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Goldberg, Godles, Wiener & Wright 1229 Nineteenth Street, N.W. Washington, DC 20036 Edward Hayes, Jr. Hayes & Associates 1155 Connecticut Avenue, N.W. Washington, DC 20036  X\4` `  hhCqRe:WDCU(FM), Washington, DC ` `  ` hhCqAssignment of License Application(# ` `  hhCqFile No. BALED970630GE; as amended by ` `  hhCqFile No. BALED970815GE Dear Counsel:  xEThis letter concerns: (1) the abovereferenced application (the "Application") for consent to  xassign the license of noncommercial educational ("NCE") station WDCU(FM), Washington, DC,  xcfrom the University of the District of Columbia ("UDC") to National Cable Satellite Corporation  Xv4 x("CSPAN"); and (2) approximately seventyfive letters from listeners opposing the Application.YDv:' yO' x #C\  P6QP#э The Application, as initially filed, sought Commission consent to assign the WDCU(FM) license from UDC  x to Community Resource Educational Association, Inc. (File No. BALED970630GE). Media Access Project and  x  National Public Radio filed comments regarding the Application and subsequently were made parties to this  {OG!' x proceeding. See Letter from Linda Blair, Chief, Audio Services Division, to Ann Bavender, Esq, dated July 28,  x  1997. On August 15, 1997, an amendment to the Application was filed to substitute CSPAN for Community  xx Resource Educational Association, Inc. as the proposed assignee. On, August 15, 1997, the Mass Media Bureau  x issued a Public Notice of the acceptance for filing of the amendment, the release of which initiated a new thirtyday  {Oi$'period for filing of petitions to deny. Public Notice, Report No. 24056B (released August 15, 1997).Y  x/The listener letters will be treated as informal objections in accordance with Section 73.3587 of  xVthe Commission's rules. For the reasons set forth below, the informal objections are denied and"H0*o(o(qq"  X4the Application is granted.8 yOy' x #C\  P6QP##C\  P6QP#э #C\  P6QP##XP\  P6Q DXP##C\  P6QP##XP\  P6Q DXP##C\  P6QP#Three listeners filed pleadings captioned "petitions to deny." None of these pleadings meets the statutory  {OA' x requirements for filing petitions to deny. See 47 U.S.C.  309(d). Gerald Osheroff filed a pleading captioned  x "petition to deny," but failed to serve the parties and did not submit an affidavit, as required under Section 309(d)  x of the Act. Thomas W. Baughman, PHD, likewise filed a pleading captioned "Petition to Deny," but did not serve  xx the parties and did not submit an affidavit. In addition, Henry Mayfield, on behalf of himself and Citizens for Jazz  x for WDCU, filed a pleading captioned "Petition to Deny," which was filed two days after the September 15, 1997  x deadline. We will treat these "petitions to deny" as informal objections under Section 73.3587 of our rules as well.  xZ Although the listener letters and "petitions to deny" were not served on the parties to this proceeding, these  {O' x presentations are exempt from the prohibitions on presentations that generally apply in restricted proceedings.  See  xQ 47 C.F.R.  1.1204(a)(8) (a written presentation to the Commission by a listener or viewer of a broadcast station is  {OM 'exempt from the Commission's ex parte rules). X01Í ÍX01Í Í  xSection 310(d) of the Communications Act, as amended (the "Act"), charges the Commission  x8with determining whether the grant of a license assignment application will serve "the public  xinterest, convenience and necessity. . . ." 47 U.S.C.  310(d). With regard to the assignment  xqof NCE radio stations in the reserved band, such as the radio station at issue here, the  xCommission first must ascertain whether the proposed buyer has demonstrated its eligibility to  xhold a noncommercial educational license. Section 73.503(a) of the Commission's rules provides  xthat a "noncommercial educational FM broadcast station will be licensed only to a nonprofit  xeducational organization and upon showing that the station will be used for the advancement of  X 4 xan educational program." 47 C.F.R.  73.503(a). An applicant may qualify as a noncommercial  xceducational licensee by demonstrating that it is either an educational institution or an educational  X 4 xorganization. Notice of Inquiry in BC Docket No. 78164, 43 Fed. Reg. 30842, 30843085  X 4 x(1978) ("Notice of Inquiry"); see also Palm Bay Public Radio, Inc. 6 FCC Rcd 1772, 1773  X 4 x(1991), aff'd sub nom., 952 F.2d 549 (D.C.Cir. 1992).[& . 6 {O' xQ #C\  P6QP#э #C\  P6QP#Although the Notice of Inquiry was terminated by Order dated January 11, 1990, the Commission stated that  {OT' x it would continue to apply the standards enunciated in the Notice of Inquiry on an ad hoc basis. Matter of  x Amendment of the Commission's Rules Governing the Eligibility for Noncommercial Educational FM and TV  {O'Broadcast Station Licenses, 5 FCC Rcd 394, 394 n.1 (1990). [ Organizational applicants must  xydemonstrate that they have an educational goal and are committed to the advancement of an  X4educational program. Notice of Inquiry, 43 Fed. Reg. at 30845.   xCSPAN is not an educational institution and therefore must demonstrate that it qualifies as an  xeducational organization. CSPAN is a nonprofit corporation organized for the purpose of  x"distributing public affairs and other educational information." In this regard, CSPAN reports  xthat it intends to broadcast educational programming of local and national interest, including  x_university symposia, congressional hearings and callin shows featuring journalists and public  x_policy makers. CSPAN also states its intention to disseminate its programming through "C xSPAN in the Classroom," which includes seminars for teachers interested in integrating CSPAN  xprogramming into their curricula. Because CSPAN has demonstrated that it has an educational"0*&&qq"  xgoal and is committed to the advancement of an educational program, we find that CSPAN is  X4eligible to operate an NCE broadcast station in the reserved band. 6 yOb' x #C\  P6QP#э#C\  P6QP# One informal objector erroneously argues that CSPAN is not eligible to hold a noncommercial license because  x it has failed to demonstrate how it will satisfy the public interest requirement enunciated in Section 396(a)(6) of the  x Communications Act, as amended, which provides that "it is in the public interest to encourage the development of  x7 programming that involves creative risks and that addresses the needs of unserved and underserved audiences,  x particularly children and minorities." 47 U.S.C.  396(a)(6). Section 396(a) of the Communications Act does not  {OJ' x establish operational standards for noncommercial educational broadcast stations. See Seattle Public Schools, 4 FCC  x Rcd 625, 628 (Rev. Bd. 1989). Rather, Section 396(a) sets forth the congressional basis for establishing and  {O' x; continuing to fund public broadcasting with public tax monies. Id.; see also Revision of Programming Policies and  {O ' x Reporting Requirements Related to Public Broadcasting Licensees, Notice of Proposed Rulemaking, 87 FCC 2d 716,  x 731(1981) (Section 396 programming goals "not specifically directed to the role of this Commission in public  {O8 ' xx broadcasting"); Report and Order, 98 FCC 2d 746 (1984). Furthermore, the Commission does not require stations  {O ' xQ to present programming specifically designed for minority groups. See Spectacor Broadcasting L.P., 9 FCC Rcd  {O ' x 1729, 1731 (1993); citing Puerto Rico Media Action and Educational Action, Inc., 51 FCC 2d 1178, 118182 (1975).   xHaving determined CSPAN's eligibility to hold a noncommercial educational license, we turn  xto the informal objections filed by WDCU(FM) listeners. The principal objection to the proposed  xassignment is that, if approval is granted, CSPAN will change WDCU(FM)'s current jazz format  xto a format dedicated primarily to public affairs and news programming. Many informal  xobjectors argue that the public interest would be better served by preservation of the jazz format.  xNOne informal objector also argues that grant of the application is not in the public interest  xbecause CSPAN's proposed national programming does not address the problems, needs and  xinterests of the Washington, DC community. In addition, two informal objectors contend that  xlit is impermissible for UDC, an NCE licensee, to maximize its profits by selling WDCU(FM) to the highest bidder.  xWhile the Commission recognizes that WDCU(FM)'s jazz format has attracted a devoted  xlistenership, it is wellsettled Commission policy that potential changes in programming formats  X4 xare not considered in reviewing assignment applications. See Changes in the Entertainment  X{4 xVFormats of Broadcast Stations, 60 FCC 2d 858, 86566 (1976); recon. denied, 66 FCC 2d 78  Xf4 x(1977), rev'd sub nom., WNCN Listeners Guild v. FCC, 610 F.2d 838 (D.C. Cir. 1979), rev'd, 450  XQ4 xU.S. 582 (1981). With regard to public broadcasting in particular, the Commission historically  x""has had the appropriately limited role of facilitating the development of the public broadcasting  X#4 xlsystem rather than determining the content of its programming."  Revision of Programming  xcPolicies and Reporting Requirements Related to Public Broadcasting Licensees, Notice of  X4 xhProposed Rulemaking, 87 FCC 2d 716, 732 (1981); Report and Order, 98 FCC 2d 746  X4(1984)("Public Radio and Television Programming").  xOne informal objector expresses concern regarding the "national" character of CSPAN's  xcprogramming. Under wellestablished precedent, an applicant is required to provide only a brief" 0*&&qqi"  X4 xnarrative description of its proposed community issueresponsive service. See Request for  x/Declaratory Ruling Concerning Programming Information in Broadcast Applications for  X4 xConstruction Permits, Transfers and Assignments, 3 FCC Rcd 5467, 54675468 (1988); see also  X4 xPublic Radio and Television Programming, Report and Order, 98 FCC 2d at 751752;  X4 x@Deregulation of Radio, 84 FCC 2d 968, 982 (1981), recon. granted in part and denied in part,  X4 x87 FCC 2d 797, aff'd in part and remanded in part sub nom., Office of Communications of the  X4 xUnited Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983). CSPAN's program service  xstatement fully satisfies this application requirement. CSPAN states its intention to broadcast  xeducational programming of local, as well as national, interest and no credible evidence has been  xsubmitted to rebut this assertion. In any event, these sorts of objections may be renewed and are  X& 4 xcappropriately reviewed in connection with the station's next license renewal application. See 47  X 4U.S.C.  309(d)(1) and 47 C.F.R.  73.3580(d)(4).  xWith regard to the claim that UDC, as an NCE licensee, should not be permitted to maximize  X 4 xits "profit" by selling WDCU(FM) to the highest bidder, we note that "profit per se in assignment  xof licensed broadcast properties has never been held to be contrary to the public interest. . . ."  X4 xSee Robert E. Sewell, 19 FCC 2d 872, 874 (1969). We find no basis for precluding an NCE  xlicensee from maximizing profits on the sale of its stations unless there is evidence that the  Xv4 xreceipt of such profits would affect the licensee's nonprofit status. v6 yO' x< #C\  P6QP#э One informal objector erroneously claims that Section 73.503(a) of the Commission's rules prohibits a  xx noncommercial educational broadcaster from earning a profit from the sale of its station. Section 73.503(a) merely  x requires that a noncommercial educational broadcast station provide a noncommercial educational broadcast service. 47 C.F.R.  73.503(a).  The informal objectors submit  xno evidence demonstrating that a profit from the sale of WDCU(FM) would jeopardize UDC's  XH4 xxnonprofit status. See Certain Broadcast Stations Licensed to Communities in Maryland, Virginia,  X34 xWest Virginia and the District of Columbia, 9 FCC Rcd 2143, 2145 (1994) (informal objections  xplike petitions to deny must contain adequate and specific factual allegations sufficient to warrant  X4the relief requested).|6 yOh' x #C\  P6QP##C\  P6QP##C\  P6QP#э We also note that some informal objectors contend that the Commission should require UDC to sell  xb WDCU(FM) to a buyer who they claim would better serve the public interest. Section 310(d) of the Communications  x  Act specifically precludes the Commission from considering any party other than the buyer proposed in the  {O' xb application before us. See 47 U.S.C.  310(d); see also Iowa State University Broadcasting Corporation, 9 FCC Rcd  {O'481 (1993), citing MMM Holdings, Inc., 4 FCC Rcd 8243, 8244 (1989).  We decline to deny the assignment application on this basis.   x<The informal objections do not raise a substantial and material question of fact. Examination of  xthe Application establishes that CSPAN is qualified to be a Commission licensee, and that the  xproposed assignment will serve the public interest, convenience and necessity. In light of the  xWforegoing, and pursuant to 47 C.F.R.  0.283, the informal objections ARE DENIED. Furthermore, the application (File No. BALED970630GE as amended by BALED"} 0*&&qq="  x970815GE) to assign the license of station WDCU(FM), Washington, DC from the University of the District of Columbia to National Cable Satellite Corporation IS GRANTED. ` `  hhCqSincerely,  X_4 ` `  hhCqRoy J. Stewart, Chief ` `  hhCqMass Media Bureau  X 4cc:Ann Bavender, Esq. Gigi Sohn, Esq.  X 4 Neal A. Jackson, Esq. Mr. Gerald Osheroff Thomas W. Baughman, PHD Mr. Henry Mayfield