FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, DC 20554 August 30, 1996 IN REPLY REFER TO: 1800B3-BJB David D. Oxenford, Esq. Fisher, Wayland, et. al. 2001 Pennsylvania Ave., NW Suite 400 Washington, DC 20037 James M. Weitzman, Esq. Kaye, Scholer, et. al. 901 15th Street, NW Suite 1100 Washington, DC 20005 In re: NEW(FT), Nashville, TN Tuned In Broadcasting, Inc. BPFT-940124TE Petition to Deny Gentlemen: The staff is currently considering an application for a new FM translator filed by Tuned In Broadcasting, Inc. ("Tuned In") to serve Nashville, Tennessee on Channel 231. A Petition to Deny was filed against the application on March 28, 1994 by Dick Broadcasting Company, Inc. ("Dick"), licensee of WGFX(FM), Gallatin, TN and WKDF(FM), Nashville, TN. For the reasons set forth herein, we are granting the petition to deny and dismissing the translator application. Background On January 24, 1994 Tuned In filed an application for a new translator to re-transmit the signal of co-owned station WRLT(FM), Franklin, TN in the Nashville, TN area.(FN1) Subsequently, the staff released a Public Notice establishing March 30, 1994 as the "cut-off" date for filing petitions to deny.(FN2) Dick submitted a timely-filed petition to deny on March 28, 1994. Petition to Deny. Dick argues that the proposed translator would cause significant overlap to co- channel station WRLG(FM), Smyrna, TN. Since the application failed to demonstrate that there are terrain obstacles, a large body of water or a lack of population in the overlap area, Dick concludes that the proposal violates 47 C.F.R. § 73.1204(d). Although the application stated that this problem would be alleviated via synchronization between the two operations, Dick states that the Mass Media Bureau has never granted applications on such grounds and it characterizes the synchronization as "temporary and experimental." In addition, since the WRLT re-broadcasts the signal of WRLG, Dick alleges that the proposed translator would effectively be a booster for WRLG and, since it would provide a 1 mV/m signal beyond the licensed WRLG 1 mV/m contour, the application violates 47 C.F.R. § 74.1232(d). Dick also points out some discrepancies in the proposed antenna gain and transmission line efficiency. In summation, Dick concludes that "the application is nothing but a thinly-veiled attempt to reallocate WRLG's coverage area to Nashville at the expense of its current service area, which will receive massive interference." Opposition to Petition to Deny. Tuned In filed an opposition to Dick's petition on April 21, 1994. Tuned In states that the proposal is for a "fill-in" translator, re-broadcasting the signal of WRLT entirely within the station's 1 mV/m contour. Thus, the translator would not be a booster for WRLG and would not violate § 74.1232(d). Tuned In also asserts that, although Dick interprets § 74.1204(d) to limit methods for interference reduction to terrain obstacles, that section also provides for "such other factors as may be applicable." In the instant case, Tuned In considers synchronization with a commonly-owned station to be one of the other applicable factors. With regard to synchronization, the engineering exhibit attached to the opposition states: Tuned In admits that this may be a novel application of well proven "reciter" synchronization technology. The absence of interference in well designed, synchronized FM technology has been well established. The Federal Communications Commission has established an entire class of stations to make use of this technology where the entire service area of the synchronized station is within the service area of the primary station... Tuned In intends to operate the translator only while WRLG and WRLT transmit the same program, and when the carrier frequencies of the translator and WRLG are synchronized and when WRLG may be off the air due to construction or equipment failure. In addition, although it is not relying upon terrain obstruction to obviate interference to WRLG, Tuned In provides an engineering showing which it claims demonstrates decreased potential for interference due to shadowing. Specifically, Tuned In provides an exhibit purporting to show that no area in the direct path between the translator and WRLG would simultaneously receive a non- shadowed signal from both operations. Discussion Since WRLG is not the primary station for the proposed translator, Dick's assertion that the proposal violates § 74.1232(d) by extending coverage beyond the WRLG 1 mV/m contour is baseless.(FN3) In addition, the antenna and transmission line discrepancies pointed out by Dick are not grounds for dismissal of the application. However, Dick is correct in pointing out that the application causes severe co-channel overlap to WRLG in violation of § 74.1204(a)(3). Furthermore, Tuned In has failed to comply with § 74.1204(d) by demonstrating a lack of "actual interference" within this overlap area. Although Tuned In intends to show that the local terrain would preclude interference between the two operations, a line-of-sight study for one radial is insufficient to establish a lack of interference in an area as large as the predicted overlap area. We are unaware of any instances where staff has determined that synchronization of FM signals may be utilized to remedy interference caused by a co- or adjacent channel translator. In this regard, the applicant compares the proposed operation to that of an FM booster (which operates within the 1 mV/m contour of the co-channel primary station) and claims that Commission has based its rules for those facilities upon the use of the same synchronization technology proposed in the application. However, when establishing the current rules for FM boosters, the Commission made no ruling regarding the usefulness of synchronization to alleviate co-channel interference. Even if such a determination had been made for boosters, it would not be relevant in the instant case since, as Tuned In goes to great lengths to establish, the proposed facility would not be a booster. Conclusion In light of the above, Dick's March 28, 1994 Petition to Deny IS HEREBY GRANTED to the extent set forth herein. Accordingly, application BPFT-940124TE IS HEREBY DISMISSED. These actions are taken pursuant to 47 C.F.R. § 0.283. Sincerely, Dennis Williams Assistant Chief Audio Services Division Mass Media Bureau FN1: At the time of filing, WRLT was licensed to GMX Communications of Tennessee, Inc. Tuned In became the licensee of the station when Assignment of License BALH-950718GF was consummated on March 12, 1996. FN2: The application was considered to be mutually exclusive with an application (File No. BPFT-931117TA) filed by Southwest Florida Community Radio, Inc. for a new FM translator to serve Nashville on Channel 230. That application was dismissed on July 2, 1996. FN3: The 1 mV/m contour of the proposed translator would be completely encompassed by WRLT's licensed 1 mV/m contour. Accordingly, regardless of the programming broadcast by WRLT, the proposed operation may be considered as a "fill-in" translator for the station. FN4: In most instances, boosters are utilized to increase the signal strength in areas precluded adequate reception of the primary station by terrain or other obstruction. Therefore, the Commission concluded that the primary station's weak signal in that area would offset the potential for interference created by the co-channel booster operation. Aside from barring the creation of interference in the principal community of the primary station, to the Commission left decisions regarding the usefulness of FM boosters to the discretion of the licensee. Rather than endorsing the use any specific technology to eliminate interference, the Commission made only general recommendations regarding the use of good engineering practice: ... we also recognize that the proper design of individual boosters will depend upon the exact circumstances of the shadowing problems they are intended to overcome. In this respect, we observe that careful attention must be devoted to the selection of a booster's site power, antenna height, and directional pattern to avoid undue disruption of service by the primary station. In the Matter of Amendment of Part 74 of the Commission's Rule's Concerning FM Booster Stations and Television Booster Stations, 2 FCC Rcd 4625 (1987), at para. 28.