stations or
foreign broadcast stations or (2) that it is (a) technically precluded from using a reserved band channel,
and (b) it would provide a first and/or second NCE radio service to at least ten percent of the population
within the 60 dBu (1 mV/m) contour of its proposed station, and that such population is at least 2,000
2 In addition to ASDA and JSU, the other applicants were Equality Broadcasting Network (File No. BNPED-
20100224ACV), Moody Bible Institute of Chicago (File No. BNPED-20100225AAY), Smile FM (File No.
BNPED-20100226AIC), Covenant Communications (File No. BNPED-20100222ABJ), Serendipity Educational
Broadcasting (File No. BNPED-20100225ADF), and Old Time Gospel Ministries (File No. BNPED-
See Comparative Consideration of 37 Groups of Mutually Exclusive Applications for Permits to Construct New or
Modified Noncommercial FM Stations filed in the February 2010 and October 2007 Filing Windows, Memorandum
Opinion and Order, 26 FCC Red 7008, 7014 (MB 2011) ("Comparative Consideration Order").
4 Id. at 7014.
See Id. at 7015. Equality Broadcasting Network, Moody Bible Institute of Chicago, and Smile FM each received
two points; and Covenant Communications, Serendipity Educational Broadcasting, and Old Time Gospel Ministries
did not receive any points.
6Id. at 7050.
747 U.S.C. 309(d)(1).
8 See, e.g., Artistic Media Partners, Inc., Letter, 22 FCC Red 18676, 18676 (MB 2007).
9 See id; Astroline Communications Co. v FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988).
o 47 U.S.C. 309(d)(2).
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012, book, June 2012; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc111171/m1/54/: accessed February 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.