Number range CHAPTER **Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 93-17

Table of Allotments, ) RM-8170

FM Broadcast Stations. )

(Rosendale, New York) )

**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted:** June 23, 1997 **Released:** July 2, 1997

By the Commission:

1\. The Commission has before it an Application for Review filed by the
State University of New York (\"SUNY\") directed to the [Memorandum
Opinion and Order]{.underline} in this proceeding, 11 FCC Rcd 3607
(1996). Aritaur Communications, Inc. (\"Aritaur\") and Sacred Heart
University, Inc. (\"Sacred Heart\") filed Oppositions to the Application
for Review.[^1] WMHT Educational Telecommunications filed a \"Statement
in Support of Application for Review.\" SUNY filed a Reply directed to
the Aritaur Opposition. Aritaur filed a Reply directed to the
\"Statement in Support of Application for Review\" and a Motion to
Strike directed to the SUNY Reply. For the reasons discussed below, we
deny the Application for Review.

**Background**

2\. At the request of SUNY, licensee of noncommercial educational
Station WFNP, Channel \*204A, Rosendale, New York, the [Notice of
Proposed Rule Making]{.underline}, 8 FCC Rcd 947 (1993), proposed the
allotment of Channel 273A to Rosendale, and modification of the Station
WFNP license to specify operation on Channel 273A. In the
[Notice]{.underline}, the staff stated that the Station WFNP license
could be modified to a channel of the same class without providing an
opportunity for competing expressions of interest. However, the staff
noted that should another party express an interest in providing
Rosendale with an additional local service, Channel 255A would be
available for allotment. In the [Notice]{.underline}, the staff also
observed that SUNY had not requested that Channel 273A be reserved for
noncommercial educational use. In this regard, the staff correctly
stated that our policy does not permit the reservation of a commercial
channel for noncommercial educational use except where channels in the
reserved portion of the FM band (Channels 201 - 220) are not available
due to TV Channel 6 interference or preclusion by a foreign allotment.
For these reasons, the staff requested that SUNY provide information
regarding the availability of channels in the noncommercial educational
FM band and clarify whether it seeks to have Channel 273A allotted on a
commercial or noncommercial educational basis.

3\. In response to the [Notice]{.underline}, SUNY filed comments
reiterating its intention to apply for the channel, if allotted. SUNY
also stated that it does not want Channel 273A reserved for
noncommercial educational use even though it will continue to operate
Station WFNP as a noncommercial educational station.

4\. The [Report and Order]{.underline}, 10 FCC Rcd 11471 (1995), did not
modify the noncommercial educational license of Station WFNP to operate
on Channel 273A. Instead, it allotted Channel 273A to Rosendale and
opened a filing window.[^2] In doing so, the staff recognized that in
the [Notice]{.underline} it had inadvertently proposed to modify a
noncommercial educational license to an allotment in the commercial FM
band. The staff determined that this would be contrary to Commission
precedent of not assigning noncommercial educational FM stations to the
commercial band in the absence of TV Channel 6 interference or
preclusion by a foreign allotment. SUNY filed a Petition for
Reconsideration directed to that [Report and Order]{.underline}.

5\. The [Memorandum Opinion and Order]{.underline} in this proceeding
denied that Petition for Reconsideration. In that decision, the staff
determined that contrary to SUNY\'s contention, the [Report and
Order]{.underline} did not contravene Section 1.420(g) of the
Commission\'s Rules regarding the modification of a commercial FM
license through the rulemaking process.[^3] The staff reaffirmed its
determination that the proposed modification would have been
inconsistent with our policy regarding assignment of a noncommercial
educational FM station to the commercial band.

6\. The [Memorandum Opinion and Order]{.underline} recognized that
Station WFNP currently operates on a shared-time basis with
noncommercial educational Station WRHV, Channel \*204A, Poughkeepsie,
New York, and that permitting Station WFNP to operate on Channel 273A
would permit Station WRHV to operate on a fulltime basis. Nevertheless,
the staff did not find an overriding public interest benefit in
modifying the Station WFNP license to a commercial channel. This finding
was based upon the fact that such action would remove the only allotment
reserved for noncommercial educational use at Rosendale, and that there
was no assurance, beyond the present intention of SUNY, that Rosendale
will continue to receive a local noncommercial educational service.
Finally, the staff concluded that its earlier decision was
distinguishable from an earlier decision in [Sioux Falls, South
Dakota]{.underline}, 51 FR 4169, February 3, 1986, in which the staff
modified the license of noncommercial educational Station KCFS, Channel
\*211A, Sioux Falls, South Dakota, to specify operation on commercial
Channel 261A.

7\. In support of its Application for Review, SUNY again contends that
the staff refusal to modify the Station WFNP license was inconsistent
with Section 1.420(g) of the Rules and contrary to our policy of
encouraging broadcast stations to upgrade their facilities. In addition,
SUNY argues that the staff action conflicts with precedent and ignores
the public interest benefits of modifying the Station WFNP license to an
alternate channel. We will discuss each argument below.

**Discussion**

8\. [Section 1.420(g) of the Rules]{.underline}. SUNY essentially argues
that the Commission must permit it to upgrade its channel pursuant to a
rulemaking procedure provided in Section 1.420(g) of our Rules
notwithstanding the fact that the upgrade it proposes directly
contravenes the Commission\'s policy prohibiting noncommercial to
commercial channel changes except under specific conditions not present
in this case. We agree with the staff that SUNY\'s argument is
unconvincing.

9\. In [Modification of FM and TV Licenses]{.underline},[^4] we adopted
the procedure which permits an FM station to modify its license through
a rulemaking proceeding to a nonadjacent FM channel without subjecting
the new channel to competing expressions of interest provided there is
an equivalent channel to accommodate any expression of interest in the
proposed FM channel. This procedure is now set forth in Section 1.420(g)
of the Rules.[^5] In adopting this procedure, we specifically stated, in
response to a suggestion contained in comments from the law firm of
Dempsey and Koplovitz, that a \"switch\" of a noncommercial educational
channel and a commercial channel was outside the scope of that
proceeding.

10\. According to SUNY, the reference in Section 1.420(g) to \"an FM
station\" is clear and unambiguous and does not distinguish between
commercial and noncommercial educational FM channels. With respect to
the suggestion contained in the Dempsey and Koplovitz comments, SUNY
contends that our determination that the suggestion was outside the
scope of the proceeding was \"clearly dictum\" in that [Modification of
FM and TV Licenses]{.underline} did not adequately explain the
suggestion and its inapplicability to the procedure proposed in that
proceeding.

11\. The staff decision not to modify the license of noncommercial
educational Station WFNP to a channel in the commercial band did not
contravene Section 1.420(g) of the Rules. The SUNY argument concerning
the applicability of Section 1.420(g) fails for two reasons. First of
all, [Modification of FM and TV Licenses]{.underline} was specifically
intended to provide a rulemaking procedure to amend a Table of
Allotments. This was clearly stated in [Modification of FM and TV
Licenses]{.underline} and its earlier [Notice of Proposed Rule
Making]{.underline}.[^6] Noncommercial educational FM channels are not
assigned on the basis of a petition for rule making and an FM Table of
Allotments. Rather, noncommercial educational FM stations are assigned
by application on the basis of prohibited signal contour overlap.[^7]
The statement in [Modification of FM and TV Licenses]{.underline} that a
procedure to modify a noncommercial educational license was outside the
scope of the proceeding clarified the underlying proposal to create a
procedure to amend licenses assigned to the Table of Allotments and,
therefore, cannot be characterized as \"dictum.\" Second, the SUNY
argument that its proposal complies with \"clear and unambiguous\"
language of Section 1.420(g) is without merit. Under the general heading
of \"RULEMAKING PROCEEDINGS,\" Section 1.420 of the Rules is titled
\"Additional procedures in proceedings for amendment of the FM, TV or
Air-Ground Table of Allotments.\" In Section 1.420(g), the dual
reference to \"an FM station\" and a \"rulemaking proceeding\"
necessarily excludes noncommercial educational FM stations which are
assigned by application.

12\. [Sioux Falls, South Dakota]{.underline}. SUNY again argues that the
staff decision in this proceeding conflicts with the earlier decision in
[Sioux Falls, South Dakota]{.underline}, 51 FR 4169, February 3, 1986,
in which the staff modified the license of a noncommercial educational
FM station to a commercial FM channel without reserving it for
noncommercial educational use. Inasmuch as [Sioux Falls]{.underline} was
adopted after [Modification of FM and TV Licenses]{.underline}, SUNY
agues that the failure to discuss Section 1.420(g) in [Sioux
Falls]{.underline} supports its conclusion that there is no distinction
between modifying a commercial and noncommercial educational license. We
disagree.

13\. In [Sioux Falls]{.underline}, the staff modified the license of
noncommercial educational FM Station KCFS, Channel \*211A, Sioux Falls,
South Dakota, to specify operation on commercial Channel 261A. In
allotting Channel 261A to Sioux Falls, the staff did not reserve it for
noncommercial educational use. The nonreservation of Channel 261A was
premised on the facts that there were already four local noncommercial
educational stations in Sioux Falls, that other commercial channels were
available to Sioux Falls, and that the [Notice of Proposed Rule
Making]{.underline} in that proceeding had solicited specific comment on
not reserving Channel 261A for noncommercial educational use. 50 FR
25430, June 19, 1985. In that action, the staff also noted that the
modification to Channel 261A was necessary to correct its earlier
misinterpretation of an application submitted by this licensee for
Channel \*215A in Sioux Falls. In this regard, Sioux Falls College,
licensee of Station KCFS had filed an application for a new
noncommercial educational station on Channel \*215A in Sioux Falls (File
No. BPED-840110AO). The staff inadvertently granted this application as
a modification of the Station KCFS license on Channel \*211. Thereafter,
the staff deleted Channel \*211. Subsequently, Great Plains Educational
Trust filed an application for a new station on Channel \*211 and this
application was given cut-off protection on September 24, 1984. In order
to rectify this situation in light of the fact that there were no
noncommercial educational FM channels available in Sioux Falls, the
[Notice of Proposed Rule Making]{.underline} in [Sioux
Falls]{.underline} proposed a modification of license to Channel 261A.

14\. These facts illustrate at least three decisionally significant
distinctions between [Sioux Falls]{.underline} and the present case.
First of all, the proceeding in [Sioux Falls]{.underline} was undertaken
to correct a staff error and restore a Class A FM channel to Sioux Falls
College. No such error has occurred in regard to Rosendale, New York.
Second, the staff in [Sioux Falls]{.underline} provided clear notice to
the public and requested specific comment on a proposed modification of
the Station KCFS license to a commercial channel. In doing so, the staff
noted that there were already four noncommercial educational FM stations
licensed to Sioux Falls and other commercial channels were available to
accommodate any party wishing to operate a commercial FM station in
Sioux Falls. In contrast, the [Notice]{.underline} in this proceeding
merely noted that SUNY had not requested that Channel 273A be reserved
for noncommercial educational use. It then restated our policy of not
permitting the reservation of channels in the commercial band for
noncommercial educational use except where channels in the noncommercial
educational band are not available due to TV Channel 6 interference or
preclusion by a foreign allotment. Therefore, the [Notice]{.underline}
requested that SUNY provide information regarding the availability of
channels in the noncommercial educational band and \"clarify\" whether
it seeks to have Channel 273A allotted on a commercial or noncommercial
educational basis.[^8] We do not believe that this request for
clarification was adequate notice to the public that we would modify the
license of Station WFNP to the commercial FM band as a commercial
station. Third, the situations in Sioux Falls and Rosendale are
distinguishable in that there were four noncommercial educational FM
stations licensed to Sioux Falls, while Station WFNP represents the only
noncommercial educational FM station licensed to Rosendale.

15\. [Other Public Interest Matters]{.underline}. Station WFNP currently
operates on a shared-time basis with noncommercial educational Station
WRHV, Channel \*204A, Poughkeepsie, New York. We recognize that
modification of the Station WFNP license to another channel would
provide a public interest benefit by enabling both stations to provide a
fulltime noncommercial educational service.[^9] However, in response to
the [Notice]{.underline}, SUNY stated that it did not want Channel 273A
reserved for noncommercial educational use. As such, there is no
assurance, beyond the present intention of SUNY, that Rosendale will
continue to have a local noncommercial educational service. We emphasize
that the SUNY proposal would have removed the only allotment reserved
for noncommercial educational use at Rosendale. Under these
circumstances, we do not see an overriding public interest benefit in
modifying the Station WFNP license to a commercial allotment.

16\. Accordingly, IT IS ORDERED, That the aforementioned Application for
Review filed by the State University of New York IS DENIED.

17\. IT IS FURTHER ORDERED, That the aforementioned Motion to Strike
filed by Aritaur Communications, Inc., IS DENIED.

18\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

19\. For further information concerning this proceeding, contact Robert
Hayne, Mass Media Bureau, (202) 418-2177.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

[^1]: ^?^The Sacred Heart Opposition was untimely by nearly six weeks.
    In a Motion to Accept Opposition, Sacred Heart notes that SUNY
    served it with a copy of the Application for Review at its former
    address and that the Application for Review has not been put on
    Public Notice. Our Rules do not require Public Notice for an
    Application for Review. Furthermore, Sacred Heart did not make a
    diligent effort to file its Opposition within the prescribed 15-day
    period even though it received the Application for Review prior to
    the expiration of the 15-day period. In view of the above and the
    fact that the arguments set forth in the Opposition are already
    being considered in this proceeding, we deny the Motion to Accept
    Opposition and will not consider the Sacred Heart Opposition.

[^2]: ^?^SUNY is one of ten applicants for the Channel 273A allotment at
    Rosendale, New York. Two of the other nine applicants propose to
    operate Channel 273A as a noncommercial educational station. In
    regard to parties in this proceeding, Sacred Heart has filed an
    application proposing to operate Channel 273A as a noncommercial
    educational station while Aritaur has filed an application proposing
    a commercial service.

[^3]: ^?^In [Modification of FM and TV Licenses]{.underline}, 56 RR2d
    1253 (1984), we adopted the procedure which permits a commercial FM
    station to modify its license through a rulemaking proceeding to a
    nonadjacent commercial FM channel provided there is an equivalent
    commercial channel to accommodate any expression of interest in the
    proposed FM channel. This procedure is now set forth in Section
    1.420(g) of the Rules.

[^4]: ^?^[See]{.underline} n. 3, [supra]{.underline}.

[^5]: ^?^In its Reply, SUNY discusses the applicability of Section
    1.420(g) to its proposal. The Aritaur Motion to Strike is directed
    to this aspect of the SUNY proposal. In order that we may resolve
    all issues concerning Section 1.420(g) on the basis of a complete
    record, we hereby deny the Motion to Strike.

[^6]: ^?^48 FR 55585, December 14, 1983.

[^7]: ^?^[See]{.underline} Section 73.509 of the Rules. The limited
    exceptions to assigning noncommercial educational FM stations on the
    basis of prohibited overlap involve separation requirements
    contained in international agreements and the fact that the
    noncommercial educational channels (Channels 218, 219 and 220)
    adjacent to the commercial portion of the FM band (Channels 221
    through 300) must meet the applicable commercial separation
    requirements set forth in Section 73.207 of the Rules.
    [See]{.underline} Section 73.507(a) of the Rules.

[^8]: ^?^In response to the [Notice]{.underline}, SUNY did not state
    that a noncommercial educational channel is unavailable due to
    Channel 6 interference or foreign preclusion. Rather, SUNY merely
    stated that it does not want Channel 273A reserved for noncommercial
    educational use even though it will continue to operate Station WFNP
    on a noncommercial educational basis.

[^9]: ^?^WMHT Educational Telecommunications, licensee of Station WRHV,
    filed a \"Statement\" noting this fact and the public interest
    benefits of having both stations operate on a fulltime basis.