Morton Cochran County Educational Foundation

c/o A. Wray Fitch, Esq.

Gammon & Grange, P.C.

8280 Greensboro Drive

Seventh Floor

McLean, VA 22102-3807

Patrick J. Vaughn, Esq.

American Family Association

P.O. Drawer 2440

Tupelo, MS 38803

In Re: NEW (NCE FM), Morton, TX

Facility ID No. 84763

BPED-19961206ME

NEW (NCE FM), Levelland, TX

Facility ID No. 84185

BPED-19970501MZ

Applications for NCE FM Construction Permits

**Group No. 970512**

Dear Counsel:

We have before us Group 970512 -- two mutually exclusive applications
for permits to construct new noncommercial educational ("NCE") FM
stations serving different communities. In such situations, the rules
require the Commission to make a threshold determination as to whether
grant of any of the applications would further the fair, efficient, and
equitable distribution of radio service among communities.[^1] For the
reasons below, we determine that Morton Cochran County Educational
Foundation ("MCCEF") is entitled to a decisive Section 307(b)
preference.

An NCE FM applicant is eligible to receive a Section 307(b) preference
if it would provide a first or second reserved channel NCE aural service
(in the aggregate) to at least ten percent of the population, provided
that this constitutes at least 2,000 people, within the proposed
station's 60 dBu contour.[^2] If more than one applicant in a mutually
exclusive group qualifies for a preference, we compare first service
population coverage totals.[^3] An applicant will receive a dispositive
fair distribution preference by proposing to serve at least 5,000 more
potential listeners than the next highest applicant's first service
total.[^4] If no applicant is entitled to a first service preference, we
will consider combined first and second service population totals and
apply the same 5,000 listener threshold.

In the present group, MCCEF would serve Morton, Texas, and American
Family Association ("AFA") would serve Levelland, Texas. MCCEF is the
only applicant to claim that it would provide a new first or second NCE
service to 10 percent of the population, and to at least 2,000 people,
within its service area, and therefore, that it is eligible for a fair
distribution preference.[^5] Based on MCCEF's submissions and
calculations, it appears that MCCEF qualifies for a preference.
Accordingly, pursuant to Section 73.7004 of the Commission's rules, we
identify MCCEF as the tentative selectee. Group 970512 thus will not
proceed to a point hearing.[^6]

Accordingly, it is ordered that the application of Morton Cochran County
Educational Foundation is accepted for filing. It is also ordered that
Morton Cochran County Educational Foundation is TENTATIVELY SELECTED to
be awarded a construction permit for a new NCE FM station in Morton,
Texas. Petitions to deny the tentative selectee are due within thirty
(30) days following the issuance of a subsequently issued public notice
announcing the acceptance and tentative selection of this
application.[^7]

If, after the petition to deny period has run, there is no substantial
and material question concerning the grantability of the tentative
selectee's application, we will, by public notice, dismiss the mutually
exclusive application of American Family Association (File No.
BPED-19970501MZ) and grant the application of Morton Cochran County
Educational Foundation (File No. BPED-19961206ME).

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: *See* 47 U.S.C. § 307(b); 47 C.F.R. § 73.7002(a).

[^2]: *See* 47 C.F.R. § 73.7002(b). With respect to population
    information, applicants were to use the 2000 Census data, if
    available by June 4, 2001. *See* "Supplements and Settlements to
    Pending Closed Groups of Noncommercial Educational Broadcast
    Applications Due by June 4, 2001," *Public Notice*, 16 FCC Rcd 6893
    (MB Mar. 22, 2001). Applicants were also to base their "fair
    distribution" analysis on the "snap shot" date of June 4, 2001,
    which is applicable unless the applicant subsequently makes
    engineering changes that would diminish its comparative position.
    *Id.* In this case, neither of the applicants has made such
    engineering changes. In addition, each applicant timely supplemented
    its application with a Section 307(b) showing; each purports to be
    based on 2000 Census data and a "snap shot" date of June 4, 2001.

[^3]: *See* 47 C.F.R. § 73.7002(b). *See also* "Deadline for NCE
    Settlements and Supplements Extended to July 19, 2001; Date for
    Calculating Comparative Qualifications Remains June 4, 2001,"
    *Public Notice*, 16 FCC Rcd 10892, 10893 (MB May 24, 2001).

[^4]: *Id.*

[^5]: MCCEF's 60 dBu contour encompasses 297,571 people. MCCEF's claimed
    aggregated first and second service is 32,547 people.

[^6]: *See* 47 C.F.R. § 73.7002(b). The Media Bureau has delegated
    authority to make 307(b) determinations in NCE cases. *See*
    *Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants*, 15 FCC Rcd 7386 (2000), *partially reversed
    on other grounds*, *NPR v. FCC*, 254 F.3d 226 (DC Cir. 2001) ("*NCE
    Order*"). *See also* 47 C.F.R. § 0.283. In the *NCE Order*, the
    Commission concluded that "\[i\]n examining the fair distribution
    issues, we will use the general process set forth in the Section of
    our Competitive Bidding proceeding that addressed Section 307(b)
    considerations for AM stations." *See NCE Order*, 15 FCC Rcd at 7397
    (citing *Comparative Bidding for Commercial Broadcasting and
    Instructional Television Fixed Services*, 13 FCC Rcd 15920 (1998)
    (delegating authority to the staff to conduct Section 307(b)
    analyses with respect to AM applications prior to conducting
    auctions of competing applications)). In contrast, the *NCE Order*
    noted that the point system analysis conducted when Section 307(b)
    is not determinative is considered a simplified "hearing" for
    purposes of 47 U.S.C. § 155(c)(1). *See NCE Order*, 15 FCC Rcd at
    7420.

[^7]: *See* 47 C.F.R. § 73.7004. If any applicant previously raised
    issues against the tentative selectee, it must refile its objections
    within this thirty (30) day period.