**Federal Communications Commission**

**Washington, D.C. 20554**

**July 7, 2005**

**DA 05-1941**

> ***In reply refer to:***
>
> **1800B3-HM**

Christopher D. Imlay, Esquire

Booth, Freret, Imlay & Tepper, P.C.

14356 Cape May Road

Silver Spring, MD 20904-6011

**Re:** KAJC(FM), Salem, OR

Facility ID No. 91565

> BMPED-20020308ABM
>
> Petition for Reconsideration

Dear Counsel:

This letter concerns a Petition for Reconsideration filed on July 29,
2002, by CSN International ("CSN"), now licensee of KAJC(FM), which was
at that time an unbuilt noncommercial educational ("NCE") station in
Salem, Oregon.[^1] On June 24, 2002, the staff dismissed CSN's
application to increase the station's effective radiated power and to
change the directional antenna pattern.[^2] The proposal did not comply
with Section 73.515 of our rules, which requires an NCE station to
provide coverage at minimum field strength of 1 mV/m (60 dBu) to at
least 50 percent of its community of license or reach 50 percent of the
population within the community.[^3] The *Staff Decision* also denied
CSN's request for a waiver of Section 73.515. CSN seeks reconsideration,
which we deny for the reasons discussed below.

**Background**

CSN's original 1998 application for a new NCE FM station in Salem was
filed prior to adoption of Section 73.515 which established minimum
community coverage for NCE FM applications. CSN's application was
mutually exclusive with applications filed by Western Baptist College
("WBC") and Broadcasting for the Challenged, Inc. ("BFTC"). This group
of applications was one of many longstanding "closed" groups identified
in an NCE rulemaking proceeding.[^4] As CSN observes, such applications
were eligible for a waiver of Section 73.515, which had only recently
been enacted in the technical streamlining rulemaking proceeding.[^5]
CSN, WBC, and BFTC submitted a settlement agreement in accordance with
procedures outlined in the *NCE Order*.[^6] On January 25, 2002, the
Commission approved the settlement, resulting in grant of construction
permits to both CSN and WBC for the community of Salem, Oregon, and
dismissal of BFTC's application.[^7] Pursuant to the waiver provision in
the *NCE Order*, CSN's permit allowed construction of facilities that
did not meet the new Section 73.515 coverage requirement.[^8]

On March 8, 2002, CSN applied for a minor modification of the permit.
The proposed modification would have brought a portion of CSN's signal
closer to Salem, but still would not have resulted in coverage of any
part of that community.[^9] As indicated above, the staff dismissed the
modification application because it did not provide the requisite
coverage of Salem and the staff found no grounds to grant CSN's request
for a waiver of Section 73.515. The request was based solely on CSN's
assertion that "grandfathering of the application \[had been\] granted
under the provisions of MM Docket 95-31 \[the *NCE Order*\], footnote
25."[^10]

On reconsideration, CSN contends that the *Staff Decision* is
inconsistent with the Commission's intent in adopting Section 73.515.
CSN claims \-- without citing any authority \-- that those permittees
which received a waiver of Section 73.515 pursuant to the *NCE Order*
should be "entitled to file modifications that improve area and
population coverage toward \[*i.e.*, in the direction of\] the city of
license" notwithstanding noncompliance with Section 73.515.[^11] CSN
asserts that its application, by improving the station's signal toward
Salem and by increasing areas and populations served, complies with the
requirements of Section 307(b) of the Communications Act of 1934, as
amended (the "Act")[^12] concerning the efficient distribution of radio
service. CSN also contends that it "is caught in a classic regulatory
'Catch-22' posture"[^13] because absent a waiver of Section 73.515, it
can improve service only by proposing a city of license change to its
facilities. The Commission, however, has not indicated when it might
open a window for NCE FM major change applications, including city of
license modifications.

**Discussion**

Reconsideration is appropriate where the petitioner shows either a
material error or omission in the original order or raises additional
facts not known or not existing until after the petitioner's last
opportunity to present such matters.[^14] We find no such error or
omission and CSN has raised no new facts. A waiver is appropriate only
if special circumstances warrant a deviation from the general rule and
such deviation will serve the public interest.[^15] The applicant for
waiver "must plead with particularity the facts and circumstances which
warrant such action."[^16] When the Commission adopted Section 73.515,
it found the rule to be in the public interest because an NCE FM
"station cannot adequately serve its community of license unless it
places a listenable and protected signal over at least a portion of such
community."[^17] The Commission determined that the new rule would apply
to all applications of authorized NCE FM stations, including
modification applications of NCE FM stations with facilities that do not
place a 60 dBu signal over 50 percent of the station's community of
license. As the Commission stated:

> We proposed in the Notice to apply the new rule only to applications
> filed after the effective date of the new rule. On further reflection,
> however, we now believe that licensing of NCE FM stations that do not
> meet this coverage minimum is contrary to the public interest.
> Accordingly, the coverage requirements set forth herein will apply to
> *all applications* pending as of the release date of this Order or
> filed thereafter.[^18]

The waiver provision in the subsequent *NCE Order* was intended to help
resolve the conflicts among the many mutually exclusive NCE applications
filed prior to adoption of Section 73.515.[^19] Upon such resolution, as
in the case of the CSN-WBC-BFTC group, the limited purpose of the waiver
provision was served. The *NCE Order* does not include any similar
waiver provision concerning future modifications of such stations, and
footnote 25 makes no mention of "grandfathering." At the time it sought
settlement, CSN acknowledged that the waiver was limited to "the context
of MM Docket No. 95-31 (see footnote 25 for the explicit statement)" \--
*i.e.,* footnote 25 of the *NCE Order* -- and that "\[i\]t is understood
that in any further proceeding regarding this station a major change
requiring a change in the city of license will be required."[^20] We
agree with this analysis. CSN offers no explanation as to why applicants
which benefited from a one-time waiver policy should be "entitled" to
additional waivers while all other prior authorized stations should not
be. Accordingly, we reject as meritless CSN's contention that this
application falls within the scope of the waiver which the Commission
crafted in 2001 for a limited number of then-pending applications.

CSN also has failed to demonstrate that a waiver of Section 73.515 would
serve the public interest insofar as the station's service would improve
"toward" its city of license. Contrary to CSN's assertion, the
Commission clearly stated that "public interest concerns are raised when
no portion of a community of license is covered by an NCE FM Station's
service contour."[^21] Merely improving coverage toward the community of
license fails to satisfy the Commission's requirement concerning direct
coverage of a portion of such community. Licensed NCE FM Stations
operating on reserved channels, such as KAJC(FM), are required "to
provide a predicted 60 dBu signal to at least 50 percent of its
community of license or reach 50 percent of the population within the
community"[^22] in proposed modifications of their facilities.

We also reject CSN's assertion that, by improving the signal toward
Salem and by increasing areas and populations served, its application is
consistent with Section 307(b).[^23] As explained by the Commission in
the *Technical Streamlining NPRM*, proposing the new coverage
requirement, "\[t\]he association of a broadcast station with a
community of license is a basic tenet of the Commission's allocation
scheme for broadcast stations."[^24] In adopting the new rule, the
Commission concluded that requiring an NCE Station operating on a
reserved channel to provide a 60 dBu signal to at least 50 percent of
its community of license or reach 50 percent of the population within
the community, "balances the Commission's mandate under Section 307(b)
of the Act with the service, technical, and financial realities of
operating NCE FM stations."[^25] The Commission chose "to measure an NCE
FM station's service to its community of license on the basis of 60 dBu
signal strength"[^26] because, *inter alia*, "this rule will help ensure
that at least half of the community receives protected service on a
permanent basis" while "ensur\[ing\] sufficient flexibility in siting
facilities and reaching target audiences."[^27] Thus, a grant of CSN's
waiver, permitting CSN to improve signal strength while providing no
direct signal coverage of areas and populations located within the
community of license would undermine Section 307(b) principles.

Finally, we reject CSN's Catch-22 argument concerning the lack of a
filing window. The Act creates no Commission obligation to open a filing
window at any particular time or interval.[^28]

Accordingly, IT IS ORDERED, That the Petition for Reconsideration filed
by CSN International on July 29, 2002 IS DENIED.

Sincerely,

Peter H. Doyle, Chief

> Audio Division

Media Bureau

[^1]: The station is now built and a license was issued to CSN on March
    31, 2005, according to the parameters specified in CSN's original
    1998 application (FCC File No. BPED-19980826ML). *See* FCC File No.
    BLED-20050124AHZ.

[^2]: *See Letter to Mr. Eric S. Kravetz* (MB June 24, 2002) ("*Staff
    Decision*").

[^3]: 47 C.F.R. § 73.515. As noted in the *Staff Decision* (at 1), CSN's
    proposed 1 mV/m (60 dBu) contour does not cover any portion of
    Salem, OR.

[^4]: *See Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants,* 16 FCC Rcd 5074, 5085 n.25 (2001) ("*NCE
    Order*") (establishing criteria for comparing NCE applications and
    granting a waiver of Section 73.515 to "closed" groups, *i.e*.,
    those groups of mutually exclusive applications (identified in
    Appendix D of the *NCE Order*) which had been pending for a
    considerable time and were no longer subject to additional competing
    applications. With the waiver, these "Appendix D Applicants" could
    either pursue a settlement agreement or file supplements to claim
    points under the new NCE comparative criteria.) *See also infra*
    note 19.

[^5]: *See Streamlining of Radio Technical Rules*, 15 FCC Rcd 21649,
    21670 (2000) ("*Technical Streamlining Order*") (deleting the Note
    to Section 73.315(a) which exempted NCE FM stations operating on
    reserved channels 200 through 220 from providing a 70 dBu signal
    over the entire community of license and, *inter alia*, adding new
    Section 73.515, requiring every NCE FM station to provide a 60 dBu
    signal to at least 50 percent of its community of license or 50
    percent of the population within the community). *See also infra* at
    4-5, regarding 60 dBu coverage requirement. As discussed below, the
    Commission exempted from this requirement all NCE FM facilities
    which were authorized prior to the effective date of Section 73.515.

[^6]: *See* 16 FCC Rcd at 5106-08. All three applications originally
    proposed the same channel (212A) and same community of license
    (Salem, Oregon). To achieve a settlement, CSN submitted a minor
    engineering amendment to move to channel 211A, thereby resolving its
    mutual exclusivity with WBC. BFTC agreed to withdraw its
    application. Pursuant to the waiver provision adopted in the *NCE
    Order*, CSN received a waiver of Section 73.515. *See* 16 FCC Rcd at
    5085 n.25. WBC did not require such a waiver because its proposal
    provided the required minimum coverage of Salem.

[^7]: *See* *Letter to Matthew H. McCormick, Esq.* (MB Jan. 25, 2002).

[^8]: *See supra* note 6.

[^9]: The point on the station's contour closest to Salem would be
    unchanged. More distant portions of the contour would be expanded to
    bring them closer to Salem.

[^10]: *See* File No. BMPED-20020308ABM, Exhibit E-4 (Mar. 8, 2002).

[^11]: Petition for Reconsideration at 5.

[^12]: 47 U.S.C. § 307(b).

[^13]: Petition for Reconsideration at 5.

[^14]: *See WWIZ, Inc*., 37 FCC 685, 686 (1964), *aff'd sub nom., The
    Lorain Journal Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert.
    denied*, 383 U.S. 967 (1966). *See also* 47 C.F.R. § 1.106.

[^15]: *See* *WAIT Radio v. FCC*, 418 F.2d 1153, 1157-59 (D.C. Cir.
    1969). *See also* 47 C.F.R. § 1.3 (rule provisions may be waived
    "for good cause shown"); 47 C.F.R. § 73.3566(a) (requests for waiver
    "shall show the nature of the waiver or exception desired and shall
    set forth reasons in support thereof").

[^16]: *Rio Grande Family Radio Fellowship, Inc. v. FCC*, 406 F.2d 664,
    665-66 (D.C. Cir. 1968).

[^17]: *Technical Streamlining Order*, 15 FCC Rcd at 21670.

[^18]: *Id.* (emphasis added).

[^19]: The Commission stated: "To ensure efficient processing of NCE FM
    applications, we waive the city grade coverage requirement recently
    adopted in MM Docket No. 98-93 \[*Technical Streamlining Order*\]
    for all mutually exclusive radio applications subject to the
    comparative procedures adopted herein. Absent a waiver, these radio
    applicants would have been required to amend their applications by
    February 19, 2001 to provide a predicted 60 dBu strength signal to
    at least 50% of their communities of license or to 50% of the
    population of the community." *NCE Order*, 16 FCC Rcd at 5085 n.25.

[^20]: *See* File No. BPED-19980826ML, Exhibit E-4 (submitted as an
    amendment on July 5, 2001). *See also* File No. BMPED-20020308ABM,
    Exhibit E-4.

[^21]: *Technical Streamlining Order*, 15 FCC Rcd at 21670.

[^22]: *Id.*

[^23]: Section 307(b) of the Act requires the Commission "to provide a
    fair, efficient, and equitable distribution of radio services" among
    states and communities in considering applications for licenses,
    modifications, and renewals.

[^24]: *Notice of Proposed Rule Making* in MM Docket No. 98-93, 13 FCC
    Rcd 14849, 14876 (1998) ("*Technical Streamlining* *Notice*")
    (citing 47 U.S.C. § 307(b)).

[^25]: *Technical Streamlining NPRM*, 15 FCC Rcd at 21670.

[^26]: *Id.*

[^27]: *Id. See also Technical Streamlining Notice*, 13 FCC Rcd at 14876
    (stating that "\[w\]here no part of the community of license lies
    within the 60 dBu protected service contour, the community is at
    risk of losing all service from the station licensed to it should a
    second station obtain an authorization for new or modified
    facilities that precludes the ability of the first station to place
    its 60 dBu contour over the community of license").

[^28]: *See generally* 47 U.S.C. § 309(j); *Implementation of Section
    309(j) of the Communications Act \-- Competitive Bidding for
    Commercial Broadcast and Instructional Television Fixed Service
    Licenses, First Report and Order*, 13 FCC Rcd 15920, 15973 (1998),
    *recon. granted in part*, 14 FCC Rcd 8724 (1999), *modified*, 14 FCC
    Rcd 14521 (1999).