A nonprofit in Iowa was denied by the FCC in a second attempt to change its application frequency to resolve short-spacing with a vacant allotment.
The organization tried to point to prior legal precedent in its defense. But the commission stood firm, pointing to its long-established rule that classifies changing operating channels as a “major amendment.”
The Catholic nonprofit Holy Mother Mary filed an application in the 2023 LPFM window to broadcast on 98.7 FM in Cascade, located in eastern Iowa between Cedar Rapids and Dubuque.
Holy Mother Mary’s application was originally dismissed by the FCC for failing to meet spacing requirements regarding a co-channel vacant allotment for a Class A FM station in Asbury.
After Holy Mother Mary successfully petitioned the FCC to reconsider the initial dismissal, the organization filed a waiver request to move its application to a different frequency. But as Radio World reported, the commission denied that request, noting it only allows for minor amendments.
In its second petition, filed last April, Holy Mother Mary argued that the commission lacks statutory authority to prohibit major amendments to pending new LPFM applications. It further argued that the refusal to accept a major amendment in this case was “a patent violation” of the Administrative Procedure Act.
The FCC remained unconvinced.
Major qualifications
The commission defines “minor amendments” as certain site relocations, ownership changes, time-sharing agreements and changes in general and/or legal information.
It excludes all channel changes from the list of minor amendments. The commission adopted this rule in 2001.
Holy Mother Mary successfully petitioned the commission in the summer of 2024 to reconsider the initial ruling, based on the fact the short-spacing was due to a vacant allotment. But it was only permitted to make a minor adjustment to its application. The end result would have been the same — a short-spacing to the Asbury allotment.
It followed up with an August 2024 waiver request, desiring to move its application to the second-adjacent frequency of 98.3 FM, with would have required a separate waiver due to a short-spacing with new adjacent 98.1 KHAK(FM).
(Read the FCC’s denial of the petition for reconsideration.)
As an alternative to that waiver, Holy Mother Mary asked to move to the non-adjacent frequency of 93.5 FM, where there’d be no such conflict.
In its waiver request, Holy Mother Mary also questioned the “statutory underpinning” of the FCC’s minimum power limit requirement for LPFM stations, established in 2000. It cited the Administrative Procedure Act and the Loper Bright Supreme Court decision to support its contention that a major amendment, such as a channel change, should be allowed.
But the FCC denied both the waiver and its proposed move to 93.5.
Unclear requirements
Holy Mother Mary argued in its second petition, filed last March, that the APA requires courts to set aside agency actions and findings found to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
“Congress never gave the FCC a specific law to prevent the type of curative amendment we wanted to make in February 2024 when we sought leave to amend from [98.7] to [93.5],” Holy Mother Mary wrote in its petition.
The group also claimed that the Communications Act of 1934 is “ambiguous” and “does not give the FCC express authority to dismiss applications such as that filed” by Holy Mother Mary.
The less forgiving the FCC’s acceptability standard, “the more precise its requirements must be,” the organization wrote in its petition, citing the Salzer v. FCC court case from 1985.
According to the Media Bureau, the organization also contended it lacked “clear notice” of major amendment restrictions — such as channel changes — for new LPFM applications.
For those reasons, Holy Mother Mary felt it should be permitted to change frequencies.
Petition denied
The Media Bureau pointed to the classifications established when it adopted rules governing LPFM amendments in 2001. Those rules have been published since, the Bureau explained, and the deadline for challenging the basis of those classifications “passed decades ago.”
The commission also took issue with Holy Mother Mary’s contention that it lacks the authority to make rules regarding frequency assignments, pointing to specific language in the 1934 Communications Act specifying “all the channels of radio transmission.”
The Act, the Media Bureau said, allows the commission to adopt “reasonable” classifications of applications and amendments.
“Defining a channel change as a major amendment to a pending new LPFM application is one such reasonable classification,” it wrote.
A minor change, the Bureau explained, is one that would not require a reevaluation of the application by its staff. Using a new, non-adjacent channel would require a repeat technical review and a determination of whether the amended application would be mutually exclusive with other groups.
The Loper Bright decision, the commission contended, did not change the circumstances for processing the organization’s application. The situation did not warrant “special circumstances” for a waiver, and the denial properly followed its own rules.
The Media Bureau dismissed the petition for reconsideration.
Holy Mother Mary sought to broadcast Catholic religious programming, fed primarily by the EWTN network, according to its application.
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