“Chutzpah” Case Again Rejected by Commission

FCC declines to reconsider grant of CP for Texas NCE FM station
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Marfa Public Radio really wants that noncom CP in Alpine, Texas; but it again has come up empty with the Federal Communications Commission.

An effort that recently was labeled a piece of “chutzpah doctrine” by one commissioner has now been dismissed a second time. This latest ruling is also a reminder that discussions of tower “site assurance” can be tricky when planning a station transaction.

Marfa wanted the commission to reverse a decision giving Houston Christian Broadcasters the OK to construct a new noncommercial educational FM in Alpine after the FCC chose HCB from a group of mutually exclusive applications.

Marfa had argued that HCB should be disqualified for several reasons, including lack of candor and misrepresentation, and for failure to timely amend its application. Marfa alleged that HCB failed for seven years to report that it had no assurance of availability of its proposed transmitter site (because Marfa itself had acquired that tower from previous owner Matinee Radio in 2008).

In April, the commission found that HCB had procured reasonable assurance of site availability from Matinee Radio. No evidence suggested that HCB was aware that site assurance was no longer valid, it said, so it dismissed Marfa’s application.

Marfa then came back with evidence that Houston Christian Broadcasters had been told in 2007 by Matinee President Robert Walker that he could offer no more than “temporary assurance of tower site availability,” and that HCB “would have to discuss any tower availability assurance” with the new owner. Marfa said the commission should reconsider.

It’s unclear if this information would have made a difference if it had been submitted earlier; but in any case the FCC says its rules are clear: Such petitions — which rely on facts or arguments not previously presented, and not the result of changed circumstances or matters that could not have previously been learned by ordinary diligence — do not warrant consideration. The FCC says Marfa gathered this declaration from Walker only a few weeks ago, giving no explanation for why it could not have previously raised the evidence of the 2007 interaction with Houston Christian Broadcasters. So the outcome stands.

Commissioner Ajit Pai made his chutzpah comment about Marfa’s earlier arguments in April. The FCC said then that it was Marfa’s failure to update the antenna registration — to name itself as the tower owner and to advise Houston of its decision not to make the tower available until filing its Petition to Deny over seven and a half years later — that was at issue.

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