> **DA 08-2630** *In Reply Refer to:*

1800B3-SS

Released: December 3, 2008

Centenary College

c/o Mark N. Lipp, Esq.

Wiley Rein, LLP

1776 K Street, N.W.

Washington, DC 20006

In re: **Centenary College** **New NCE-FM Station, Budd Lake, NJ**
Facility ID No. 174324

File No. BNPED-20071019AYI

**Petition for Reconsideration**

Dear Counsel:

We have before us a Petition for Reconsideration ("Petition") filed
December 27, 2007, by Centenary College ("Centenary"), applicant for a
new noncommercial educational ("NCE") FM station at Budd Lake, New
Jersey (the "Application"). Centenary seeks reconsideration of the
November 27, 2007, letter[^1] denying Centenary's waiver request[^2] and
dismissing the Application as unacceptable for filing.[^3] For the
reasons set forth below, we deny the Petition.

**Background.** Centenary filed the Application during the NCE filing
window in October 2007.[^4] A staff engineering review of the
Application revealed that the Application failed to comply with Section
73.509 of the Rules with respect to co-owned station WNTI(FM),
Hackettstown, New Jersey (the "Station").[^5] Specifically, the
interfering contour (100 dBu) of the proposed Budd Lake station was
totally within the protected contour (60 dBu) of the Station, which
operates on a third-adjacent channel. Centenary recognized this
violation and requested a waiver. In support of the waiver request,
Centenary stated that the interference caused by its proposal to the
Station was *de minimis.* In addition, Centenary claimed that there were
no other fully compliant channels available to serve Budd Lake.
Moreover, Centenary stated that it would provide a first local service
to Budd Lake. Centenary also cited two cases in which the Commission
allegedly granted similar waivers.[^6]

In the *Division Letter*, the staff determined that operation of the
proposed station would result in the loss of service to existing Station
listeners. The staff recognized that the Commission has granted Section
73.509 waivers where an *existing* NCE station sought to extend its 60
dBu service contour so as to overlap the interfering contour of another
NCE station and thereby create new received overlap. In these cases, the
overlap occurs in areas not currently served by the existing station. In
contrast, the Application involves a new station proposal with the
prohibited overlap occurring over areas currently served by the existing
station. Therefore, the staff found that the requested waiver of Section
73.509 did not fall within that precedent. Accordingly, the staff denied
the waiver request and dismissed the Application.

In its Petition, Centenary states that the staff's denial of Centenary's
waiver request is inconsistent with the Commission's decision in
*EIC*.[^7] Centenary also argues that the staff's decision to deny the
waiver is in contrast to the flexible approach mandated by the recent
low-power FM ("LPFM") proceeding.[^8] Finally, Centenary argues that the
Application is in the public interest because it will provide a first
local service to a sizable community in a very congested portion of New
Jersey where it is unlikely that a local service could ever be
established in the future. Centenary requests, therefore, that the
Commission grant its waiver request and reinstate the Application.

**Discussion.** The Commission will consider a petition for
reconsideration only when the petitioner shows either a material error
in the Commission\'s original order, or raises additional facts, not
known or existing at the time of petitioner\'s last opportunity to
present such matters.[^9] Centenary has not met those threshold
requirements in its Petition.

When an applicant seeks waiver of a rule, its burden is to plead with
particularity the facts and circumstances which warrant such
action.[^10] Thus, an applicant for waiver "faces a high hurdle even at
the starting gate."[^11] While the Commission must consider carefully
all waiver requests, such requests must be supported by a compelling
showing in order to be granted.[^12] "A waiver is appropriate only if
special circumstances warrant a deviation from the general rule and such
deviation will serve the public interest."[^13] In its Petition,
Centenary reiterates its assertion that there are compelling reasons for
waiver of Section 73.509 of the Rules to reinstate the Application even
though its proposed facility would cause prohibited interference to the
Station. In support of its request, Centenary claims that the benefits
to the public interest of its proposal outweigh the *de minimis* overlap
caused to its co-owned Station.[^14] Specifically, Centenary argues that
its proposed NCE-FM station's interfering contour encompasses only 25
persons, or .0043 percent of the service area of the Station.
Nevertheless, we agree with the decision in the *Division Letter* and
find waiver of Section 73.509 unwarranted on the facts of this case.

Section 73.509 states in pertinent part: "An application for a new or
modified NCE-FM station other than a Class D (secondary) station will
not be accepted if the proposed operation would involve overlap of
signal strength contours with any other station licensed by the
Commission and operating in the reserved band . . . \[contour overlap
standards are set forth in a chart included in the rule\]." Centenary
argues that the staff erred in denying Centenary's waiver request on the
basis that the Application would *cause* prohibited overlap rather than
*receive* prohibited overlap. Centenary contends that the Commission in
*EIC* "recognized that there was no practical difference between waivers
for stations that cause overlap and waivers for stations that receive
overlap."[^15] Further, Centenary states that the Commission in *EIC*
stated that it was inclined to "view waiver requests . . . favorably
where there is clearly a public interest benefit,"[^16] as Centenary
claims there is here.

The Commission\'s policy with regard to prohibited NCE received overlap
is well settled. On July 16, 1981, the Commission, *en banc*, delegated
authority to the staff to waive Section 73.509 to permit small amounts
of received interference by the NCE-FM station proposing a facility
improvement, provided such interference did not exceed roughly five
percent of the proposed service area. On July 17, 1981, the Commission
released a Public Notice stating that "these waivers will only be
granted when the applicant provides sufficient justification such as a
lack of alternative transmitter sites and/or frequencies."[^17] A decade
later, the Commission elaborated on this policy in *EIC*, noting that
this delegation "did not . . . nullify the longstanding prohibition
against occurrences of harmful overlap, including overlap
received."[^18] In so doing, it reaffirmed the principle that Section
73.509 is designed both to prevent each NCE station from causing harmful
interference to other NCE stations and to ensure interference-free
service within each NCE station\'s own service contour.[^19]

The Commission has repeatedly affirmed the foundational technical
licensing principle that any increase in total interference, caused or
received, is not in the public interest.[^20] However, the Commission
has recognized, as Centenary notes, that there is a need for some
flexibility. We find that this flexible approach is borne out in the
Commission's holding on *received* overlap as opposed to *caused*
overlap in *EIC* and the policy initially established by the Commission
in 1981.[^21] In particular, we note that the Commission has held that
it will not countenance new overlap caused where, as here, none existed
previously.[^22] 

Moreover, as stated in the *Division Letter*, while requests for waivers
of second-and third-adjacent channel overlap for new stations may have
individual appeal, routine waivers of Section 73.509, such as
Centenary's proposal in the instant context, would undermine the
Commission's well-settled NCE-FM licensing scheme. It would result in
vast increases in interference levels in the congested reserved band
while causing disruption to existing listening patterns. This
interference interrupts the continuity of existing service provided by
the Station throughout its protected service area, and thus diminishes
the quality of FM service provided by the Station. Over time, the grant
of numerous similar waivers would degrade the quality of existing FM
reception within stations' theoretically protected 60 dBu service
contours throughout the entire NCE-FM band.[^23]

The fact that Centenary is also the licensee of the Station and has
agreed to accept the interference that the Budd Lake station would cause
does not warrant waiver of the rule. As also observed in the *Division
Letter*, it is the Commission's responsibility to establish and enforce
signal protection requirements and to ensure that existing protected
service does not suffer interference. The goal of Section 73.509 is to
prevent overcrowding of FM stations and provide a consistent, fair,
efficient, and equitable distribution of FM facilities as required by
Section 307(b) of the Communications Act of 1934, as amended (the
"Act").[^24] The Act mandates that the \"Commission shall make such
distribution of licenses, frequencies, hours of operation, and of power
among the several States and communities as to provide a fair,
efficient, and equitable distribution to each of the same.\"[^25] The
Commission has stated that the public interest is not served by allowing
applicants and licensees to negotiate among themselves which areas may
receive interference.[^26] Accordingly, we do not find this circumstance
supports waiver of Section 73.509.

In addition, Centenary argues that the staff erred in finding that the
waiver policy delineated in *EIC* is limited to *existing* NCE-FM
stations rather than to *new* NCE-FM stations.[^27] Centenary contends
that nowhere in *EIC* did the Commission expressly state that its
decision was limited to existing stations. We disagree. In *EIC*, the
Commission states that "historically, both Congress and the Commission
have recognized the special standing of the noncommercial educational
service. Most notable is the spectrum reservation policy whereby
noncommercial stations are afforded protected frequency allocations for
their exclusive use."[^28] The allocations system, as the Commission
expressly states in *EIC*, "was designed to

anticipate . . . enlargements in coverage of *existing* stations and to
protect . . . \[the\] needs \[of existing stations\] against any
possible encroachment."[^29] We are unaware of a single case in which
the Commission has relied on the reasoning in *EIC* in a new station
context.

Finally, Centenary argues that its waiver request is also based on a
"new standard"[^30] established for second-adjacent channel, 100-watt
stations in the *LPFM Third R&O and Second FNPRM.* Specifically,
Centenary states that even though the proposed Budd Lake 100 dBu contour
overlaps the Station's 60 dBu contour, there is no actual
interference.[^31] Thus, Centenary states that the 25 persons who are
theoretically impacted will not experience any actual interference.[^32]
Centenary notes that a "new standard" was established when the
Commission stated: "\[A\]s demonstrated by the significant number of FM
translator proposals submitted in the 2003 filing window, \[the
Commission\] believe\[s\] that permitting D/U ratio showings to
establish 'lack of population' subject to interference provides ample
licensing flexibility."[^33] In sum, Centenary argues that a limited
extension of this standard to 100-watt or comparable facilities
regardless of whether they happen to be full-service facilities is in
the public interest where it can be shown that there is no actual
interference under established criteria.[^34]

The technical licensing rules for the LPFM and FM translator services
are very different than those used to license full-service NCE-FM
stations. The attempt to apply the licensing principles applicable to
the LPFM and FM translator services and a proposed LPFM rule change
which the Commission has not yet adopted to the NCE-FM service, is both
misguided and unsupported. With regard to LPFM, Centenary is relying on
a processing policy developed to mitigate the potential displacement of
existing LPFM stations by full-service stations, a situation which has
no applicability in the NCE-FM licensing context. Moreover, we note that
Congress has mandated the use of a distance separation methodology to
protect full-service FM stations from LPFM station interference by
directing the Commission to prescribe co-, first-, second-, and
third-adjacent channel "minimum distance separations" for LPFM
stations.[^35] This is a fundamentally different licensing methodology
than the contour methodology used in NCE-FM licensing.[^36] All FM
translator licensing is backstopped by an absolute prohibition on
causing interference to any full-service station.[^37] There is no
comparable NCE-FM licensing requirement that would protect listeners
against service losses.

We note that the factors presented here in support of the request for
waiver of the rule are generally true for applicants which seek waiver
of the rule for second-and third-adjacent channel contour overlap caused
to another station. In addition, we find unpersuasive Centenary's
argument that a waiver is warranted in situations in which spectrum
licensing prevents the licensing of rule-compliant new station
proposals. Acceptance of this argument would result in increased
spectrum congestion and interference levels in areas which are already
most impacted by these problems. As a result, we cannot find that grant
of Centenary\'s request for waiver of Section 73.509 would outweigh the
benefits conferred by adherence to the rule. The fundamental policy
change advocated by Centenary would be most appropriately considered in
a rulemaking proceeding.

**Conclusion/Action.** Centenary has not shown a material error or
omission in the *Division Letter*. Accordingly, IT IS ORDERED, that the
Petition for Reconsideration filed by Centenary College, IS DENIED.

> Sincerely,
>
> Peter H. Doyle
>
> Chief, Audio Division
>
> Media Bureau

cc: Centenary College

[^1]: *Letter to Centenary College* (MB rel. Nov. 27, 2007) ("*Division
    Letter*").

[^2]: Centenary had requested a waiver of the contour overlap provisions
    of 47 C.F.R. § 73.509 of the Commission's Rules (the "Rules").

[^3]: *See Division Letter* at 3.

[^4]: The filing window opened on Friday, October 12, 2007. *See Media
    Bureau Announces NCE FM New Station and*

    *Major Modification Application Filing Window for New and Certain
    Pending Proposals; Window to Open on*

    *October 12, 2007*, Public Notice, 22 FCC Rcd 2726 (MB 2007); *Media
    Bureau to Extend Window for NCE FM New*

    *Station and Major Change Applications; Window Will Close on October
    22, 2007*, Public Notice, 22 FCC Rcd 18680 (MB 2007).

[^5]: File No. BMLED-19940422KB.

[^6]: *See* *Educational Information Corporation*, Memorandum Opinion
    and Order, 6 FCC Rcd 2207 (1991) ("*EIC*").

[^7]: *EIC,* 6 FCC Rcd 2207 (1991).

[^8]: *See Creation of a Low Power Service,* Third Report and Order and
    Second Further Notice of Proposed Rulemaking, 22 FCC Rcd 21912
    (2007) ("*LPFM Third R&O and Second FNPRM*").

[^9]: *See* 47 C.F.R § 1.106. *See also WWIZ, Inc.,* Memorandum Opinion
    and Order, 37 FCC 685, 686 (1964), *aff\'d sum* *nom. Lorain Journal
    Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert. denied*, 387 U.S.
    967 (1966).

[^10]: *See Columbia Communications Corp. v. FCC*, 832 F.2d 189, 192
    (D.C. Cir. 1987) (citing *Rio Grande Family Radio Fellowship, Inc.
    v. FCC*, 406 F.2d 644, 666 (D.C. Cir. 1968) (per curiam)).

[^11]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969) ("*WAIT
    Radio*").

[^12]: *Greater Media Radio Co., Inc.*, Memorandum Opinion and Order, 15
    FCC Rcd 7090 (1999) (citing *Stoner Broadcasting System, Inc.*,
    Memorandum Opinion and Order, 49 FCC2d 1011, 1012 (1974)) ("*Greater
    Media*").

[^13]: *Northwest Cellular Telephone Co. v. F.C.C.*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (citing *WAIT Radio*, 418 F.2d at 1157).

[^14]: Petition at 4 and 7.

[^15]: Petition at 4; *see also EIC,* 6 FCC Rcd at 2209 (1991).

[^16]: *Id.*

[^17]: *See Delegation of Authority to the Chief of the Broadcast Bureau
    to Waive Small Amounts of Interference Received by Non-Commercial
    Educational FM Proposals,* Public Notice, 49 RR2d 1524 (1981). The
    Commission replaced this signal strength ratio methodology with a
    contour overlap standard in 1985. *See Changes In The Rules Relating
    To Noncommercial Educational FM Broadcast Stations,* Memorandum
    Opinion and Order, MM Docket No. 20735, 50 Fed. Reg. 27954 (July 9,
    1985) ("*1985 Order*"). The signal strength ratio method served to
    identify the area in which the quality of service was predicted to
    fall below the minimally acceptable level. The contour overlap
    method identifies not only the area in which quality of service
    falls below the minimally acceptable level, but also the larger area
    in which the quality of service is predicted to be better than
    minimally acceptable overall, but nonetheless may be diminished for
    some listeners. *See Board of Education of City of Atlanta
    (WABE-FM)*, Memorandum Opinion and Order, 11 FCC Rcd 7763, 7764 n. 1
    (1996) ("*WABE-FM*"). The *1985 Order* also modified the Bureau\'s
    delegated authority to grant waivers to conform to this new
    methodology. Specifically, such authority is now limited to 10
    percent "overlap" received compared to five percent "interference"
    received under the old policy. *See 1985 Order*, 50 Fed. Reg. at
    27959-27960.

[^18]: *EIC*, 6 FCC Rcd at 2208 (1991).

[^19]: *See Lakeside Telecommunications, Inc.,* Memorandum Opinion and
    Order, 20 FCC Rcd 763, 764 (2005).

[^20]: *See, e.g., Grandfathered Short-Spaced FM Stations,* Report and
    Order, 12 FCC Rcd 18840, 18844 (1997).

[^21]: *See EIC*, 6 FCC Rcd 2207(1991); *see also Changes in the Rules
    Relating to Noncommercial Educational FM Broadcast Stations*,
    Memorandum Opinion and Order, 58 RR2d 629, 639 (1985) and
    *Delegation of Authority to the Chief of the Broadcast Bureau to
    Waive Small Amounts of Interference Received by Non-Commercial
    Educational Proposals,* Public Notice, 49 RR2d 1524 (1981).

[^22]: *See Educational Information Corporation*, Memorandum Opinion and
    Order, 12 FCC Rcd 6917, 6918-19 (1997).

[^23]: *Division Letter* at 2, n.2. This has been called the \"Swiss
    cheese\" effect, where a station\'s protected service contour is
    punctured by \"holes\" of interference from multiple
    second-and-third-adjacent channel FM stations. *Revision of FM
    Rules,* Notice of Proposed Rulemaking, 21 RR 1655, 1674 (1961).

[^24]: *Division Letter* at 2. *See* 47 U.S.C. 307(b); *see also
    Amendment of Part 73 of the Commission\'s Rules to Permit
    Short-Spaced FM Station Assignments by Using Directional Antennas,*
    Memorandum Opinion and Order, 6 FCC Rcd 5356, 5358 ¶ 13 (1991).

[^25]: 47 U.S.C. 307(b).

[^26]: ^?^ *See, e.g., Open Media Corp*., Memorandum Opinion and Order,
    8 FCC Rcd 4070 (1993).

[^27]: Petition at 5.

[^28]: *See EIC,* 6 FCC Rcd 2207 n.3 (1991) (emphasis added).

[^29]: *Id.*

[^30]: Petition at 5.

[^31]: *Id.*; *see also* Engineering Statement at Attachment, Exhibit
    II.

[^32]: *Id.*

[^33]: Petition at 5, citing *LPFM Third R&O and Second FNPRM,* 22 FCC
    Rcd at 21945 (2007). In addition, Centenary cites to a "processing
    policy" related to second adjacent channel, 100-watt stations that
    the Commission established to avoid LPFM station displacement while
    it seeks comment on any LPFM Rule changes, as the standard by which
    Centenary's waiver request should be granted. *See* Petition at 3,
    citing *LPFM Third R&O and Second FNPRM,* 22 FCC Rcd at 21939
    (2007).

[^34]: Petition at 7.

[^35]: *See Making Appropriations for the Government of The District of
    Columbia for FY 2001 Act*, Pub L. No. 106-552, § 632, 114 Stat.
    2762, 27620A-111 (2000).

[^36]: *See, e.g., WABE-FM,* 11 FCC Rcd 7763, 7764 (1996) (staff denies
    request for waiver, holding that the use of the undesired-to-desired
    signal strength ratio method was inappropriate, as Section 73.509
    requires compliance with a contour overlap standard, not an
    interference ratio criterion).

[^37]: 47 C.F.R. § 73.1203(a). *See also Living Way Ministries,*
    Memorandum Opinion and Order, FCC 08-242 (rel. Oct. 10, 2008).