Alan C. Campbell, Esq.

Irwin Campbell & Tannenwald, P.C.

1730 Rhode Island Ave., NW

Suite 200

Washington, DC 20036

In re: WWZY(FM), Long Branch, NJ

Facility ID# 32983

Press Communications, LLC

BPH-20040609ABI

Dear Counsel:

This letter refers to the above‑captioned application (the
"Application") of Press Communications, LLC ("Press"), to modify the
antenna height and effective radiated power of WWZY(FM), Long Branch,
NJ. Press filed Application amendments on January 18, 2005, and
September 26, 2005. For the reasons set forth below we dismiss the
Application.

**Background.** On March 18, 1999, the Commission granted the WWZY
license application for the station's currently licensed facilities.
This license was issued pursuant to the contour overlap provisions of
Section 73.215 to ensure adequate protection to short spaced station
WKDN(FM), Camden, NJ.[^1] On June 9, 2004, Press filed the Application
which proposed to protect WKDN pursuant to Section 73.213(c)(2) of the
Commission's rules. On January 3, 2005, the staff sent a deficiency
letter to Press because the Application failed to provide Section 73.207
spacing protection to WKDN. Press filed responses to the deficiency
letter on June 18, 2005, and September 26, 2005. [^2]

In the January 18, 2005 amendment, Press attempts to distinguish *West
Wind Broadcasting, Inc.*,[^3] in which the Commission stated that a
station licensed under Section 73.215 may not seek to modify its
facilities in accordance with Section 73.213(c)(2). In addition, the
January 18, 2005, amendment cites an unpublished decision in which the
staff allowed a station initially requesting processing pursuant to
Section 73.215 to amend its construction permit application to propose
processing pursuant to Section 73.213(c). In the September 26, 2005,
Memorandum, the applicant provided several unpublished staff letters
which allowed non-Section 73.215 licensed stations with Section 73.215
construction permits to cancel these permits and revert back to their
grandfathered licenses. Press also provides a number of staff decisions
where existing Section 73.213 stations were notified by the Commission
that their pending Section 73.215 applications could be processed (and
eventually were processed) under Section 73.213. In conclusion, Press
claims that WWZY's designation as a Section 73.215 facility was error
and that the station is entitled to revert back to its status as a
grandfathered Section 73.213(c) station.

**Discussion.** Press's argument is not persuasive. As a preliminary
matter, its reliance on unpublished staff decisions is misplaced.[^4]
Moreover, the cases relied on by Press are distinguishable.
Specifically, Press has not identified a single decision reinstating the
grandfathered status of a station licensed under the contour overlap
provisions of Section 73.215. Its reliance on cases involving Section
73.215 permitted -- but never licensed -- facilities of otherwise
grandfathered stations also is misplaced. The licensed facilities of
such grandfathered stations remain fully protected under the
Commission's rules during the construction permit term, a reflection of
the fact that not all permitted facilities are constructed. Thus, when a
Section 73.215 permit of a grandfathered Section 73.213(c) station is
cancelled or expires, only the rights associated with the Section 73.215
permit terminate. The grandfathered rights of the station remain in
effect during the construction period and remain in full force upon the
permit's expiration.

Section 73.213(c) excludes stations which "became short spaced by grant
of applications . . . filed pursuant to Section 73.215."[^5] Press
contends that WWZY "became short spaced" as a result of the 6 kW Class A
rulemaking -- rather than its Section 73.215 application -- and
therefore this exclusion is inapplicable to its modification
application. We reject Press's crabbed reading of the rule. The
Commission has spoken authoritatively on this issue.

By filing its 1990 upgrade application pursuant to Section 73.215\[,\]

> WTLN was no longer protected by the mutual agreement upgrade
>
> requirements for grandfathered short-spaced Class A stations . . . .
>
> By electing to be reclassified from a grandfathered short-spaced
> station
>
> under Section 73.213(c) to a directional station under Section 73.215,
>
> WTLN thus gave up what rights it may have had to withhold consent to
>
> a subsequent 6 kW ugrade by WXCV.[^6]

Press's attempt to distinguish *West Wind Broadcasting* is unavailing.
At issue in both cases is whether the Section 73.215 exclusion applies
to formerly grandfathered stations. The fact that Press, unlike the
applicant in *West Wind Broadcasting,* has obtained the consent of the
short spaced station or the fact that WKND(FM) operates with maximum
class facilities are simply irrelevant to interpreting the scope of the
Section 73.213(c) exclusion. Press provides no support for its novel
contention.

Moreover, Press's conflicting rule interpretation is untenable. Section
73.213(c) concerns *only* stations which became short spaced as a result
of either the adoption of the FM Table of Allotments on November 16,
1964 and/or the 1989 adoption of the 6 kW Class A rules. Under Press's
interpretation, the Section 73.215 exclusion would not exclude *any*
formerly grandfathered station, currently licensed as a Section 73.215
station, from processing under Section 73.213. This is because any such
station could claim that it first became short spaced as a result of
certain distance separation rule changes, and not from the grant of a
Section 73.215 license application.

Press's interpretation also would turn decades of established licensing
policy on its head. Nothing in the rulemaking which led to the adoption
of Section 73.215 suggests that the Commission intended to permit
formerly grandfathered stations to move freely between licensing under
the short spacing rule, Section 73.215, and a grandfathering rule which
provides significantly less protection to other stations, Section
73.213. The absence of any such discussion is particularly probative
because Press's interpretation would constitute a dramatic departure
from the long-held prohibition against permitting formerly grandfathered
stations to reestablish their grandfathering rights.

Section 73.213 permits certain technically sub-standard facility
modifications which would otherwise not comply with licensing standards.
It reflects the Commission's finding that it must provide some technical
flexibility to this limited class of stations to relocate to new
transmitter sites and to make other changes in order to preserve
existing service. This need to balance our competing interests in
technical integrity and service preservation is simply inapplicable when
a station is licensed under our general commercial FM technical
standards, *i.e.,* Sections 73.215 and 73.207. To permit the filing of
Section 73.213 applications in this situation would needlessly undermine
fundamental signal protection principles. We conclude that only stations
which have continuously maintained their grandfathered status under
Section 73.213 may seek application processing under this rule.

We also reject as meritless Press's contention that we should ignore the
consequences of its licensing decisions because the currently licensed
facilities could have been processed under Section 73.213. Press
voluntarily requested Section 73.215 processing. The fact that the staff
has, on occasion, identified processing options for other applicants in
other circumstances does not impose any obligation here. Section 73.213
and Section 73.215 authorizations carry different benefits and
limitations. The staff is not in a position to make this and similar
types of assessments for each applicant with regard to the 1000+
modification applications it processes each year. As Press well knows,
every licensing action has consequences. It remains solely the
obligation of each applicant to assess these potential consequences and
to choose its facility licensing strategy accordingly.

The January 3, 2005, staff letter to WWZY(FM) stated that \"the
application must be amended to demonstrate compliance with § 73.207 or
§ 73.215 with respect to WKDN\'s License BMLED-19980417KA.\" In
addition, we stated that pursuant to Section 73.3522, \". . . an
applicant whose application is found to meet the minimum filing
requirements but nevertheless is not complete and acceptable shall have
the opportunity in the 30-day period specified in the FCC staff\'s
deficiency letter to correct all deficiencies in the tenderability and
acceptability of the underlying application, including any deficiency
not specifically identified by the staff.\" Additionally, Section
73.3564 states that, \"applications with uncorrected tender and/or
acceptance defects remaining after the opportunity for corrective
amendment will be dismissed with no further opportunity for corrective
amendments."[^7] The

January 3, 2005 letter provided Press 30 days to submit a corrective
amendment pursuant to Section 73.3522(a)(6). Application BPH-20040609ABI
remains in violation of Section 73.207, is unacceptable for filing after
the one opportunity for corrective amendment, and will be dismissed.

**Connclusion.** In light of the above, application BPH-20040609ABI is
unacceptable for filing and IS HEREBY DISMISSED. This action is taken
pursuant to Section 0.283 of the Commission's rules.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Press Communications, LLC

[^1]: *See* File No. BLH-19980521KB.

[^2]: Although the June 18, 2005, and September 26, 2005, amendments
    were not electronically filed, we will consider these filings as
    Press's official response to the January 3, 2005, letter.

[^3]: *West Wind Broadcasting, Inc.,* 11 FCC Rcd 4101 (1996).

[^4]: See 47 C.F.R. § 0.445(e) (unpublished decisions may not be relied
    on or cited as precedent except against persons who have actual
    notice of the document in question or by such persons against the
    Commission).

[^5]: 47 C.F.R. § 73.213(c).

[^6]: West Wind Broadcasting, Inc., 11 FCC Rcd at 4103.

[^7]: 47 C.F.R. § 73.3564.