1919 M STREET  NW
                          WASHINGTON  DC  20554

MASS MEDIA BUREAU                                         PROCESSING ENGINEER:  Ed De La Hunt
AUDIO SERVICES DIVISION                                            TELEPHONE:  (202) 418-2740
TECHNICAL PROCESSING GROUP                                         FACSIMILE:  (202) 418-1410
APPLICATION STATUS:  (202) 418-2730                                        MAIL STOP:  1800B3
HOME PAGE:  www.fcc.gov/mmb/asdINTERNET ADDRESS:  edelahun@fcc.gov

                            October 30, 1997
Carl Sandburg High School
Consolidated High School District # 230
13300 South Lagrange Road
Orland Park, IL  60462
                                                   In re:    NEW(FM); Orland Park, IL
                                                   Carl Sandburg High School
Dear Applicant:

The staff has under consideration the above-captioned application filed by Carl Sandburg High
School  ("Sandburg") to establish a new noncommercial FM radio station to serve the
community of Orland Park, Illinois on Channel 204A.   The application violates the
prohibited contour overlap provisions of 47 C.F.R. Section 73.509.  Sandburg has requested a
waiver.  For the reasons set forth in this letter, we deny the waiver request and return the

The proposed 60 dBu F(50,50) protected contour is located entirely within the 40 dBu
F(50,10) interference contour of co-channel licensed station WGVE(FM), Gary, Indiana.  This
violates Section 73.509.  Sandburg argues that grant of the waiver is in the public interest because
the proposal would not cause prohibited contour overlap to WGVE, it would only
receive overlap.  However, the rule requires that proposals neither cause nor receive
prohibited overlap.   The fact that a proposal meets one of the two requirements of the rule
does not justify waiver of the other.

Sandburg asserts that, based upon a desired-to-undesired signal ratio of 20 dB for stations
operating on the same channel, interference would be expected to occur only near the edge of
the proposed 60 dBu protected contour.  Therefore, Sandburg argues that it would be in the
public interest to construct and operate this new educational FM station, serving thousands of
people despite a "slight diminution" in its coverage area due to interference received from
WGVE.   We disagree.  While we have no objection to the use of the ratio method in support
of a request for waiver as a means of presenting what practical effects this violation would
have on the listening public, our examination reveals that the diminution in service area would
be approximately 23%, far more than just a "slight diminution" in service area.   The
application did not provide any information regarding the number of persons affected within
the interference area or whether the area of predicted interference falls within an uninhabitable
area.   It is unreasonable to expect the Commission to reach the public interest finding
necessary to waive its interference protection rules without particular data to support such a
request.  The burden is on the applicant seeking waiver to plead specific facts and
circumstances which would make the general rule inapplicable.  See Tucson Radio v.
FCC, 452 F.2d 1380, 1382 (D.C. Cir. 1971).

Increased service in and by itself is not sufficient justification for waiver of a technical rule.
In fact, in a similar co-channel overlap case, 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).
Compliance with Section 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 Communications Act, 47 C.F.R. Section 307(b). It has been, and still is the policy of the Commission to avoid granting new stations with any existing diminished service area. This policy would especially apply to the proposal under consideration here where the whole of the proposed protected service area would lie within the interfering contour of an existing station. We also believe that giving applicants unfettered discretion to determine acceptable levels of interference within their station service areas would undermine the statute's mandate to ensure "efficient" use of the spectrum. The Commission's technical requirements promote spectrum efficiency by protecting noncommercial educational FM facilities from impermissible interference within their service areas. The interference rules necessarily limit construction or modification of other nearby facilities. Underlying these interference standards and their attendant "preclusionary" effect is the basic premise that noncommercial educational FM facilities will provide adequate service throughout their protected service area. Prohibited overlap is presumptively disfavored because it results in a diminished protected service area, i.e., a less efficient signal. See Open Media Corporation, 8 FCC Rcd at 4071 (1993); Board of Education of the City of Atlanta WABE(FM), 11 FCC Rcd 7763 (1996). While requests for waivers involving new stations based upon the willingness to accept co- channel may be individually appealing, they lose appeal when considered against the Commission's allocations scheme for noncommercial educational FM stations. Allowing new applicants to receive prohibited contour overlap effectively nullifies the protection mandated by Section 73.509 to noncommercial educational FM stations' 60 dBu protected service areas and would diminishes the quality service throughout the entire noncommercial educational FM band. 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. Sandburg does not cite any Commission precedence for granting waiver requests based upon the arguments presented. Also, our records indicate that there simply is no precedence whereby a grant of Sandburg's waiver request would be justified. The policy considerations underlying our FM noncommercial FM allocations scheme clearly outweigh any future benefits which would accrue if the 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.
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 Grand Family Radio Fellowship, INC. v. FCC, 406 F.2d 644, 666 (D.C. Cir. 1968) (per curiam)). We have afforded the waiver request the "hard look" called for under the WAIT Doctrine, WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), but find that the facts and circumstances set forth in the justification are insufficient to establish that granting a waiver of 47 CFR Section 73.509 would be in the public interest. Procedural Matter We note that applications submitted to the Commission must be signed either by the applicant (if the applicant is an individual) or one of the applicant's principals; applicants which are governmental entities may be signed by "[s]uch duly elected or appointed officials as may be competent to do so under the law of the applicable jurisdiction" See 47 C.F.R. Section 73.3513(a). The Carl Sandburg High School application is signed by Michael White, who is listed as "Teacher/Radio Club Sponsor." Mr. White is not listed as a principal of Carl Sandburg High School in the ownership section of the application, nor is there any evidence that Mr. White is authorized to sign the application on behalf of Carl Sandburg High School. Accordingly, should any subsequent application be submitted by the school, it must bear the signature of one duly authorized to sign it. Accordingly, Sandburg's request for waiver of 47 CFR Section 73.509 IS HEREBY DENIED and application BPED-970130MA IS HEREBY RETURNED as unacceptable for filing pursuant to 47 C.F.R. Section 73.3566(a). This action is taken pursuant to 47 CFR Section 0.283. Further, since Sandburg has failed to present adequate reasons which, if true, would justify the requested waiver, you are not entitled to an evidentiary hearing as a matter of law. (United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956)). Sincerely, Dennis Williams Assistant Chief Audio Services Division Mass Media Bureau cc: Kevin T. Fisher Michael White