**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Applications of 1090 Investments, LLC )

)

For Modification of Facilities for Stations )

WCAR(AM), Livonia, Michigan ) Facility ID No. 73387

) File No. BP-20050128AMO

and )

)

WOAP(AM), ) Facility ID No. 41682

Waverly, Michigan ) File No. BMP-20070620ADM

)

Modification of the License of )

Station WTIC(AM), ) Facility ID No. 66464

Hartford, Connecticut ) BL-19820929BM

**MEMORANDUM OPINION AND ORDER**

**Adopted:** **November 4, 2008 Released: November 5, 2008**

By the Chief, Audio Division, Media Bureau:

**I. INTRODUCTION**

1\. The Audio Division has before it the captioned minor change
applications (collectively, the "Applications"), filed by 1090
Investments L.L.C. ("1090") licensee of stations WCAR(AM), Livonia,
Michigan and WOAP(AM), Waverly, Michigan. The applications are
accompanied by an Interference Reduction Agreement ("IRA"). The Division
also has before it the April 22, 2008, *Order to Show Cause*[^1]
directed to Station WTIC(AM), Hartford, Connecticut, owned by CBS Radio
Stations Inc. ("CBS"), regarding the WOAP(AM) Application's indirect
modification of the WTIC(AM) license.[^2] For the reasons set forth
below, we approve the IRA, grant the Applications, and modify the
WTIC(AM) license by protecting only the groundwave signal of that
station's extended daytime operation.

II. **BACKGROUND**

2\. WCAR(AM) is licensed[^3] for full-time operation on 1090 kHz at
Livonia, Michigan, with daytime power of 250 watts and nighttime power
of 500 watts, with different directional antenna patterns for daytime
and nighttime operation. In the WCAR Application, 1090 proposes to
increase daytime power to 1.0 kW and nighttime power 800 watts and to
modify both antenna patterns.[^4]

3\. WOAP(AM) is licensed[^5] to operate during daytime hours only on
1080 kHz at Owasso, Michigan, using 1.0 kilowatt (kW) power and a
nondirectional antenna.[^6] In 2007, the Commission issued a
construction permit ("CP"),[^7] which authorizes WOAP(AM) operation
during daytime hours only on 1080 kHz at Waverly, Michigan, using 50 kW
power and a directional antenna system. In the WOAP Application, 1090
requests modification of the Waverly CP to permit operation during
nighttime hours using 4.5 kW power and a directional antenna system.
Implementation of nighttime facilities proposed in the Application may
result in the modification of the license[^8] of co-channel Class A
Station WTIC(AM), Hartford, Connecticut.[^9]

4\. Station WTIC(AM) is an unlimited-time, Class A station authorized by
the Commission to operate on 1080 kHz at Hartford, Connecticut, using 50
kilowatts (kW) power and a nondirectional antenna during daytime hours,
and 50 kW power and a directional antenna during nighttime hours. AM
broadcast stations are permitted to operate daytime facilities during
the period between local sunrise and local sunset, and nighttime
facilities, if authorized, during the period between local sunset and
local sunrise. However, since WTIC commenced operation on 1080 kHz in
1941, the station's authorization has contained a special condition
permitting WTIC to continue operating using its licensed daytime
nondirectional facilities until sunset at Dallas, Texas, the location of
co-channel Class A AM Station KRLD(AM).[^10] Depending upon the month of
the year, the period of extended WTIC(AM) daytime operation is between
45 minutes and one hour and 15 minutes beyond sunset in Hartford,
Connecticut. All other AM stations on 1080 kHz with authorized nighttime
facilities are required to begin operation using their nighttime
facilities at local sunset.

**III DISCUSSION**

5\. *WCAR/WOAP IRA.* Certain Commission rules are intended to help
revitalize and improve the AM service.[^11] Licensees may enter into
agreements to reduce power or cancel their licenses in order to permit
other licensees to improve service and/or reduce overall
interference.[^12] In amending Section 73.3517 of the Rules[^13] to
permit contingent applications that would "reduce interference to one or
more AM stations or . . . otherwise decrease the area of interference,"
the Commission removed regulatory barriers that prevent or discourage
individual AM licensees from entering into private agreements to
decrease inter-station interference and improve the overall quality of
AM service.[^14]

6\. When such contingent agreements are proposed that would involve the
deletion or modification of existing AM stations, we must engage in a
case-by-case public interest determination. In particular, the parties
must demonstrate that a "local service floor" will remain in the
community losing a local transmission service as a result of the
proposed agreement.[^15] The Commission did not choose to "establish a
quantifiable service floor that can uniformly be applied with respect to
the replacement of deleted facilities," opting instead for a
case-by-case approach. However, the Commission did determine that, at a
minimum, an agreement that resulted in the deletion of a station could
not create a "white" or "gray" area.[^16]

7\. When undertaking the case-by-case analysis, we generally consider
four factors: the amount of AM interference that will be eliminated in
relation to the number of AM and FM services remaining available to the
areas that will lose service; the areas and populations that will gain
service as a result of the proposed change; whether the proposal will
create any white or gray areas; and the availability of AM and FM
service in the area that will experience a reduction in service due to
the proposed contingent facilities changes.[^17] We will therefore
examine the parties' IRA here in light of these four factors.

-   [Reduction in Interference]{.underline}. 1090 indicates that grant
    of the Applications will result in a "dramatic" reduction of
    WCAR(AM)'s contour overlap with the 0.025 mV/m contour of WOAP; the
    reduction in overlap encompasses an area of 2,489 square kilometers
    and a population of 920,921.[^18]

-   [Increased Service]{.underline}. 1090 indicates that WCAR(AM) will
    enlarge its service area by 4,209 square kilometers and 739,032
    persons. This gain would be slightly offset by WOAP(AM)'s reduction
    in population of 133,120 persons. Thus, the net population gain
    would be 605,912 persons, and WOAP(AM) would itself provide new
    service to an area of 16,800 square kilometers.[^19]

-   [Creation of Gray/White Area; Local Service Floor]{.underline}. 1090
    demonstrates that WCAR(AM)'s modification application will not cause
    any white or gray area; neither will it result in any receiving
    fewer than five aural services.[^20] Our analysis corroborates these
    claims. Thus, there is a sufficient local service floor to warrant
    grant of the applications.

8\. *Modification of the WTIC(AM) License.* During daytime hours, AM
station protection is based on groundwave signal propagation, and during
nighttime hours, AM station protection is based on skywave signal
propagation.[^21] The license condition permitting the extended WTIC(AM)
daytime operation is not specific with respect to the type of protection
that must be afforded to the extended WTIC(AM) daytime operation by
co-channel and adjacent channel stations. Our review of pertinent AM
assignments that existed in 1941, when WTIC(AM) began its extended
daytime operation on 1080 kHz, and current AM assignments shows that
unlimited time, co-channel Stations WKJK(AM), Louisville, Kentucky,[^22]
which began operation in 1948, and WWNL(AM), Pittsburgh,
Pennsylvania,[^23] which began operation in 1947, among others, are
predicted to currently cause interference within the protected contour
of the extended WTIC(AM) daytime operation if the nighttime protection
requirements of the Commission's rules are applied to the extended
WTIC(AM) daytime operation. Therefore, as explained below, we conclude
that the extended WTIC(AM) daytime operation is entitled only to
groundwave protection and, accordingly, we will modify the WTIC(AM)
license to the extent of permitting predicted interference to its
skywave signal from WOAP(AM) during its period of extended operation
with daytime facilities.

9\. Section 316 of the Communications Act of 1934 (the "Act") permits
the Commission to modify a broadcast station authorization if such
action is in the public interest.[^24] Implementation of the nighttime
facilities proposed in the WOAP Application could result in the
modification of the WTIC(AM) license, as they would not fully protect
WTIC(AM)'s skywave signal during that station's period of extended
operation with daytime facilities.[^25] In accordance with Section 316
procedures, the staff issued the *Order to Show Cause* in this
proceeding.

10\. In response to the *Order to Show Cause*, CBS argues that the
WTIC(AM) license should not be modified to remove protection to its
nighttime secondary service area, because there is no "compelling public
interest" reason to support such modification. CBS contends that, in
fact, modification of WTIC(AM)'s license would be detrimental to the
public interest. CBS claims that Waverly is an unincorporated community
within Eaton county, well within the urbanized area of Lansing,
Michigan, and is already well-served by up to 16 other radio stations,
including several AM stations, providing primary nighttime service.[^26]
It claims that WOAP(AM)'s proposed nighttime 0.025 mV/m -- 10 %
interfering contour overlaps a portion of WTIC(AM)'s extended daytime
operations which contains a population of over 16 million persons.[^27]
This figure is especially important, argues CBS, because WTIC(AM) was
one of only 37 stations nationwide to serve as a Primary Entry Point
("PEP") station as part of the post-Hurricane Katrina initiatives of the
Primary Entry Point Advisory Committee and the Federal Emergency
Management Agency. WTIC's role as a PEP station is to deliver a
Presidential message sent directly to the station by the White House's
communications link to its significant daytime and nighttime service
area in a time of national emergency.[^28] As the only 50 kW AM station
in Connecticut, WTIC(AM) also serves as the LP-1 primary emergency alert
station for the entire state as part of the Commission's EAS program.
Any proposal to limit WTIC(AM)'s protected nighttime service area, CBS
argues, must be judged in the context of the station's "critical role"
in the relay of emergency messages.[^29]

11\. With respect to the observation in the *Order to Show Cause* that
co-channel stations WKJK(AM) and WWNL(AM) are predicted to cause
interference within the protected contour of the extended WTIC(AM)
daytime operation if the nighttime protection requirements are applied
to the WTIC(AM)'s extended daytime operations, CBS argues that precedent
dictates that the Commission does not consider interference from other
stations in determining whether to allow new interference from a
proposed new or modified facility.[^30]

12\. CBS concludes by arguing that WTIC(AM) has operated with its
current licensed facility for over 65 years, and, throughout this
period, the secondary service area of the station has been, and should
continue to be, protected, including skywave protection during
WTIC(AM)'s extended daytime operation, as has been the case since
1941.[^31]

13\. In its opposition to CBS' comments, 1090 argues that WTIC(AM) is
not and has never been entitled to skywave protection during its
extended daytime operation, *i.e.,* the period between sunset at
Hartford, Connecticut, and sunset at Dallas, Texas, because "skywave" is
a nighttime phenomenon and there is no skywave signal to protect during
daytime operations. It states that there is no evidence that, when the
Commission authorized WTIC(AM) to operate with extended daytime
facilities until sunset at Dallas, the agency intended to allow WTIC(AM)
to keep its daytime nondirectional operation *and* receive protection of
the incidental skywave produced as a result of those post-sunset daytime
operations. Observing that WKJK(AM) and WWNL(AM) are predicted to cause
interference within the protected contour of the extended WTIC(AM)
daytime operation if nighttime protection requirements are applied to
that operation, 1090 indicates that "it is clear that the Commission
does not afford extended skywave contour protection to WTIC(AM) during
the station's extended post-sunset daytime operations. A modification of
WTIC's license to reflect this fact would merely be a formal
acknowledgement of prior Commission practice."[^32]

14\. 1090 also states that grant of the WOAP Application will allow it
to implement the first local radio service to Waverly, noting that the
Commission has held that the provision of a first full-time local radio
facility "is an important matter, warranting favorable action, unless
there are significant countervailing considerations."[^33] There are no
such considerations here, states 1090. Although CBS proffers certain
laudable public services offered at WTIC(AM), such services have not
overcome the significant advantage enjoyed by proponents of a first
local service. 1090 also argues that the WTIC(AM)'s status as the LP-1
primary emergency alert station within the state of Connecticut is
irrelevant, because WOAP(AM)'s proposed nighttime facilities would not
interfere with WTIC(AM)'s operations in Connecticut.[^34] Finally, 1090
argues that CBS has had ample opportunity to challenge WOAP(AM)'s
nighttime operation and has not done so, even though it was clear that
CBS knew about the issues presented by WOAP(AM)'s proposed nighttime
operations because the stations' engineers "have had conversations
concerning these issues."[^35] 1090 claims that, because it failed to
challenge WOAP(AM)'s nighttime operation previously, CBS is now
"procedurally barred" from doing so.[^36]

15\. We believe that WTIC(AM)'s extended daytime facilities should
receive protection from WOAP(AM) only to the extent of its groundwave
signal. As observed above, co-channel AM Stations WKJK(AM), Louisville,
Kentucky, and WWNL(AM), Pittsburgh, Pennsylvania, among others,
currently are predicted to cause interference within the protected
contour of the extended WTIC(AM) daytime operation if the nighttime
protection requirements of the Commission's rules are applied to the
extended WTIC(AM) daytime operation. Thus, practically speaking, there
is marginal, if any, WTIC(AM) skywave service during its extended
daytime operation in the ostensibly protected service area now, and this
situation will not be exacerbated by WOAP(AM)'s modified
facilities.[^37] On this point, CBS argues that precedent dictates that
the Commission does not consider interference from other stations in
determining whether to allow new interference from a proposed new or
modified facility. CBS is absolutely correct, and we will continue to
reject such arguments. However, the fact that the Commission has
expressly authorized WKJK(AM) and WWNL(AM) to operate with nighttime
facilities which are predicted to cause interference to WTIC(AM)'s
extended daytime operation's skywave signal during the extended daytime
operating period is indicative that the Commission did not intend to
protect fully WTIC(AM)'s skywave signal during a portion of that period.
Our action here is consistent with this theory. We therefore will modify
WTIC(AM)'s license by granting the WOAP(AM) application. Our action will
enable 1090 to bring the first full-time local broadcast service to
residents of Waverly, Michigan.

**IV. CONCLUSION/ACTIONS**

16\. We have examined the captioned Applications and find that, except
as described above *vis-à-vis* Station WTIC(AM), they fully comply with
all pertinent statutory and regulatory requirements and that grant of
the Applications would further the public interest, convenience, and
necessity.

17\. ACCORDINGLY, IT IS ORDERED, that the applications of 1090
Investments, LLC, for modification of facilities for Stations WCAR(AM),
Livonia, Michigan (File No. BP-20050128AMO), and WOAP(AM), Waverly,
Michigan (File No. BMP-20070620ADM), ARE GRANTED.

18\. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 316(a) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316(a), and
Section 1.87 of the Commission\'s Rules, 47 C.F.R. § 1.87, that the
license for Station WTIC(AM), Hartford, Connecticut, held by CBS Radio
Stations, Inc., IS MODIFIED as described in this Order.

19\. IT IS FURTHER ORDERED, that a copy of this Memorandum Opinion and
Order shall be sent by First Class and Certified Mail, Return Receipt
Requested, to:

David A. O'Connor, Esq.

Wilkinson Barker Knauer, Esq.

Suite 700

2300 N Street, N.W.

Washington, DC 20037

Nancy L. Wolf, Esq.

Christopher J. Sova, Esq.

Leventhal, Senter & Lerman PLLC

Suite 600

2000 K Street, NW

Washington, DC 20006

1090 Investments L.L.C.

4546 Kiftsgate Bend

Bloomfield Hills, MI 48302

CBS Radio Stations Inc.

Suite 350

2175 K Street, N.W.

Washington, DC 20037

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: *Modification of the License of Station WTIC(AM), Hartford,
    Connecticut*, Order to Show Cause (Chief, Audio Division, Media
    Bureau, Apr. 22, 2008).

[^2]: CBS filed a "Statement in Response" to the *Order to Show Cause*
    on May 22, 2008, to which 1090 filed an Opposition on June 2, 2008.

[^3]: BL-19930309MB.

[^4]: The staff dismissed the WCAR Application on May 22, 2007, because
    it created prohibited overlap with WOAP(AM) and, though it
    referenced an IRA with that station, the WCAR Application did not
    include a copy of the IRA. *Letter to 1090 Investments LLC*,
    Reference 1800B3-JSK (Audio Division, Media Bureau May 22, 2007).
    1090 filed a timely Petition for Reconsideration and curative
    amendment on June 14, 2007. The staff granted the Petition for
    Reconsideration and reinstated the WCAR Application on November 15,
    2007. *See Broadcast Actions,* Public Notice, Report No. 26616 p. 8
    (Nov. 20, 2007).

[^5]: *See* BL-19970124AG.

[^6]: Class D AM stations operate either daytime, limited time or
    unlimited time with nighttime power less than 0.25 kilowatts. The
    nighttime facilities of Class D AM stations are not afforded
    protection and must protect all Class A and Class B AM stations
    during nighttime hours. *See* 47 C.F.R. § 73.21(a)(3).

[^7]: File No. BMJP-20020102AAQ.

[^8]: BL-19820929BM.

[^9]: Facility ID No. 66464.

[^10]: Facility ID Number 59820.

[^11]: *See, e.g., Review of the Technical Assignment Criteria for the
    AM Broadcast Service*, Report and Order, 6 FCC Rcd 6273 (1991),
    *recon. granted in part and denied in part*, 8 FCC Rcd 3250 (1993).

[^12]: *Policies to Encourage Interference Reduction between AM
    Broadcast Stations*, Report and Order, 5 FCC Rcd 4492 (1990)
    ("*Interference Reduction*").

[^13]: 47 C.F.R. § 73.3517.

[^14]: *Interference Reduction*, 5 FCC Rcd at 4492.

[^15]: *Interference Reduction*, 5 FCC Rcd at 4494.

[^16]: *Id.* A "white" area is one that receives no full-time aural
    service; a "gray" area receives only one full-time aural service. 47
    C.F.R. § 73.14; *Interference Reduction*, 5 FCC Rcd at 4494 n. 14.

[^17]: *Interference Reduction*, 5 FCC Rcd at 4494.

[^18]: *See* June 14, 2007, Amendment to the WCAR Application,
    Engineering Statement, at 3.

[^19]: *Id.* at 2.

[^20]: *See* June 14, 2007, Amendment to the WCAR Application,
    Engineering Statement, at 3 and Figure 3.

[^21]: *See* 47 C.F.R. § 73.182(q).

[^22]: Facility ID No. 55497.

[^23]: Facility ID No. 18517.

[^24]: 47 U.S.C. § 316(a). The procedure for modifying an authorization
    in such manner is set forth in Section 1.87 of the Commission's
    Rules, and it requires that the Commission notify the licensee of
    the affected station, in writing, of the proposed action and the
    public interest reasons for it, and afford the licensee at least 30
    days to respond. *See* 47 C.F.R. § 1.87.

[^25]: Indirect modifications include factual circumstances where it is
    alleged that a new grant may create objectionable electrical
    interference to an existing licensee and the existing licensee is
    protected by Commission policy or regulation from such interference.
    *Western Broadcasting Company v. FCC*, 674 F.2d 44, 49 (D.C. Cir.
    1982); *see also AMSC Subsidiary Corporation*, 216 F.3d 1154, 1160
    (2000) (finding that Section 316 does not apply when the increased
    likelihood of interference is too speculative).

[^26]: CBS May 22, 2008, Statement in Response to Order to Show Cause at
    4 and Engineering Statement at 4. CBS also indicates that: (1)
    relocating WOAP(AM) from Owosso to Waverly will deprive Owosso of
    its only local AM service; (2) it has been unable to locate any
    demonstration by 1090 that Waverly, Michigan is a "community"
    deserving of a local radio service and is not simply part of the
    Lansing urbanized area, citing *Faye and Richard Tuck*, Memorandum
    Opinion and Order, 3 FCC Rcd 5374 (1988). Absent such a showing, CBS
    argues, the relocation should not have been approved. *Id.* at 5-6.
    Neither of these facetious arguments warrants further consideration.
    Owosso remains the community of license for an existing broadcast
    station, WRSR(FM) (Facility ID No. 41681). AM and FM stations have
    long been considered to be "joint components of a single aural
    medium." *See, e.g., Letter to Broadcast Communications, Inc.*, 23
    FCC Rcd 11005 (MB 2008), citing *Amendment of the Commission's Rules
    Regarding Modification of FM and TV Authorizations to Specify a New
    Community of License*, Memorandum Opinion and Order, 5 FCC Rcd 7094,
    7097 (1990). Thus, the fact that WOAP(AM) is an AM station has
    absolutely no relevance to the propriety of its relocation to
    Waverly. Additionally, as observed by 1090, the unopposed
    application (File No. BMJP-20020102AJP) to remove WOAP(AM) from
    Owosso to Waverly was granted in March of 2007 and is now a final
    action and cannot be collaterally challenged in the context of the
    WOAP Application. CBS has not submitted a detailed "*Tuck* analysis"
    for WOAP(AM)'s relocation to Waverly, Michigan. It simply states
    that it undertook to investigate whether Waverly meets Commission
    requirements, but was unable to locate any business or entity using
    "Waverly, Michigan" as its business address. We find no reason to
    revisit our 2007 action based upon CBS' allegation the it could not
    find a "*Tuck* showing" by 1090 to support the relocation of
    WOAP(AM) to Waverly. *Moreover*, Waverly is a Census Designated
    Place ("CDP") with a 2000 Census population of 16,194 persons; CDP
    status is sufficient to establish community status. *See, e.g.,
    Pierce, Bloomington, Markham, San Pedro, and Bishop, Texas,* Report
    and Order, 8 FCC Rcd 3528, 3530 (MMB 1993), cited in 1090 Opposition
    to Statement in Response to Order to Show Cause at 7 n. 17.

[^27]: WOAP(AM), on the other hand, will provide a service during
    WTIC(AM)'s period of extended daytime operation to only 285,487
    persons. In order fully to protect WTIC(AM) during this operational
    period, WOAP(AM) would have to reduce nighttime power to 25 watts,
    at which power WOAP(AM) would serve only 50,979 people. CBS May 22,
    2008, Statement in Response to Order to Show Cause, Engineering
    Statement, at 4.

[^28]: CBS May 22, 2008, Statement in Response to Order to Show Cause at
    8.

[^29]: *Id.*

[^30]: *Id.* at 4.

[^31]: *Id.* at 9. CBS indicates that WTIC(AM), a "clear channel" AM
    station, first went on the air in 1925, operating since 1929 at 50
    kW with a nondirectional antenna during daytime hours and 50 kW with
    a directional antenna during nighttime hours. Since the station
    began operating on 1080 KHz in 1941, CBS states, its authorization
    has contained a special condition permitting WTIC(AM) to continue
    using daytime non-directional facilities until sunset at Dallas
    Texas, the location of co-channel clear channel station KRLD(AM).

[^32]: 1090 June 2, 2008, Opposition to Statement in Response to Order
    to Show Cause at 4.

[^33]: *Id.*at 5, citing *Wisconsin Dells, Wisconsin; Ocean City,
    Maryland; Fulton, Kentucky; Cabo Rojo, Puerto Rico; Lobelville,
    Tennessee; Jacksonville, Florida; and Steamboat Springs, Colorado,*
    First Report and Order, 35 FCC 2d 473 ¶ 4 (1972).

[^34]: CBS May 22, 2008, Statement in Response to Order to Show Cause at
    6.

[^35]: 1090 June 2, 2008, Opposition to Statement in Response to Order
    to Show Cause at 9. 1090 states that CBS did not object when it
    first proposed nighttime service for WOAP(AM) as part of its 2002
    major modification application, nor did it oppose 1090's successful
    petition for reconsideration of the dismissal of that application,
    and it did not oppose the WOAP Application here.

[^36]: *Id.* at 9.

[^37]: WTIC(AM) will, of course, continue to receive protection of its
    groundwave signal during its extended daytime operation. Thus, its
    role as a PEP station will be unaffected by our actions here.