![](media/image1.wmf){width="1.375in" height="1.375in"}**Federal
Communications Commission**

**Washington, D.C. 20554**

June 24, 2008

**DA-08-1475**

*In reply refer to*:

1800B3-MJW

Released June 24, 2008

Lauren Colby, Esq.

10 E. Fourth Street

PO 113

Frederick, MD 21705

Gregory Masters, Esq.

Wiley Rein LLP

1776 K Street, NW

Washington, DC 20006

Daniel Huber, Esq.

560 N Street, NW

Suite N501

Washington, DC 20024

In re: **Calvary Chapel of Costa Mesa, Inc**.

> KWVE(FM), San Clemente, California
>
> Facility No. 8410
>
> File No. BPH 20070919ABO
>
> **Application for Modification of License**
>
> **Petition for Waiver**

Dear Counsel:

We have before us a Petition for Waiver (the "Petition") and application
for modification of license filed by Calvary Chapel of Costa Mesa, Inc.
("Calvary"), licensee of KWVE(FM) ("KWVE"), San Clemente, California,
seeking waiver of Section 73.215 of the Commission's Rules (the
"Rules").[^1] For the reasons set out below, we deny the Petition and
dismiss the application.

**Background.** KWVE is "short-spaced"[^2] to co-channel Station
KUZZ(FM) ("KUZZ"), Bakersfield, California. Section 73.215 of the Rules
allows such short-spacing only if the service and interference contours
of the affected stations do not overlap.[^3] Currently, KWVE employs a
directional antenna to avoid contour overlap with KUZZ.[^4] It seeks a
waiver of Section 73.215(a) in order to change to an omnidirectional
antenna, resulting in an 800 square km overlap of the KUZZ interference
and the KWVE service contours.[^5] Calvary submits, however, that actual
overlap of the interference and service contours will not occur because
there is high and rough intervening terrain between the two stations. It
bases its "no overlap" conclusion on: (a) an assertion that the terrain
roughness between the two stations is greater than the 50 meter terrain
roughness assumed in the Commission's contour prediction curves;[^6] and
(b) that both Longley-Rice[^7] and "point to point" propagation
analyses[^8] predict that the KUZZ interference contour does not overlap
the KWVE service contour.[^9]

In support of its use of a terrain roughness factor to predict the KUZZ
interference contour, Calvary cites an unreported Media Bureau
letter[^10] describing the use of terrain roughness in the context of a
request for waiver of the principal community coverage requirement.[^11]
Calvary also relies on *Greater Media Radio Co., Inc*.[^12] and *R&S
Media*[^13] for the proposition that the Commission previously has
considered waiver of the Section 73.215(a) contour overlap prohibition.
Additionally, Calvary claims that Section 73.313(e) of the Rules[^14]
establishes that "alternate methods of prediction may be used to
determine coverage."[^15] Calvary also claims that, in calculating the
KUZZ interference contour, it is justified in using KUZZ's actual HAAT,
rather than its "reference" HAAT as required by Section 73.215. If the
Section 73.215 reference HAAT were used, Calvary argues, it would yield
anomalous results because contours would be calculated on the basis of a
negative height above ground for the KUZZ antenna.[^16] Finally, Calvary
claims that grant of the requested waiver is warranted because the
requested facilities would allow Calvary "to increase the population it
serves by over 2,500,000 persons."[^17]

Owens asserts that if Calvary believes that the Section 73.215 reference
HAAT provisions yield anomalous results, it should have filed a petition
for rulemaking rather than a waiver request.[^18] It also contends that
Calvary cannot rely on alternative propagation analyses to show lack of
actual contour overlap because the "Commission has never sanctioned the
use of terrain shielding, terrain roughness or similar alternative
prediction methodologies in connection with Section 73.215
showings."[^19]

Owens also points out that grant of the waiver would not improve KWVE's
"less that 100% coverage of San Clemente, its community of
license."[^20] It also establishes that the additional area that would
be served by KWVE, were the waiver granted, is "far from underserved -
being already served by no fewer than 85 aural services."[^21] Owens
distinguishes *R&S Media* as a case in which there was no possible site
that would avoid contour overlap, even with use of a directional
antenna,[^22] whereas, here, Calvary "is proposing to *eliminate* the
use of a directional antenna that *currently* protects KUZZ at KWVE's
*existing* site."[^23] *Greater Media* is inapposite, Owens claims,
because, there, the Commission denied the request for waiver of Section
73.215(a), stating that the record "was devoid of any showing that the
proposed antenna cannot be directionalized to avoid creation of new
predicted interference."[^24] Owens argues that Calvary's reliance on
Section 73.313(e) of the Rules is misplaced because the Commission has
never waived the Section 73.215(a) contour overlap prohibitions based on
the procedures set forth in Section 73.313."[^25]

**Discussion.** We agree with Owens that neither of the cases cited by
Calvary is persuasive here. In *Greater Media* a waiver was denied
because the waiver proponent made an insufficient demonstration that the
waiver was necessary in order to remedy "patently inadequate" service to
its community of license, extend its coverage to unserved or underserved
areas, or that a suitable site was unavailable.[^26] Similarly,
Calvary's requested waiver would not enhance its coverage of San
Clemente, its community of license. Moreover, as Owens demonstrates, the
greater Los Angeles area, where Calvary's station is located, is
abundantly covered by other aural services.[^27] As Owens notes, in *R&S
Media* there were exceptional circumstances not present here, *i.e.*, in
*R&S Media* a directional antenna would not have sufficed to eliminate
the contour overlap and there were no alternative sites for the waiver
proponent's station.[^28] Here, however, the existing KWVE directional
antenna does protect against contour overlap and Calvary has made no
showing that alternative sites are not available.

The Commission has not accepted alternative propagation showings that
purport to demonstrate that stations will meet the contour overlap
restrictions of Section 73.215(a) and we are not persuaded to do so
here. Calvary's citation to Section 73.313(e) of the Rules is unavailing
because that Rule section deals with the use of supplemental showings in
the context of coverage prediction - not interference calculations.
Calvary's reliance on the terrain roughness factor curves in Section
73.699 Fig. 10(e) of the Commission's Rules is misplaced. Use of those
curves was suspended shortly after they were adopted because they often
yielded anomalous results.[^29] Similarly, we cannot find that the
"point-to-point" propagation model discussed in the *Streamlining
Order* - but not adopted by the Commission - is an appropriate means of
estimating contour overlap pursuant to Section 73.215(a).[^30] To the
extent that Calvary believes that the Commission should modify its rules
to permit alternative propagation showings or change the requirement
that the "reference height" be used in interference contour
calculations, to establish compliance with Section 73.215(a), it should
file a petition for rulemaking.[^31]

In sum, the Commission has waived Section 73.215(a) to allow
otherwise-prohibited contour overlap only in very few and very narrow
circumstances, none of which is present here.[^32] It has not accepted
alternative propagation analyses in support of requests for waiver of
the Section 73.215(a) contour overlap provisions. Changes in the
Commission's practice in this regard would defeat the principal purpose
of Section 73.215(a), *i.e.,* to provide applicants with increased
flexibility (relative to the Section 73.207 distance separation
criteria) without burdening the Commission with complex, time-consuming
and litigable waiver requests.[^33] We therefore are denying Calvary's
waiver request and dismissing its modification application.

**Decision/Action.** Accordingly, IT IS ORDERED that the Petition for
Waiver filed by Calvary Chapel of Costa Mesa, Inc. IS DENIED. IT IS
FURTHER ORDERED, that the Application for Modification of License, File
No. BPH-20070919ABO, IS DISMISSED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: 47 C.F.R. § 73.215. Owens One Company, Inc. ("Owens"), licensee of
    KUZZ(FM), Bakersfield, California, filed an objection to the
    Petition (the "Objection"). Calvary filed an Opposition to Informal
    Objection (the "Opposition") and Owens filed a Reply to Opposition
    to Informal Objection (the "Reply").

[^2]: "Short spacing" occurs when stations are separated by less than
    the minimum distance specified in 47 C.F.R. § 73.207(b)(1). KWVE and
    KUZZ are 221.4 km apart, 19.1 km less than the 241 km spacing
    minimum required by this Rule.

[^3]: KWVE and KUZZ are co-channel, Class B stations. The protected
    service contour of a Class B station is 54 dBu, determined by
    application of the Commission's F(50,50) curves; the interference
    contour at the boundary of a protected station's 54 dBu contour must
    not exceed 34 dBu, determined by application of the Commission's
    F(50,10) curves. *See* 47 C.F.R. §§ 73.215(a)(1)-(2), 73.313,
    73.699, Fig. 9 and 9a.

[^4]: *See* Petition, Engineering Statement at 1.

[^5]: See Opposition at 2, Engineering Statement at Exhibit 1-E. As
    noted in the Opposition, the KUZZ interference contour would also
    overlap the KWVE 70 dBu principal community contour. *Id.*

[^6]: *See* Petition, Engineering Statement at 1-2, Exhibit 1.

[^7]: *See* Rice, P.L., Longley, A.G., Norton, K.A., Barsis, A.P.,
    "Transmission Loss Predictions for Tropospheric Communications
    Circuits," NBS Technical Note 101 (Revised), Volumes I and II, U.S.
    Department of Commerce, 1967.

[^8]: *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, 21652 (2000)
    ("*Streamlining Order"*).

[^9]: *See* Petition at 3, Engineering Statement at 1-2, Exhibit 7.

[^10]: Petition at 2 (citing *Letter to Mark Lipp* (Aug. 8, 2002)).

[^11]: *See* 47 C.F.R. § 73.315(a). (A station's 70 dBu "principal
    community" contour must encompass its city of license. The
    referenced letter did not grant the requested waiver.).

[^12]: *Greater Media Radio Co., Inc.* Memorandum Opinion and Order, 15
    FCC Rcd 7090 (1999) ("*Greater Media*").

[^13]: *R&S Media,* Memorandum Opinion and Order and Order to Show
    Cause*,* 19 FCC Rcd 6300 (MB 2004) ("*R&S Media*").

[^14]: 47 C.F.R. § 73.313(e).

[^15]: Opposition at 2-3.

[^16]: *See* Petition at 2, Engineering Statement at 1.

[^17]: Petition at 3.

[^18]: Opposition at 1.

[^19]: Opposition at 2 (citing *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 (1991)).

[^20]: *Id.*

[^21]: *Id.* (citing Engineering Statement at 2-4 and Exhibit E-3).

[^22]: Opposition at 2 (citing *R&S* *Media*).

[^23]: *Id.* (emphasis in original).

[^24]: *Id.* at 2-3 (citing *Greater Media,* 19 FCC Rcd at 7099).

[^25]: Reply at 3 (citing *1998 Biennial Regulatory Review -
    Streamlining of Radio Technical Rules in Parts 73 and 74 of the
    Commission's Rules*, Notice of Proposed Rulemaking and Order, 12 FCC
    Rcd 14849, 14858 (1998), noting that, the Commission considered, but
    did not adopt, a proposal whereby, *inter alia*, licensees could
    accept interference despite contour overlap).

[^26]: *Greater Media,* 15 FCC Rcd at 7095-7096. Although the staff
    subsequently authorized the Greater Media licensee to operate on a
    "short spaced" basis, that unpublished action is without
    precedential weight. *See* 47 C.F.R. § 0.445(e)*.*

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

[^28]: *See* Reply at 2.

[^29]: *See* *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 5256, 5358-59 n.12. ("The FM
    rules have contained provisions for this \[terrain roughness\]
    factor for many years . . . but the effective date of these
    provisions was stayed indefinitely in 1977, pending further review
    by the Commission.").

[^30]: As noted in the *Streamlining Order*,15 FCC Rcd at 21652, the
    suitability of the point-to-point model was contested by commenting
    parties and the Commission stated that it was considering extensive
    revisions to the model. The model has not been approved by the
    Commission as a means of estimating FM station interference
    contours. *See* <http://www.fcc.gov/oet/fm/ptp/Welcome.html>.

[^31]: *See* *Paralyzed Veterans of America v. D.C. Arena, L.P*., 117 F.
    3d 579, 586 (D.C. Cir. 1997), *cert. denied* *sub nom. Pollin v.
    Paralyzed Veterans of America*, 523 U.S. 1003 (1998); *Syncor Int'l
    Corp. v. Shalala*, 127 F. 3d 90, 94 (D.C. Cir. 1997) (new
    interpretation of an agency rule in conflict with prior definitive
    interpretation requires notice and comment).

[^32]: Calvary's only asserted public interest benefit realized by the
    waiver is expansion of its own coverage outside its principal
    community to an area that is neither unserved nor underserved. "More
    coverage" standing alone, has long been regarded as an insufficient
    basis for waiver of interference prohibitions. *See, e.g.,* *Stoner
    Broadcasting System, Inc.,* Memorandum Opinion and Order, 49 FCC 2d
    1011, 1012 (1974).

[^33]: *Cf. Creation of a Low Power Radio Service,* Third Report and
    Order and Second Further Notice of Proposed Rulemaking, 22 FCC Rcd
    21912, 21945 (2007) (stating that use of alternative propagation
    models, such as Longley-Rice, "impose enormous staff processing
    burdens and are typically subject to opposition").