BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the matter of ) ) GLR Southern California, LLC ) IB Docket No. 19-144 ) File No. 325-STA-20180710-00002 Application for a Section 325(c) Permit to ) File No. 325-NEW-20180614-00001 Deliver Programs to Foreign Broadcast ) Stations for Delivery of Mandarin Chinese ) Programming to Mexican Station XEWW- ) AM, Rosarito, Baja California Norte, Mexico ) ) To: Office of the Secretary Attn.: Chief, International Bureau PETITION FOR RECONSIDERATION OF ORDER DISMISSING APPLICATION TO DELIVER FOREIGN PROGRAMMING Paige K. Fronabarger David Oxenford Christopher D. Bair WILKINSON BARKER KNAUER, LLP 1800 M Street, NW, Suite 800N Washington, D.C. 20036 (202) 783-4141 Counsel to GLR Southern California, LLC and H&H Group USA LLC July 22, 2020 TABLE OF CONTENTS EXECUTIVE SUMMARY ........................................................................................................ ii INTRODUCTION ......................................................................................................................2 DISCUSSION .............................................................................................................................5 I. Dismissal of the 325(c) Permit Application was Arbitrary and Capricious and a Violation of the APA. ..............................................................................................................................5 A. The Bureau Erred in Finding that it Lacked Adequate Information to Complete a Public Interest Analysis of the Application. ..............................................................................5 1. The Bureau Had More Than Enough Information to Reach a Decision on the Merits of the Application. ..................................................................................................5 2. Grant of the 325(c) Permit Application is in the Public Interest and Consistent with Commission Policies. .............................................................................................7 B. The Bureau’s Decision Appears to be Based on External Political Motivations Not Discussed in the Order...................................................................................................9 C. The Bureau Should Have Provided an Opportunity to Amend the Application Rather Than Dismissing. ........................................................................................................ 11 II. The Order Violates the Commission’s Rules, the Communications Act, and the First Amendment........................................................................................................................ 13 A. The Bureau’s Dismissal of the Applications is Discriminatory and a Violation of the Communications Act. .................................................................................................. 13 1. Applicants’ Control of the Station is Consistent with Arrangements Used by Other Broadcasters. ........................................................................................................ 13 2. The Programming Content Cannot Provide the Basis for Dismissal. ........................ 16 B. The Bureau Exceeded its Delegated Authority in Denying the Application. ................. 18 CONCLUSION ......................................................................................................................... 21 i EXECUTIVE SUMMARY For two years GLR Southern California, LLC and its parent company, H&H Group USA LLC (collectively “Applicants”), have delivered Mandarin Chinese-language programming from a studio in the Los Angeles area to Mexican radio station XEWW-AM, Rosarito, Baja California Norte (the “Station”) pursuant to a Special Temporary Authority (“STA”) granted by the International Bureau (“Bureau”) while waiting for action by the Bureau on Applicants’ pending 325(c) permit application. Despite patiently and cooperatively working with the Bureau through this protracted process, during which Applicants have likely undergone more scrutiny than any other 325(c) permit application ever filed, the Bureau dismissed Applicants’ 325(c) permit application and Applicants’ pending STA renewal on procedural grounds, never reaching any conclusion as to the substance of the application, in an order on June 22, 2020 (the “Order”), depriving Southern California residents of the Station’s valuable programming. In taking this action, the Bureau violated the Administrative Procedure Act (“APA”), the Communications Act (the “Act”), the First Amendment to the Constitution, and the Commission’s own rules. The APA requires a federal agency like the Federal Communications Commission to undertake reasoned decision-making, and provides that a decision is arbitrary and capricious if the agency fails to consider an important aspect of the problem, offers an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The Order fails to satisfy these legal requirements. The Bureau’s decision to dismiss the applications because it lacked sufficient information was arbitrary and capricious given the volumes of information that Applicants’ have freely provided about their operations. The Order also appears to have been based on external political considerations which are never explained in the Order. Furthermore, the Bureau’s decision to dismiss both the pending STA renewal and 325(c) application was ii arbitrary given that the Bureau frequently offers applicants an opportunity to amend applications rather than dismissing them outright. As the Bureau had no trouble repeatedly asking Applicants for other information for the record, asking for an amendment to cure the perceived defect should have been done. In addition to violations of the APA, precedent dictates that applications seeking approval under Section 325(c) are to be treated the same as any application for a domestic broadcast station. The Bureau ignored this precedent, as no broadcast application would undergo the scrutiny to which this application was subjected, nor would it be dismissed on the novel grounds asserted here. An application cannot be dismissed based on the content of the broadcasts without running afoul of the provisions of Section 326 of the Communications Act and the First Amendment to the Constitution. Yet it appears that this application was dismissed without substantive consideration merely because Applicants have contracted for programming on the Station to be provided by a company with ties to China. Such a result cannot stand. For the foregoing reasons, the Order should be reversed, the STA reinstated, and the Bureau should expeditiously grant Applicants’ 325(c) permit application. iii BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the matter of ) ) GLR Southern California, LLC ) IB Docket No. 19-144 ) File No. 325-STA-20180710-00002 Application for a Section 325(c) Permit to ) File No. 325-NEW-20180614-00001 Deliver Programs to Foreign Broadcast ) Stations for Delivery of Mandarin Chinese ) Programming to Mexican Station XEWW- ) AM, Rosarito, Baja California Norte, Mexico ) ) PETITION FOR RECONSIDERATION OF ORDER DISMISSING APPLICATION TO DELIVER FOREIGN PROGRAMMING Pursuant to Section 1.106 of the Federal Communications Commission’s (“FCC’s” or “Commission’s”) rules, GLR Southern California, LLC (“GLR SC”) and its parent company, H&H Group USA LLC (“H&H”) (collectively “Applicants”), by their attorneys, hereby file this petition for reconsideration of the International Bureau’s (“Bureau’s”) order (“Order”)1 dismissing the application for a 325(c) permit to deliver foreign programming and dismissing the Special Temporary Authority (“STA”) pursuant to which Applicants delivered programming from a studio in the Los Angeles area to Mexican radio station XEWW-AM, Rosarito, Baja California Norte (the “Station”).2 1 GLR Southern California; Application for a Section 325(c) Permit to Deliver Programs to Foreign Broadcast Stations for Delivery of Mandarin Chinese Programming to Mexican Station XEWW-AM, Rosarito, Baja California Norte, Mexico, LLC, Order, DA 20-649, IB Docket No. 19-144 (IB rel. Jun. 22, 2020) (“Order”). 2 Applicants will imminently be filing a new 325(c) permit application and new STA to export programming from the United States to Mexico including Phoenix Radio US, Inc. as a co- applicant as requested by the Bureau in the Order. Notwithstanding Applicants’ opposition to the Bureau’s decision in the Order, Applicants recognize that grant of the new permit application will render action on this petition for reconsideration moot. Applicants would welcome the grant INTRODUCTION For the past two years Applicants have provided Mandarin Chinese-language programming from the Station to listeners across Southern California pursuant to an STA granted by the International Bureau. Under the name URadio, the Station provides valuable music and lifestyle programming to an underserved segment of the community. The programming is supplied through a programming agreement between Applicants and Phoenix Radio US, Inc. (“Phoenix”). For the past two years Applicants have faced a barrage of spurious claims about the programming broadcast by the Station, ranging from seemingly unrelenting claims that the Station would harm the economics of another local radio station to unfounded allegations by a prominent politician about Chinese Communist Party control