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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: Application of) ) Family Stations, Inc.) ) For Minor Modification of Construction)File No. BMPED-960124IH Permit for Station KEDR(FM),) Sacramento, California) ) Application for Review) MEMORANDUM OPINION AND ORDER Adopted: July 24, 1997Released: August 1, 1997 By the Commission: 1. The Commission has before it an Application for Review filed August 2, 1996 by KVIE, Inc., seeking reexamination of the Mass Media Bureau's ("Bureau") June 27, 1996 action granting the above- referenced application. Pursuant to 47 C.F.R.  1.115(a), we dismiss the Application for Review as procedurally deficient because KVIE, Inc. has not shown good reason for its lack of participation in this proceeding prior to filing the Application for Review. 2. Background. On February 5, 1993, Family Stations, Inc. ("Family") filed a major modification application (File No. BMPED-930205MC) to, inter alia, change the transmitter location and effective radiated power ("ERP") of NCE-FM Station KEDR, Sacramento, California. KVIE, Inc., licensee of TV Channel 6 Station KVIE, Sacramento, timely petitioned to deny the major modification application, challenging Family's TV Channel 6 predicted interference showing. See 47 C.F.R.  73.525. Thereafter, Family twice amended its application to decrease KEDR's proposed horizontal ERP. The second amendment showed that the proposed operation of KEDR would result in predicted interference with Station KVIE affecting 3,374 persons. The Bureau granted the major modification application subject to the condition that filters be installed on TV receivers in the area of predicted interference, in accordance with Section 73.525(c) of the Commission's rules. Letter from Dennis Williams, Assistant Chief, Audio Services Division to Family Stations, Inc., Reference No. 1800B3-BJB (July 25, 1995). The Bureau also dismissed as moot KVIE, Inc.'s petition to deny the major modification application, noting that KVIE, Inc. had failed to carry out its stated intention of filing a response to the second amendment. Id. 3. KVIE, Inc. petitioned for reconsideration of the Bureau's July 25, 1995 action on the ground that more interference than predicted would be created due to the proximity (300 meters) of KEDR's proposed transmitter site and Station KVIE's transmitter. KVIE, Inc. also contended that filters would be ineffective in preventing such interference, and expressed concerns regarding Receiver-Induced Third Order Intermodulation Effect ("RITOIE") as a result of the proposed KEDR operation. Subsequently, on January 24, 1996, Family filed the subject minor modification application (File No. BMPED- 960124IH) to, inter alia, change KEDR's transmitter location to a site approximately 2.7 kilometers from Station KVIE. The application showed that the proposed change would result in predicted interference with Station KVIE affecting only 2,025 persons. The Bureau granted the application without condition, as Family's showing was within the 3,000 person limit of Section 73.525(c). Letter from Dennis Williams, Assistant Chief, Audio Services Division to Family Stations, Inc., Reference No. 1800B3-BJB (June 27, 1996). The Bureau also dismissed as moot KVIE, Inc.'s petition for reconsideration of the grant of KEDR's earlier major modification application. It noted that although KVIE, Inc. was served with a copy of the minor modification application, it failed to file any objection to it. The Bureau also noted that its study showed RITOIE from the proposed KEDR operation to be highly unlikely and that, in any event, Family accepted responsibility for correcting any service disruptions that might occur. 4. KVIE, Inc. essentially restates its previous objections to the major modification application in this Application for Review, arguing that the Bureau ignored its concerns regarding RITOIE and insufficiently considered the interests of the persons residing in the area of predicted interference with Station KVIE. KVIE, Inc. offers no explanation for its failure to oppose the minor modification application in the earlier stages of this proceeding, although it points our attention to its objections to the previous major modification application. KVIE, Inc. also suggests that Family filed the minor modification application in order to evade KVIE, Inc.'s arguments in the earlier petition for reconsideration of the grant of the major modification application. 5. In its Opposition, Family states that it filed the minor modification application after learning that the transmitter site previously approved by the Bureau was no longer available. Family contends that the application complies with the Commission's rules regarding intermodulation or blanketing interference and TV Channel 6 interference, see 47 C.F.R.  73.318, 73.525, and that KVIE, Inc.'s concerns about RITIOE are speculative. 6. Discussion. Section 1.115(a) of the Commission's Rules states that any person seeking review of a decision taken pursuant to delegated authority who is not a party to the proceeding must show ". . . good reason why it was not possible for him to participate in the earlier stages of the proceeding. Any application for review which fails to make an adequate showing in this respect will be dismissed." 47 C.F.R.  1.115(a); see In re Local Exchange Carrier Line Database, 8 FCC Rcd 2957, 2959 (1993). 7. Family's minor modification application was filed on January 24, 1996, and granted on June 27, 1996. Thus, although there was no prescribed schedule for objecting to the application, KVIE, Inc. had five months to file an objection prior to Commission action. See 47 C.F.R.  73.3587 (informal objection may be filed any time prior to grant of application). Despite having been served with a copy of the minor modification application, however, KVIE, Inc. failed to participate in the instant proceeding prior to filing its Application for Review. KVIE, Inc. proffers no explanation for its lack of participation. Although it raised certain issues in earlier pleadings challenging Family's major modification application, it did not do so in the context of this proceeding, which involves an entirely different technical proposal. Cf. In re Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations, 2 FCC Rcd 4146, 4147 (1987) (dismissing application for review for failure to show good reason for previous non-participation in allocation proceeding where applicant raised issues concerning allocation in the context of related licensing proceeding). As KVIE, Inc. has failed to make the required showing under Section 1.115(a), we dismiss the Application for Review and do not address the substantive issues advanced by KVIE, Inc. See Local Exchange Carrier Line Database, 8 FCC Rcd at 2959 n.20. 8. Although we do not address the substantive issues advanced by KVIE, Inc., we note that there appears to be no dispute as to the minor modification application's compliance with Commission rules regarding blanketing and TV Channel 6 interference. See 47 C.F.R.  73.318, 73.525. We also note that the Bureau conducted its own study and concluded that RITOIE from the proposed KEDR operation is highly unlikely. If, contrary to the Bureau's prediction, RITIOE-based service disruptions occur after KEDR commences operations at the approved site, the Commission will require Family to make reasonable efforts to correct it, as Family has promised to do. Cf. WKLX, Inc., 6 FCC Rcd 225, 226 (1991) (Commission policy is to require a "newcomer" to make reasonable efforts to alleviate RITOIE- based service disruptions to reception of existing FM licensee where actual listener complaints have been received). 9. ACCORDINGLY, IT IS ORDERED, That the Application for Review filed by KVIE, Inc. on August 2, 1996 IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary