FCC Daily Digest 2021-10-25

[FCC via ba.broadcast.moderated Admin]

(Moderator's Note: Only FCC actions for the Bay-Area are shown below.)

________________________________
[fcclogo]
Daily Digest
Federal Communications Commission
45 L Street NE
Washington, DC 20554

Vol. 40 No. 946
News media information 202 / 418-0500
Internet: http://www.fcc.gov
ASL Video Call: 1-844-432-2275


October 25, 2021
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[...]

IN THE MATTER OF FOUNDATION FOR A BEAUTIFUL LIFE, INC., DKQEK-LP, CUPERTINO
CALIFORNIA, APPLICATION FOR COVERING LICENSE AND APPLICATION FOR MODIFICATION
OF CONSTRUCTION PERMIT, MOTION FOR STAY. The Commission affirms the Media
Bureau's dismissal of applications to license and modify LPFM facilities
constructed at an unauthorized site. Action by: the Commission. Adopted:
2021-10-22 by MO&O. (FCC No. 21-112). MB.
FCC-21-112A1.docx<https://docs.fcc.gov/public/attachments/FCC-21-112A1.docx>
FCC-21-112A1.pdf<https://docs.fcc.gov/public/attachments/FCC-21-112A1.pdf>
FCC-21-112A1.txt<https://docs.fcc.gov/public/attachments/FCC-21-112A1.txt>


(Moderator's Note:

Call Letters or Unlicensed and Company or Place Name match found in
contents linked at URL:


1. We have before us two Applications for Review (AFR) filed in 2019
and 2020, respectively, by Foundation for a Beautiful Life, Inc. (FBL), FBL,
Application for Review (rec. Nov. 6, 2019) (2019 AFR); FBL, Application for
Review (rec. Apr. 29, 2020) (2020 AFR).

which held a Permit to construct a new Low Power FM (LPFM) station,
KQEK-LP, Cupertino, California (Station). See Application File No.
BNPL-20131114BFN (rec. Nov. 14, 2013 and granted May 19, 2015) (Permit).
Because the Station’s authorization has been cancelled, the Station is now
identified in the Commission’s licensing database as DKQEK-LP.

In the 2019 AFR, FBL seeks review of an October 7, 2019 letter
decision (Reconsideration Decision) Foundation for a Beautiful Life, Letter
Order (MB Oct. 7, 2019).


[...]

As a further response to the informal objections, on July 5, 2018,
FBL filed the Modification Application which, for the first time, sought
authority to substitute the Apollo Site facilities for the PG&E Site
facilities. On July 18, 2018, two organizations filed joint comments asking
the Bureau to excuse the nonconforming construction and grant the License
Application because permit forfeiture is severe and prevents the
Asian-American community from receiving a “critically needed resource.”
See Joint Comments of National Diversity Coalition and National Asian
American Coalition (Coalitions) (rec. July 18, 2018) at 3.

The Bureau dismissed the Modification Application on September 28,
2018, because it did not comply with the Commission rule pertaining to
second-adjacent channel distance separations and did not justify a waiver of
that rule. See Letter from James D. Bradshaw, Senior Deputy Chief, Audio Div.
Media Bureau, FCC, to FBL (Sept. 28, 2018) (Modification Dismissal Letter).
The Modification Dismissal Letter noted the Apollo Site was 6.3 km closer to
KRZZ(FM), San Francisco, California than permitted and FBL would, therefore,
need to show that the proposed short-spacing would not result in
interference. See 47 CFR § 73.807(e)(1). FBL acknowledged interference
with the KRZZ signal, but argued that it was inconsequential because it would
occur only in the residence of the Apollo Site owner, who was willing to
accept the interference. The Bureau rejected FBL’s claim as not accounting
for other residents of the home or future sales of the property. See
Modification Dismissal Letter at 1.

FBL sought reconsideration. See FBL, Petition for Reconsideration
(rec. Oct. 2, 2018) (Modification Petition for Reconsideration).


[...]

6. The Bureau ordered FBL off the air in an April 16, 2020 Cease Order
in which it: (1) described as “specious” FBL’s claim that it had a
right to broadcast from the Apollo Site; (2) found that FBL’s request to
obtain STA to broadcast there was defective; (3) ordered FBL to stop
operating; and (4) required FBL and its principals to provide a copy of the
Cease Order for consideration in any future applications filed within ten
years. The Cease Order includes the following provision in its ordering
clauses: “IT IS FURTHER ORDERED that Foundation for a Beautiful Life (and
its principals, Ling Gao, Hong Yan, and Lee Song, as well as any entity in
which any of them holds an interest that is within the scope of the ownership
and control disclosure standard set forth in 47 CFR § 1.2112) SHALL SUBMIT a
copy of this Letter Order with every application that any of them file with
the Commission for a period of ten years of the date from this Letter
Order.” Cease Order at 3.

FBL would also, without time limit, need to disclose unauthorized
operations on any future LPFM applications, effectively disqualifying FBL in
the LPFM service. The application for a permit to construct a new LPFM
station requires applicants to certify that no party to the application has
engaged in unlicensed operation in violation of 47 U.S.C. § 301. See FCC
Form 318, Section II, Quest. 8. Applicants unable to make that certification
are ineligible. Id., Instructions to Section II, Quest. 8. See Pub. L. No.
106-553, 114 Stat. 2762 (2000) (Appropriations Act), amended by Pub. L. No.
111-371, 124 Stat. 4072 (2011) (prohibiting “any applicant from obtaining a
low power FM license if the applicant has engaged in any manner in the
unlicensed operation of any station in violation of section 301 of the
Communications Act of 1934”); 47 CFR § 73.854.

The Bureau noted that it had not acted upon FBL’s request for
authority to return to the air because FBL’s submission of the request as a
First Supplement to the 2019 AFR rather than as an independent request for
STA obscured the purpose of the filing. The Bureau also rejected FBL’s
claim that it had a “right” to operate even without STA, FBL claimed such
a right under several alternative theories including program test authority,
lack of finality of dismissal of its applications, the Commission’s grant
of pandemic-related waivers in other circumstances, and section 307(c) of the
Act which allows license renewal applicants to operate after license
expiration until final action on a license renewal application. The Bureau
characterized FBL’s position as specious because it relied on provisions of
the Act and Rules that the Bureau found inapplicable to the instant
circumstances. See, e.g., 47 U.S.C. § 307(c)(3); 47 CFR §§ 73.801,
73.1620(a).


[...]

FBL submitted the Modification Application outside of a filing
window, without timely requesting and justifying a waiver of section 73.870.
At the time of the staff decision in September 2018 (as well as the
subsequent reconsideration decisions in March 2019 and October 2019), an LPFM
facility move qualified as minor if it did not exceed 5.6 km. See 47 CFR §
73.870(a) (2018). FBL proposed to move a greater distance of 5.73 km. FBL
did not request a waiver of section 73.870 prior to the expiration of its
Permit or in the post-Permit-expiration Modification Application. It
requested a waiver of that provision on the same day as the Modification
Application by filing a supplement to its opposition to a petition to deny
the License Application. See FBL Supplement to Opposition to Petition to
Deny and Informal Objection at 5 (rec. July 5, 2018). The Bureau has waived
the 5.6 km requirement in cases where applicants timely demonstrated: (1) a
lack of viable sites within 5.6 km; and (2) that the station’s 60 dBu
service contours at the existing and relocated sites would overlap. See LPFM
Technical, para. 17, citing, Southside Media Collective, File No.
BMPL-20150720AAH (granted July 22, 2015); Sloan Canyon Communications, File
No. BMPL-30240623AAG (granted Dec. 22, 2014). The Modification
Application’s engineering statement did not request a waiver of the 5.6 km
standard and, thus, did not make such a showing. FBL’s waiver request in
its supplemental pleading simply argued that the Bureau should treat the 0.13
km by which it exceeded 5.6 km standard as de minimis as the Commission has
treated relatively small differences in other contexts. See FBL Supplement
to Opposition at 3-4, citing 47 CFR § 73.208(c)(8) (permitted rounding of
distances to the nearest kilometer in FM allotment proceedings); Calvary
Chapel of Redlands, Letter Order, 31 FCC Rcd 12694, 12695, n.16 (MB 2016)
(LPFM stations considered fully-spaced despite being 0.3 km closer than
nominally permitted because that overage rounds down to 0) (Redlands). We
reject that argument. The Rule provision that FBL cites, 47 CFR §
73.208(c)(8), permits rounding for a limited purpose, i.e., to calculate
distances between reference points for full-serve FM stations when amending
the FM Table of Allotments. That calculation uses somewhat complex
trigonometric equations to compute distances between latitude and longitude
coordinates and expressly permits rounding of the results to the nearest
kilometer. In contrast, the instant case involves 47 CFR § 73.870(a), which
contains no rounding language because LPFM stations are not subject to an
allotment process and, therefore, have no allotment reference points to
compute. LPFM rules are designed to be simple so that non-profit
organizations with limited engineering expertise can readily apply for,
construct, and operate community-oriented stations serving highly localized
areas. See LPFM Technical, 34 FCC Rcd at 6537, para.2. The purpose of
section 73.870(a) is to establish a bright line test of whether an LPFM site
move would maintain service to a significant portion of its original service
area and, thus, should be permitted without providing an opportunity for
others to file conflicting proposals. At the time, the Commission allowed
moves of up to 5.6 km without such an opportunity because that is the maximum
distance in any direction of the 60 dBu contour of an LPFM signal with 100
watts ERP. See 47 CFR § 73.811(a). Had the Commission desired to use whole
numbers to determine whether an LPFM change was major or minor, it would have
set 6 km rather than 5.6 km as the benchmark. The Redlands case that FBL
cites is Bureau-level and thus not binding on the Commission. See Comcast
Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008). In any event, while the
case involves an LPFM station, it is not on point. In Redlands, the Bureau
rounded minimum distance separations between stations, which are expressed in
whole numbers and required to avoid interference. See 47 CFR § 73.807.

Second, because FBL’s proposed modified site was short-spaced to
KRZZ(FM), a full power station on a second-adjacent channel, the Modification
Application sought to satisfy the requirements for a waiver of the spacing
requirement in section 73.807(e). Yet this request did not provide a major
required component, i.e., a showing that no harmful interference to the
KRZZ(FM) signal would occur, such as a demonstration that the area is
unpopulated. See 47 CFR § 73.807(e)(1) (entertaining waivers of LPFM
second-adjacent spacing requirements upon a showing that no actual
interference will occur due to intervening terrain or lack of population).
The Modification Application acknowledged interference as discussed infra.
See Modification Application, Exh. C-1, C-2, C-3.

FBL provides no support for its claim that a waiver is also warranted
in populated areas if the population is small and willing to accept the
interference. On reconsideration, FBL acknowledged an area of interference to
the KRZZ(FM) signal that includes one home, but claimed that the population
within that home is not cognizable because the homeowner, spouse, and heirs
would all accept interference to the KRZZ(FM) signal and that the station
currently broadcasts in Spanish, a language they do not understand.
Modification Petition for Reconsideration at 2. FBL proposed a conditional
waiver so that the Commission could, if desired, terminate the waiver if the
station begins to program in English or if the property is sold. Id.; see
also Consolidated Petition for Reconsideration at 14-15.

We find this argument inconsistent with a statutory requirement in
the Local Community Radio Act, which states that the LPFM stations seeking
waiver pursuant to this section “must establish . . . that its proposed
operations will not result in interference to any authorized radio
service.” LCRA, section 3(b)(2); 47 CFR § 73.807(e)(1) (emphasis added).
The conditional waiver approach proposed by FBL does not meet this standard
because its proposed operations will result in interference to the KRZZ(FM)
signal. Although the LCRA, section 3(b)(2) allows the Commission to take
“into account all relevant factors, including terrain sensitive propagation
models” in predicting whether any interference will occur, LCRA, section
3(b)(2) as implemented through Section 73.807(e)(1) does not give the
Commission the discretion to excuse interference simply because the
population or area receiving the interference is small or amenable to the
interference. Id.

Accordingly, we affirm the Bureau’s decision declining to grant
FBL’s requested waiver pursuant to section 73.807(e). See supra, note 10.


[...]

Specifically, although the rule revisions would bring the proposed
move within a distance that would now be considered “minor,” they would
not alter the fact that the Modification Application was filed after
expiration of the Permit and would cause interference FBL argues that the
LPFM Technical proceeding expanded permissible use of directional antennas
and that it could now install a directional antenna to solve the section
73.807 interference issue that prevented an earlier grant. See AFR at 4.
However, the revised antenna provisions adopted in the LPFM Technical
proceeding had no impact on FBL. FBL could have proposed a directional
antenna at the time of application because directional operations have long
been permissible to justify second-adjacent channel spacing waivers of the
type FBL seeks. Yet FBL did not do so.

to the signal of a second-adjacent channel station. As discussed
above, we reject FBL’s argument that interference to the KRZZ signal is
inconsequential because it would occur only in the residence of the Apollo
Site owner, who was willing to accept the interference. See supra, notes 13
and 72.



[...]

19. We affirm the Cease Order, including its finding that FBL’s
operations were unauthorized and must be reported on any applications by FBL
or its principals in the next ten years. The Commission recognizes that the
COVID-19 virus is a life-threatening public health crisis and that
communication during this crisis is critical. The Commission and its staff
have thus, where appropriate, facilitated certain related broadcast and
non-broadcast responses. For example, the Commission has waived deadlines to
construct certain broadcast stations, facilitated telemedicine, promoted the
use of funding from the Coronavirus Aid, Relief, and Economic Security
(CARES) Act, and provided consumer tips to avoid COVID-related phone scams.
See Promoting Telehealth for Low-Income Consumers COVID-19 Telehealth
Program, Report and Order, WC Docket Nos. 18-213, 20-89, FCC 20-44 (rel. Apr.
2, 2020); Availability of Construction Deadline Waivers for Certain FM
Translator Stations Awarded in Auction 99 and 100, Public Notice, DA 20-1059
(MB Sept. 10, 2020); FCC Partners with Institute of Museum and Library
Services to Address Digital Divide During COVID-19, News Release (rel. May
21, 2020); FCC Consumer Advisory: COVID Scams, News Release (rel. Mar. 20,
2020).

None of those responses, however, have approved the unlicensed use of
the broadcast spectrum. Section 301 of the Act prohibits unlicensed
broadcasts without regard to the content of the broadcast. See 47 U.S.C. §
301.



[...]

The Commission’s primary basis for STA denial in A-O Broadcasting
was that the former licensee no longer held a permit or license. A-O
Broadcasting, 23 FCC Rcd at 613, para. 19-20, citing 47 CFR § 73.1635.
Section 73.1635 provides that an STA is limited to “permittees or
licensees.” 47 C.F.R. § 73.1635. Like A-O, FBL did not hold a permit or
license when it sought STA and is therefore ineligible for STA under the
FCC’s Rules.

The Commission discussed the availability of other stations as a
secondary factor, and only because the former licensee had raised the issue.
Moreover, FBL’s claim to be the sole broadcaster able to provide adequate
pandemic-related information to the Chinese-American community is overstated.
While FBL claims that it was the only local broadcaster operating
exclusively in Mandarin at all hours, it acknowledges that Cupertino receives
an FM station that broadcasts partially in Mandarin. Specifically, FBL notes
that KSQQ(FM), Morgan Hill, CA broadcasts in Mandarin but also for a portion
of the day in Portuguese. See 2020 AFR at 4, n.7. FBL also notes that
KEST(AM), San Francisco, CA broadcasts primarily in Cantonese and partially
in Mandarin in the San Francisco Bay Area, although its signal does not reach
Cupertino. Id. FBL also notes that KVTO(AM), Berkeley, CA and KTSF(TV), San
Francisco, CA broadcast in Cantonese. Id.

Moreover, information about COVID-19 is available to Mandarin
speakers via other sources. For example, the State of California’s website
on COVID-19 provides information in multiple languages, including “Chinese
(Traditional)” and “Chinese (Simplified).” See
https://covid19.ca.gov/translate/ (last visited July 30, 2021).


25. Finally, the Bureau was correct in requiring FBL and its principals
to disclose unauthorized operations in any future applications. Section 301
of the Act prohibits unlicensed broadcasting. 47 U.S.C § 301.

Moreover, we are statutorily prohibited in granting an LPFM license
if the applicant has engaged in any manner in the unlicensed operation of any
station in violation of Section 301. Pub. L. No. 106-553, 114 Stat. 2762
(2000) (Appropriations Act), amended by Pub. L. No. 111-371, 124 Stat. 4072
(2011) (prohibiting “any applicant from obtaining a low power FM license if
the applicant has engaged in any manner in the unlicensed operation of any
station in violation of section 301 of the Communications Act of 1934”); 47
CFR § 73.854.

Operations at the Apollo Site were unlicensed and unacceptable and
yet FBL certified that it had constructed as authorized. The existence of a
serious health crisis, while important, is not a mitigating factor; it does
not override licensing requirements or justify a unilateral use of the public
airwaves without prior authority. Where, as here, an applicant with no other
Commission authorizations has engaged in unauthorized operations but
certified compliance, it is unnecessary to undertake an immediate assessment
of the applicant’s character qualifications but also important to prevent
the routine processing of any subsequent applications so that the Commission
has the opportunity to consider character matters, if it deems appropriate at
that time. See Chinese Voice of Golden City, Memorandum Opinion and Order, 35
FCC Rcd 567, 572-73, paras. 16, 20 (2020), review denied in relevant part,
Memorandum Opinion and Order, FCC 20-179, para.17 (rel. Nov. 25, 2020),
appeal pending sub nom. Chinese Voice of Golden City v. FCC, File No. 20-1514
(D.C. Cir.).

Accordingly, we reject FBL’s arguments against the requirement that
FBL and its principals submit a copy of the Cease Order with applications to
which any of them are a party for the following ten years. We further note
that to the extent that FBL or any of its principals may wish to apply in a
future LPFM filing window (not limited in time), they would have to respond
negatively to the certification of no unauthorized operations and attach an
explanation referencing this proceeding.


)

[...]