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Petition for Reconsideration

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Petition for Reconsideration Before the Federal Communications Commission Washington, DC 20554 In re Applications of ) ) SILVER STATE BROADCASTING, LLC ) LMS File No. 0000128471 ) LMS File No. 0000129963 ) Facility No. 203222 For Construction Permit for Modification and For License to Cover of K276GX, Las Vegas, Nevada Filed with: Office of the Secretary Directed to: Audio Division, Media Bureau PETITION FOR RECONSIDERATION Silver State Broadcasting, LLC (“Silver State”), by its attorney, hereby submits its Petition requesting reconsideration of the Bureau’s action of December 23, 2020, rescinding the Bureau’s grant of construction permit for modification of Station K276GX and the dismissal of the application for license to cover the construction permit. With respect thereto, the following is stated: The FM translator currently known as K276GX operates currently on Channel 276, and previously operated on Channel 284 as K284CW. The FM Translator rebroadcasts AM station KBET(AM) as a station granted under the Commission’s AM Revitalization initiative.1 The station currently known as K276GX was previously ordered off the air due to alleged interference with Station KJUL-FM, Moapa Valley, Nevada.2 Additionally, on November 19, 2019, the Bureau cancelled the license for LPFM Station DKQLS-LP, owned by Chinese Voice of Golden City (“Chinese Voice”) which operated on Channel 276 in Las Vegas.3 In light of that 1 Revitalization of the AM Radio Service, 30 FCC Rcd 12145 (2015). 2 Chinese Voice of Golden City, Letter Decision, File No. BLFT-20190415ABG (June 29, 2020). 3 The Bureau noted that the Commission’s records indicated the Station had been operating from an unauthorized site since it was initially licensed in 2017. Chinese Voice of Golden City, Letter Decision (MB Nov. 19, 2019) at 2. Based on this, the Bureau found that the Station’s license had expired pursuant to Section 312(g) of 1 cancellation, Silver State previously attempted to have granted an application to allow it to change channel and to resume operations on Channel 276.4 That application was mutually- exclusive with DKQLS-LP’s prior operation. That Silver State application ultimately was dismissed by the Bureau after the Bureau ruled that Silver State was permitted only to move to an “available same-band channel,” and time the application was filed Chinese Voice still had pending an application for review and motion to stay the Bureau’s finding that its license expired which was not being protected by the Silver State application.5 The Bureau further ordered: Currently, Chinese Voice, who was previously licensed to operate on channel 276 at Las Vegas, has a pending application for review and motion to stay the Bureau’s finding that its license expired. Until the Commission acts on these filings, channel 276 is not available to Silver State for its proposed relocation of the Translator. Id. (footnote omitted). Silver State subsequently filed and was granted an acceptable modification for Channel 276 that fully protected DKQLS-LP’s deleted facility pending the full Commission’s consideration of Chinese Voice’s Application for Review.6 The application for modification of facilities was not opposed and was granted on October 30, 2020. That modified facility was licensed on November 6, 2020.7 By Memorandum Opinion and Order released on November 25, 2020, the full Commission dismissed and denied the Chinese Voice Application for Review, and dismissed its Motion for Stay. Chinese Voice of Golden City, Memorandum the Communications Act of 1934, as amended. Id. The Bureau stated that “the facts of this case do not support reinstatement of the license to promote fairness and equity” (id.) and noted that the Commission has exercised its statutory discretion to reinstate a license that expired pursuant to section 312(g) “only when failure to timely resume broadcasts was for a compelling reason beyond the licensee’s control.” Id. at 1 n.5. Finally, the Bureau concluded that “[Chinese Voice] improperly requested to make the coordinate change on an application for modification of license,” in violation of the Commission’s rules, and therefore dismissed the License Modification Application and the STA Request. Id. The Bureau subsequently modified the Commission’s databases to reflect expiration of the Station’s license and deleted the Station’s call sign. The Bureau’s decision was affirmed on reconsideration. Chinese Voice of Golden City, 35 FCC Rcd 567 (MB 2020). 4 LMS File No. 0000093597. 5 Chinese Voice of Golden City, Letter Decision, File No. BLFT-20190415ABG (June 29, 2020) at 9 (emphasis in original). 6 LMS File No. 0000122934 (granted October 30, 2020). 7 LMS File No. 0000125212. 2 Opinion and Order, FCC 20-169, 35 FCC Rcd 13638 (Nov. 25, 2020). Immediately thereafter, on November 30, 2020, Silver State filed the currently pending application for construction permit for modification of facilities (the “Modification Application”).8 The Modification Application was not opposed by Chinese Voice or any other party prior to its initial grant. The Modification Application was granted on December 22, 2020. Attachment 1. However, following grant, after business hours on December 22, 2020, via an e- mail submitted to the Bureau (and which was not filed, electronically or otherwise, with the Office of the Secretary as required by the Commission’s Rules), counsel for Chinese Voice for the first time indicated that it had an objection to the Modification Application, stating: Today the Bureau improperly granted the Silver State Modification Application for K276GX (attached). Silver State also filed for a license to cover today. The mod application fails to protect DKQLS-LP, licensed to Chinese Voice of Golden City as required in the Bureau’s June 29, 2020 Letter Order at page 9 (attached). The Application for Review of DKQLS-LP was denied on November 25, 2020 (attached) and will not become a final order until December 28, 2020. [Chinese Voice] submits that, on its own motion, the Bureau should rescind the grant of the Modification Application. Alternatively, [Chinese Voice] hereby gives notice that it will file for such relief. Attachment 2. Without providing counsel for Silver State an opportunity to respond to the e- mail prior to action,9 the Assistant Chief of the Audio Division evidently almost immediately rescinded the grant of the permit the following morning, stating: Jim, Thanks for bringing this to our attention. We have rescinded the premature grant of the K276GX modification application and dismissed the covering license application. No further action is required on behalf of [Chinese Voice] at this time. Sincerely, Jim Bradshaw Audio Division 8 LMS File No. 0000128471. 9 The email to the Bureau was sent on December 22, 2020 at 6:03 PM (i.e., after business hours). The rescission of the grant of the application evidently occurred on December 23, 2020, as 8:22 AM (i.e., before business hours). See Attachment 4 (electronic notification that the application for modification of K287GX was now again in “‘pending” status). 3 Media Bureau Attachment 3.10 This Bureau action was improper for several reasons. First of all, procedurally, it was improper for the “e-mail” from Chinese Voice’s legal counsel to be acted on by the Bureau to seek reconsideration of the grant. Section 1.106(b)(1) of the Rules allows a petition for reconsideration to be filed by any party to the original proceeding or any party whose interests will be adversely affected by the action taken by the Commission.11 If a petitioner was not a party to the original proceeding, it must show good reason for why it was unable to participate in the earlier proceeding.12 Moreover, although the Commission has accepted petitions for reconsideration by non-parties when a grant of an application occurred shortly after an application was placed on public notice (finding that such expedient grant 10 An email on behalf of Silver State was sent on December 23, 2020 at 10:57 AM, stating: Mr. Winston: Under no Commission precedent or authority under the Commission’s rules may the grant of K276GX minor modification be rescinded. The DKQLS-LP decision came out, as you say, on November 25, 2020. However, there is no need under the rules, for the Commission to “wait” 30 days for “finality”. Under Section 1.103 of the Commission’s rules, the action affirming the deletion and cancellation of DKQLS-LP was effective immediately when released as a public notice. The Commission’s database already reflects the cancellation of the license Therefore, since the rescission of DKQLS-LP was effective on November 25, 2020, it was perfectly appropriate for new applications previously mx’ed with DKQLS-LP to be accepted and granted. No stay of that Commission action has been requested or granted. Moreover, although pending since November 30, 2020, no informal objection ever was filed by your client again LMS File No. 129963. Attachment 5. An additional email was sent to Mr. Bradshaw on December 23, 2020 at 11:01 AM, stating: Jim: I just sent an email to all parties concerning this matter. I must strongly object procedurally to this action on your part. Mr. Winston’s email was sent yesterday evening. For this action to have been taken by you (wrongly, in my opinion) without first providing me with an opportunity to respond was, I feel, extremely inappropriate. Attachment 6. The Bureau has not responded to those emails. 11 47 C.F.R. § 1.106(b)(1). 12 Id. 4 effectively precluded participation during the initial consideration of an application),13 that policy would not be applicable here, since in this case, the staff granted the Modification Application on December 22, 2020, over three weeks after public notice of acceptance for filing was released.14 Because the Public Notice accepting the Modification Application served as notice to Chinese Voice of the filing of the Modification Application, Chinese Voice was not precluded from timely filing a petition to deny or an informal objection to the Modification Application prior to its grant.
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