**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. BPFT-19981001TA     |
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| Living Way Ministries, Inc.      | ) |                              |
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| for a Construction Permit for a  | * |                              |
| New Noncommercial Educational FM |   |                              |
| Translator Station on Channel    | * |                              |
| 220 at Sun Valley, California    | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: October 8, 2008 Released:** **October 10, 2008**

By the Commission:

# introduction

1.  In this Memorandum Opinion and Order we deny Petitions for
    Reconsideration ("Petitions") filed by the San Bernardino Community
    College District, licensee of station KVCR(FM) ("KVCR") and by
    National Public Radio, Inc. ("NPR") (collectively "Petitioners")
    seeking reconsideration of the Commission's Memorandum Opinion and
    Order reinstating the application (the "Application") of Living Way
    Ministries, Inc. ("Living Way") for an FM translator in Sun Valley,
    California (*"Reinstatement Order"*).[^1] Our decision parallels the
    Commission's resolution of comparable issues in the *Educational
    Media Foundation* decision.[^2] We have carefully considered
    Petitioners' arguments and find nothing that persuades us to
    reconsider either the *Reinstatement Order* or *Educational Media
    Foundation.* We therefore deny the Petitioners' reconsideration
    petitions.

# background

## The Living Way Application

2.  The Application[^3] specified a new translator station operating on
    a second adjacent channel to, and within the protected 1 mV/m (60
    dBu) contour of, Station KUSC-FM, Los Angeles, California.[^4]
    Pursuant to Section 74.1204(d) of the Commission's Rules[^5] (the
    "Rules"), Living Way asserted that its application was grantable
    because the area of predicted interference to KUSC-FM was
    unpopulated.[^6]

3.  The staff initially dismissed Living Way's application because its
    "lack of population" exhibit relied on United States Census Block
    data which do not accurately reflect the actual location of
    residences and other structures in an area.[^7] Living Way sought
    reconsideration of the staff decision, arguing that the Census Block
    data had been accepted in other contexts. It also provided
    photographs purporting to show the predicted interference area was
    unpopulated.[^8] However, one photograph depicted four smokestacks,
    which the staff deemed indicative of industrial activity, and,
    accordingly, denied Living Way's reconsideration petition.[^9]

## Living Way's Application for Review

4.  Following denial of its Petition for Reconsideration*,* Living Way
    filed an Application for Review accompanied by an engineering
    statement which predicted a smaller interference area.[^10] The
    predicted interference area was smaller because, in the interim, the
    Commission had relaxed the protection standard for second adjacent
    channel interference for stations operating in the reserved
    band.[^11] As evidence that the predicted interference area was
    unpopulated, Living Way submitted a United States Geologic Survey
    ("USGS") topographic map showing that there were no structures
    within the predicted interference area.[^12]

5.  In the *Reinstatement Order,* the Commission accepted Living Way's
    demonstration of lack of population in the predicted interference
    area and reinstated Living Way's application. As guidance to future
    translator applicants, the *Reinstatement Order* stated that USGS
    maps presumptively establish lack of population in an area of
    predicted interference which applicants may define using the
    "undesired-to-desired signal ratio method" ("U/D analysis").[^13]

## Petitions for Reconsideration of the *Reinstatement Order*

6.  Petitioners[^14] contend that the Commission's guidance that
    applicants may employ U/D analysis to show compliance with Section
    74.1204(d) is impermissible. KVCR claims the guidance is a "new
    standard which . . . \[the Commission\] had previously
    rejected";[^15] both Petitioners cite decisions and rulemaking
    orders for the proposition that the threshold values in Section
    74.1204(a) apply only at the boundary of a full-service FM station's
    protected contour, not within it.[^16] NPR also claims that the
    *Grandfathered FM Station Order* confirms its claim that "the signal
    strength ratio method does not demonstrate what Section 74.1204
    requires \-- the absence of harmful interference."[^17] KVCR argues
    that the Commission's *Low Power FM Order* discredited U/D
    analysis.[^18] Both Petitioners submit that a non-decisional
    reference in a Commission order on reconsideration in the *State of
    Oregon* proceeding[^19] establishes that contour overlap analysis is
    the only methodology accepted by the Commission for "lack of actual
    interference" determinations in the context of Section
    74.1204(d).[^20] NPR contends that the legislative history[^21] of
    the 2001 D.C. Appropriations Act[^22] forbids the Commission to
    allow applicants to employ U/D analysis in connection with "lack of
    actual interference" showings pursuant to Section 74.1204(d).[^23]
    It alleges that allowing applicants to use U/D analysis in Section
    74.1204(d) showings "\[c\]ontravenes a Congressional directive
    requiring the Commission to maintain existing interference
    protection."[^24]

7.  NPR also submits that the guidance in the *Reinstatement Order*
    should be rescinded because the "decision to modify Section
    74.1204(d) in the context of an individual translator application"
    was "arbitrary, capricious, and an abuse of discretion."[^25] It
    contends that the guidance concerning the use of U/D analysis
    affects the interference protection rights of full-service stations,
    and, thereby, effectively amends Section 74.1204(d) without the
    opportunity for notice and comment in violation of the
    Administrative Procedure Act ("APA").[^26]

# Discussion

8.  As a preliminary matter we reject Living Way's challenge to NPR's
    standing to seek reconsideration of the *Reinstatement Order.*[^27]
    We are satisfied that the documentation submitted by NPR establishes
    its nexus with potentially affected full-service noncommercial FM
    member stations and that the cases NPR cites amply support its claim
    of "association (sic) standing."[^28]

9.  We do not agree with Petitioners that, in adopting Section
    74.1204(d), the Commission intended to hold applicants to a rigid
    "contour overlap standard" to demonstrate lack of actual
    interference.[^29] The *Translator Order* specifically disclaims any
    such "explicit" standard.[^30] It affords applicants flexibility in
    demonstrating lack of actual interference[^31] and gives the
    Commission comparable flexibility in evaluating applicants'
    showings.[^32]

10. The Commission's intent in adopting Section 74.1204(d) is manifest
    in the rule's codification. The first part of the rule sets forth
    the "over water" exception specifically in terms of contour overlap.
    The second part of the rule does not mention contour overlap. It
    states the "lack of actual interference" exception in broader terms,
    *i.e.,* the effects of terrain on signal attenuation, lack of
    population and "other factors as may be applicable."[^33]
    Petitioners contend that this second part of the rule implies that
    all analyses of terrain, unpopulated areas, and other factors that
    may establish lack of actual interference, must be based on an area
    defined by overlap of the protected contour of a full-service
    station and the interfering contour of a proposed translator. We
    find no such implication. Had the Commission intended to engraft "in
    the contour overlap area" to the second part of the rule, it would
    have done so. As developed below, the absence of a reference to
    "contour overlap area" in the second part of the rule accurately
    reflects the Commission's judgment that an explicit standard for
    evaluating actual interference was inappropriate and helps
    effectuate its directive to flexibly consider other factors.

11. NPR's claim that "Commission decisions have interpreted Subsection
    74.1204(d) consistently"[^34] to require contour overlap analysis in
    Section 74.1204(d) showings is mistaken in several respects. First,
    we do not accept NPR's inference that the Commission deemed U/D
    analysis unreliable when it "rejected a proposal to define
    interference in terms of U/D ratios"[^35] in the rulemaking
    proceeding that led to the *Translator Order.* In the *Translator
    Order*, the Commission rejected [each]{.underline} of the several
    proposals for an actual interference definition. It opted instead
    for a flexible approach, and concluded "it is inappropriate and
    unnecessary to introduce explicit standards for determining whether
    actual interference exists."[^36]

12. Second, NPR's out-of-context quote from the *Channel 6 Order* --
    "these \[U/D\] ratios are not valid at the higher field strengths
    close to the transmitter"[^37] -- fails to support its claim that
    U/D analysis is an inherently unreliable methodology for predicting
    interference between FM stations. The Commission's statement was
    made in the context of an "application \[that\] [severely
    violates]{.underline} the requirement," *i.e.,* only when a Channel
    6 station "approaches the existing NCE-FM transmitter site."[^38]
    However, the Commission also stated that "under normal
    circumstances," the U/D analysis thresholds provide adequate
    protection against objectionable interference.[^39] In any event,
    NPR's and KVCR's reliance on the *Channel 6 Order* is misplaced
    because the Commission specifically rejected applying the *Channel 6
    Order* interference criteria to FM translators.[^40]

13. Furthermore, we cannot reconcile Petitioners' claim that the
    *Grandfathered Short-Spaced FM Order* invalidated U/D analysis with
    the fact that, in that Order, the Commission not only sanctioned U/D
    analysis, it actually required the affected applicants to use U/D
    analysis when estimating potential interference and codified that
    requirement in Section 73.213(a) of the Rules.[^41]

14. We also remain unpersuaded by Petitioners' argument that the *Oregon
    Decision* and the *Oregon Reconsideration Order* establish that
    actual interference must be defined using contour overlap analysis.
    In large part, Petitioners rest their arguments on the following
    statement in the O*regon Reconsideration Order:*

    We pointed out in our earlier decision \[the *Oregon Decision*\]
    that the staff has consistently held that the term \"lack of
    population\" as used in § 74.1204(d), means no population [in the
    overlapping coverage area between a full-service station and the
    translator station seeking a waiver of §
    74.1204(a)]{.underline}.[^42]

    The underlined text is inaccurate. In fact, the *Oregon Decision*
    says nothing about the staff holding -- "consistently" or otherwise
    -- that an applicant must demonstrate lack of population in "the
    overlapping coverage area between a full-service station and the
    translator station."[^43] Rather, the quoted statement is mere
    *dicta* that lacks decisional significance. The Commission dismissed
    the petition on procedural grounds as repetitious. Later in its
    Order, the Commission discussed a matter neither essential nor even
    relevant to the dismissal, *i.e.,* the petitioner's
    mischaracterization of the reasons why the Commission ruled against
    it in the underlying *Oregon Decision*.[^44] Thus, we find
    unavailing Petitioners' argument that an erroneous characterization
    of the interference standard in the *Oregon Reconsideration Order*
    establishes that actual interference determinations must be based on
    contour overlap.[^45]

15. Turning to the *Oregon Decision* itself, we believe Petitioners read
    the order too narrowly when they conclude that contour overlap
    analysis is the only suitable means of establishing lack of actual
    interference. The only explicit holding in the *Oregon Decision* is
    that there is no *de minimis* exception to the "lack of population"
    provision in Section 74.1204(d), *i.e.,* that the rule literally
    means what it says - no population whatsoever. We do not see how
    that holding can be construed to be either an endorsement or
    rejection of any particular means of defining a predicted
    interference area.

16. It is significant, however, that in the *Oregon Decision*, the
    Commission considered (but ultimately rejected) the applicant's
    attempt to demonstrate that, despite contour overlap, the translator
    did not cause "actual interference" within the meaning of Section
    74.1204(d).[^46] Thus, after the Commission rejected the applicant's
    argument about a *de minimis* exception to the "no population"
    provision of Section 74.1204(d), it went on to say that the
    applicant did not show "any other factors that would warrant an
    exception under §74.1204(d)."[^47] The *Oregon Decision* thus
    indicates that even if the protected contour of a full-service
    station and a translator overlap, the Commission will consider
    demonstrations of lack of actual interference based on "other
    factors."[^48]

17. Finally, even if we assumed, *arguendo,* that the *Oregon
    Reconsideration Order* had correctly described "consistent" staff
    practice at the time, we could not infer from that fact that the
    staff is foreclosed from drawing on its experience and expertise to
    refine its practices or that it is bound to any particular technical
    "standard" when doing so. In the *Translator Order,* the Commission
    explicitly declined to adopt a standard for evaluating actual
    interference pursuant to Section 74.1204(d).[^49] Moreover,
    refinement of staff practices is fully consistent with *Translator
    Order's* directive that the staff should be flexible[^50] in
    evaluating applications that invoke Section 74.1204(d).[^51] Thus,
    refinements in staff practice not only are permissible, they advance
    the "significant Commission goals" articulated in *Educational Media
    Foundation, i.e.,* "providing translator applicants with site
    selection flexibility and preventing translator interference to
    full-service FM facilities."[^52] Importantly, this flexible
    approach to translator licensing is backstopped by the requirement
    that a translator station must cease operation if it causes actual
    interference to any authorized broadcast station and the translator
    station cannot promptly eliminate this interference.[^53]

18. NPR is plainly wrong in claiming that the legislative history[^54]
    of the 2001 *D.C. Appropriations Act*[^55] prevents the Commission
    from relying on U/D analysis in support of showings of lack of
    actual interference. The legislation, by its very terms, applies
    only to the Low Power FM ("LPFM") Radio service.[^56] NPR's attempt
    to show otherwise by reliance on legislative history is contrary to
    long-standing precedent establishing that parties may not rely on
    legislative history when a statute is clear and unambiguous.[^57]
    Moreover, when it enacted the LPFM Rules, the Commission clearly
    said they "do not apply to full-service stations and FM
    translators."[^58]

19. KVCR also claims that the *Reinstatement Order* unjustifiably relied
    on the *Streamlining Order* when it supposedly established a "new
    standard" -- U/D analysis -- for Section 74.1204(d) showings.[^59]
    First, as NPR agrees, [^60] it is clear from the context of the
    *Reinstatement Order,* that the term "new standard" refers to the
    *Streamlining Order's* change in the second adjacent channel
    interference standard -- and not to the Commission's guidance on
    permissive use of topographic maps and U/D analysis. Second, as
    developed in this decision, the guidance in the *Reinstatement
    Order* rested not on the *Streamlining Order --* which is silent on
    the "other factors" that may demonstrate lack of actual interference
    -- but on the earlier *Translator Order's* provisions mandating a
    flexible approach in the evaluation of Section 74.1204(d) showings
    and the lack of any "explicit" standard for such evaluations.[^61]

20. NPR's argument that the *Reinstatement Order* impermissibly relied
    on "two staff decisions" as authority "to contravene Commission
    rules, case precedent and policy" to establish Section 74.1204(d)
    standards is without merit.[^62] The "two staff decisions" cited in
    the *Reinstatement Order* merely illustrate instances in which U/D
    analysis has been employed to confirm lack of "actual interference"
    pursuant to Section 74.1204(d). The authority underlying the
    *Reinstatement Order* resides in the *Translator Order,* not the two
    staff decisions*.*

21. Petitioners are incorrect in claiming that the *Reinstatement Order*
    impermissibly "amended" Section 74.1204(d) in violation of the
    APA.[^63] The permissive guidance and clarification in the
    *Reinstatement Order* are consistent with the flexibility inherent
    in Section 74.1204(d), the Commission's rejection of an "explicit
    standard"[^64] in the *Translator Order,* and the protection
    provided to other broadcast stations against translator station
    interference by Section 74.1203 of the Rules. As the D.C. Circuit
    has held, an agency action does not become a rule amendment "merely
    because it supplies crisper and more detailed lines than the
    authority being interpreted."[^65]

# CONCLUSION 

22. Petitioners have not substantiated their contention that U/D
    analysis is inherently defective or that it has been repudiated by
    the Commission as a reliable means of determining actual
    interference. It has been relied upon, indeed required, in multiple
    other contexts, including in the rules governing short-spaced
    commercial FM stations and television translators.[^66] As noted in
    *Educational Media Foundation,* the Commission's reliance on U/D
    analysis in evaluating Section 74.1204(d) showings has been
    validated by the interference-free operation of literally hundreds
    of translators authorized on that basis.[^67] Should actual
    interference occur from a translator authorized based on a U/D
    analysis, full-service stations are fully protected by the strict
    non-interference provisions of Section 74.1203(d) of the
    Commission's Rules.[^68] Few stations have encountered the need to
    invoke the Rule's protection.[^69] In rejecting Petitioners'
    strait-jacket interpretation of Section 74.1204(d), we meet our
    statutory mandate to "encourage the larger and more effective use of
    radio in the public interest."[^70] We thus will continue to
    exercise the flexibility conferred by the *Translator Order* and
    direct the staff to authorize translator stations when doing so will
    not compromise the rights of full-service stations against actual
    translator interference. We are therefore denying Petitioners'
    reconsideration petitions.

# ordering clauses

23. Accordingly, IT IS ORDERED that the Petitions for Reconsideration
    filed by National Public Radio and San Bernardino Community College
    District ARE DENIED. IT IS FURTHER ORDERED that the Comments of the
    National Association of Broadcasters and the Comments of the North
    Carolina Association of Broadcasters ARE DISMISSED as unauthorized
    pleadings.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *Living Way Ministries, Inc.,* Memorandum Opinion and Order, 17
    FCC Rcd 17054 (2002). The KVCR Petition and the NPR Petition were
    filed on October 15, 2002. Living Way filed a Consolidated
    Opposition to Petition for Reconsideration on November 8, 2002
    ("Consolidated Opposition"). NPR filed a Reply to Opposition to
    NPR's Petition for Reconsideration on November 21, 2002 ("NPR
    Reply"). KVCR filed a Reply to the Consolidated Opposition to
    Petition for Reconsideration on Nov. 21, 2002, ("KVCR Reply"). The
    National Association of Broadcasters and the North Carolina
    Association of Broadcasters filed "Comments" after the deadline for
    filing Petitions for Reconsideration. The Commission's Rules make no
    provision for the filing of comments in proceedings of this kind and
    we therefore will dismiss the Comments as unauthorized pleadings.

[^2]: *Educational Media Foundation,* Memorandum Opinion and Order, 19
    FCC Rcd 5843 (2004) (*"Educational Media Foundation"*). The
    *Educational Media Foundation* Order relied, in part, on the
    Commission's *Living Way* Order. *See id.* at 5844.

[^3]: *See* File No. BPFT-19981001TA.

[^4]: KUSC-FM is licensed to the University of Southern California and
    serves Los Angeles, California on Channel 218. *See* File No.
    BRED-20050729BAU.

[^5]: 47 C.F.R. § 74.1204(d).

[^6]: 47 C.F.R. § 74.1204(a). Section 74.1204(a) generally prohibits
    overlap of a translator's predicted F(50,10) interference contour
    with a full-service FM station's F(50,50), protected service
    contour. Section 74.1204(d), however, provides exceptions to
    otherwise prohibited contour overlap. Applicants may qualify for the
    exception by demonstrating that the overlap area falls over water or
    that, despite contour overlap, "no actual interference will occur
    due to intervening terrain, lack of population or such other factors
    as may be applicable." *Id.*

[^7]: *See Letter to Jeffrey D. Southmayd, Esq*., Ref. No. 1800B3JDB
    (MMB May 19, 2000).

[^8]: Living Way Petition for Reconsideration, filed June 23, 2000.

[^9]: *See Letter to Jeffrey D. Southmayd, Esq*., Ref. No. 1800B3JDB
    (MMB \[undated\]).

[^10]: Application for Review, December 15, 2000.

[^11]: *See id.*, Attachment B at 1, 2. The Commission modified the
    second adjacent channel protection requirements to conform to the
    commercial overlap standard set forth in 47 C.F.R. § 73.215. *See*
    *1998 Biennial Regulatory Review - Streamlining of Radio Technical
    Rules in Parts 73 and 74 of the Commission's Rules*, Second Report
    and Order*,* 15 FCC Rcd 21649, 21685 (2000) ("*Streamlining
    Order*"). *See also* 47 C.F.R. § 74.1204(a). Under the revised
    standard, the predicted 100 dBu signal strength contour of the
    proposed reserved band facility may not overlap the predicted 60 dBu
    signal strength contour of a protected second adjacent channel
    full-service reserved band authorization or application. *See* 47
    C.F.R. § 73.509. Based on this new and relaxed +40 dB second
    adjacent channel protection requirement, Living Way estimated that
    the translator would have an interference area with a 18.4 meter
    radius from its transmitting antenna. *See* Application for Review
    at 5-6, Attachment B at 1-2. That is, the predicted interference
    area was defined as that where the "undesired" (U) translator signal
    would exceed the second adjacent channel interference threshold.

[^12]: See *Reinstatement Order*, 17 FCC Rcd at 17056.

[^13]: *Id.* at 17057-17058. (In this item, the term "U/D analysis" is
    used synonymously with "signal strength ratio methodology." *See
    Educational Media Foundation, supra* n.Error: Reference source not
    found, 19 FCC Rcd at 5843, para. 4.)

[^14]: KVCR claims that activation of the Living Way translator would
    have an "immediate impact on listeners of KVCR" because "KVCR
    operates with a power of 3.8 kW with a directional antenna aimed in
    the direction of Sun Valley. \[Living Way's\] proposed 60 dBu
    contour is spiked toward the KVCR transmitter site, resulting in a
    clash of the two signals." KVCR Petition at 2. KVCR avers that the
    Commission's "failure" to consider interference to KVCR should be
    redressed. *Id.* KVCR's assertions concerning "spiked" signals and
    "clashing" interference are unaccompanied by any technical
    documentation that would allow us to conclude that KVCR would
    receive interference from the Living Way translator. *See Letter to
    Hogan and Hartson, LLP,* 13 FCC Rcd 25286 (MMB 1998) (citing
    *Amendment of Part 74 of the Commission's Rules Concerning FM
    Translator Stations,* 5 FCC Rcd 7212 (1990), *modified* 6 FCC Rcd
    2334 (1991), *recon. den.*, 8 FCC Rcd 5093 (1993) ("*Translator
    Order*")). *See also Board of Education for the City of Atlanta,*
    Memorandum Opinion and Order, 11 FCC Rcd 7763, 7766 (1996) ("*City
    of Atlanta*") (A claim that a station could not be received because
    of the "interference environment and/or terrain considerations"
    deemed too "vague and undefined" in light of petitioner's failure
    "to specify what standards were used"). These deficiencies make it
    problematic whether KVCR has standing to contest the Living Way
    application. However, in the interest of compiling a complete
    record, we will consider the issues KVCR raises in its petition. In
    response to Living Way's contention that NPR lacks standing, *see*
    Living Way Opposition at 2, NPR asserts that it is an "interested
    party" within the meaning thereof in 47 C.F.R. § 1.106(b), and that
    it has "association (sic) standing" (*citing*, *inter alia, Warth v.
    Seldin,* 422 U.S. 490, 511 (1975)). *See* NPR Reply at 2-6 and
    Exhibit A. We find that NPR has standing, *see infra* para.8, and
    will consider the issues it raises in its Petition.

[^15]: KVCR Petition at 3.

[^16]: NPR contends that if "lack of population" determinations are
    based on the Section 74.1204(a) thresholds, listeners immediately
    adjacent to the predicted interference area could have their
    currently superior interference protection degraded to the minimally
    acceptable protection afforded listeners at the periphery of the
    full-service station's protected contour. *See* NPR Petition at 9
    (citing *City of Atlanta,* 11 FCC Rcd at 7764 n.1). In *City of
    Atlanta,* the Commission rejected a proposal by two full-service FM
    licensees to "short space" their stations and accept any resultant
    interference. The proposal was unacceptable, *inter alia*, because
    the licensees had not sought waiver of Section 73.509 of the Rules
    to permit the short-spacing. *Id.* at 7764. In the cited footnote,
    the Commission observed that contour overlap methodology is
    distinguishable from U/D analysis because the former defines an area
    where the "quality of service is predicted to be better than
    minimally acceptable overall but nonetheless may be diminished for
    some listeners," whereas the latter defines an area where signals
    are at the "minimally acceptable" level. We find the observation
    correct, but not controlling here. *City of Atlanta* involved
    potential interference between two full-service FM stations. The
    instant case involves potential interference from a translator to a
    full-service station. The difference is significant. Section 74.1203
    of the Rules provides protection from translator interference to all
    listeners of full service stations. Thus, if any interference were
    to occur from Living Way's translator, the translator would not be
    permitted to continue to operate unless the interference was
    remedied. *See* Section 74.1203(a)-(b) of the Rules. There is no
    comparable interference-protection rule that applies to short-spaced
    full-service stations of the kind at issue in *City of Atlanta.* In
    any event, we note that, subsequent to *City of Atlanta*, the
    Commission has approved U/D analysis in the context of translators
    without considering the theoretical possibility that, despite
    predicted lack of interference, signal quality might be "better than
    minimally acceptable overall but nonetheless may be diminished for
    some listeners." *See, e.g., Association for Community Education,*
    19 FCC Rcd 12682, 12687 (2004) (clarifying the use of U/D analysis
    to demonstrate lack of interference).

[^17]: NPR Petition at 9 (*citing Grandfathered Short-Spaced FM
    Stations,* Report and Order, 12 FCC Rcd 11840, 11843 ( 1997)
    ("*Grandfathered Short-Spaced FM Order"*). We find NPR's reliance on
    the *Grandfathered Short-Spaced FM Order* misplaced. That Order says
    nothing about Section 74.1204 of the Rules and, in fact, approves
    the use of U/D analysis - rather than contour overlap - for
    prediction of interference from short-spaced FM stations. *See id.*
    at 11843, para. 7. Moreover, the *Grandfathered Short-Spaced FM
    Order* states that contour overlap methodology "is not effective in
    controlling interference when prohibited overlap exists." *Id.* We
    note that the Living Way translator interference contour and the
    KUSC service contour overlap in a manner that would be "prohibited"
    but for the fact that actual interference is limited to an
    unpopulated area.

[^18]: *See* KVCR Petition at 3, n.2 (*citing* *Creation of a Low Power
    Radio Service,* Report and Order, 15 FCC Rcd 2204 (sic, 2205), 2230
    (2000) ("*Low Power FM Order").* (Subsequent history omitted.) We
    disagree with KVCR's interpretation of the *Low Power FM Order.*
    There*,* the Commission chose distance separation as an
    interference-protection standard for Low Power FM stations only
    because it deemed distance separation more efficient and less
    resource-intensive than either contour overlap methodology or U/D
    analysis. *See id.* at 2233 para. 70. The Commission, therefore, did
    not "discredit" U/D analysis, it merely found it less efficient than
    distance separation in a particular, limited, instance, *i.e.*, Low
    Power FM station allocation.

[^19]: *See* KVCR Petition at 3. *See also* NPR Petition at 6-7 (citing
    *State of Oregon Acting by and Through the State Board of Higher
    Education for the Benefit of Southern Oregon State College*,
    Memorandum Opinion and Order, 16 FCC Rcd 4344 (2001) ("*Oregon
    Reconsideration Order*")).

[^20]: *See* NPR Petition at 7*;* KVCR Petition at 3.

[^21]: H.R. Rep. No. 106-567, 106 Cong., 2d. Sess. ("Report 106-567") at
    3. NPR relies on the sentence in the House Report stating: "The bill
    requires Congressional authority for the FCC to eliminate or reduce
    any interference standards on the radio dial" and characterizes that
    statement as a "farther-reaching mandate." NPR Petition at 13. Taken
    in context, however, it is clear that the statement applies only to
    Low Power FM stations and is not, as NPR claims, "farther-reaching."
    Report 106-567 deals with, and only with, Low Power FM stations, not
    FM translators, *i.e.*, the stated "purpose of H.R. 3439 . . . is to
    modify the FCC rules authorizing the operation of low-power FM
    stations." *Id.*

[^22]: Pub. L. No. 106-553, § 632, 114 Stat. 2762, 2762A-111-112 (2000).

[^23]: S*ee* NPR Petition at 13.

[^24]: *Id.*

[^25]: *Id.* at 10.

[^26]: 5 U.S.C. § 553. *See* KVCR Petition at 2-3, NPR Petition at 9-10.
    *But see para.* 21, *supra.*

[^27]: *See* Consolidated Opposition at 2.

[^28]: "NPR may intervene on behalf of any or all of its member stations
    based on the well-settled principle of 'association (sic)
    standing'." NPR Reply at 3. The Living Way translator is located
    within the KUSC-FM protected 60 dBu contour, hence the licensee of
    KUSC-FM would have standing to protest in its own right. Thus, based
    on the concept of "associational standing," NPR may participate in
    this proceeding. *See* *id.* (citing *e.g., U.S. Telecom Association
    v. FCC*, 295 F.3d 1326, 1330 (D.C. Cir. 2002)).

[^29]: *See* KVCR Petition at 2; NPR Petition *at* 5-9.

[^30]: *See Translator Order,* 5 FCC Rcd at 7230, para. 131, *supra*
    n.Error: Reference source not found ("We believe it is inappropriate
    and unnecessary to introduce explicit standards for determining
    whether actual interference exists.").

[^31]: *See id.* at paras. 128-129. ("\[The §74.1204 (d) exceptions\]
    will allow the processing staff to take special circumstances into
    account when they are brought to the staff's attention. \* \* \*
    \[W\]e \[will\] leave it to applicants to decide the level of
    analysis they will apply to determine the facilities they will
    request.").

[^32]: *See id.* at para. 129. ("We will also not specify a degree of
    precision for determining contours and predicting interference.").

[^33]: 47 C.F.R. § 74.1204(d).

[^34]: *See* NPR Petition at 6.

[^35]: *Id.* at 8.

[^36]: *Translator Order,* 5 FCC Rcd at 7230, para. 131, *supra*
    n.Error: Reference source not found. The rulemaking proposal
    involved defining actual interference in terms of a translator
    exceeding -20 dB below the measured 10µV/m signal of a full service
    station. It would have required the Commission to define
    full-service stations' contours by field strength measurements
    instead of the contour prediction method specified in 47 C.F.R. §
    73.333 and a revision of the full-service station protected contour
    values in § 74.1204(b)(1-2). *See City of Atlanta,* 11 FCC Rcd at
    7767 n.3. ("\[Field strength measurements\] generally are not a
    reliable means of locating a particular protected or interfering
    contour.").

[^37]: NPR Petition at 8-9 (citing *Changes in the Rules Relating To
    Noncommercial, Educational FM Broadcast Stations,* Memorandum
    Opinion and Order, 58 RR 2d 629, 639, para. 56 (1985)) ("*Channel 6
    Order"*). KVCR makes the same claim. KVCR Petition at 3-4.

[^38]: *Channel 6 Order,* 58 RR 2d at 639 (emphasis added). We also note
    that, twenty-five years later, and with benefit of experience with
    "hundreds of applications based on lack of population within a U/D
    ratio method-predicted interference area" the Commission said the
    "severe violation" circumstance posited in the 1985 Translator Order
    was unlikely and, in any event, failed to establish that U/D
    analysis is "technically flawed" *per se*. *See* *Educational Media
    Foundation,* 19 FCC Rcd at 5845, paras. 5-6, 8 (citing
    *Grandfathered Short-Spaced FM Order,* 12 FCC Rcd at 11843, para. 7,
    and 47 C.F.R. § 73.213(a)).

[^39]: *See Channel 6 Order,* 58 RR 2d at 639.

[^40]: It found that the strict non-interference provisions of 47 C.F.R.
    § 74.1203 adequately protect a Channel 6 station in the unlikely
    event it receives interference from an FM translator. There is no
    comparable strict non-interference rule governing interference to
    Channel 6 reception from full-service FM stations. *See Channel 6
    Order,* 56 RR 2d at 629, n.6.

[^41]: See 47 C.F.R. § 73.213(a)(1)(i) (specifying, *inter alia,* that
    "\[c\]o-channel interference is predicted to exist . . .  at all
    locations \[within the normally protected contour\] where the
    undesired . . . F(50,10) field strength exceeds a value 20 dB below
    the desired . . . F(50,50) field strength of the \[protected\]
    station." ). *See also Educational Media Foundation,* 19 FCC Rcd at
    5845 (citing *Grandfathered Short-Spaced FM Order,* 12 FCC Rcd at
    11843). Petitioners' contention that U/D analysis is inherently
    unreliable is further undercut by the exception to prohibited
    contour overlap contained in the rules governing LPTV stations and
    TV translators and boosters. For example, 47 C.F.R. §74.705(e)
    allows applicants to demonstrate lack of actual interference,
    despite contour overlap, based on "Longley-Rice terrain-dependent
    propagation prediction methods."

[^42]: *Oregon Reconsideration Order,* 16 FCC Rcd at 4345, para. 5,
    *supra* n.17 (emphasis added) (citing *State of Oregon, Translator
    Station K202AP,* Memorandum Opinion and Order, 15 FCC Rcd 11842,
    11844 (2000) ("*Oregon Decision*")). *See* NPR Petition at 6-7, NPR
    Reply at 7-8, KVCR Petition at 3.

[^43]: The only reference to consistent staff practice contained in the
    *Oregon Decision* is: "The staff has consistently held that 'lack of
    population' means *no* population, not merely low or negligible
    population." *Oregon Decision,* 15 FCC Rcd at 11844 (emphasis in
    original). Contrary to the inaccurate statement in the *Oregon
    Reconsideration Order, supra,* para. 14, the Commission in the
    *Oregon Decision* did not say "no population [in the overlapping
    coverage area.]{.underline}"

[^44]: The mention of staff practice arose, only incidentally, when -
    after declining to address the petition on the merits - the
    Commission took the opportunity to correct two instances of
    petitioner's mischaracterizing the Commission's reasoning underlying
    the *Oregon Decision,* only one of which is relevant here, *i.e.,*
    the petitioner's allegation "that we \[the Commission\] arbitrarily
    created the 'impossible' requirement that a waiver applicant prove
    lack of population under § 74.1204(d)." The Commission countered
    this mischaracterization - that applicants were required "to prove a
    negative" - by citing two unreported actions whereby the staff
    accepted the use of topographic maps to establish lack of population
    in an overlap area. We note that the acceptance of "no interference"
    showings in a contour overlap area does not imply that we would not
    accept showings limited to areas of predicted interference, as in
    the case of the Living Way translator, defined using U/D analysis.
    *See Association for Community Education, Inc.,*19 FCC Rcd at 12687,
    *supra* n.Error: Reference source not found . ("In a recent
    decision, we addressed and approved the staff\'s practice of
    permitting translator applicants to use the "undesired-to-desired"
    ("U/D") signal strength ratio methodology to demonstrate lack of
    interference in the context of Section 74.1204(d) (footnote
    omitted). The same method may also be used to demonstrate the
    potential for interference under 74.1204(f)." *Id.* (*citing*
    *Living Way Ministries,* 17 FCC Rcd 17054, 17056 (2002) (when
    demonstrating that "no actual interference will occur due to . . .
    other factors" pursuant to Section 74.1204(d), an applicant may use
    the U/D ratio method")*.*

[^45]: ^?^ Non-decisional statements in orders dismissing pleadings on
    procedural grounds are *dicta* which lack binding effect. *See,
    e.g., Massachusetts Community Antenna Television,* Memorandum
    Opinion, Declaratory Ruling and Order, 2 FCC Rcd 7321 (1987), where
    the Commission rejected as precedent, statements made in a District
    Court Order that dismissed a party for lack of standing. It found
    that "any substantive pronouncements in that Order are merely
    *dicta*, and have no precedential value in the matter before us."
    *Id.* at 7321. *Cf.* *Bokunewicz v. Purolator Products, Inc*., 907
    F.2d 1396, 1399 (3rd Cir. 1990) (holding that, in any Order,
    "everything after denial of jurisdiction" is "*dicta*, pure and
    simple."). The suitability of contour overlap analysis *vs*. U/D
    analysis was not before the Commission in the *Oregon
    Reconsideration Order.* As the D.C. Circuit has noted, "our
    experience as judges \[is\] that unless an issue is squarely
    presented in a case, any discussion of the question in the opinion
    (*dicta*) is only a preliminary view and therefore not to be given
    precedential weight." *Time Warner Entertainment Co. v. FCC,* 144
    F.3d 75, 79 (D.C. Cir. 1998).

[^46]: The applicant's translator had operated for some time pursuant to
    Special Temporary Authority and the applicant submitted an affidavit
    from its Director of Broadcasting stating he had neither received
    interference complaints nor encountered interference during his
    "field inspections." The Commission reviewed the affidavit but found
    it so inadequate that "we are unable to make a determination as to
    lack of actual interference based on a conclusory statement such as
    this." *Oregon Decision,* 15 FCC Rcd at 11844-11845. The applicant
    could have prevailed had it submitted a competent affidavit from a
    *bona fide* listener of the station showing lack of actual
    interference. *Cf. Association for Community Education,* 19 FCC Rcd
    at 12688, *supra* n.Error: Reference source not found (rejecting
    claim of interference from translator based on station engineer's
    statement that his car radio experienced interference at specific
    sites within full-service station's protected contour).

[^47]: *Oregon Decision,* 15 FCC Rcd at 11884.

[^48]: An applicant, however, bears the burden of establishing lack of
    actual interference. The Commission will dismiss the application
    when an applicant has not met its pleading burden under Section
    74.1204(d), *e.g.,* as it did in the *Oregon Decision. Id.* at
    11885.

[^49]: *See Translator Order,* 5 FCC Rcd at 7230, para. 131, *supra*
    n.14.

[^50]: *Id.* at 7229-7230, paras. 128, 131.

[^51]: *Oregon Decision,* 15 FCC Rcd at 11844. *See Reinstatement
    Order,* 17 FCC Rcd at 17057, *supra* n.1. (U/D analysis
    appropriately used to demonstrate that the Living Way translator
    would exceed the Section 74.1204(a) second adjacent channel
    interference criterion only in an unpopulated area within an
    approximate twenty-meter radius of the translator's antenna); *See
    also Educational Media Foundation,*19 FCC Rcd at 5846, para 8, n.7
    (approving U/D analysis that showed that the Section 74.1204(a)
    threshold was exceeded only in a 2.6 meter radius from the
    translator antenna, and describing U/D analysis as "a useful and
    reliable tool for determining areas where actual interference is
    likely to occur.").

[^52]: *Educational Media Foundation,* 19 FCC Rcd at 5846, *supra*
    n.Error: Reference source not found.

[^53]: *See* 47 C.F.R. § 74.1203(b)-(c)*.*

[^54]: H.R. Rep. No. 106-567, 106 Cong., 2d. Sess. 153-154. *See also*
    nn. Error: Reference source not found-Error: Reference source not
    found, *supra,* and accompanying text.

[^55]: Pub. L. No. 106-553, § 632, 114 Stat. 2762, 2762A-111-112 (2000).

[^56]: The legislation provides that "\[t\]he Federal Communications
    Commission shall modify the rules authorizing the operation of
    low-power FM radio stations, as proposed in MM Docket No. 99-25 . .
    ." Pub. L. No. 106-553, § 632, 114 Stat. 2762, 2762A-111-112 (2000).

[^57]: *See, e.g., Implementation of Section 309(j) of the
    Communications Act - Competitive Bidding for Commercial Broadcast
    and Instructional Television Fixed Service Licenses. Reexamination
    of the Policy Statement on Comparative Broadcast Hearin*gs, First
    Report and Order*,* 13 FCC Rcd 15920, 15932 (1998) ("It is a
    well-established principle of statutory construction that when
    congressional intent, as reflected in the statutory language, is
    clear 'that is the end of the matter; for the court, as well as the
    agency, must give effect to the unambiguously expressed intent of
    Congress,'") (*citing* *Chevron U.S.A. v. Natural Res. Def.
    Council*, 467 U.S. 837, 842-43 (1985)). *See also Landreth Timber
    Co. v. Landreth*, 471 U.S. 681, 685 (1985) ("It is axiomatic that
    '\[t\]he starting point in every case involving construction of a
    statute is the language itself.'") (citations omitted).

[^58]: *Low Power FM* Order, 15 FCC Rcd at 2234 (2000).

[^59]: *See* KVCR Petition at 2, KVCR Reply at 2.

[^60]: *See* NPR Reply at 9 ("\[T\]he Technical Streamlining Order
    merely reconciled a prior difference between the reserved FM and
    non-reserved FM spectrum with regard to the minimum distance
    separation between second adjacent channels.").

[^61]: *See* nn.49-50, *supra,* and accompanying text.

[^62]: NPR Petition at 7-8 n.18 (citing *Reinstatement Order,* 17 FCC
    Rcd at 17056, para. 5, *supra* n. 1). The staff decisions cited are
    *Letter to Christine J. Newcomb, Esq.,* New FM Translator, Ref. No.
    1800B3-BHW (MMB April 26, 2001) and *Letter to John Garziglia,
    Esq.,* Manahawkin, N.J., Ref. No. 1800B3-JDB (MMB Sept. 26, 1966).

[^63]: *See supra* para. 7.

[^64]: *See supra* para. 9.

[^65]: *American Mining Congress, et al. vs. Mine Safety and Health
    Administration et al.*, 995 F.2d 1106, 1112 (D.C. Cir. 1993). *See
    also* *Cost-Based Terminating Compensation for CMRS Providers;
    Interconnection Between Local Exchange Carriers and Commercial
    Mobile Radio Service Providers; Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996;
    Calling Party Pays Service Offering in the Commercial Mobile Radio
    Services*, Order, 18 FCC Rcd 18441, 18450, at para. 22 (2003):

    > The D.C. Circuit has repeatedly held that interpretive rulings are
    > properly used to clarify the original meaning and application of
    > an agency\'s substantive rules. The Supreme Court in reaffirming
    > the authority of agencies to interpret their own rules stated that
    > 'a new APA rulemaking is required only if an agency adopt\[s\] a
    > new position inconsistent with any of the \[agency\'s\] existing
    > regulations.\' " As discussed previously, the clarifications are
    > fully consistent with our rules. Thus, \[this item\] is not
    > subject to APA notice and comment requirements. (citations
    > omitted.)

[^66]: *See* 47 C.F.R. § 73.213(a); *Grandfathered Short-Spaced FM
    Order,* 12 FCC Rcd at 11843, *supra* n.15. *See also, e.g.,* *State
    of Florida,* Order, 22 FCC Rcd 1782, 1784 (PSHSB, 2007). *See also*
    47 C.F.R. §§ 22.657, 22.970, 73.183, and 80.467; *Third Periodic
    Review of the Commission's Rules and Policies Affecting the
    Conversion to Digital Television,* Notice of Proposed Rulemaking, 22
    FCC Rcd 9478, 9520, para. 102 (2007). ("Applicants for analog TV
    translator and low power TV (\"LPTV\") stations must propose
    facilities that do not exceed specified threshold U/D ratios at a
    DTV station\'s noise-limited contour or at all points within the
    noise-limited area in the case of adjacent channel stations
    proposing to locate inside the DTV noise-limited contour.").

[^67]: *See Educational Media Foundation,* 19 FCC Rcd at 5845, *supra*
    n.2.

[^68]: Interfering translators must discontinue operation within three
    minutes following notification by the Commission that actual
    interference is occurring. *See* 47 C.F.R. § 74.1203(e).

[^69]: In instances in which actual interference has occurred, the Media
    Bureau has cancelled FM translator authorizations. *See Creation of
    a Low Power Radio Service,* Second Order on Reconsideration and
    Further Notice of Proposed Rulemaking, 20 FCC Rcd 6763, 6779 (2005),
    *Erratum,* 20 FCC Rcd 8717 (2005).

[^70]: 47 U.S.C. § 303(g).