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(1) (a) (i) 1) a)D )DDDFrf9q footnote tex :$ d\  PC 2RK|IKKKNK]P"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddM\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\2]KRK%UKpW\Y"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""constructing its desired Class C3 upgrade at its current site while preserving WGGC's actual Class C  xfacilities through a much more burdensome series of onestep upgrade and downgrade applications, and  S - xrelated construction activities involving both WCDZ and WGGC. Id. The key component to this plan  S - x is the downgrade of WGGC to Class C1 or the relocation of WGGC's Class C facilities to a site that  x=would be fully spaced to TBC's Class C3 proposal. TBC maintains that once WGGC is downgraded or  xrelocated and WCDZ is subsequently upgraded, WGGC could file an application to resume Class C  xoperations with its authorized facilities pursuant to the contour protection standards for shortspaced  xstations under  73.215 of the Commission's rules. TBC argues that a waiver of  73.203 and 73.3573  S2- xzwould avoid these "excessive and artificial measures to reach the same ends." Id. at 8 n.4. The public  xinterest justification for the requested waiver is based on the fact that the upgraded WCDZ facilities would  xbe wellsituated to broadcast emergency evacuation, earthquake and flooding information to its listeners in the vicinity of the New Madrid Seismic Zone in the event of a natural disaster.   x4. TBC raises two additional arguments. It asserts that the Mass Media Bureau staff exceeded  xits grant of delegated authority under  0.283(b)(4) when it disposed of TBC's waiver request itself, rather  xthan referring the request to the Commission. Citing the Order's statement that "[t]here is no precedent  xjfor waiver of the [ 73.207] allotment requirements," TBC contends that its waiver request contains new  S- xjor novel arguments that should have been considered by the full Commission. Id. at 8. In addition, TBC  xargues that its modification application presents a novel set of facts since upgraded Class C3 facilities  xwould improve service to the New Madrid Seismic Zone. TBC contends that only the Commission is  SV- xauthorized to determine whether this "invaluable service" justifies its waiver request. Id. Finally, TBC"V.**"  xcomplains that it is one of a number of stations "locked into . . . underpowered facilities . . . " while the  x/Commission's policies preserve for other stations, such as WGGC, the opportunity to move toward maximum facilities. It claims that this policy diminishes competition.  S`-Q2 Discussion ă   x5. TBC's claim that a waiver is appropriate since it could obtain the "identical" result through  xa multistep application and construction scenario is fatally flawed in several respects. Plainly, TBC lacks  xthe ability to unilaterally implement either of its hypothetical proposals which, in any event, would  xfundamentally change the interference protection which WGGC now receives from all other stations. Both  Sp- xplans require WGGC's full cooperation. Under 47 C.F.R. 73.208, the licensing of WGGC as a Class  xC1 facility at its current site or as a Class C facility at a new, fully spaced site is a precondition for the  x{filing of a WCDZ Class C3 application. However, nothing in the record suggests that WGGC has  xconsented to either an allotment downgrade or the relocation of its transmission facilities. Nor does TBC,  x-the only station that would benefit from this multistep effort, pledge to finance the technical modifications which WGGC would be required to implement.   x6. Even if we assume that TBC would absorb all expenses, it has no ability to ensure that it could  x=achieve the results it desires through its hypothetical proposals. At a minimum, the Commission would  xbe required to consider on a comparative basis any application mutually exclusive with and filed on the  S- xysame day as the WCDZ onestep application. See Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945).  xSimilarly, WGGC's Class C upgrade or modification application to relocate to its currently authorized site  S- xkalso would be subject to competing applications. Id. Finally and importantly, WGGC could only be  xrelicensed as a Class C station at its current site under the contour protection provisions of 47 C.F.R.   x73.215. Under this rule, WGGC would be protected to its actual, rather than maximum Class C facilities.  S- x.See Amendment of Part 73 of the Commission's Rules to Permit ShortSpaced FM Assignments by Using  S- xDirectional Antennas, 4 FCC Rcd 1681, 1684 (1989), recon. denied in pertinent part, 6 FCC Rcd 5356  xy(1991). Because WGGC currently operates at near class minima for power and height, the two scenarios  S- xwhich TBC proffers would leave WGGC in a materially different position vis a vis nearby co and  xadjacent channel stations than is now the case. Thus, we reject TBC's theory that declining to grant the  xwaiver it requests here would be merely an exercise in bureaucratic intransigence that would needlessly  x[force TBC to engage in excessive paperwork and assume unnecessary expenses to achieve the "identical" result that a waiver would facilitate.   x7. We find that the staff fully considered the public interest benefits which TBC contends support  xits waiver request. These include enhanced emergency service in the New Madrid Seismic Zone and  xMgreater service area coverage by WCDZ. As the staff noted in the Order, WCDZ's existing operation  xalready serves part of the New Madrid Seismic Zone. The portion of the proposed new service area which  xlies within this seismic area is already served either fully or partially by 16 other FM stations, in addition  xto both AM radio and television service. The Commission does not accord significant weight to improved  S!- xservice in wellserved areas. See Bay City, Brenham, Cameron, etc., Texas, 10 FCC Rcd 3337, 3337  xz(1995) (affirming policy that five receptive services is considered adequate). In these circumstances a  S|#- xwaiver of the core  73.207 allotment spacing requirement is unwarranted. See, e.g., Bristol, Tennessee,  x46 RR 2d 650, 651 (1979) (compelling justification necessary to waive Commission's allotment separation  S.%- xrequirements); Eatonton and Sandy Springs, Georgia, and Anniston and Lineville, Alabama, 6 FCC Rcd  x6580, 6584 (1991) (spacing waivers generally denied absent showing of compelling need for requested  S&-allotment change); Toms River, New Jersey, 43 FCC 2d 414, 417 (1973) (same).   x8. Moreover, the Mass Media Bureau staff acted within the authority delegated to it under  0.283  x>when it ruled upon TBC's modification application and waiver request. The issues presented by the"j).**+"  x=modification application and waiver request are neither new nor novel. The Commission has previously  xconsidered and rejected substandard allotments based on the ability to provide emergency broadcast  S- xservices to listeners. See Chester and Wedgefield, South Carolina, 4 FCC Rcd 4503, 45045 (1989),  S- xrecon. denied, 5 FCC Rcd 5572(1990), review denied sub nom. Chester County Broadcasting Co. v. FCC,  Sd- x\Case No. 901496 (D.C. Cir. June 6, 1991) (additional emergency broadcast capacity not sufficiently  xNcompelling to overcome Commission's traditional prohibition against the creation of shortspaced allotments). The Order properly applied controlling Commission precedent.   Bx9. Lastly, we are unpersuaded that TBC is entitled to relief because it is limited to the  x"underpowered" Class A maximum of six kilowatts. Grant of the TBC application could have farreaching  ximpacts on FM band congestion and the distribution of aural services. First, we wish to emphasize, as  SL - xynoted at paragraph 2, supra, that it is incorrect to view TBC's proposal as a "simple" 3.8 kilometer short  S& - xMspacing waiver request. TBC does not propose a waiver of our application spacing rules which were  S - xwaived in very narrow circumstances prior to the adoption of Section 73.215. See, e.g., Megamedia, 67  xFCC 2d 1527 (1978) (applicant must show that alternative nonshortspaced sites are unavailable and that  x=proposed site is the least shortspaced of all suitable sites). Rather, it seeks an unprecedented waiver of  S - xthe allotment distance separation rule, in essence, asking that the Commission abandon the requirement  x>that onestep upgrade proponents demonstrate the existence of a site which complies with allotment  x]distance separation requirements. Maintaining our allotment separations is important to prevent  xovercrowding and to promote a more even distribution of stations. This system works to the benefit of all licensees including WCDZ.   x10. Grant of the relief TBC requests could undermine this system by opening the way for other  xysimilarly situated stations to claim a right to waiver of allotment spacing requirements. The Mass Media  xBureau staff has analyzed each of the 3712 commercial FM stations which can, potentially, seek upgraded  xMallotments under the rules, i.e., all stations except those with full Class B or Class C allotments. The  xstudy identified 594 stations, including WCDZ, which currently meet Section 73.215(e) application  S- xseparation requirements at their licensed sites for the next higher class, e.g., Class A to Class C3, C2 to  xC1, B1 to B, etc., but which are shortspaced under the Section 73.207 allotment standards. Thus, the  S- xrequested waiver could have implications far greater than the subject application. See ECI License  S`- xCompany, Inc., 11 FCC Rcd 1797, 1799, review denied sub nom. ECI License Company, L.P. v. FCC,  S:- x106 F.3d 442 (D.C. Cir. 1996) (decision without published opinion) (each spacing waiver increases spectral crowding in FM band).   x11. Secondly, TBC also challenges the Commission's policy of protecting to maximum facilities  xClass C stations which operate near height and power minima. As a general matter, the commercial FM  xspacing rules implicitly protect all stations, not just Class C's, to maximum facilities. This policy permits  xstations to improve technical facilities over time and provides a certain degree of flexibility for transmitter  xrelocations. A change in separation standards, whether to create an intermediate class for "lesser" Class  S - xyC stations VL yOb#-  >#C\  P6QIP##C\  P6QIP#эxClass C stations must operate with antenna heights above average terrain ("HAAT") of between 300 and  x600 meters. 503 of the 853 licensed Class C stations currently operate with antennas at HAATs of less than 450  x<meters. Accordingly, the adoption of a rule which protects Class C stations to their actual facilities could create  xYopportunities for a sizable number of stations to relocate or improve their facilities while potentially precluding any future enhancement of the impacted Class C stations. or, generally, to protect FM stations to their actual facilities, could have widespread impacts. " x.**G""  S-We believe such proposals are most appropriately considered in the context of a rulemaking.VL {Oh-  z#C\  P6QIP#эx#C\  P6QIP#We note that the Commission plans to consider shortly an FM technical streamlining Notice of Proposed  {O2- xRulemaking. The proceeding will attempt to identify ways to speed the introduction of new and improved broadcast  x;services, provide greater flexibility to broadcasters to improve existing services, and facilitate compliance with core  x technical requirements. Accordingly, TBC and other broadcasters will have an opportunity to comment on alternative interference protection models in this subsequent proceeding.    ^x12. The Commission's rules and policies provide a direct avenue for TBC to bargain for Class  xC3 facilities. To reach this result, TBC and WGGC must reach agreement on the downgrading of WGGC  xjto Class C1 status at its current site. Unlike TBC's hypothetical proposals, the actual negotiations must  xbe based on the understanding that there can be no certainty that WGGC would be able to upgrade its  xkfacilities. Moreover, both TBC and WGGC must recognize that any enhancement to the interference  xprotection that WGGC receives after the downgrade would require significant expenditures either to  x[construct a substantially taller tower at WGGC's current site or to relocate its transmission facilities to a  xsite that would permit WGGC to operate as a fully spaced Class C facility. The WGGC downgrade could  xbe readily achieved by WGGC reducing power by one kilowatt or lowering its antenna by two meters.  x{Staff studies establish that either modification would reduce WGGC's coverage area by less than a  xvirtually imperceptible onehalf of one percent. The downgrade would have no impact on WGGC's ability  xto serve Glasgow or other major population centers within the station's current 60 dBu service contour.  xjThe staff also has determined that all areas which would lose service would continue to be served by five or more commercial aural services.   x13. We believe that agreements between commercial FM broadcasters to undertake mutual facility  xmodifications, so long as they are consistent with technical spacing and protection requirements, can serve  xthe public interest. Indeed, our onestep upgrade and downgrade application procedures permit expedited  x.staff review of the most complex proposals involving both allotment and application issues. Moreover,  xwe wish to make clear that we would be favorably disposed to grant waivers of the contingent application  S- x=rule, 47 C.F.R. 73.3517, to facilitate mutual facility modifications otherwise in the public interest. See  Sj- xPolicies to Encourage Interference Reduction Between AM Broadcast Stations, 5 FCC Rcd 4492 (1990)  x(excepting from contingent application rule applications filed pursuant to agreements to reduce interference  xin AM band). Thus, to implement the scenarios we describe here, the only question that remains is  xwhether the value which TBC places on Class C3 facilities is sufficient to compensate WGGC for a Class C1 downgrade, a question which remains within the sole purview of these two stations.  S|-V  Ordering Clause ă   x14. Accordingly, IT IS ORDERED, That, pursuant to Section 1.115(g) of the Commission's rules,  x47 C.F.R.  1.115(g), the October 28, 1996 Application for Review filed by Thunderbolt Broadcasting Company IS DENIED. x` `   x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMagalie Roman Salas  S"- x` `  hhSecretary