Make Sure Your Tech Box Is Filled Out Right

That’s a lesson from the case of an NCE applicant in Iowa
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A group that had hoped to win a new NCE station in Coggon, Iowa, then attempted several appeals when that was rejected, has received more bad news. The Audio Division of the FCC Media Bureau has again said no to its petitions to reconsider rulings made in early 2009.

The wording of the ruling is a reminder of how important proper completion of the Tech Box on an application could turn out to be in any given case.

The back story: Plus Charities and New Bohemia Group each applied to construct a new noncommercial educational station during the NCE FM filing window in 2007.

The FCC staff declined the Plus application, saying its proposed 60 dBu contour failed to cover at least half of the community of license. Plus appealed, explaining that it had inadvertently checked the box “east longitude” rather than “west longitude” in part of its application. It told the FCC that a review of its application “as a whole” would have revealed that it had actually specified a tower in Masonville, Iowa. It argued that the FCC should accept its amended application as a minor change. The FCC staff said no to that.

Subsequently, the commission chose New Bohemia as the tentative winner over a mutually exclusive application from another applicant. Plus Charities then filed a Petition to Deny to that ruling on several grounds, among them that there were problems with the winning application and that New Bohemia should be challenged on its truthfulness. Again the FCC said no.

Plus tried again. It filed two more petitions in March of 2009, asking the FCC to reconsider. It restated its reasons, then added two more, saying the FCC had applied different standards to Plus and New Bohemia, in violation of a commission precedent from a case called Melody Music, Inc. v. FCC, and that Plus lacked notice of the FCC’s acceptability standards.

This week, Audio Division Chief Peter Doyle addressed those new arguments, while saying the others had already been rejected.

The FCC ruled that Plus and New Bohemia were not “similarly situated applicants” because fixing the Plus application to get the geographic coordinates right would have constituted an impermissible major change. The FCC added in a footnote: “Plus … [also] asserts that the commission staff could have gleaned that the coordinates in the Tech Box were incorrect had it reviewed the application in its entirety. However, the commission has explicitly rejected this sort of temporizing approach to rectifying erroneous Tech Box submissions.” In other words, it’s not our job to get your application right.

Defects in the New Bohemia application, by contrast, were minor, the FCC found.

Also, the staff rejected the argument that its “acceptability criteria” are unclear. It said Section 73.3564 of the rules clearly sets forth the acceptability criteria.

“Moreover, it is well-settled that information in the Tech Box supersedes inconsistent data elsewhere in an application." The staff added in another footnote a reminder that “in the event that there are any discrepancies between data in the Tech Box and data submitted elsewhere in the application, the data in the Tech Box will be controlling.”

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