A CP granted following the 2007 non-commercial filing window has been overturned by the commissioners of the FCC.
Both the KBOO Foundation and Chehalis Valley Educational Foundation were among the mutually-exclusive suitors along with fifteen others for NCE MX Group 543 in the October 2007 filing window. In November 2008, KBOO applied for a waiver because it experienced greater than 50% turnover of its board of directors, something that should’ve been considered a major change to a pending application. Grays Harbor LP FM was selected as the tentative grantee of the MX group, however KBOO filed a petition for reconsideration of its application’s dismissal and reached a settlement agreement making its application capable of being processed as a singleton on 89.7.
Chehalis Valley Educational Foundation subsequently filed a petition to deny on the grounds that its waiver in 2008 should not have been granted. KBOO argued that its board turnover had been gradual and routine and did not alter the nature of its organization or break its “continuity of control” and the Media Bureau proceeded with its application and granting a CP in September 2011.
In the Commission’s ruling today they state that KBOO merely cited the agency’s Omnibus Order but failed to allege or demonstrate any special circumstances that would justify its waiver grant. That led to the dismissal of its waiver grants and Construction Permit, while granting an Application For Review to Chehalis Valley Educational Foundation for its own application for the new station.
Two commissioners released statements along with decision agreeing with the result but stating their desire to see rules changes prior to another non-commercial filing window. Michael O’Reilly stated, “Unfortunately, this is not the only decision regarding NCE FM applications filed in the October 2007 window that has turned on subjective licensing requirements and an unpredictable process used by the Commission to award LPFM licenses. It is my hope that for the next application window, to the extent there is one, the Commission will reconsider its past decisions and adopt a straightforward process, free of extraneous, ambiguous, or subjective criteria that we have seen can lead to years of uncertainty.”
Ajit Pai wrote, “I am voting to approve this Order because I agree with the Commission that there aren’t special circumstances present to justify granting the KBOO Foundation’s (KBOO’s) waiver request. But I do not agree with the underlying rule that requires us to dismiss KBOO’s application for a new NCE FM station and hope that the Commission will change it before the next NCE FM filing window. A nonprofit organization’s board of directors will often experience routine turnover. Members, who are generally volunteers leading busy lives, decide to resign for a variety of reasons or their terms expire. And if such turnover results in the majority of a board’s membership changing hands while an organization has an NCE FM application pending with the Commission, that application should not be dismissed absent evidence of a lack of continuity in the organization’s operations (e.g., evidence that the organization was the subject of a hostile takeover or had dramatically changes its mission or character). It is not the Commission’s job to micromanage the governance of nonprofit organizations, and I see no reason why those groups should be put to the choice of preventing routine turnover on their boards of directors or rendering an NCE FM application defective.”