**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. BNPFT-20030820ABE   |
|                                  | *) |                              |
| **Turquoise Broadcasting         | ** | Facility ID No. 142638       |
| Company, LLC**                   |    |                              |
|                                  | *  | File No. BNFPT-20030820AAT   |
| For Construction Permits for New | *) |                              |
| FM Translator Stations:          | ** | Facility ID No. 145986       |
|                                  |    |                              |
| K276FF, Seward, Alaska           | *  | File No. BNFPT-20030820AAX   |
|                                  | *) |                              |
| K259BK, Seward, Alaska           | ** | Facility ID No. 142643       |
|                                  |    |                              |
| K281AZ, Seward, Alaska           | *  | File No. BNFPT-20030821AAA   |
|                                  | *) |                              |
| K271AY, Delta Junction, Alaska   | ** | Facility ID No. 142108       |
|                                  |    |                              |
| K281BA, Delta Junction, Alaska   | *  | File No. BNFPT-20030821AAR   |
|                                  | *) |                              |
| New, Seward, Alaska              | ** | Facility ID No. 142114       |
|                                  |    |                              |
|                                  | *  | File No. BNFPT-20030819ACP   |
|                                  | *) |                              |
|                                  | ** | Facility ID No. 142622       |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND DECLARATORY RULING**

**Adopted: February 7, 2008 Released: February 11, 2008**

By the Commission:

# I. INTRODUCTION

1.  The Commission has before it an Application for Review filed October
    18, 2005, by Northern Radio, Inc. ("NRI"). NRI seeks review of a
    September 27, 2005, staff decision denying NRI's Petitions for
    Reconsideration in the above-captioned FM translator licensing
    proceedings. We also have before us a Request for Declaratory Ruling
    filed on February 2, 2005, by NRI's counsel, David Tillotson, Esq.
    ("Tillotson") which raises similar issues to those presented by
    NRI's Application for Review. For the reasons set forth below, we
    grant, to the extent indicated herein, Tillotson's Request for
    Declaratory Ruling, and deny NRI's Application for Review.

    **II. BACKGROUND**

2.  *Seward Applications*. Turquoise Broadcasting Company, LLC ("TBC")
    filed an application for a construction permit for a new Seward,
    Alaska, FM translator station operating on Channel 231 (the "New
    Seward Station") on August 19, 2003. On August 20, 2003, TBC also
    filed applications for construction permits for three other new
    Seward FM translator stations, subsequently authorized as K276FF,
    K259BK, and K281AZ (the "Seward Stations"). On September 9, 2003,
    NRI, as the licensee of Alaska radio stations,[^1] petitioned to
    deny each of the applications, alleging that the New Seward Station
    and the Seward Stations would violate Section 74.1231(g) of the
    Commission's Rules (the "Rules")[^2] because TBC sells advertising
    time on another translator station, K290AA, off of a rate card. In
    support of its allegations, NRI referenced TBC's website for Station
    K290AA, which displays the rates at which commercial messages may be
    purchased for broadcast on that station. NRI alleged that TBC's
    "*raison d'etre"* is to profit from the operation of translator
    stations by selling commercials on those stations.[^3] In addition,
    NRI alleged that the New Seward Station would receive financial
    support from its primary commercial station, KXBA(FM), Nikiski,
    Alaska, in violation of Section 74.1232(e) of the Rules.[^4]

3.  The Media Bureau (the "Bureau") dismissed the Petition to Deny the
    New Seward Station application on January 18, 2005, concluding that
    NRI had failed to provide evidence of any rule violation.[^5] NRI
    filed a Petition for Reconsideration on February 2, 2005. The Bureau
    denied the Petitions to Deny the Seward Stations' applications on
    February 23, 2005, concluding that NRI had failed to demonstrate
    that the proposed Seward Stations would violate Section 74.1231(g)
    of the Rules.[^6] Specifically, the Bureau found that NRI did not
    submit any evidence that TBC would broadcast commercials over the
    Seward Stations, or that the commercials broadcast on Station K290AA
    violated Section 74.1231(g) of the Rules. The Bureau granted the
    Seward Stations' construction permits on the same date.[^7] NRI
    filed Petitions for Reconsideration on March 11, 2005, reiterating
    the allegations that it had raised in the Petitions to Deny.

4.  *Delta Junction Applications*. On August 21, 2003, TBC filed
    applications for construction permits for new FM translator in Delta
    Junction, Alaska, subsequently authorized as Stations K271AY and
    K281BA (the "Delta Junction Stations"). On October 29, 2003, NRI
    filed a Petition to Deny each application. The Petitions raised the
    same allegations as the Petitions to Deny the New Seward Station and
    the Seward Stations applications. NRI also alleged that TBC proposed
    to feed the Delta Junction Stations by satellite, internet, or other
    "alternate" signal delivery means, in violation of Section
    74.1231(b) of the Rules.[^8] The Bureau denied the Petitions to Deny
    on February 24, 2005, concluding that: (1) NRI had failed to
    demonstrate that the Delta Junction Stations would violate Section
    74.1231(g) of the Rules; and (2) TBC had requested and justified a
    waiver of Section 74.1231(b) of the Rules.[^9] The Bureau granted
    the construction permits for the Delta Junction Stations on the same
    date. NRI filed Petitions for Reconsideration of those actions on
    March 14 and March 30, 2005, restating the allegations that it had
    made in the Petitions to Deny.

5.  In a consolidated decision, the Bureau denied NRI's several
    Petitions for Reconsideration on September 27, 2005,[^10] concluding
    that those Petitions failed to show a material error or omission in
    the original decision and did not raise additional facts unknown or
    not existing until after NRI's last opportunity to present such
    matters. [^11] On October 18, 2005, NRI filed the subject
    Application for Review of the staff decision denying the Petitions
    for Reconsideration. Tillotson, NRI's counsel, also filed the
    subject Request for Declaratory Ruling on February 2, 2005, asking
    the Commission to clarify whether an FM translator licensee's sale
    of advertisements with the use of a rate card would violate Section
    74.1231(g) of the Rules.

    **III. DISCUSSION**

6.  *Request for Declaratory Ruling*. Pursuant to Section 1.2 of the
    Rules,[^12] we will entertain a request for declaratory ruling if a
    controversy or uncertainty exists that will be terminated by the
    issuance of a declaratory ruling.[^13] Tillotson's Request for
    Declaratory Ruling asks the Commission to clarify: (1) whether it is
    permissible for the licensee of an FM translator station to sell
    time for advertising messages on the station off of a rate card;
    and (2) if so, whether a licensee may earn revenue from such sales
    in excess of the amount needed to defray the station's operating
    costs. For the reasons discussed below, we grant Tillotson's Request
    for Declaratory Ruling and offer the following clarification.

7.  [Use of Rate Cards]{.underline}. Section 74.1231(g) of the Rules
    specifically allows FM translator stations to originate
    acknowledgements of contributions. These acknowledgements may
    include the identification of the contributors, the size or nature
    of the contribution, and the "advertising messages of
    contributors."[^14] On November 8, 1990, the Commission amended the
    FM translator rules to promote supplemental service to areas in
    which direct reception of FM radio broadcast stations is
    unsatisfactory due to distance or terrain barriers.[^15] In the
    *1990 Order,* the Commission stated that translators must be allowed
    to raise funds and that "some information about contributors must be
    allowed in order to enable translators to encourage donations."[^16]
    In a 1993 proceeding disposing of petitions for reconsideration of
    the *1990 Order*, the Commission specifically declined to adopt
    restrictions on the content of announcements acknowledging support,
    such as those which limit underwriting announcements aired on
    noncommercial educational broadcast stations.[^17] Thus, the
    Commission provided broad discretion to FM translator licensees to
    raise funds.[^18] Neither the Rules nor Commission policy prohibits
    the use of rate cards, or the airing of commercial "spot"
    announcements purchased off of a rate card, as means to solicit
    contributions. Accordingly, the use of rate cards by an FM
    translator station is not a *per* *se* violation of Section
    74.1231(g) of the Rules.

8\. [Defrayal of Costs Limitation]{.underline}. Prior to the *1990
Order*, licensees were not allowed to operate translator stations for
profit. However, when the current language of Section 74.1231(g) of the
Rules was adopted in the *1990 Order*, the Commission specifically noted
[that "the new rules no longer require licensees of FM translators to
operate non-profit facilities."]{.mark}[^19] Nevertheless, Section
74.1231(g) continues to impose limitations on a translator licensee's
broadcast of solicitations for funds in two respects. First, such
announcements are limited to 30 seconds per hour. Additionally,
"\[s\]olicitations of contributions shall be limited to the defrayal of
the costs of installation, operation, and maintenance of the translator
or acknowledgements of financial support for those purposes."[^20] Thus,
revenues from sales of advertising time cannot exceed these costs.

9**.** *Application for Review*. On review, NRI seeks a Commission
clarification on three policy questions regarding general restrictions
on the fundraising activities of FM translator stations, two of which
have been discussed above: (1) whether it is permissible for the
licensee of an FM translator station to sell time for advertising
messages on the station off of a rate card; and (2) if so, whether a
licensee may earn revenue from such sales in excess of the amount needed
to defray the station's operating costs. NRI also asks whether the
Commission's 1984 *Guide to FM Translator Rules and Policies*[^21] is
still an accurate statement of Commission policy regarding the nature of
"commercial announcements" which a licensee may broadcast on its FM
translator station. NRI contends that, should the Commission agree with
its rule interpretation, TBC's sale of advertising on translator Station
K290AA violated Section 74.1231(g), and TBC is accordingly unqualified
to be the licensee of additional translator stations. NRI states that
the Bureau failed to address the issues presented in its Petition to
Deny and subsequent petitions for reconsideration, and it requests that
the staff grants be overturned and the applications for the subject
translator stations denied.

10*.* [1984 *Guide to FM Translator Rules and Policies*]{.underline}*.*
NRI first asks whether the Commission's 1984 *Guide to FM Translator
Rules and Policies* is still an accurate statement of Commission policy
regarding the nature of "commercial announcements" which a licensee may
broadcast on its FM translator station. Clearly, it is not. The *1990
Order*, which discussed the fundraising limitations on FM translator
stations at length, explicitly superseded the *Guide to FM Translator
Rules and Policies*.[^22] In the Commission's 1993 Order affirming and
clarifying the FM translator rules adopted by the *1990 Order*, the
Commission again stated that the 1990 rule changes superseded the *Guide
to the FM Translator Rules and Policies*.[^23]

11\. NRI's remaining policy questions are also presented in Tillotson's
Request for Declaratory Ruling, and were discussed above. In light of
that discussion, we conclude that NRI has failed to show that the
practices of which it complains constitute either a violation of the
Rules or raise a substantial and material question of fact regarding
TBC's qualifications to remain a Commission licensee. As observed above,
the use of rate cards by an FM translator station is not a *per* *se*
violation of Section 74.1231(g) of the Rules. Moreover, while revenues
from the sale of advertising time cannot exceed the costs of
installation, operation, and maintenance of the translator station, NRI
has provided no evidence to establish that TBC has violated the
limitations imposed by Section 74.1231(g) of the Rules. NRI provides no
documentation concerning TBC's advertising billing, collections, or
revenue figures. Rather, NRI simply references TBC's October 15, 2003,
Opposition to its Petition to Deny, arguing:

TBC's opposition left no room for doubt that, if TBC is awarded licenses
for new translator stations, it will sell commercials on those stations
off of a published rate card and the amount of such commercials that TBC
sells will not be limited to the amount TBC needs to "defray" operating
expenses.[^24]

NRI's argument is premised on its interpretation of language in TBC's
Opposition, which, in fact, makes no explicit or even tacit admission
that it currently solicits contributions in excess of its costs, and
then NRI speculates as to TBC's future conduct. These are insufficient
to establish a violation of Section 74.1231(g).

**IV. ORDERING CLAUSES**

1.  Accordingly, IT IS ORDERED, that David Tillotson's February 2, 2005,
    Request for Declaratory Ruling IS GRANTED to the extent indicated
    herein and otherwise DENIED.

    13\. Accordingly, IT IS FURTHER ORDERED, that Northern Radio, Inc.'s
    October 18, 2005, Application for Review IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: On September 18, 2006, NRI assigned its Stations KSWD(AM) and
    KSWD-FM to Seward Media Partners, LLC (File No. BAL-20060616AAQ). On
    March 22, 2007, NRI assigned Station KFSE(FM) to KSRM, Inc. (File
    No. BAPH-20060615ACZ).

[^2]: 47 C.F.R. § 74.1231(g) (limiting announcements of financial
    support over translator stations to those "deemed necessary to the
    continued operation of the translator" and "to a total of 30 seconds
    an hour...Solicitations of contributions shall be limited to the
    defrayal of the costs of installation, operation and maintenance of
    the translator or acknowledgements of financial support for those
    purposes. Such acknowledgements may include identification of the
    contributors, the size and nature of the contributions and
    advertising messages of contributors.").

[^3]: Petition to Deny at 3-5.

[^4]: 47 C.F.R. § 74.1232(e) ("An FM translator station whose coverage
    contour goes beyond the protected contour of the commercial primary
    station shall not receive any support, before or after construction,
    either directly or indirectly, from the commercial primary FM radio
    broadcast station....").

[^5]: *Letter to Gary A. Rose from George H. Gwinn, Audio Division,
    Media Bureau, Federal Communications Commission* (Jan. 18, 2005).
    The staff did not grant the New Seward Station application because
    TBC had not yet received the appropriate Commission registration for
    its proposed antenna tower. The letter notified TBC of this
    deficiency and requested that it complete the registration process.
    The application remains pending.

[^6]: *Letters to Turquoise Broadcasting from James D. Bradshaw, Deputy
    Chief, Audio Division, Media Bureau, Federal Communications
    Commission* (Feb. 23, 2005).

[^7]: *Id*.

[^8]: 47 C.F.R. § 74.1231(b) ("An FM translator may be used for the
    purpose of retransmitting the signal of a primary FM radio broadcast
    station or another translator station the signal of which is
    received directly through space, converted, and suitably
    amplified.").

[^9]: *Letters to Turquoise Broadcasting from James D. Bradshaw, Deputy
    Chief, Audio Division, Media Bureau, Federal Communications
    Commission* (Feb. 24, 2005). The Bureau found that the proposed
    Delta Junction translator stations would serve a "commercial white
    area" -- an area currently receiving no commercial aural signals,
    and therefore, that waiver of the signal delivery rule was
    warranted.

[^10]: *Letter to Turquoise Broadcasting from James D. Bradshaw, Deputy
    Chief, Audio Division, Media Bureau, Federal Communications
    Commission* (Sep. 27, 2005).

[^11]: 47 C.F.R. § 1.106(c).

[^12]: 47 C.F.R § 1.2.

[^13]: *See, e.g., In the Matter of Petition for Declaratory Ruling that
    Pulver.com's Free World Dialup Is Neither Telecommunications nor a
    Telecommunications Service,* Memorandum Opinion and Order, 19 FCC
    Rcd 3307, 3311 n.24 (2004) (declaratory ruling issued to resolve
    "controversy or uncertainty").

[^14]: *See* n. 1 *supra*.

[^15]: *Amendment of Part 74 of the Commission's Rules Concerning FM
    Translator Stations,* Report and Order, 5 FCC Rcd 7212 (1990)
    ("*1990 Order*").

[^16]: 5 FCC Rcd at 7218.

[^17]: *Amendment of Part 74 of the Commission's Rules Concerning FM
    Translator Stations,* Memorandum Opinion and Order, 8 FCC Rcd 5093,
    5097 (1993) ("*1993 Order*").

[^18]: *Id*.

[^19]: *1990 Order,* 5 FCC Rcd at 7244 n. 47.

[^20]: 47 C.F.R. § 74.1231(g).

[^21]: *Guide to FM Translator Rules and Policies,* 55 RR 2d 1247
    (1984).

[^22]: *1990 Order,* 5 FCC Rcd at 7217, 7219 & 7244 nn.40 & 47.

[^23]: *1993 Order,* 8 FCC Rcd at 5096 n.19.

[^24]: Application for Review at 3.