FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, DC 20554

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In reply refer to:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1800B3-DEB

November 12, 1996

Mr. Jeffrey L. Timmons
Irwin, Campbell & Tannenwaly, P.C.
Suite 400
1320 18th Street NW
Washington, DC 20036


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In re: NEW; Bernalillo, New Mexico
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Family Stations, Inc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BPH-950410MA

Dear Family Stations:

This letter is in reference to your application, filed on April 10, 1995, for a new noncommercial educational FM to serve Bernalillo, New Mexico on Channel 213C3. The application proposes to locate at the same transmitter site as third-adjacent channel station KUNM, Albuquerque, New Mexico, which operates on Channel 210C. In order to accomplish this proposal, which is in violation of the prohibited contour overlap provisions of 47 CFR § 73.509 of the Commission's rules, the applicant has requested waiver of this rule. For the reasons set forth in this letter, we deny the waiver request and return the application.

Request for Waiver of 47 CFR § 73.509

§ 73.509 requires that third-adjacent channel noncommercial educational stations be separated so that the 100 dBu F(50,10) interfering contour of each station does not overlap the 60 dBu protected contour of the opposite station. The present application does not meet this requirement. Instead, the application proposes to locate the proposed station immediately adjacent to third-adjacent channel station KUNM. Consequently, the 100 dBu interfering contour of each station will be completely encompassed by the 60 dBu protected contour of the other station. This will create two "holes" of predicted interference within the protected service contour of each station, centered on the joint transmitter site.

As justification for a grant of this waiver, Family Stations states that the proposed transmitter site is on Forest Service land and that the surrounding area is uninhabited with very limited access. Thus no listeners will be affected by third-adjacent channel interference to KUNM. The predicted interference area to KUNM encompasses 1.3 sq. km (or 0.005%) of KUNM's 23,771 sq km 60 dBu service area. Similarly, KUNM is predicted to cause interference to 176 sq. km (5.1%) of the proposed station's 3456 sq. km 60 dBu protected service area containing 0.9% of the population within the proposed station's 60 dBu contour.

Family Stations also states that the new station would provide a first local service to Bernalillo, NM, which is said to contain "a substantial minority population". It would provide 528,569 persons with a new noncommercial educational FM service with "no loss or interference to any existing service." Consequently, Family Stations believes that the public interest benefits "clearly outweigh the minimal possibility of interference between third adjacent [channel] stations."

Discussion

Colocated second- or third-adjacent channel stations have been proposed by other applicants inthe past, but the staff is unaware of any proposal for such operation which has been granted. There are several reasons for this result.

In 1986, the Commission briefly reexamined its policy toward FM noncommercial educational FM stations with second- and third-adjacent channel contour overlap, in violation of 47 CFR § 73.509 in the context of stations with existing prohibited contour overlap. The Commission decided that proposals from existing stations could be authorized where a noncommercial educational FM broadcast station sought to increase its 60 dBu service contour so as to overlap the interfering contour of another noncommercial educational FM station, even though a small amount of interference would be received, if the public interest was found to be served by the proposal. Educational Information Corp. (WCPE), 6 FCC Rcd 2207 (1991). It did not, however, explain the Commission's policy in the case where the applicant seeks to create interference for the first time, as here.

While requests for waivers of second- and third-adjacent channel overlap for new stations are individually appealing due to the relatively large area and population served as compared to the small area and population receiving prohibited contour overlap (and hence interference), they lose this appeal when considered against the Commission's allocations scheme for noncommercial educational FM stations. Allowing new applicants to create new prohibited contour overlap effectively nullifies the protection mandated by § 73.509 to noncommercial educational FM stations' 60 dBu protected service areas. In general, the affected station would lose service area and population served without receiving any benefit in return. See Footnote 1. In the present case, this interference interrupts the continuity of existing service provided by KUNM throughout its protected service area, and thus diminishes the quality of FM service provided by the afflicted station. See Footnote 2. Moreover, the service provided by the proposed station is similarly diminished. Over time, the grant of numerous similar waivers would degrade the quality of existing FM reception from stations throughout the entire noncommercial educational FM band. As the Commission stated in Open Media Corp., 8 FCC Rcd at 4070, 4071 (1993):

It is the overall scheme of [noncommercial educational FM] allocations which is paramount, and when faced with a choice between a larger service area with overlap received on one hand, and lesser coverage with no prohibited overlap on the other, the Commission favors the latter. See Educational Information Corporation, 6 FCC Rcd 2207, 2208 (1991).

Furthermore, compliance with § 73.509 is the Commission's primary vehicle for ensuring a fair distribution of noncommercial educational FM service throughout the country, as mandated by Section 307(b) of the Communcations Act. Unlike the commercial FM service, which considers which allotment would best serve the public interest by a rulemaking proceeding and a Table of Allotments, the educational portion of the band has no formal mechanism for preferring one allotment over another. See Footnote 3. However, § 73.509 serves this purpose by prohibiting the institution of new service which would create predicted interference within another station's protected contour, with no considerations at to whether any population will be affected by the interference. Thus, adjacent channel stations generally must be licensed to different communites if they are to provide service without creating predicted interference. Waivers of § 73.509 undermine this result by encouraging the "shoehorning" of stations into more populated areas (even though they may be nominally licensed to nearby communities) at the expense of more rural communities. Where the adjacent channel stations are close together (as requested here), the preclusion of service to other communities becomes more acute since more channels must be protected. See Footnote 4.

We also note that the FM contour protection rules (and the undesired-to-desired signal ratios which underlie them) were developed for use at the 1 mV/m contour, not for colocated stations. Memorandum Opinion and Order in Docket 20735, 58 RR 2d 629 (1985) at Paragraph 56. Consequently, it is not clear that the interference areas predicted by Family proposed operation would operate at very different power levels (13.5 kW ERP and 0.125 kW, respectively).

Because second- and third- adjacent channel waivers to institute new broadcast service while creating new interference would have a fundamental impact on the present noncommercial educational FM service, the matter should be raised in the context of a rulemaking proceeding, not an application. Thus, although a new noncommercial educational service would be provided by this proposal, we do not find that the public interest would be served by a grant of this application. The policy considerations underlying our FM noncommercial FM allocations scheme clearly outweigh any future benefits which would accrue if your application were to be granted. North Texas Media, Inc., FCC 84-456 (released October 5, 1984), a'ffd, Case No. 84-1511, slip. op. (D.C. Cir. December 6, 1985), 59 RR 2d 605. Consequently, the request for waiver of § 73.509 will be denied.

Conclusion

When an applicant seeks waiver of the rules, it must plead with particularity the facts and circumstances which warrant such action. Columbia Communications Corp. v. FCC, 832 F.2d 189, 192 (D.C. Cir. 1987) (quoting Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 644, 666 (D.C. Cir. 1968) (per curiam)). We have afforded your waiver request the "hard look" called for under WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) (grant of waiver must serve the public interest than application of the rule), but find that the facts and circumstances set forth in the justification are insufficient to establish that granting waiver of 47 CFR § 73.509 would be in the public interest.

Consequently, Family Stations' request for waiver of 47 CFR § 73.509(e) IS HEREBY DENIED. The application BPED-950410MA, being unacceptable for filing, IS HEREBY RETURNED pursuant to 47 C.F.R. § 73.3566(a). This action is taken pursuant to 47 C.F.R. § 0.283.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sincerely,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dennis Williams
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistant Chief
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Audio Services Division
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mass Media Bureau


cc: Ms. Linda Adams
. . . : Family Stations, Inc.


Footnotes:

Footnote 1: Contrast that with the situation of WCPE, Raleigh, NC in Educational Information Corp., 6 FCC Rcd 2207 (1991), wherein licensed FM station WCPE agreed to accept a small amount of interference received in exchange for a large increase in its 60 dBu service area.

Footnote 2: This has been called the "swiss cheese" effect, where a station's protected service contour is punctured by "holes" of interference from multiple second- and third-adjacent channel FM stations. Revision of FM Rules (Notice of Proposed Rulemaking), Docket 14185, 21 RR 1655, 1674 (1961).

Footnote 3: However, we note that for mutually exclusive noncommercial educational FM applicants, Section 307(b) issues are considered in the context of a comparative proceeding.

Footnote: 4 For example, for compliance with § 73.509, an applicant cannot propose a noncommercial educational FM station which does not afford protection to three channels on either side of the protected station's assigned frequency (7 channels total), in varying amounts. For colocated second-adjacent channel stations, as proposed here, another applicant would be forced to protect as many as 9 channels (10 if the colocated stations were third-adjacent channel). Given that there are only 20 noncommercial educational FM channels available, as few as two such waivers in the same market could drastically curtail the institution of educational broadcast service in the surrounding region.